The Influence of Reasonableness in Determining Delictual or Tort Liability for Emotional Distress or Mental Harm in American and French Law

American and French law, like South African law, recognises claims for emotional or mental harm. Emotional, mental or psychological harm was recognised by the courts only in the nineteenth century and even though the mind and body in a sense are considered as a unit, these types of claims are not on a par with claims for physical bodily injury. Finding delictual or tort liability for emotional, mental or psychological harm has been problematic not only in South Africa but also in the United States of America and France. Even though there are fundamental differences in the law between these jurisdictions, the broader questions the courts face is whether a claimant is entitled to claim, the amount of damages that should be awarded and how to limit liability with this type of claim. Limiting liability for emotional or mental harm is generally the main concern but the courts have found ways of using the elements of a delict or tort, or concepts such as reasonable foreseeability of harm to limit the claims. American, French and South African law recognise claims for emotional, mental or psychological harm sustained by primary and secondary victims. Thus emotional, mental or psychological harm caused directly or indirectly is compensable. In American and French law the concept of reasonableness plays an important role, whether it be implicit or explicit, in determining delictual or tort liability for the emotional or mental harm sustained. In a sense, reasonableness also plays an overarching role in determining liability. The influence of reasonableness in determining delictual or tort liability for psychiatric or psychological harm in English and South African law will be discussed in a forthcoming contribution. In this contribution the focus is on the influence of reasonableness in determining delictual or tort liability for emotional or mental harm in American and French law.


Introduction
Emotional or mental harm was recognised by the courts only in the nineteenth century 1 and claims for this type of harm are generally not on a par with claims for physical bodily injury. 2 Delictual or tort liability for emotional, mental or psychological harm has been fraught with difficulty not only in South Africa but also in the United States of America and France. 3 It should be noted that South African and French law follow a generalising approach in determining a delict (in that generally a delict is present once all the requirements for a delict are present) instead of the approach followed in American law, where there are a number of specific torts such as the tort of negligence and numerous other torts which include the intentional torts, each with its own requirements. Furthermore, the French law of delict is regulated by the French Civil Code and does not follow the precedent system like South Africa and the United States of America. 4 Even though there are fundamental differences in the law between these jurisdictions, the broad common questions they face is whether a claimant is entitled to claim, the amount of damages that should be awarded and how to limit liability with this type of claim. 5 The concept of reasonableness plays an important role here, not only with particular elements of tort or delictual liability, whether implicit or explicit, but it has in a sense an overarching role in determining the liability. In a forthcoming contribution the influence of reasonableness in determining delictual or tort liability for psychological or psychiatric harm in South African and English law will be discussed. 6 Due to a lack of authority on how to deal with claims for psychological or psychiatric harm, South African law followed English law, where the emphasis was placed on the reasonable foreseeability of harm and a  Raheel Ahmed. LLB LLM LLD (UNISA distinction was made between the primary and secondary victims of psychological or psychiatric harm. 7 Following on in this contribution, the influence of reasonableness in determining delictual or tort liability for emotional distress or mental harm in American and French law will be explored. 8 In American law, the broad term "emotional distress" covers intangible harms such as emotional harm, distress, anxiety, diminished enjoyment, loss of autonomy, pain and other similar intangible harms. 9 Emotional harm and similar terms are not defined in any French statutes or case law. 10 Emotional harm and similar intangible harms would generally fall under the broad category of "moral damage" (dommage moral) and the French courts, in principle, would allow compensation for this type of damage. 11 In this contribution "emotional distress or harm", "mental harm" and "psychological harm" will be used interchangeably as they refer to the same type of harm but are really just the different phrases used in the different jurisdictions. 12 The influence of reasonableness in determining tort liability for emotional distress or harm in American law will be discussed in this contribution to begin with. This will be followed by a discussion of the influence of reasonableness on claims for mental harm in French law. The influence of reasonableness is prevalent, whether implicit or explicit, on the elements of tort or delictual liability. Furthermore, it is used as an overarching judicial tool in determining delictual or tort liability. The conclusion to this contribution will then briefly highlight the differences and similarities found between these jurisdictions and South African law in respect of the role of reasonableness in determining delictual or tort liability where psychological, emotional distress or mental harm has been sustained. 7 Due to the limits set on the length of the contribution, the general elements of delictual or tort liability will not be discussed in detail in this contribution but will be referred to in a peripheral manner in explaining tort or delictual liability for emotional or mental harm sustained. 8 These jurisdictions were chosen because they represent two major legal systems of the world, the common and civil law tradition. Even though American law is based on English common law, it developed a unique style. For example, in American law interests and rights are protected by a constitution, and American juries, which represent a section of society, are used in adjudicating cases. The unique style of American law will not be elaborated on in this contribution due to length constraints.

