Can You Sue Someone for Emotional Distress in Australia?
If you suffer from emotional distress, you will already know how much it changes your life and well-being. Australians experience psychological trauma in a wide range of situations, including accidents, abuse, a sudden loss, or being in (or hearing about) an unexpected, shocking event.
In this situation, people often ask: “Can I sue for emotional distress?”. You can sue for emotional trauma in Australia when another person’s negligence harms you, but it is a complex process. To help you know your legal right to seek legal damages for psychological injuries, our guide to emotional distress claims explores the legal framework of suing for emotional distress and the following:
- How emotional trauma is defined
- The common causes of severe emotional distress
- The different types of emotional distress lawsuits
- The damages you could recover
- Your legal options when pursuing compensation for emotional harm.
Our guide to emotional distress claims helps you understand the legal process for claiming damages for a financial loss incurred by others’ carelessness.
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Defining Emotional Distress
Emotional distress is a type of psychological injury that can happen when you experience or witness an unexpected distressing event (or series of incidents, e.g., abuse). This psychological harm can result in intense feelings of fear, helplessness, and horror that affect your ability to process the incident and enjoy your everyday life.
Furthermore, people experiencing emotional trauma can live with symptoms like anxiety and depression and potentially be diagnosed with post-traumatic stress disorder or another recognised mental health disorder.
Can I Sue for Emotional Distress?
Generally, when a traumatic incident that was partly or wholly not your fault has caused mental trauma, you can successfully sue for emotional distress. This legal action allows impacted people to recover damages for the other party’s negligence or intent.
You can generally seek compensation for physical or psychological injuries when another party’s action, inaction, or deliberate action has harmed your mental health. Your distress could be the outcome of:
- A motor vehicle accident
- A work accident
- Witnessing violence or death
- Sexual harassment
- Workplace bullying
- Medical negligence or medical complications
- or seeing an accident scene soon after the event (involving a loved one or family member)
More about psychological injury claims >
Do I Have a Valid Claim?
Can I Sue My Employer for Emotional Distress?
In Queensland, your employer may face legal consequences and be obligated to provide compensation if they are found to have caused emotional distress to an employee. Under the Workers’ Compensation and Rehabilitation Act, an employee can accept a WorkCover statutory offer and make a common law claim if their psychological impairment level is 20% or more. When successful, your work-related emotional trauma claim will provide weekly payments for lost income, reimbursement of medical expenses, and, when you qualify, a once-off lump sum payout.
More about workplace mental illness claims >
Claiming for Work-Related Stress
You could have a valid Queensland WorkCover claim if work stress has caused you to be emotionally injured. Much like employers are required to provide a safe physical working environment protecting you from physical harm, they must also take reasonable steps to protect your mental health. When something goes wrong, and your job psychologically damages you, you can seek damages for your employer’s failed duty of care.
More about work-related stress claims >
Can I Sue for Car Accident Emotional Trauma?
You can sue for car accident-related emotional trauma when you have either:
- Participated in a car accident as a driver, passenger, or pedestrian and were wholly or partly not to blame for the incident.
- You witnessed a violent traffic accident.
- Seen someone injured or die in a motor vehicle accident, including if you witnessed the accident scene after the collision or had a severe psychological reaction when informed of the event. Please know that excessive grief is not considered emotional distress.
Furthermore, you may be entitled to financial compensation for a psychiatric injury and its related losses even if you were not a direct participant in a car crash (or other type of road accident). To succeed, you must be diagnosed with a recognised mental health condition like depression, anxiety, adjustment disorder, PTSD, etc.
More about car accident claims >
Can I Sue for Emotional Suffering Caused by Abuse?
Sexual abuse, physical abuse, emotional and psychological abuse, financial abuse, and other forms of abuse all have the potential to cause significant emotional suffering. If you are an abuse survivor, you may be able to claim legal damages for mental anguish and receive financial compensation.
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Common Causes of Severe Emotional Distress?
A wide range of incidents, events and physical injuries can cause severe emotional trauma, with common triggers including:
- Physical, emotional or abuse
- Serious car or work accident
- Recreation or sporting accidents
- Travel or transportation accidents
- Public place accidents
- Sexual assault or harassment
- Witnessing a disturbing incident, like violence or death
- A severe accident
- Natural disasters
- Combat, war or other violent conflicts
- Medical malpractice, e.g. faulty procedures, treatments or misdiagnosis
- Losing a loved one
How Do I Know I Have Emotional Damage?
