Documentation:Torts/Intentional infliction of mental suffering

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Intentional infliction of mental suffering
The tort of intentional infliction of mental suffering (IIMS), also called intentional infliction of emotional distress, recognises an individual's right at common law right to sue for damages for emotional suffering in certain circumstances.[1] The tort represents a deviation from the common law rule "that damages for mere distress are not available."[2] It is an intentional tort, as opposed to the tort of negligent infliction of mental injury.

Development of the tort

Wilkinson v. Downton summarized
This Quimbee video provides a summary of the case.[3]

Origins

The conventional rule at common law, reflected in Lord Wensleydale's judgment in the 1861 House of Lords case of Lynch v. Knight, was that "[m]ental pain and anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone".[4] In the late-nineteenth century English case of Wilkinson v. Downton,[5] the High Court of Justice considered whether a plaintiff could recover in tort for severe physical and mental harm suffered when the defendant had not physically violated her bodily integrity. The defendant had played a practical joke on the plaintiff, suggesting that the plaintiff's husband was injured and in the hospital. Upon hearing this, the plaintiff became severely distressed, exhibiting "vomiting and other more serious and permanent physical consequences...and entailing weeks of suffering and incapacity".[6] The court recognized the defendant's actions as tortious. The plaintiff was permitted to recover damages for "nervous shock" under what became known as the tort in Wilkinson v. Downton.[5]

Elements of the tort in Wilkinson v. Downton

"The defendant has...wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her."[7]

Elements of the tort in Wilkinson v. Downton
1. The defendant wilfully did an act,
2. calculated to cause the plaintiff physical harm, which
3. caused physical harm to the plaintiff.

The first two elements of this tort entail that the defendant wilfully did an act with the intention of causing physical harm to the plaintiff.[7] These elements can be contrasted with the other trespass-to-the-person torts, such as battery, where the defendant must have intended to interfere with plaintiff's bodily autonomy (say, by touching them), but need not have intended to cause any observable injury.[8] In Wilkinson v. Downton, the court asked whether "the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind," and concluded that, in the circumstances, it could be.[9]

It is important to distinguish between malice and intent. Though the court accepted that the defendant had no "malicious purpose ... nor any motive of spite", the defendant was still be found liable.[7] This is to say that just because the defendant may have been playing a prank with no "malicious purpose", this does not obfuscate the defendant of liability.

The final element of the tort in Wilkinson v. Downton is that the defendant's actions must have caused some physical harm.[7] This again contrasts with other trespass-to-the-person torts, such as trespass to land, which are actionable per se.[10] In Wilkinson v. Downton, the evidence of the plaintiff's nervous shock and ensuing challenges, including vomiting, permanent physical consequences, and weeks of suffering and incapacity, satisfied this element.[6]

Further development

Following the decision in Wilkinson v. Downton, the courts continued to develop the tort through the case law, such as in Janvier v. Sweeney, which applied the tort of Wilkinson v. Downton.[11]

In the news
Freedom of speech in Rhodes v. OPO[12]
The UK Supreme Court hands down judgment:[13]

Following this decision, Rhodes conducted interviews in which he emphasized the importance of being able to tell his story, including one with The Guardian, which can be viewed here.[14]

The tort was further developed in Wainwright v. Home Office.[15] The House of Lords provided clarification regarding the role of intention in the tort, recognizing that in Wilkinson v. Downton it seemed that the judge had "devised a concept of imputed intention that sailed as close to negligence as [Wright J] felt he could go."[16] The House of Lords in this case considered that if the courts were to "abandon the rule that damages for mere distress are not available," more than this "imputed intention" would be required.[2] It was said that the defendant must either have "intended to cause harm or at least acted without caring whether he caused harm," thus suggesting that a standard of recklessness could satisfy the elements of the tort.[2] The damage element was said to be satisfied by the plaintiff showing that they experienced a "recognized psychiatric injury".[17]

Elements of the tort per Wainwright v. Home Office[18]
1. Defendant wilfully did an act;
2. calculated to cause the plaintiff harm, or was reckless as to it; and which
3. caused the plaintiff harm, specifically a "recognized psychiatric injury".

