Experiencing emotional distress after an accident or injury can be just as debilitating as physical injuries. Many Australians wonder if they can seek compensation for these invisible wounds. The good news is that Australian law does recognise emotional and psychological injuries in personal injury claims under certain circumstances. Seeking advice from an experienced Conrad Curry law firm can help determine if your emotional distress qualifies for compensation.

Woman in a beige sweater holding her head.

Key Takeaways

  • Emotional distress claims require evidence of a recognised psychiatric condition, not just temporary upset
  • Both primary victims (directly involved) and secondary victims (witnesses) may have valid claims
  • Strong medical evidence and expert testimony are critical for successful claims
  • Time limits apply and vary by state and territory
  • Pre-existing mental health conditions don’t necessarily prevent claims but may affect compensation amounts

What counts as emotional distress under Australian law?

Australian law uses specific terminology when referring to emotional distress in legal contexts. Terms like ‘psychiatric injury’, ‘mental harm’, ‘nervous shock’, and ’emotional harm’ have distinct legal meanings. These terms generally refer to psychological conditions that go beyond ordinary feelings of distress, grief, or anxiety.

Examples of qualifying conditions

Not all emotional responses qualify for compensation. Generally, claimants must demonstrate a recognised psychiatric condition such as:

  • Post-traumatic stress disorder (PTSD)
  • Clinical depression
  • Severe anxiety disorders
  • Adjustment disorders
  • Other psychiatric conditions recognised in the Diagnostic and Statistical Manual of Mental Disorders (DSM)

Distinction between distress and recognised psychiatric injury

Australian courts distinguish between normal emotional responses and compensable psychiatric injuries. Temporary feelings of sadness, fear, or grief – while genuine – typically don’t qualify for compensation. The condition must be a medically recognised psychiatric disorder that significantly impacts daily functioning.

Causes of action that may cover emotional harm

Emotional distress claims may arise from various legal causes of action, including negligence, intentional torts, breach of statutory duty, and some statutory compensation schemes like workers’ compensation and compulsory third-party (CTP) insurance claims.

Elements a claimant must prove

To succeed in an emotional distress claim, you typically need to establish:

1. The defendant owed you a duty of care

2. They breached that duty

3. The breach caused your psychiatric injury

4. Your injury was reasonably foreseeable

5. You suffered a recognised psychiatric condition as a result

Primary victim vs secondary victim rules

Australian law distinguishes between primary victims (directly involved in the incident) and secondary victims (those who witnessed or learned about the incident). Secondary victims face additional hurdles, often needing to prove close relationships to primary victims and direct perception of the traumatic event.

“The emotional impact of an injury can be just as devastating as physical harm. Our legal system recognises this reality, but successful claims require proper medical documentation and skilled legal representation.” – Conrad Curry

Evidence required to support an emotional distress claim

Medical and expert evidence

Strong medical evidence forms the backbone of emotional distress claims. This typically includes psychiatric and psychological assessments, diagnostic reports, and expert opinions on the condition’s severity, prognosis, and connection to the incident.

Contemporaneous and documentary evidence

Medical records created close to the time of the incident carry significant weight. GP notes, therapy records, medication histories, and hospital documentation help establish the timeline and progression of your condition.

Witness statements and impact evidence

Statements from family members, friends, employers, and colleagues can substantiate how the psychiatric injury has affected your daily life, relationships, and work capacity. Personal diaries documenting your symptoms and limitations can also provide valuable evidence.

Objective indicators

Courts look for objective signs of psychiatric injury, such as:

– Work absences or reduced capacity

– Income reduction

– Ongoing treatment requirements

– Changes in behaviour noted by others

– Hospital or mental health facility admissions

How damages for emotional distress are assessed and valued

Types of damages potentially available

Compensation for emotional distress may include:

– General damages for pain, suffering, and loss of enjoyment of life

– Economic loss (past and future income)

– Medical and treatment expenses

– Care and assistance costs

Factors influencing quantum

The value of emotional distress claims depends on multiple factors, including the severity and duration of the condition, treatment outlook, your age, pre-existing conditions, and impact on earning capacity.

Settlement versus court award

Most emotional distress claims settle through negotiation or mediation rather than proceeding to trial. Settlement offers certainty and faster resolution, while court proceedings offer potentially higher awards but with greater risk and delay.

Time limits and procedural steps in Australia

Limitation periods (state and territory variation)

Time limits for filing claims vary across Australian jurisdictions but generally range from one to three years from the date of injury or discovery of injury. These periods may be extended in exceptional circumstances, but prompt action is always advisable.

Steps for starting a claim

The claim process typically involves:

– Initial legal consultation

– Collection and review of medical evidence

– Formal claim notification

– Negotiation with the defendant or insurer

– If necessary, court proceedings

Special rules for statutory schemes

Workers’ compensation, CTP claims, and victims of crime schemes have specific procedures and timeframes that differ from common law claims. Some require mandatory dispute resolution before court proceedings can commence.

Practical checklist for claimants

Immediate actions after an incident

If you’ve experienced a traumatic event:

– Seek prompt medical attention

– Document your symptoms and their progression

– Follow recommended treatment plans

– Keep all medical appointments

Evidence gathering

Start collecting evidence early by:

– Maintaining a symptom diary

– Preserving all medical receipts and documents

– Gathering contact information for potential witnesses

– Documenting the impact on work and daily activities

Working with healthcare providers

Effective collaboration with healthcare providers can strengthen your claim. Ensure you:

– Discuss the legal context of your treatment with providers

– Request comprehensive medical reports

– Attend all recommended specialist appointments

Consult a personal injury lawyer as soon as possible to understand:

– The viability of your claim

– Applicable time limits

– Evidence requirements

– Potential compensation value

Conclusion

Emotional distress claims are recognised in Australian personal injury law, but they require specific evidence and legal expertise to succeed. The invisible nature of psychiatric injuries makes strong medical documentation and expert testimony essential. If you’ve suffered emotional or psychological harm due to someone else’s negligence, don’t dismiss your suffering as uncompensable. Conrad Curry can help evaluate your case and guide you through the complex legal process. Remember that time limits apply, so seeking early legal advice is the best way to protect your rights and maximise your chances of fair compensation.