You will know if you have emotional damage when you experience the common symptoms of this type of mental illness. Generally, people triggered by an unexpected event have:
- Flashbacks and nightmares
- Avoid people, places or situations associated with the incident
- Chronic anxiety or panic attacks
- Depression or feelings of hopelessness
- Mood swings and irritability
- Trouble concentrating or making decisions
- Physical symptoms like headaches, stomach aches and lack of appetite
About Emotional Distress Claims
Australians who have experienced emotional distress due to the negligence or intent of others could have legal options for claiming compensation. The circumstances of your case will determine the type of psychological personal injury claim you could pursue, some common ones being:
Negligent infliction of emotional distress
When you have mental suffering because someone failed their duty of care, you could lodge a compensation claim. In many circumstances, people (or entities) owe others a duty to provide reasonable care to protect them from harm.
Intentional Infliction of Emotional Distress
If someone intentionally causes you emotional harm, you may be able to pursue legal action for intentional infliction of emotional distress. To achieve a successful outcome, you must demonstrate that the other person’s actions were highly unusual and disturbing and resulted in significant emotional pain.
Wrongful Death
Losing someone close to you due to negligence can trigger significant emotional distress. In this situation, you could successfully file a wrongful death compensation claim to recover damages for the emotional harm a loved one’s passing caused.
Nervous Shock Claims
You could seek damages for psychiatric and mental harm when you have witnessed an unexpected traumatic event and have a secondary psychological injury. Nervous shock claims are prevalent in severe road accidents and medical negligence cases, where a bystander may have seen the injury or death of someone else (or the accident scene soon after). To succeed, you must prove that it was foreseeable that the negligent action would cause emotional trauma to other parties.
At Splatt Lawyers, it’s free to determine your claim type and whether you have a valid case. Call: 1800 700 125.
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What Evidence Do I Need to Prove Emotional Distress?
Compelling evidence is crucial when seeking compensation for emotional distress. The quality of your supporting documents will play a role in the outcome of your case and can include the following:
- Diagnosis and treatment records from a psychiatrist or psychologist.
- Witness statements from people who can confirm what happened and how it has impacted you.
- Photos and videos of the accident scene or your physical injuries, if applicable.
- Records from any counselling, therapy or other treatments you have received to address your emotional trauma.
Seeking legal advice from a personal injury lawyer who understands mental illness claims can help you understand your right to sue for emotional trauma. An experienced compensation lawyer will review your case and ensure you have sufficient evidence for a successful emotional distress payout.
Documenting Your Emotional Damage
When filing an emotional trauma claim, the quality of your evidence will be critical to achieving a winning outcome. This evidence includes documentation of your emotional damage and mental condition. Apart from the documents outlined above, keeping a diary where you record your daily or weekly experiences can be helpful.
For example, record the times and dates of your treatments, feelings and emotions; document flashbacks, nightmares, avoidance behaviours etc. Psychologists and psychiatrists often recommend this type of documentation and will likely explain more when you meet with them.
How Do I Sue for Emotional Distress?
To successfully sue for emotional distress, first discuss the specifics of your case with a psychological injury lawyer; they will advise on the steps required to lodge an emotional distress lawsuit. Typically, this involves collecting evidence and submitting a statement of claim containing details such as the actions and omissions that led to your mental suffering.
To deliver your desired outcome, your compensation solicitor will negotiate an out-of-court settlement or, in rare circumstances, provide legal representation in court.
Please be aware that the time limits for filing a psychological personal injury claim vary from state to state. Generally, you must lodge your case within three years of the trauma commencing. Missing a deadline generally means you cannot seek compensation for a financial loss.
Understand that claiming compensation for psychological harm is generally more difficult than for a physical injury, as the damage is not visible. Qualified legal advice helps you understand the barriers to success. Call: 1800 700 125
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How Much Compensation for Emotional Distress?
How much you can claim for emotional distress damages depends on your unique circumstances, including how much your injury has changed your life. A significant factor in determining what your claim is worth is the level of your mental damage and its associated loss. For example, some psychological disorders could be long-term, impacting your capacity to maintain a career, while others last less than a year.
Under Australian personal injury law, the two main types of legal damages for emotional pain awarded in a psychological distress case are economic and non-economic.
Economic Damages
Economic damages refer to the monetary losses you have suffered due to emotional trauma. These can include medical expenses, lost wages, future economic losses, and other out-of-pocket expenses you have incurred from your trauma.