American law: emotional distress
Recovering damages for emotional distress in American law is not problematic when it is claimed with other damages under a tort such as assault, battery or physical injury from negligent conduct. So-called parasitic damages are awarded in these instances. 13 Stand-alone emotional distress as a separate tort itself, whether the emotional harm was caused negligently or intentionally, is subject to specific limitations, however. 14 The reasons for being cautious in awarding damages for a stand-alone emotional distress 15 action include: the anticipated flood of litigation; the difficulty of proving and quantifying damages for such harm, which impacts negatively on consistency in awards and the dispensing of justice; the subjectivity of how much emotional distress a person sustains; 16 and the fact that an award for emotional harm may not result in a person no longer suffering such harm. 17 It is possible, however, to claim damages for emotional distress under one tort such as battery as well as stand-alone emotional distress as a separate tort. 18

Intentionally inflicted emotional distress
The requirements include: proof of severe emotional harm suffered (not trivial harm); 23 "extreme" or "outrageous" conduct on the part of the defendant, which has passed the limit of reasonable bounds of decency and is "intolerable" in a civilised community; 24 intention to cause such harm, 25 where proof that the harm is certain to occur is sufficient, 26 or "recklessness", or a "wilful attitude". 27 In reference to extreme or outrageous conduct, courts seem to refer to conduct which is clearly beyond human decency and social norms. 28 The notion of "outrageousness" requires the adjudicator to evaluate the complaints, evidence and conduct, and estimate whether the community would consider such conduct as outrageous. 29  infirmity or pre-existing condition which results in the plaintiff's sustaining more harm than a normal person without a pre-existing condition, then the thin-skull rule applies, whereby the plaintiff is in principle entitled to full compensation for the emotional distress suffered. 43 Secondary victims of intentionally inflicted emotional distress may have an action for the intentionally inflicted emotional distress sustained. 44 However, the Restatement (Third) of Torts 45 limits recovery for emotional distress generally to close family members (who contemporaneously perceive the defendant's harmful conduct) 46 and where the defendant acts with a purpose, or substantial certainty, or is reckless in harming the secondary victim. For example, where a child witnesses the battery of the mother, the mother (as the primary victim) and the child (as the secondary victim) may have an action for emotional distress. The defendant who inflicts harm on the mother knowing the child is present is consequently aware that both will suffer emotional distress. 47 A large group of persons such as secondary victims who witness a disturbing event will generally not be entitled to claim for emotional distress (transferred intent) as liability may be unlimited. 48 Claims by secondary victims have been limited by requiring that the emotional distress must have been reasonably foreseen or anticipated. The secondary victim is the third person, one who witnesses or hears of a disturbing event. In such cases, the defendant acts tortiously to X but actually harms Y (the third person or secondary victim). The harm to Y (emotional distress) is caused indirectly. X and Y may both have an action against the defendant for the intentional infliction of emotional distress. For example, in an instance where the defendant has a purpose to cause emotional distress to X by falsely reporting the death of a family member, the defendant will not avoid liability just because he inadvertently made the false report to X's brother (a third person) instead of X. Physical contact or injury 50 in an action for emotional distress is no longer a requirement. 51 Evidence of any serious medically recognisable harm, manifesting the emotional shock or fright sustained from a sudden event or threat of harm, is generally required. 52 The emotional distress must in general result in an illness or injury to the mind, injury to personality, or injury to the nervous system. 53

