Henry Carus + Associates | Injury Lawyers

Making Claims for Psychological or Mental Injury

mental harm lawyers Victoria

When a loved one dies, or you witness the death or serious injury of a fellow worker, the anxiety, stress, and grief you experience can be very intense. But in the eyes of the law, it’s not enough to justify a claim of mental harm or psychiatric injury. In order to make such a claim for compensation under common law, you must have suffered a recognisable psychiatric condition, preferably one diagnosed by a psychiatrist.

What is ‘mental harm’ or psychiatric injury?

Psychiatric illness caused by accidents and other traumas generally falls into three categories:


  • Post Traumatic Stress Disorder,
  • Adjustment Disorder, and
  • Depression.

If you find yourself experiencing some or all of the following symptoms following a tragic incident, you may be suffering from a psychiatric illness:

  • Nightmares about or flashbacks of the incident,
  • Insomnia,
  • Anxiety,
  • Panic attacks,
  • Hypervigilance,
  • Agoraphobia, and
  • Suicidal thoughts.

Who can make a claim?

Typical claims for mental harm in the workplace often involve bullying, harassment, and workplace stress. They may also arise from witnessing a workplace accident or death. Outside of the workplace, claims usually arise after witnessing or being involved in an accident of some kind.

Claims for mental harm are dealt with under the Wrongs Act (1958), or if it involves a motor vehicle, the Transport Accident Act (1986).  A court hearing such a claim will consider the following:

  • Whether the mental harm resulted from a sudden shock,
  • Whether the claimant witnessed the traumatic event,
  • The relationship between claimant and victim, and
  • Whether there was a pre-existing relationship between the claimant and the defendant.

Claims for mental harm can be made by those injured in an accident, those who witnessed the accident, a parent, spouse, or child of the victim, even a complete stranger who witnessed the accident – providing in all cases that it can be proven they suffered a psychiatric illness as a result of the accident.

The claim process

To successfully claim damages for mental harm, somebody needs to be at fault and a case of negligence needs to be proven against them. In a work situation the defendant would usually be an employer, and in a non-work situation the person who allegedly caused the accident, such as another driver. The plaintiff must also be able to demonstrate:

  • Duty of Care – That the defendant owed them a duty of care
  • Breach – That the duty owed was breached by the defendant’s negligence
  • Causation – That the defendant’s breach caused the plaintiff’s psychiatric injury.

Difficulties of proving negligence

While physical injuries are often more straightforward when it comes to establishing negligence, claims involving mental harm are more complex and difficult to prove.

One reason for this is the plaintiffs themselves. They often do not fully understand the cause of their illness, and because it is something intangible, it can be difficult to link causally to the accident.

In the case of a workplace claim, the plaintiff may have been reluctant to tell others – particularly their employer – about their problem due to the stigma surrounding mental health and fear of losing their job. This makes it hard to establish negligence on the employer’s part if they were unaware of the plaintiff’s mental state. They could not be expected to take reasonable steps to prevent mental harm from occurring if they were unaware of its existence.

Even if the plaintiff had divulged the extent of their problem, either by confiding in their employer or through their general behaviour at work, the onus would still be on them to prove that the defendant breached their duty of care. To do this they would need to establish that not only was the risk foreseeable, but that a reasonable person in the defendant’s position would have taken precautionary steps to prevent it from occurring.

Furthermore, claims of mental harm rarely succeed in relation to what is considered ‘reasonable management action’ taken by an employer against the plaintiff in connection with their employment. This includes transferring, demoting, disciplining, retrenching, or dismissing the plaintiff. In such cases, the onus is always on the plaintiff to prove that this exemption does not apply and that the employer’s actions were unreasonable.


Compensation claims for mental harm are fraught with hurdles and legal grey areas, and are never quite as straightforward as physical injury claims. More than with any other type of personal injury claim, the success of a mental harm claim rests squarely on the plaintiff’s ability to be able to establish a duty of care, a breach of that duty of care, and that the breach caused their psychiatric injury. Common law claims for mental harm often fail to establish that breach of duty of care and for this reason, you should always seek expert legal advice before going down this path.