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Tort law protects the interests of the individual and adjudicates private wrongs. It is a judicial proceeding, developed through case law in which the rules of evidence apply. Fault or negligence is an important issue in tort law and tort law is fault oriented. Tort law deals with civil wrongs for which the law provides compensation. It protects equity between individuals by providing compensation for damages, so that the status quo that existed prior to the harm can be reestablished between the parties. Tort law aims at making good the loss suffered by the plaintiff, i.e. it seeks to make the plaintiff whole. Tort law compensates the plaintiff for all damages including pain and suffering. The types of damages are Actual, Compensatory and Punitive. It does not seek punishment of the wrongdoer EXCEPT when damage is made with malice or wantonness. Punitive damages are awarded when the mental damages are due to intentional or wanton behavior. The legal standard used is a preponderance of the evidence
In order for a plaintiff to receive compensation under tort law for mental harm and disability the plaintiff must show the following 4 elements to prove the intentional infliction of emotional distress under tort law. That the defendant acted intentionally or recklessly, the conduct of the defendant was “extreme and outrageous” i.e. racial or religious epithets, the conduct caused emotional distress in the plaintiff, the emotional distress was severe, causing fright, grief, humiliation, and or disappointment.
Traditionally, compensation is denied for mental injury in tort law UNLESS the mental injury resulted from another, independently recognized tort, i.e. emotional distress from slander or a physical attack.
Emotional distress may manifest itself as fright or a traumatic reaction at the time of the injury, anxiety or depression as a result of the injury, or humiliation and embarrassment in connection with the injury. One standard jury instruction defines emotional distress as "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.”
There is no legal requirement that emotional distress be diagnosable as a mental disorder to be compensable; the testimony of lay witnesses-even the plaintiff's own uncorroborated testimony-may suffice to support an award of emotional distress damages. A plaintiff's case may become more valuable if supported by testimony from the plaintiff's psychiatrist and/or an expert witness' analysis of the plaintiff's clinically diagnosed mental disorder. This analysis can help the plaintiff establish both the existence and the severity of emotional distress, as well as the connection between that distress and the defendant's conduct.
It is well established in law that a person who has intentionally and without good reason caused another emotional distress will be liable for any psychiatric injury that follows.
TYPES OF MENTAL HARM
The basic rule for determining whether a person owes another a duty to take care to avoid personal injury or death is whether the person can reasonably be expected to have foreseen that the other would suffer harm if care was not taken.
Personal injury may be either physical or mental. Mental harm may be consequential to physical injury, where depression is suffered as a result of an injury to the body, or it may stand alone, where a person suffers anxiety as a result of witnessing traumatic events.
Under current law, if a person suffers negligently caused physical harm for which another is held liable, the person may also recover damages for mental harm consequential on the physical harm. In effect, the test of liability for consequential mental harm is the same as the test of liability for the physical harm on which it is consequential.