Torts 101 - Infliction of Emotional Distress -

An option to think about?

I dont know if this law has been tried in Australia yet but I am sure it will be .The fact is that some of us (injured pre October 20th 1999)have lost our common law rights to sue and now have to have a 30% injury to be classed as severe enough to be entiltled to the ICRP.

Many of us need another avenue to take and I am thinking this could be an option, if a lawyer out there is willing to take a chance!

I am sure that who ever it was would be extremely busy as there is thousands of us that have been left out in the cold by the VWA and are being ignored!

We need a legal advocate to have this system changed and be made accountable for
their actions and the actions of many employers.

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California has long recognized the right to recover damages for the intentional and unreasonable infliction of mental or emotional distress which results in foreseeable physical injury to plaintiff. California courts have also acknowledged the right to recover damages for emotional distress alone, without consequent physical injuries, in cases involving extreme and outrageous intentional invasions of one's mental and emotional tranquility.

(State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 336-337)

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS- ie; (Workplacebullying,discrimination)

The elements of a prima facie case for the tort of intentional infliction of emotional distress are:
(1) outrageous conduct by the defendant;
(2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff's suffering severe or extreme emotional distress; and
(4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Alcorn v. Anbro Engineering, Inc (1970) 2 Cal.3d 493, 497-498

EMOTIONAL DISTRESS-DEFINED (the family suffers this as well as the claimant)

The term "emotional distress" means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.

SEVERE-DEFINED

The word "severe," in the phrase "severe emotional distress," means substantial or enduring as distinguished from trivial or transitory. Severe emotional distress is emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it. In determining the severity of emotional distress consideration is given to its intensity and duration.

The Restatement view is that liability "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities," but only to conduct so extreme and outrageous "as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Rest. 2d Torts, § 46, com. d; see Prosser, Law of Torts, supra, at pp. 46-47.) "The emotional distress must in fact exist, and it must be severe." (Prosser, Law of Torts, supra, p. 51; Rest.2d Torts, supra, § 46, Com. j.)

EXTREME AND OUTRAGEOUS CONDUCT-DEFINED

Extreme and outrageous conduct is conduct which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community.
Extreme and outrageous conduct is not mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. All persons must necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.
Extreme and outrageous conduct, however, is conduct which would cause an average member of the community to immediately react in outrage.

EFFECT OF RELATIONSHIP OF PARTIES

The extreme and outrageous character of the conduct of a defendant may arise from an abuse of a position, or relationship to a plaintiff, which gives such a defendant actual or apparent authority over a plaintiff, or power to affect a plaintiff's interests.

SUSCEPTIBILITY OF PLAINTIFF

The extreme and outrageous character of a defendant's conduct may arise from defendant's knowledge that a plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. Conduct may become extreme and outrageous when a defendant proceeds in the face of such knowledge, where it would not be so if defendant did not know.

INTENTIONAL AND RECKLESS -- DEFINED

A defendant intended to inflict emotional distress if it is established that he or she desired to cause such distress or knew that such distress was substantially certain to result from his or her conduct.

A defendant's conduct is in reckless disregard of the probability of causing emotional distress if he or she has knowledge of a high degree of probability that emotional distress will result and acts with deliberate disregard of that probability or with a conscious disregard of the probable results.

PRIVILEGE

Conduct, which under other conditions would be extreme and outrageous, may be privileged and a defendant is not liable:
When a defendant has done no more than to insist upon his or her legal rights in a permissible way, even though he or she is well aware that such insistence is certain to cause emotional distress. If you find that defendant in good faith believed that he or she was acting under a legal right, he or she shall be considered as having been acting under such right even though, in fact, he or she had no such right.
When a defendant makes statements in the course of an official proceeding.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

The elements of a claim of negligent infliction of emotional distress are:
1. The defendant engaged in negligent conduct or a willful violation of a statutory standard;
2. The plaintiff suffered serious emotional distress;
3. The defendant's negligent conduct or willful violation of statutory standards was a cause of the serious emotional distress.
Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances.

CAUSES OF NERVOUS SHOCK

A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril.

BYSTANDER RECOVERY OF EMOTIONAL DISTRESS

Bystanders may recover for emotional distress damage only under very limited circumstances. The emotional disturbance suffered must be "serious and verifiable," and must be tied as a matter of proximate causation to the observation of the serious injury or death of an immediate family member. Finally, the plaintiff himself must have been in the "zone of danger" i.e, must have been exposed to a risk of bodily harm by the conduct of the defendant.
The essential elements of a claim of wrongful infliction of emotional distress upon a bystander are:
1. The defendant was negligent; or the defendant manufactured or supplied a defective product;
2. Defendant's negligence or defective product was a cause of injury or death to the victim;
3. Plaintiff was the spouse, parent, or child, of the victim;
4. Plaintiff was present at the scene of the injury-producing event or accident at the time it occurred;
5. Plaintiff was then aware that such event or accident caused the injury to the victim;
6. As a result, plaintiff suffered serious emotional distress.
Serious emotional distress is an emotional reaction beyond that which would be anticipated in a witness not related to the injured person and which is not an abnormal response to the circumstances. It is found when a reasonable person would be unable to cope with the mental distress caused by the circumstances of the accident and injury to the near relative.

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