- The steps to a successful common law claim
- The eligibility criteria and all the benefits that are available
- The value of compensation payouts for psychological injury, including workers’ compensation payouts
- Workers’ compensation benefits for work-related psychological injuries
About Common Law Claims for Psychological Injury
Common law claims for psychological injury allow injured people to seek compensation when they suffer mental harm due to another’s negligence. To have an approved lump sum payout, you must show you suffered a loss directly related to the negligent act.
An experienced personal injury lawyer can provide legal advice regarding your rights in this situation.
Common law negligence claims are legal actions to sue for damages and can arise from psychiatric injuries associated with physical injuries. For example, you could have mental health issues related to the following:
• Motor vehicle accident
• Public liability accident
• Workplace accident
• Catastrophic accident
• Motorcycle accident
• Cycling accident
• Pedestrian accident
• And many more circumstances
Key Statistics for Australian Workplace Injuries
Key statistics for mental health injuries in Australian workplaces as reported in the Queensland workers’ compensation scheme statistics 2023–24
- Psychological and psychiatric statutory claims increased by 8.1% for 2023-2024 and by 6.8% for 2022-2023
- Psychological and psychiatric claims are 14.1% total statutory payments for 2023-2024
- Average lost time claim cost of $63,589 (which is more than twice the number for physical injuries)
How Much Compensation for a Common Law Psychological Injury Claim?
A successful claim can pay a lump sum for common law damages that covers the following:
• Past and future loss of earnings
• Lost income and superannuation
• Medical and treatment expenses
• Rehabilitation costs
• Pain and suffering compensation
What is Considered a Psychological Injury?
A psychological injury, in the context of a compensation claim, is a diagnosed mental health condition that can significantly affect your overall well-being. In Australia, typical examples include:
• Post-traumatic stress disorder (PTSD)
• Severe anxiety and depression
• Nervous shock from witnessing a traumatic event
• Bipolar disorder
• Social anxiety disorder
• Adjustment disorder
Due to the emotional, cognitive, and behavioural symptoms of these mental injuries, a person’s ability to function both at work and in their personal lives typically suffers.
What are the Common Causes of Mental Health Injuries?
In Australia, the common causes of mental injuries include the following:
- Workplace bullying and harassment
- Witnessing traumatic events
- Excessive workload
- Unrealistic deadlines
- Workplace violence or the threat of violence
- Employment insecurity
- Unexpected role changes
- Work-related stress
Free Claim Assessment
Psychological Injury Workers' Compensation Claim
Not all workplace injuries are physical ones. However, unlike workers’ compensation claims (which provide statutory benefits), a successful common law claim for a work-related injury requires proof that your employer’s negligence directly contributed to your mental health condition.
Injured workers may receive compensation for a newly diagnosed mental health condition or the escalation of a previous injury. You could be entitled to the following:
• Weekly payments replacing lost wages
• Funding for medical and treatment expenses
• A lump sum payout as final settlement of a statutory claim
A mental injury could be the result of:
• A single traumatic event
• A series of events
• Or your work was a significant contributing factor
A successful claim relies on demonstrating that you have a serious injury that has caused a financial loss.
Can I Claim Compensation for a Mental Injury?
You may be eligible to claim workers’ compensation for psychiatric injuries when you meet several critical criteria, including:
The level of injury severity: An independent medical examiner must assess your injury at a minimum level in permanent impairment. Conditions like post-traumatic stress disorder, severe depression, and anxiety often meet or exceed this threshold.
Connection to Work-Related Events: Explain how the injury happened – You must establish a direct link between the mental injury and your job. Proving this connection requires thorough documentation and evidence that proves your work was a significant contributing factor.
For example, your boss failed to prevent relentless workplace bullying, or you witnessed a traumatic incident like an accident resulting in severe injury or wrongful death.
Workers’ compensation claim ends: Before you can seek a common law payout for a work-related injury, you must have used all available benefits under your state workers’ compensation scheme.
Strict Time limits for Statutory Claims
There are strict time limits for statutory claims in Australia, which can vary depending on where and how the injury occurred. However, the time limit is generally three years from the date of the incident, which gives rise to the legal action.
You should be aware of these deadlines, as missing them generally means you will be blocked from seeking compensation.
A free case review from our compensation lawyers can advise on the applicable time limit for your situation.
What You Must Prove to Win a Psychological Injury Common Law Claim
You must prove negligence and its consequences with these four elements for a successful common law claim.
1. Owed Duty of Care
Under common law, everyone owes a general duty of care to others in most situations. The first step in proving negligence is showing that the at-fault party had an owed duty for your well-being at the time you suffered a mental injury.
2. Breach of Duty
Next, you must prove that the defendant breached their duty by not taking reasonable steps to keep you safe, either through an action or failure to act.
3. Causation
Then, you must link the duty breach to the infliction of your mental injury, meaning you would not have had a loss had the defendant kept you safe.
4. Financial Loss
To receive a common law settlement, the injured party must demonstrate that their mental health condition resulted in a financial loss.
For example, they had to take time off work and lost income, as well as superannuation, etc. Damages also include compensation for pain and suffering, out-of-pocket and medical expenses, and travel costs.
How to Prove Employer Negligence
Injured workers must prove employer negligence to win a common law claim for workplace injuries. In Australia, all employers have a duty of care to provide their employees with a safe and healthy workplace. When they fail that duty, and someone suffers a workplace injury or illness, that person may be eligible to claim workers’ compensation benefits and make a common law claim for damages.
For example, your boss fails to take reasonable steps to prevent a sustained campaign of workplace bullying and harassment, and you are diagnosed with a work-related psychological injury.