In Rhodes v. OPO, Lord Neuberger in the UK Supreme Court identified five elements that were considered generally to be essential to establishing the tort.[19] This case, unlike the facts in Wilkinson v. Downton, dealt with allegedly distressing statements that were also true. Lord Neuberger observed that it was unlikely that "a statement which is not untrue could give rise to a claim."[20] Lord Neuberger also sought to further qualify the types of statements for which a defendant could be held liable, stating that there could possibly be a "test of 'justification or reasonable excuse'" or a requirement that the statement be "gratuitous," as well as that the statement must be pointed towards the claimant, rather than to a broad group.[21] Moreover, rather than a requirement that the defendant intentionally or recklessly caused harm, this conception of the tort required that the plaintiff intended to cause distress.[22] Finally, Lord Neuberger conceived of the tort as addressing a broader scope of damage beyond only recognized psychological harms.[23]

Elements of the tort per Rhodes v. OPO[19]
1. Defendant's conduct must be "gratuitous" or "without justification or reasonable excuse";
2. "Intention...to cause the plaintiff distress";
3. "Directed at the claimant", not as a member of the group;
4. Caused the plaintiff "significant distress", but "not ... limited to those who can establish that they suffered from a recognised psychiatric illness"; and,
5. Possibly, a false statement.

Intentional infliction of mental suffering in Canada

In the news
Following Fitzpatrick v. Orwin, Squires & Squires
The Squires' ordeal, which involved them suing their neighbour for IIMS,[24] was captured in the National Post story, "Neighbourly dispute ends with $400,000 bill after hunter dumped bloody coyote carcass on couples' truck".[25] The story notes the Squires' concerns that Fitzpatrick would never pay.[25] Their story was also discussed in the real estate column "Think carefully before suing your neighbour".[26]
Aftermath of Boucher v. Wal-Mart
CBC's "Workplace Bullying: The Silent Epidemic", below, features Meredith Boucher, a woman who sued Wal-Mart for IIMS,[27] and details her experience.[28]

The article "Workplace bullying a major concern in Canada, says woman who sued Wal-Mart"similarly outlines Boucher's experience, including that, at the time of publication, Boucher had been unable to find work, while Pinnock continued working for Wal-Mart, namely managing a store in Ancaster.[29]

Lu v. Shen turned criminal
In 2021, a feud between two women, which included mutual lawsuits for IIMS amongst other claims,[30] took a turn for the worse when one allegedly stabbed the other.[31] This took place inside Vancouver's BC Supreme Court building where Lu had sought to argue that Shen was in contempt of court.[31] The story was detailed in the article "Bitter feud spills over into bloodshed with B.C. woman accused of stabbing rival in courthouse"[31]. As a result, Shen was eventually charged with attempted murder, amongst other charges.[32] Developments regarding Shen's trial were documented in the Global News article "Trial of woman accused of attempted murder inside B.C. courtroom hears of chaotic, bloody scene"[33]

The Prinzo Test

In Canada, the doctrine commonly applied in claims of IIMS is known as the Prinzo test.[34] The test was initially developed by Justice McLachlin in a BC Supreme Court decision—Rahemtulla v. Vanfed Credit Union.[35] It was adopted nearly twenty years later in an Ontario Court of Appeal decision, Prinzo v. Baycrest Centre for Geriatric Care.[36]

The Prinzo Test[36][37]
1. The defendant's conduct was flagrant and outrageous;
2. it was calculated to produce harm; and,
3. it resulted in a visible and provable injury to the plaintiff.
Flagrant and outrageous conduct