Negligently inflicted emotional distress
The general requirements for the negligent infliction of emotional distress are: the defendant owes the plaintiff a duty; the defendant must reasonably foresee that his or her actions would cause emotional distress; the defendant breached that duty (was negligent); and the plaintiff suffered severe emotional distress as a result of the defendant's negligence. 54 In terms of negligently inflicted emotional distress or harm, claims have succeeded in various instances; for example, negligently informing a person that someone has died when in fact they had not and where it is likely to result in serious mental harm; 55 or negligently mishandling of corpses resulting in mental harm. 56 Emotional distress may result from: sudden shock or fright; 57 physical harm or the threat thereof; 58 fear of future harm from toxic exposure; receiving incorrect information, for example that a person has a severe condition; 59 or that a person who is in fact alive has was likely to result from the conduct; see for example died; 60 and where the "defendant is under a duty of care for the plaintiff's well-being". 61 In instances where a plaintiff is exposed to something harmful such as asbestos or excessive x-rays and then develops emotional distress from the fear of future harm such as cancer, the plaintiff may be entitled to damages for the emotional distress sustained. 62 The emotional distress sustained usually forms part of other damages claimed stemming from the injury, referred to as "parasitic damages", but the courts have awarded compensation for stand-alone emotional harm where there is a fear of future harm. In terms of a negligence-based claim, it must be established whether the defendant breached a duty of care owed to the plaintiff in causing emotional distress which is not too remote. An example in which a plaintiff may recover for stand-alone emotional distress is where a medical practitioner negligently fails to detect a condition due to a negligent reading of test results, but later finds out that the plaintiff requires treatment. The delay results in the likelihood of future cancer and the plaintiff subsequently suffers emotional distress. 63 There must, however, be a reasonable fear of future harm in that an ordinary person in society would have a similar fear. The plaintiff may prove the reasonable fear by providing evidence, for example, that he was exposed to a virus (such as AIDS) or injected with a possibly contaminated needle. 64 Negligently inflicted emotional distress may be sustained directly by the plaintiff (the "primary victim") or indirectly by a third person (the "secondary victim"). Cases involving emotional harm arising from the risk of harm to her husband. This caused distrust between the couple leading to the breakdown of the marriage. The court allowed the husband's claim for emotional distress, stating that it was reasonably foreseeable and predictable that a wrong diagnosis would result in marital discord and emotional distress (820 others are often referred to as bystander cases, where the third person is a plaintiff in his own right and the emotional harm usually results from witnessing or hearing of a disturbing event. 65 Limitations do apply to claims for primary and secondary emotional distress sustained, however. In the case of primary victims, they must have been in a position of "immediate danger of bodily harm", 66 or the harm must occur "within the confines of particular undertakings or special relationships". 67 The plaintiff must have suffered severe emotional stress, which may be proven by providing medical evidence or evidence relating to the physical manifestation of the emotional stress. 68 Generally, only serious emotional harm that a "normally constituted person would suffer" or that a reasonable person would foresee is compensable. 69 Where the defendant negligently causes emotional distress or harm which was foreseeable, the defendant will be held liable. 70 Dobbs, Hayden and Bublick, 71 however, state that it is "fair to say that these rules are not about foreseeability but about pragmatic limits on liability, which are endemic to this area". In respect of secondary victims, usually only close family members are entitled to claim where they also "contemporaneously perceived the harmcausing event". 