To receive a common law lump sum payout, you must show a clear connection between the traumatic experiences at work and the psychological harm suffered.
An experienced work injury lawyer knows how to build case that proves a WorkCover claim.
About Reasonable Management Action
NOTE: The exception to the above is for reasonable management action. Your employer has the right to take reasonable steps to manage your performance.
If a mental illness arises from that action, your claim will not succeed.
Understanding what constitutes unreasonable and reasonable management action can be complex, which is where a workers’ compensation lawyer can assist.
Common Law Claim Process for Psychological Injuries
There are seven steps to making a successful common law claim for psychological injuries, which are:
1. File a mental injury report with your employer
2. Lodge a workers’ compensation claim
3. Consult with an experienced WorkCover lawyer
4. Collect medical evidence and assessments
5. Permanent impairment assessment (medical assessment)
6. Lodge a psychological injury claim
7. Receive a lump sum settlement or challenge a rejected claim
File a mental injury report with your employer
The common law claim process starts when you lodge a work injury report with your boss. Seeking medical treatment immediately begins the recovery process and establishes proof of your psychological condition.
Lodge a claim with WorkCover Queensland
Next, lodge a WorkCover claim with the relevant workers’ compensation authority, attaching all the necessary documents and a completed application form.
Advice from a WorkCover claim lawyer
Consult with a Queensland WorkCover lawyer who will help you understand your legal rights and assess whether you have a valid common law claim.
Collect medical evidence and assessments
You require medical evidence to prove you have a psychological condition. The best way to do this is to seek treatment from a psychologist or psychiatrist.
Permanent impairment assessment
When you are close to the end of your workers’ compensation claim, you will have a permanent impairment assessment with a medical practitioner or the Medical Assessment Tribunal.
This review helps determine eligibility for a permanent impairment payout and a common law settlement.
Lodge a common law psychological injury claim
A legal representative can file a negligence claim against the liable party.
Receive a lump sum settlement or challenge a rejected claim
You receive a common law payout for an approved claim.
But if your case is denied, you may have to bring court proceedings to challenge the workplace insurer’s decision.
Common Law Compensation Payouts for Psychological Injury
How much compensation you receive in psychological injury common law payouts considers various factors, such as:
- Your age
- Current occupation and salary
- The severity of your injuries
- How much the psychological condition has changed your daily life
- Your chance of recovery
How much compensation you receive in a common law settlement is calculated using “head of damages” that considers immediate and long-term impacts, including:
• Lost wages and superannuation
• Your pain and suffering (lost quality of life)
• Medical expenses and other treatment costs
• Out-of-pocket expenses and travel costs
• Cost of at-home care and house modification
NOTE: Lump sum payouts are additional payments to the benefits you receive from a statutory claim under the Queensland workers’ compensation scheme (WorkCover).
What is the Average Compensation Payout for Psychological Injury?
According to Queensland workers’ compensation scheme statistics for 2022–23, the average common law compensation payout was $188,794.
You can make two types of claims for psychological injury in Queensland:
- Workers’ compensation permanent impairment payout (do not need to prove fault)
- Common law damages (you must prove negligence caused your injury)
These are the average payouts for both types of psychological injury claims.
Year Ending | Workers’ Comp Payout | Common Law Damages |
|---|---|---|
2020 | $37,418 | $168,293 |
2021 | $55,402 | $172,524 |
2022 | $61,047 | $176,138 |
2023 | $68,136 | $188,794 |
About Lump Sum Compensation
Lump sum compensation can be available for psychological injury claims regardless of the level of whole-person impairment. Once the psychological injury is stable (has reached maximum medical improvement), you can seek a lump sum compensation payment that considers the severity and impact of the injury.
Compensation lawyers can advise you on your eligibility to make a permanent impairment claim and a common law claim when the negligence of others harms you.
Common Law Claim Legal Advice
You may be eligible for workers’ compensation and common law damages if you suffer a physical or psychological injury due to another person or party’s negligence (including your employer).
Knowing your legal rights can help you work through the complex legal process.
Free Case Review
Splatt Lawyers offers a free case review to explain the legal rights of Queenslanders injured by negligence on a 100% no-win, no-fee basis.
Pay for a win and nothing if you lose. It’s free to know where you stand. Call 1800 700 125
Common Law Claims Psychological Injury FAQs
What time limits apply to lodging common law claims for psychological injury?
In Australia, you have three years from the date of the injury or the moment you realised you had a psychological injury to file a common law claim.
This is the same timeframe as for a physical injury.
What is a psychological injury in the context of common law claims?
A psychological injury, in common law claims, refers to a diagnosed mental health condition or serious injury, such as:
- Post-traumatic stress disorder
- Severe anxiety or depression
- Bipolar disorder
- Nervous shock
Or any other recognised and diagnosable psychological or psychiatric disorder.
How can I prove employer negligence for a psychological injury claim?
To prove employer negligence for a psychological injury claim, you must:
- Show their actions or failure to act directly contributed to your injury
- You have legally documented evidence that proves negligence
This evidence can include records of:
- Workplace conditions
- Emails and phone records
- Witness statements
- Expert testimony that establishes a clear link between the employer’s negligence and your psychological harm
What types of compensation are available for psychological injury claims?
Compensation for psychological injuries can include:
- Weekly workers’ compensation payments
- Damages for pain and suffering, and future lost earnings
- A lump sum payment for permanent impairment
- A common law settlement as final closure of a claim for psychological injury
What should I do first after experiencing a psychological injury at work?
If you have a psychological injury caused by your employer’s negligence:
- First, report the injury to your employer
- Then, seek immediate medical treatment.
- Gather the necessary documentation
- Consult a workers’ compensation lawyer for reliable legal advice.