Written by Peter CarterOctober 31, 2018
Accident related emotional trauma can have a devastating impact on a person’s quality of life and is a key factor in many personal injury claims. If your emotional distress results from an accident on the road, at work or elsewhere, Carter Capner Law provides expert legal advice on psychological injury claims.
Can compensation be claimed for Emotional Distress where there is no physical injury?
In most cases, yes as long as it results from an accident or event in which you were involved, witnessed or are in a close family relationship to someone killed or injured in the accident.
An uninjured occupant of a vehicle involved in a motor accident can for example sue the at-fault driver if they sustain PTSD, adjustment disorder or depression by reason of the calamity eg the death of another person in the same accident.
Emotional distress can also arise in the workplace where the events complained of do not constitute reasonable management action, eg bullying
An employer is entitled to investigate the employee’s circumstances and – even if the employer has come to an incorrect conclusion – instigate disciplinary action. But it must investigate and counsel the employee in a reasonable manner. Conducting disciplinary action by telephone without any forewarning and without giving the employee opportunity to respond will – if psychological injury results from the episode – usually be something for which the employer is responsible
Another example of a “pure psychological injury” is “nervous shock” which can occur from being an eye-witness to a serious accident where someone is fatally injured; or for family members of someone killed in an accident, from being told of it and having to deal with its aftermath, eg in the intensive care ward or the identification of the deceased’s body.
A train driver who witnesses a suicide on rail tracks can also sue the deceased’s estate for the resulting “pure psychological injury”.
In all cases – if a breach of duty and causation can be established – the resulting damages include expenses (past and future), lost wages and future economic loss. The resulting damages ordered to be paid can be very large.
What are the psychological injury symptoms?
Psychological injuries – whether or not the condition arises from a physical injury – can involve a wide range of symptoms.
Unlike physical injuries like broken bones, disc injuries or damaged joints, diagnosing and treating psychological damage is not always a straightforward process.
Emotional trauma comes in many forms, and not everyone who sustains a psychological injury will experience the same set of symptoms. Depression, anxiety, adjustment disorder, post-traumatic stress can feature some or all of the following:-
- Mood swings
- Chronic anxiety and fear
- Withdrawing from friends and family
- Difficulty concentrating
- Long and unexplained periods of fatigue
- Loss of appetite
If you think you may have suffered emotional trauma, seeking medical attention can help clarify the nature of your injury.
Compensation claims involving psychological injuries must be supported by proof of negligence for compensation to be awarded. In addition to supporting your recovery, seeking medical treatment for your injuries helps establish the requisite medical evidence in support of your claim.
How much compensation for psychological damage?
Psychological injury damages vary according to your unique circumstances. The following factors will typically influence the amount of compensation you are entitled to:
- The severity of your injury
Some psychological injuries can result in permanent incapacitation as opposed to short-duration physical trauma. Cases involving severe psychological injuries will generate higher compensation because of the higher ‘loss of amenities of life’.
- The duration of your injury
Long-lasting psychological injuries will generate higher compensation because of the lengthy periods of time off work and will entitle you to a more substantial payout.
Intentional infliction of emotional distress
Many psychological injuries are sustained in accidental circumstances. However, in some cases it is possible to claim for the intentional infliction of emotional distress. This applies to situations where you can prove the other party caused trauma through deliberate actions.
Road rage is a common example of causing intentional distress. It’s not possible to accidently behave violently towards another road user, so this kind of behaviour can be classified as deliberate for which in some cases “exemplary” damages can apply.
Should I keep a record of my symptoms?
Yes. If you decide to sue for compensation, having a record of your symptoms and any associated triggers will make your claim easier to verify. Be sure to take note of any dates and details of specific incidents that may help substantiate your version of events.
How do I document a psychological injury?
Seeking medical treatment is the most effective method for documenting a psychological injury. While keeping your own records is important, being able to show you’re receiving treatment for your condition will further strengthen your chances of being awarded compensation.
If you’re suffering from an emotional injury caused by work-related stress, you may qualify for a WorkCover claim. Just as employers are obliged to protect employees from physical danger, similar standards apply to psychological trauma. You may be entitled to damages if you can prove your employer failed in their duty of care by exposing you to an unreasonable amount of stress.
For more information on psychological injury claims contact us today