The first element of the Prinzo test is that the defendant's conduct was flagrant and outrageous.[34] This is to say, there is a line drawn between "mere insult" and conduct that is actionable in tort.[38] In the case that this test was developed, the court noted that the conduct in Wilkinson—as illustrated in the accompanying video above—was flagrant and extreme.[38] Other examples of flagrant and outrageous conduct that have been recognized by the courts include leaving a dead coyote on a neighbour's truck,[34] and persistently targeting and attacking the plaintiff online.[39]

Calculated to produce harm

The second element of the Prinzo test, again derived from the tort in Wilkinson v. Downton, entails that the plaintiff actually intended to cause harm.[34] In Prinzo, the court expressed that this element is met when "the actor desires to produce the consequences that flow from the act, or if the consequences are known to be substantially certain to follow."[40] Intent to cause harm can be inferred from the defendant's conduct. It is not an objective test—it was held Boucher v. Wal-Mart that this element cannot be fulfilled on the basis that the plaintiff "'ought to have known' the consequences were substantially certain to occur".[41]

Visible and provable injury

Finally, the plaintiff must show that they actually suffered some visible and provable injury because of the actions of the defendant.[34] Some examples of when the court found there to be visible and provable injury include evidence given by a physician that the plaintiff suffered from "severe depression, suicidal ideation, insomnia, agitation, irritability and anxiety."[42] But expert medical evidence is not essential provided there is evidence to satisfy the court that the plaintiff suffered sufficiently serious injury as a result of the defendant's conduct.[43]

Failure by the plaintiff to lead any evidence of a visible and provable injury will doom their claim.[44] For example, in Lu v. Shen, the court stated that:

[N]either Ms. Lu nor Ms. Shen has satisfied her evidentiary burden on this element. Although medical evidence is not essential, I have no independent or objective evidence from anyone. The evidence from each of Ms. Lu and Ms. Shen is, for the most part, conclusory and self-interested. I accept that Ms. Lu’s and Ms. Shen’s interactions with one another, spanning more than a decade, have been unpleasant and very upsetting to both of them. However, to make out a claim for intentional infliction of emotional suffering, a plaintiff must demonstrate “visible and provable illness”. Neither Ms. Lu nor Mr. Shen have done that, in my opinion.[45]

Discussion questions

  • What are the concerns regarding recognizing a tort that is focused on words, rather than physical contact?
  • Why was it considered appropriate to develop the tort in Wilkinson v. Downton?[5] Contrast with other situations when the courts have not found it appropriate to develop a new tort (e.g. harassment).
  • How do the conceptions of the tort in Wilkinson v. Downton, the conception of the tort per Rhodes v. OPO, and the modern tort per the Prinzo Test compare and differ?