72  including one's pet, the courts will not award compensation. 73 Claims for negligently inflicted secondary emotional harm are more likely to succeed where the victim was a bystander who witnesses injury or threat of harm to a close relative; 74 was in the zone of danger where the victim fears for his own safety; 75 or where the emotional harm was foreseeable. 76 Emotional harm will generally be deemed foreseeable if the victim was closely related to the primary victim, 77 physically close to the scene where the primary victim was injured, or aware of the injury or threat of harm to the primary victim. 78 In respect of the reasonable foreseeability of harm, the secondary victim need not witness the initial injury of the primary victim but should see the primary victim soon after the incident, before his or her condition changes significantly. 79 A close relationship between the primary and secondary victim is required and it may be interpreted by courts restrictively to exclude non-family members such as a fiancé, 80  child). 82 On the other hand, a close enough relationship may be interpreted widely, not limiting the relationship to blood or marriage, to include a partner, 83 fiancé 84 and even distant relatives, depending on how close the relationship is. 85 In determining whether there is a close relationship between the primary and secondary victim, the following factors may be considered: (1) the duration of the relationship; (2) the degree of mutual dependence; (3) the extent of common contributions to a life together; (4) the extent and quality of shared experience; (5) whether the plaintiff and the injured person were members of the same household; (6) their emotional reliance upon each other; (7) the particulars of their day-to-day relationship; and (8) the manner in which they related to each other in attending to life's mundane requirements, the nature, duration, and quality of experiences shared in the relationship are considered. 86

Summary
The influence of reasonableness on claims for emotional harm or distress in American law is predominantly explicit. Emotional harm or distress may be caused negligently or intentionally. With both intentionally and negligently inflicted emotional harm, there must be proof of the serious emotional distress suffered 87 as it would be unreasonable to hold the defendant liable for trivial harm suffered, such as threats deemed mere annoyances. In respect of intentionally inflicted emotional distress, in gauging whether the emotional distress endured by the plaintiff is severe, the standard of the reasonable person is applied in that a reasonable person should not be expected to tolerate such emotional harm or stress, 88 or alternatively proof of severe emotional harm or distress endured by the plaintiff may be provided. 89 The defendant's conduct must be "extreme" or "outrageous" in respect of intentionally inflicted emotional harm, and here the community's views are important in gauging whether the defendant's conduct is reasonable. Conduct is unreasonable if it is beyond human decency and is not acceptable by the community. 90  victims, the harm must be reasonably foreseeable in that the plaintiff must have been in a position of immediate danger of harm, 91 or within the scope of an undertaking or special relationship. 92 Claims for secondary emotional harm or distress are also limited to what is reasonably foreseeable. The harm will be considered reasonably foreseeable if the secondary victim was a bystander witnessing the injury or threat of harm to a close relative, 93 or within the zone of danger, fearing for his or her own safety, or where the harm is anticipated. 94 Where a person fears future harm and sustained emotional harm or distress as a result of such fear, there must be a reasonable fear of future harm. The reasonable person must have a similar fear under similar circumstances. 95 In terms of closeness, with regard to the relationship between the primary and secondary victim, the courts are at liberty to decide on and make use of a number of factors. 96 It is apparent that the standard of the reasonable person is applied in determining both intentional and negligent inflicted emotional harm, and the reasonable foreseeability of harm is used to limit claims and liability.

