If you’ve suffered a psychological injury due to another person’s negligence and wish to seek compensation, a common law claim for psychological injury provides a lump sum payment to finance your recovery. Our helpful legal guide explores:
• The steps to a successful common law claim
• The eligibility criteria
• And the value of compensation payouts for psychological injury, including workers’ compensation payouts
• Workers compensation benefits for work-related psychological injuries
Do I Have a Valid Claim?
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, which typically requires legal advice from an experienced personal injury lawyer.
Common law negligence claims are a legal action to sue for damages and can arise from a psychiatric injury associated with physical injuries. For example, you could have mental health issues related to a:
• Motor vehicle accident
• Public liability accident
• Workplace accident
• Catastrophic accident
• Motorcycle accident
• Cycling accident
• Pedestrian accident
• And many more circumstances
Splatt Lawyers advises Queenslanders harmed by the negligence of others on how to achieve justice on a 100% no-win, no-fee basis. It’s free to know your rights, so Call Now: 1800 700 125
More about mental illness claims >
What is Considered a Psychological Injury?
A psychological injury, in the context of a compensation claim, is a diagnosed mental health condition that significantly affects someone’s 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
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.
Psychological Injury Workers Compensation Claim
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 the psychological damage.
Injured workers can receive workers’ compensation payments and a lump sum payment for either a newly diagnosed mental health condition or the escalation of a previous injury. Your condition must be the result of:
• a single traumatic event
• a series of events
• or your work was a significant contributing factor
Success relies on demonstrating you have a serious injury that has caused a financial loss.
More about workers’ compensation psychological injury claims >
Can I Make a Workers’ Compensation Claim for Psychological Injury?
You can 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 of 15% permanent impairment. Conditions such as post-traumatic stress disorder and severe depression and anxiety often meet or exceed this measure.
Connection to Work-Related Events: Establishing a direct link between psychological injury and work-related conditions is vital for the success of a workplace psychological injury claim. Proving this connection requires thorough documentation and evidence.
This link is crucial in demonstrating that the injury is not just a personal issue, but the work environment is 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 constraints: All common law actions have a legislated time limit for lodging.
Our QLD workers’ compensation lawyers will advise your time limit for free and let you know if you have a valid claim. Call Now: 1800 700 125
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 psychological injury.
2. Duty Breach
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 psychological 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 wages, superannuation, etc. Damages also include compensation for pain and suffering, out-of-pocket and medical expenses, and travel costs.
Proving Employer Negligence
For injured workers, proving employer negligence is essential to winning a common law claim for psychological injury. 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 can 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 will advise on collating the required evidence to help prove your 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.
How to Make a Common Law Claim for Psychological Injuries
There are seven steps to making a successful common law claim for psychological injuries, which are:
- File a mental injury report with your employer
- Lodge a workers’ compensation claim
- Consult with an experienced WorkCover lawyer
- Collect medical evidence and assessments
- Permanent impairment assessment (medical assessment)
- Lodge a psychological injury claim
- Receive a lump sum settlement or challenge a rejected claim
File a mental injury report with your employer
The 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 workers’ compensation claim
Next, lodge a WorkCover claim form with all the necessary documents attached.
Consult with an experienced WorkCover claim lawyer
Consult with a Queensland WorkCover lawyer who will help you understand your legal rights and if you have a valid common law claim. At Splatt Lawyers, initial legal advice is free, and all our services are 100% no-win, no-fee.
Collect medical evidence and assessments
You require medical evidence to prove your case; 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. You must have a PIR of 15% or more to receive a permanent impairment payout and common law settlement.
Lodge a common psychological injury claim
Your legal representative will file a negligence claim against the liable party.
Receive a lump sum settlement or challenge a rejected claim
Common law payouts can be substantial, but if your case is denied, there may be 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 they have impacted your daily life
- Your chance of recovery
How much compensation you receive in a common law settlement is calculated using “head of damages” that consider 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).
More about workers compensation payouts >
What is the Average 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 Com 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 is available for psychological injury claims when you have a whole-person impairment rating of 15% or more. 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.
If you are considering making a permanent impairment claim and a common law claim, it’s essential to seek legal advice because your next steps will determine your eligibility for both compensation payouts.
Get Reliable Common Law Claim Legal Advice
You might 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 to access all your entitlements is essential in this case.
Splatt Lawyers advises on the legal rights of Queenslanders injured by negligence on a 100% no-win, no-fee basis. It’s free to start and pay nothing until you have a successful claim. Owe nothing if you lose. Call now for immediate legal advice: 1800 700 125
What is my claim worth?
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 includes:
• Workers’ compensation payments
• Damages for pain and suffering and future lost earnings
• A lump sum payment for permanent impairment
• A common law settlement as the final closure of your claim for psychological injury
Understanding your options and your best course of action can be complex, which is when a qualified personal injury lawyer can help.
What should I do first after experiencing a psychological injury at work?
If you have a psychological injury caused your employer’s negligence:
- First, report the injury to your employer
- Then seek immediate medical treatment.
- We also recommend you gather the necessary documentation
- And consult a workers’ compensation lawyer for reliable legal advice.