Quiz


  1. ↑ Bernstein Law Group. "Intentional Infliction of Emotional Distress". Bernstein Law Group.
  2. ↑ 2.0 2.1 2.2 Wainwright v. Home Office, [2003] UKHL 53 (§3.1.2) at para 45.
  3. ↑ Quimbee (19 April 2021). "Wilkinson v. Downton Case Brief Summary | Law Case Explained". YouTube.
  4. ↑ Lynch v. Knight (1861), 11 ER 854 at 598, cited in Wilkinson v. Downton, [1897] EWHC 1 (QB) (BAILII) (§3.1.1) at para 5.
  5. ↑ 5.0 5.1 5.2 Wilkinson v. Downton, [1897] EWHC 1 (QB) (BAILII) (§3.1.1).
  6. ↑ 6.0 6.1 Wilkinson v. Downton, [1897] EWHC 1 (QB) (BAILII) (§3.1.1) at para 1.
  7. ↑ 7.0 7.1 7.2 7.3 Wilkinson v. Downton, [1897] EWHC 1 (QB) (BAILII) (§3.1.1) at para 3.
  8. ↑ Bettel v. Yim, 1978 CanLII 1580 (ONCC) at para 37.
  9. ↑ Wilkinson v. Downton, [1897] EWHC 1 (QB) (BAILII) (§3.1.1) at para 4.
  10. ↑ Entick v. Carrington, [1765] EWHC KB J98 (BAILII) (§7.1.1).
  11. ↑ Janvier v. Sweeney, [1919] 2 KB 316.
  12. ↑ Rhodes v. OPO, [2015] UKSC 32 (§3.2.1).
  13. ↑ UKSupremeCourt (20 May 2015). "James Rhodes v OPO (by his litigation friend BHM) and another". YouTube.
  14. ↑ Adam Sich, Phil Maynard & Robert Booth (20 May 2015). "James Rhodes: 'We can't be told to shut up' - video". The Guardian.
  15. ↑ Wainwright v. Home Office, [2003] UKHL 53 (§3.1.2).
  16. ↑ Wainwright v. Home Office, [2003] UKHL 53 (§3.1.2) at para 44.
  17. ↑ Wainwright v. Home Office, [2003] UKHL 53 (§3.1.2) at para 47.
  18. ↑ Wainwright v. Home Office, [2003] UKHL 53 (§3.1.2) at paras 44–45, 47.
  19. ↑ 19.0 19.1 Rhodes v. OPO, [2015] UKSC 32 (§3.2.1) at paras 107, 110–111, 115–116.
  20. ↑ Rhodes v. OPO, [2015] UKSC 32 (§3.2.1) at para 107.
  21. ↑ Rhodes v. OPO, [2015] UKSC 32 (§3.2.1) at paras 110, 115.
  22. ↑ Rhodes v. OPO, [2015] UKSC 32 (§3.2.1) at paras 112–114.
  23. ↑ Rhodes v. OPO, [2015] UKSC 32 (§3.2.1) at para 116.
  24. ↑ Fitzpatrick v. Orwin, 2012 ONSC 3492 (§3.2.2).
  25. ↑ 25.0 25.1 Brean, Joseph (17 February 2014). "Neighbourly dispute ends with $400,000 bill after hunter dumped bloody coyote carcass on couples' truck". National Post.
  26. ↑ Weisleder, Mark (21 February 2014). "Think carefully before suing your neighbour". The Toronto Star.
  27. ↑ Boucher v. Wal-Mart, 2014 ONCA 419 (§3.2.3).
  28. ↑ CBC News: The National (12 June 2014). "Workplace Bullying: The Silent Epidemic". YouTube.
  29. ↑ "Workplace bullying a major concern in Canada, says woman who sued Wal-Mart". CBC. 12 June 2014.
  30. ↑ Lu v. Shen, 2020 BCSC 490 (§3.2.4).
  31. ↑ 31.0 31.1 31.2 Proctor, Jason (26 May 2021). "Bitter feud spills over into bloodshed with B.C. woman accused of stabbing rival in courthouse". CBC.
  32. ↑ Proctor, Jason (1 June 2021). "Stabbing in B.C. courtroom feud results in attempted murder charge". CBC.
  33. ↑ Boynton, Sean & Rumina, Daya (6 April 2022). "Trial of woman accused of attempted murder inside B.C. courtroom hears of chaotic, bloody scene". Global News.CS1 maint: multiple names: authors list (link)
  34. ↑ 34.0 34.1 34.2 34.3 34.4 Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§3.2.3) at paras 117–18.
  35. ↑ Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (BCSC).
  36. ↑ 36.0 36.1 Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ONCA).
  37. ↑ Fitzpatrick v. Orwin, 2012 ONSC 3492 (§3.2.2) at paras 117–18.
  38. ↑ 38.0 38.1 Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (BCSC) at para 49.
  39. ↑ Lu v. Shen, 2020 BCSC 490 (§3.2.5) at paras 260–67.
  40. ↑ Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ONCA) at para 45.
  41. ↑ Boucher v. Wal-Mart, 2014 ONCA 419 (§3.2.4) at para 43.
  42. ↑ Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§3.2.3) at para 130.
  43. ↑ Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (BCSC) at para 49.
  44. ↑ Lu v. Shen, 2020 BCSC 490 (§3.2.5) at paras 272–73.
  45. ↑ Lu v. Shen, 2020 BCSC 490 (§3.2.5) at para 272 [citations omitted].
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