French law: mental harm
In French law, in principle, a person may be held liable "when inflicting harm or injury, either deliberately or negligently". 97 All kinds of mental harm are in principle compensable and the mental harm need not result in some form of recognised medical psychological or psychiatric harm. 98 As a starting point, the mental harm must result in some damage in terms of articles 1240 and 1241 of the French Civil Code (hereinafter referred to as the "CC"). 99 Any "negative impact on someone's feelings can amount to mental harm". 100 Even grief is in principle compensable. 101  which immediately, directly and certainly causes the mental harm. 103 The French concept of faute includes the elements of wrongfulness and fault from a South African perspective. 104 Knetsch 105 explains that even though there is an agreement that "faute reflects the breach of a duty of conduct … there is still much opacity on its exact outlines [and f]ault consists in not acting as one should (that is to say, a misconduct)". Steiner 106 explains that "a person at fault in French law is in fact someone who has breached a kind of 'general duty of good conduct', whether this conduct was dictated by legal norms or social standards." In determining negligence in particular under the French concept of faute, the conduct of the defendant is judged against the standard of the reasonable person and compared with how the reasonable person would have acted in the circumstances. 107 The harm is caused by either a positive act 108 or an omission. 109 There are no other specific requirements such as "reasonable foreseeability of harm". 110 The courts assess the subjective mental harm of the plaintiff in each case. 111 The "thin-skull rule" is applicable in French law, which means that a victim's compensation cannot be reduced as a result of his or her pre-existing condition. 112 The effect of the French principle of full compensation for loss also means that in instances where the plaintiff is unconscious, he or she is entitled to claim pain and suffering and the loss of amenities. 113 As mentioned above, 114 the French law of delict does not follow the precedent system like the American and South African law. French law usually follows a pro-victim stance, and the aim is to compensate the claimant as fully as possible. 115 A look at some examples from case law will assist in illustrating how the French courts determine liability for mental harm. In a particular case a certain model of pacemaker was found to be defective. The manufacturer of the pacemakers stopped selling them and recommended that anyone with that particular pacemaker should undergo regular check-ups. A patient who was aware of the possibility of the pacemaker's being defective had it surgically removed while undergoing an operation she had to undergo for a different cause. The pacemaker was in fact not defective, but the patient sued the manufacturer for compensation resulting from stress and shock after learning of the possibility that the pacemaker was defective. The Cour de Cassation 116 (the highest court in France to rule over civil matters) held that generally damages for nonpatrimonial loss could be awarded for stress and anxiety in such instances but found that in this case the patient had to undergo surgery in any event and that the pacemaker was not defective, therefore damage had not occurred and was in fact hypothetical. It is submitted that harm in this case, stress and shock, was reasonably foreseeable (as some pacemakers were found to be defective) and preventable by removing it. The costs involved in removing the pacemaker might be considered minimal when compared to the gravity of the harm that might have ensued if at any time the pacemaker had malfunctioned. Van Dam 117 submits that the patient has to live with the constant fear that this may occur thus affecting her mental state. It would thus be reasonable to compensate the patient for the mental harm.
The Cour de Cassation 118 awarded compensation to employees who had suffered anxiety and fear of developing an asbestos-related disease in the future. The employees had been exposed to asbestos for a prolonged period and had not yet developed any diseases relating to the exposure. It is trite that after inhaling asbestos, symptoms or a disease may develop after twenty years. In over fifty asbestos-related cases, the Cour de Cassation had to deal with various ex-employees who sued their employers for "prejudice of anxiety" of developing lung cancer at a later stage as a result of being exposed to asbestos. 119 Some of the employees had initially worked on industrial sites that had been recognised as "asbestos- contaminated" sites in an official list of Act 98-1194 of 23 December 1998, entitling them to early retirement. In some cases, the Cour d'appel (appeal court) denied compensation on the ground that anxiety alone of developing a disease could not be compensated and on the ground that the sites where the employees had been exposed to asbestos had not been recognised as "asbestos-contaminated" sites. This has been viewed as discriminatory. 