Dear Alistair,

 

French law would certainly allow a claim if the ordinary “ingredients” of liability under Art. 1382 (1240 since Oct 1^st – ‘tis all going to the dogs…) were present. This would require, in particular, the hospital’s conduct to have been “faulty” (≈ negligent), which would likely be satisfied here. See e.g. Tribunal d’Instance of Chartres, 24 July 1980, JCP 1983.II.20108 for liability for the negligent causation of distress through disclosure of false news.

 

Many authors would regard this as a worrying example of the tendency of civil liability to make, as a French scholar once put it, “everyone responsible for everything”; but it is in fact entirely consonant with principle. Once you accept that emotional harm counts as loss/“dommage” (which French law incontrovertibly has for at least a century and a half, likely longer than that), there is no reason whatsoever why cases like yours should go unremedied if the defendant’s conduct was defective and the claimant’s harm, to use the received terminology, “personal, direct, certain and legitimate”.

 

In English law, as you will know, the principle is that emotional harm is only compensable if it flows from the violation of a pre-existing protected interest – i.e. (like economic loss) it has to be consequential rather than, as you say, “pure”. Another way of putting it is that it must be derivative on a prior injury which, by construction, cannot be the violation of an (as such non-existent) right to emotional integrity. As in the case of p.e.l. there do exist cases which can’t be squared with this principle but they are, well, against principle. And, of course, it is always possible to manipulate this logic by divining an underlying right in a situation where you do want to grant redress.

 

As you point out, American law is different. My (limited) understanding is that other Commonwealth jurisdictions side with English law on this one, but others can chip in on that.

 

Note that, on this logic, neither the defendant’s degree of fault nor the magnitude of the claimant’s distress are relevant. The question is simply whether it flows from the infringement of a pre-existing protected interest.

 

Whether this is fair is a completely different question. I’m not convinced at all that it is to allow recovery for the mild upset caused by a negligently bruised thumb but not in the circumstances that you mention. However the position of English law is perfectly coherent, and no more evidently unfair than that of e.g. French law (and vice versa). Once a system has committed itself to a defensible logic, my view has always been that it ought to stick to it.

 

Eric

 

 

====

 

Eric Descheemaeker (Dr)

Reader in European Private Law

 

Director, Edinburgh Centre for Private Law

Programme Director, LLM in Comparative and

   European Private Law (www.ed.ac.uk/pg/684) 

 

School of Law

University of Edinburgh

Old College, South Bridge

Edinburgh EH8 9YL (UK)

 

Tel: +44 (0)131 650 2054

Fax: +44 (0)131 650 2005

Email: eric.descheemaeker@ed.ac.uk  

http://www.law.ed.ac.uk/people/ericdescheemaeker 

 

 

 

 

From: Alistair Price <price.alistair@gmail.com>
Date: Monday, 24 October 2016 at 15:51
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Grossly careless infliction of 'mere distress'

 

Dear colleagues

Some of you may be interested to consider the potential tortious or delictual consequences of a recent incident in Johannesburg:  a hospital allegedly led a family to believe for five days that their daughter had died after being admitted for treatment of a stroke, when in fact she was alive: ‘A nurse told them that them that [her] body had already been wrapped for removal after being declared dead but then it was discovered she was still living.’  (

http://www.news24.com/SouthAfrica/News/meyerton-family-livid-at-hospital-after-finding-dead-daughter-alive-20160929). The family are threatening to sue. 

The South African law of delict as it stands would deny a claim by the traumatised family for negligently inflicted ‘pure emotional distress’ short of psychiatric injury:  our so-called action for pain and suffering lies only in cases of physical or psychiatric injury.  English law and, I understand, most common law jurisdictions would also deny a claim for lack of duty (absent a contract aiming to avoid mental distress).  Recognising non-contractual duties to refrain from careless representations occasioning mere distress poses obvious difficulties (eg limiting free speech; of fraudulent claims; quantifying damages; overburdening limited judicial resources).  Yet the gravity of the incident above, if true, may illustrate a harsh edge to the rule.  

I would be grateful to learn whether any common law or civilian jurisdictions recognise a duty and/or impose liability in analogous circumstances, departing from the view that they involve ‘one of the many moral obligations inherent in society that cannot be enforced by the courts’.  I am aware of Mason v Westside Cemetries 1996 135 DLR (4th) 361 where the Ontario SC awarded $1000 for emotional distress consequent on a cemetery’s negligent loss of urns containing the ashes of the plaintiff’s parents - a case not involving negligent words.  Mullany and Handford state that by the end of the 20th century at least 24 US jurisdictions recognised a cause of action for negligent infliction of emotional distress, early examples having involved negligent mishandling of corpses and negligent transmission of telegraphs.  Is there a rational principle that could distinguish deserving and undeserving cases?  Or are all truly undeserving?

Coincidentally there have been comparable reports this year in Canada (

www.cbc.ca/news/canada/manitoba/seven-oaks-death-notification-1.3791784) and Australia (www.stuff.co.nz/world/australia/79051080/Extra-distress-for-family-after-Victoria-Police-mistakenly-announces-footballers-death) although the confusion was apparently cleared up more quickly in these instances.

Best wishes
Alistair

Alistair Price
Associate Professor
Faculty of Law, University of Cape Town
Private Bag X3, Rondebosch, Cape Town, 7700, SA
Tel: +27 21 650 5612
alistair.price@uct.ac.za 
www.privatelaw.uct.ac.za/pvl/staff/alistairprice
https://uct.academia.edu/AlistairPrice

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