Non-Economic Damages
Non-economic damages refer to the non-monetary losses you have suffered due to emotional distress. These can include pain and suffering, emotional damage, lost enjoyment of life, and other intangible losses.
Limits on Damages
There may be limits on the damages you can recover in emotional distress cases. Some Australian states may have capped how much you can receive, and the size of the defendant’s insurance coverage may restrain your payout value.
At Splatt Lawyers, knowing if you have a case and the value of your emotional distress claim is free. All our compensation legal services have 100% No Win, No Fee funding, so you pay nothing until we win your case and owe zero if you lose. Call: 1800 700 125
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Accessing Support for Emotional Distress
Feeling grief and stress following an unexpected traumatic incident is normal, and these emotions will pass with time. However, when the event is so horrific, it causes you to develop a mental injury that will require professional support. While a lawyer can help you access financial resources to give you the space to take time off work and recuperate, a mental illness professional will help you get your life back on track.
Furthermore, seeking medical treatment is an essential first step in managing your damaged emotions. Your doctor will help you with the physical symptoms of psychological distress and refer you to an emotional disorder specialist for further treatment. Additionally, their documentation and treatment records will be valuable evidence if you decide to pursue your legal right to compensation.
Legal Advice for Emotional Distress Claims
Seeking expert legal advice before making an emotional distress claim helps you understand your legal options. These types of lawsuits can be challenging because the injury is invisible and relies on expert reports and assessments to prove your loss. Furthermore, large insurance companies will also do their best to undervalue or outright reject your case.
Splatt Lawyer’s team of personal injury lawyers helps Queenslanders with mental illness compensation advice when harmed by negligence, including how to negotiate barriers to a successful outcome.
Our psychological injury lawyers can provide a free review of your case. At Splatt Lawyers, you have zero financial risk for your case thanks to our “no win, no fee” policy. Call: 1800 700 125
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Can I Sue for Emotional Distress FAQs
What happens during a psychological injury lawsuit?
When you pursue a psychological injury claim, your solicitor will explain how to gather evidence and prepare your case. The personal injury claims process includes collecting witness statements and medical evidence from mental health professionals and other experts to establish your personal injury lawsuit. Your lawyer will also:
- Identify the negligent party
- Conduct negotiations with their insurers or solicitors
- And settle your case through mediation.
Can you sue for loss of enjoyment of life?
Yes, you can sue for lost enjoyment of life when you make a personal injury claim. Under Australian personal injury law, you can recover compensation for non-economic losses, including emotional suffering.
Who can sue for emotional distress?
Anyone who experiences emotional distress caused by the negligence of another person or party and acquires a recognised psychological or psychiatric injury could sue for emotional distress.
Seeking professional legal advice is the first step in the compensation claims process, as your lawyer will help you assess the merits of your case and explain how to build a strong argument for a successful outcome.
How do I prove I have emotional trauma?
Proving you have an emotional trauma condition is a tricky process that starts by collecting evidence from various sources. To verify your illness, you will need witness statements, medical reports and assessments from mental health professionals that establish the existence of psychological and psychiatric injuries. Additionally, you will also need to provide proof that the traumatic event caused your psychiatric condition (or the escalation of an existing disorder), such as an expert assessment of how the accident caused or contributed to your illness.
How long is an emotional distress lawsuit?
The time it takes to claim compensation through an emotional distress lawsuit depends on several factors.
- The level of your psychological harm. More severe cases take longer to settle because they generally have larger payouts, making insurance companies more likely to challenge these claims.
- The difficulty of proving psychological injuries. It is simpler to provide evidence for some recognised mental health conditions than for others.
- The difficulty of establishing fault. Sometimes, the guilty party denies liability or multiple parties are to blame, so it takes longer to assign fault.
What is the relationship between psychological injuries and physical injuries?
A mental injury often comes after traumatic events like motor vehicle accidents. In Australia, many psychological injuries are associated with physical harm. However, unlike physical injuries, a pure psychological injury cannot be seen, which complicates the process of seeking common law damages.
Can you sue for post-traumatic stress disorder in Australia?
In Australia, you can sue for post-traumatic stress when the negligence of another person or party causes psychological suffering. For example, if passengers in motor vehicle accidents develop Post Traumatic Stress Disorder, they can make a common law claim against the CTP insurer of the at-fault vehicle.
How much is an emotional distress compensation payout worth?
Each state of Australia has legislation that specifies limits for psychological injury compensation, which will impact how much your payout is worth. Furthermore, claim valuations rely on the severity of your mental disorder, which is measured using the ISV scale.