120 It is submitted that policy considerations played a role in the court's reaching a decision not to compensate the victim. In some cases, damages were awarded to employees who had worked on sites which had not been officially recognised as asbestos-contaminated sites. The Cour de Cassation did rule, however, that damages may be claimed for "prejudice of anxiety" in respect of all mental harm connected with asbestos exposure, including the loss of "life expectancy" and the "disruption of living conditions". 121 Generally, in terms of French law, when an employee sustains injury or illness while in the course and scope of employment, he is entitled to social security benefits, which are limited in value. However, if he is able to prove an inexcusable fault 122 on the part of the employer, that is, a deliberate breach of the safety and hygiene regulations, or gross negligence on the part of the employer, the employee is in principle entitled to compensation on all heads of damages. 123 Since the landmark decisions of the Cour de Cassation 124 delivered on 28 February 2002, where it was held that an employer has a strict duty to provide a safe work environment, an employer may be held liable whenever an asbestos-related illness can be linked to the working conditions of the employee. An allegation of inexcusable fault is common in claims for workers' compensation benefits in asbestos-injury related cases. 125 There is no definition of fault in French law, let alone faute inexcusable (inexcusable fault), but this form of fault is prevalent in industrial accidents and is a result of an inexcusable fault committed by the employer or one of his employees. The victim may sue the employer and claim damages for that portion of his or her loss not covered by the social security scheme, such as non-pecuniary loss, which covers mental harm (Galand-Carval "Fault Under French Law" 95). In a case where an employee who had undergone several disciplinary procedures had suffered anxiety and tension from fearing dismissal, the Paris Labour Tribunal held that he was entitled to compensation for the "prejudice of anxiety" he had suffered. 126 Criticism has been raised against this decision, as the employee did not provide proof of the "prejudice of anxiety" he allegedly sustained. 127 Both a primary (direct) victim and a secondary victim (referred to as a "victim par ricochet" or "rebound victim") are in principle entitled to claim for mental harm. 128 A secondary victim is usually a family relative who suffers what is commonly referred to as "affection injury" (prejudice d'affection). The French courts have a liberal approach to who qualifies as a secondary victim and dependants need only establish the loss of dependency (loss of support presumption of a "link of affection" between them. 136 At the very least there must be some kind of personal relationship between the primary and secondary victim. 137 In French law, dependants are considered as the par ricochet victimssecondary victims. 138

Summary
The influence of reasonableness in determining whether liability should be imposed for mental harm in French law is implicit. Some form of conduct must be present which leads to the mental harm. 139 Thus, without the presence of conduct it would be unreasonable to hold the defendant liable.
What is generally considered under the element of faute is whether the conduct of the defendant in causing the plaintiff's mental harm is unreasonable under the circumstances. Legal norms and social standards are applied as yardsticks. Certain duties such as the employer's duty to provide a safe working environment for the employees are recognised. 140 In terms of fault in the form of negligence, the reasonable person test is applied. Policy considerations also seem to play a role, 141 and this is evident in the asbestos injury-related cases, where in some cases the courts awarded compensation, while declining it in others. 142 In the French law of delict the element of causation is used to limit claims, in that the damage must be direct and certain. 143 At times the courts may find that the damage was hypothetical and exclude liability. French law is, however, generally liberal in awarding compensation for harm which may manifest itself in grief, sorrow or some form of psychological harm. 144

Conclusion
In American, French and even South African law, some form of conduct, either a positive act (such as knocking over a pedestrian or negligently informing the victim that a person close to him or her was harmed) or an omission ( emotional or mental harm) is required. 145 Thus, conduct must be present, and without conduct it would be unreasonable to hold the wrongdoer liable for the harm sustained by the plaintiff.
