Written by: Danna Shan (law student) and Alfonso Chen
In certain situations, people conduct themselves outrageously to others and cause the latter to suffer mentally. For example, Wilson may intentionally play the violin loudly every night at 11:00 p.m. for over a year with the windows open because he dislikes his neighbour, Jim, and hope that Jim would suffer from anxiety due to his conduct. Jim may actually then suffer from anxiety and want to make a claim against Wilson. In such circumstances, Jim may consider claiming for damages for intentional infliction of mental suffering, which is a tort available in B.C. This article provides an overview of this tort in B.C. and general comments of the tort.
As a preliminary matter, intentional infliction of mental suffering is not easy to establish in court. Before you act on anything in this article, you must obtain legal advice from your lawyer.
To establish the tort of intentional infliction of mental suffering, the claiming party must establish that the other party engaged in outrageous/flagrant conduct, had an intent to cause some harm of the kind produced, and caused actual harm. First, outrageous conduct may be established in certain cases where a person employs false statements and inaccurate information about another that are flagrant and extreme. Some conduct that are perceived as unfair might not constitute outrageous or flagrant conduct. For example, if Wilson borrows $100,000 from his other neighbour Jeff and promises to pay back the $100,000 after a month and instead pays back the $100,000 after two months, Jeff might not be able to make a viable claim for intentional infliction of mental suffering on the basis of the late payment because the conduct itself is generally not outrageous. Next, the intent element may be established considering the evidence available, even if the person who engaged in the allegedly outrageous conduct testifies of not having intended any harm to be caused to the claiming party. Finally, the actual harm of the mental suffering should be backed by medical evidence and be a visible and provable illness. Mere testimony that one feels depressed or feels anxious alone is inadequate. Further, the mental suffering should not be mere stress or annoyance– the claimed mental suffering should be a recognizable psychiatric illness, such as depression and anxiety. Sometimes, it would be a prudent step to call an expert witness to assist you in establishing this element.
Many people may feel that others have treated them in a way that has caused them to suffer mentally and wish to litigate as a result. However, before commencing the lawsuit, one should consider the risks and benefits of litigation as well as alternatives, such as making other claims instead or attempting to negotiate a settlement. In certain cases, you may have to pay for part of the other party’s legal fees if you have no chance of winning the claim in the first place.
Many of our lawyers handle litigation files on a daily basis and can assist you in identifying your case’s strengths, weaknesses, and available options. If you would like to meet for an initial consultation, please feel free to contact our number at 604-558-2258, and we would be honored to help you.
Danna Shan holds a Master of Law degree from the University of Cambridge and is expected to become Henderson & Lee’s articled student by early 2020 and a lawyer by early 2021.
Alfonso Chen is a litigation associate of Henderson & Lee. His practice mainly involves civil litigation and criminal defence matters.