In American law, evidence of medically recognised harm is required, and the emotional harm must result in an illness or injury to the mind, the personality, or the nervous system. South African law generally follows a similar approach. 146 In French law all kinds of mental harm are compensable in principle, and the conduct need not result in medically recognised psychological or emotional harm. 147 In American law there must be proof of the serious emotional distress sustained, and therefore it would be unreasonable to hold the defendant liable for trivial harm such as threats or annoyances. In French law all that is required is that the mental harm must result in some kind of damage in terms of articles 1240-1241 of the CC. In South African law the psychological harm must be reasonably serious and not minor or trivial. 148 In gauging whether the emotional distress endured by the plaintiff is serious in American law, the standard of the reasonable person may be used; that is, the reasonable person should not be expected to tolerate the emotional distress. French law takes a pro-victim stance and any negative impact on a plaintiff's feelings can amount to harm which is compensable, including grief. The French courts do not use an objective test but rather assess the subjective mental harm of the plaintiff. 149 In American law the emotional distress may be caused intentionally or negligently and this is also the case in French and South African law. 150 In American law there is no concept of wrongfulness but the reasonable person in a sense embodies the views of the community. For example, outrageous conduct on the part of the defendant causing the plaintiff's emotional harm is determined by whether the community would consider such conduct as outrageous and unreasonable. 151 With regard to American law and intentionally inflicted emotional harm, the community's views are taken into account in order to determine whether the defendant's conduct is reasonable, and this is also the case in French law under the concept of 145 R AHMED PER / PELJ 2023 (26)  20 faute which takes into account legal norms and social standards. In South African law, in practice, the adjudicator makes a value-judgment in gauging whether the infringement of the plaintiff's right to physical-mental integrity was unreasonable. 152 Thus, in American and French law, even though there is no concept of wrongfulness from a South African perspective, in determining whether the right to physical-mental integrity was infringed in an unreasonable manner and whether the defendant's conduct was unreasonable in causing the emotional or mental harm, the tests for wrongfulness (recently, whether it is reasonable to hold the wrongdoer liable) and negligence (the standard of the reasonable person) are applied. 153 In American law the reasonable person standard is applied in determining fault in the form of negligence. The reasonable person standard is also applied in French and South African law. 154 Thus, in all these jurisdictions the influence of reasonableness is prominent in determining whether the conduct of the defendant was reasonable or not in causing the plaintiff's emotional or mental harm.
In American law, there is a distinction between primary and secondary victims of emotional distress. For primary victims, the harm must be reasonably foreseeable. The plaintiff must usually be in immediate danger. For secondary victims, the harm must also be reasonably foreseeable, and it will be foreseeable if the secondary victim was in the zone of danger, fearing harm to him/herself, or anticipating harm. The reasonable person must have anticipated the fear of harm under similar circumstances. It is usually limited to close family or where there is a close relationship between the primary and secondary victim. 155 In French law the distinction between primary and secondary victims is recognised. The courts are rather lenient, and the secondary victim is usually one who is a close relative, but this need not be so. All that must be proven is the material or sentimental link between the primary and secondary victim. 156  sustained in order for the defendant to be held liable for the psychological harm, in view of policy considerations based on reasonableness, fairness and justice. 158 Therefore, if the psychological harm is too remote, for example, if a secondary victim did not have a close relationship with the primary victim, his or her psychological harm may be regarded as too remote, and the defendant may not be held delictually liable for the secondary victim's psychological harm. 159 Thus, in all jurisdictions the defendant's conduct must be the factual cause of the emotional or mental harm. In a sense, a reasonable degree of closeness is required between the primary and secondary victim and the harm suffered must not be too remote.
In American law, as mentioned above, the policy concerns for being cautious in awarding damages for stand-alone emotional distress or harm include the danger of a flood of litigation; how much emotional harm a person sustains is subjective; an award for emotional harm may not result in a person's no longer suffering such harm; and at times it may not be possible to see a reasonable limit to claims for emotional harm. The courts may make use of a number of elements to limit tort liability but the role of reasonable foreseeability or reasonable fear of harm plays a prominent role. 160 South African law shares similar policy concerns, and the courts may also make use of the elements to limit delictual liability, in particular wrongfulness and legal causation. 161 Due to policy concerns French law, in spite of its pro-victim stance generally, uses the elements of faute, damage and causation to limit claims for mental harm. For example, in the case of the pacemaker, where the claimant alleged that she had sustained mental harm for fear of the possibility of the pacemaker's being defective, the court dismissed her claim, ultimately stating that there had been no damage, and that the damage had been hypothetical. In some of the asbestos-related disease cases liability was denied on the grounds that anxiety alone of developing a disease could not be compensated and that the sites where the employees had been exposed had not been recognised in the list of contaminated sites. 162 The thin-skull rule applies in American, French and South African law.