Written by: Richele Nelsen Most everyday stress fades with time, but some experiences leave lasting psychological wounds that profoundly impact your ability to live, work, and maintain relationships. When emotional trauma results from another party’s negligence or intentional actions, the law recognises your right to seek compensation for this invisible yet devastating injury.
Understanding whether you can sue for emotional distress, how much compensation you might receive, and what evidence you’ll need can seem overwhelming when you’re already struggling with the psychological aftermath of a traumatic event. This guide breaks down the legal framework for emotional distress claims in Australia, providing clear answers to help you determine whether pursuing legal action is right for you.
What is emotional distress?
Emotional distress—also called psychological injury or psychiatric injury—refers to significant mental suffering caused by a specific traumatic event, ongoing situation, or pattern of harmful experiences. Unlike everyday stress or temporary sadness, compensable emotional distress represents a substantial psychological response that meaningfully disrupts your life.
The law recognises emotional distress as a legitimate injury deserving of compensation, even when no physical wounds are visible. This acknowledgment reflects our understanding that psychological trauma can be just as debilitating as broken bones or lacerations, often with longer-lasting consequences.
Can you sue for emotional distress?
Yes, you can sue for emotional distress in Australia, but your claim must meet specific legal criteria. Not every upsetting experience qualifies for compensation; the law requires demonstrable psychological injury stemming from another party’s wrongful conduct.
Situations that commonly cause compensable emotional distress include:
- Workplace harassment, bullying, or discrimination
- Motor vehicle accidents
- Medical negligence or malpractice
- Sexual assault or abuse
- Witnessing a loved one’s serious injury or death
- Dangerous conditions in public places
- Recreational accidents due to inadequate safety measures.
You may be eligible to sue for emotional distress if you were directly involved in the incident, you witnessed a traumatic event, or you experienced intentional harm.
| 1. Eligibility to sue | Details of emotional harm and an example |
|---|---|
| 1. You were directly involved in the incident | If you suffered physical or psychological injuries in an accident or incident caused by another party’s negligence, you can claim compensation for the resulting emotional trauma. This applies even if your physical injuries were minor, but the psychological impact was severe. Â Example: You were a passenger in a car accident caused by a reckless driver. Though you sustained only minor physical injuries, you developed severe anxiety and PTSD that prevents you from travelling in vehicles comfortably. You can sue for emotional distress alongside any physical injury claims. |
| 2. You witnessed a traumatic event involving a close family member | Australian law recognises that witnessing a loved one’s serious injury or death can cause profound psychological harm. Known as “nervous shock” or “pure psychological injury,” this allows family members to seek compensation even if they weren’t physically harmed themselves. Â To qualify, you typically must:
 Example: You witnessed your child being struck by a negligent driver. The trauma of seeing your child seriously injured caused you to develop PTSD, depression, and anxiety requiring ongoing psychiatric treatment. You can file an emotional distress claim against the negligent driver. |
| 3. You experienced intentional harm | When someone deliberately causes you emotional trauma through harassment, threats, abuse, or other intentional conduct, you can sue for emotional distress regardless of whether physical injury occurred.  Example: Your employer knowingly forced you to work in hazardous conditions without proper safety measures, despite repeated complaints. This reckless disregard led to severe anxiety and diagnosed PTSD. With strong medical evidence linking your psychological injury to the employer’s conduct, you can pursue a significant personal injury claim for emotional distress—even without physical harm. |
Expert tip
The strength of emotional distress cases depends heavily on medical documentation. To establish eligibility for a psychological injury claim, it’s generally necessary to have around three months of consistent psychiatric or psychological treatment.
Intentional vs. negligent infliction of emotional distress
Emotional distress claims fall into two categories based on the defendant’s conduct: negligent infliction and intentional infliction. Understanding the distinction helps clarify what you must prove to succeed in your case.
| Type of emotional distress claim | Details | Burden to prove the claim |
|---|---|---|
| Negligent infliction of emotional distress | This occurs when someone’s careless or negligent actions cause you psychological harm, even without intent to do so. Â It’s the most common type of emotional distress claim and typically occurs from:
| To prove negligent infliction of emotional distress, you must establish:
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| Intentional infliction of emotional distress | This involves deliberate conduct designed to cause emotional harm or conduct so outrageous that emotional distress was a foreseeable consequence. Â Examples include:
| Proving intentional infliction requires demonstrating:
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How to prove an emotional distress case
Proving emotional distress in court presents unique challenges because psychological injuries lack visible evidence like X-rays or wound photographs. However, Australian courts have established clear frameworks for demonstrating the legitimacy and severity of emotional trauma.
Essential elements you must prove include:
| 1. Documented psychiatric diagnosis | A qualified psychiatrist or psychologist must diagnose your condition. Self-reported symptoms alone are insufficient; you need professional medical opinions confirming conditions like PTSD or other recognised psychiatric conditions. |
| 2. Causation linking the incident to your injury | You must establish that your emotional distress directly resulted from the defendant’s conduct, not pre-existing conditions or unrelated life events. Â This requires:
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| 3. Evidence of severity and impact | Courts require proof that emotional distress significantly affects your life. Â Key evidence includes:
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| 4. Expert medical testimony | Psychiatrists or psychologists who have evaluated you will typically provide expert testimony explaining:
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Signs of emotional distress
Recognising emotional distress symptoms in yourself or loved ones is crucial for both recovery and potential legal action. While individual experiences vary, certain patterns consistently emerge following traumatic events.
| Category | Symptom/Sign |
|---|---|
| Psychological and emotional |
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| Physical |
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| Cognitive |
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| Behavioural |
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| High-risk indicators |
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Disclaimer: If you are experiencing suicidal thoughts or feeling overwhelmed, please know that you are not alone, and help is available. It’s important to reach out and talk to someone. You can contact Lifeline any time of day or night by calling 13 11 14. If you or someone you know is in immediate danger, please call 000 or go to your nearest emergency department.
How much compensation can you claim for emotional distress?
Compensation for emotional distress varies widely based on the severity of your condition, its impact on your life, the strength of your evidence, and your state or territory’s laws. In New South Wales, for example, awards can reach up to $705,000 in the most serious cases.
Generally, the more severe and lasting the emotional harm, the greater the potential compensation.
| Degree of emotional distress | Typical compensation range |
|---|---|
| Minor (short-term anxiety or depression that resolves with brief treatment) | Up to $50,000 |
| Moderate (ongoing psychiatric conditions requiring extended therapy, medication, or causing work limitations) | Up to $150,000 |
| Severe (chronic PTSD, major depression, or anxiety disorders significantly limiting life functioning) | Up to $350,000 |
| Catastrophic (permanent psychiatric disability, inability to work, complete life disruption) | $350,000 to $700,000+ |
These figures reflect general damages for pain and suffering and are approximate. Your total compensation may also cover economic losses such as medical expenses, lost wages, reduced earning capacity, and ongoing treatment costs.
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Factors determining emotional distress compensation
While each case is unique, understanding the factors influencing compensation helps set realistic expectations.
| Factor | Details |
|---|---|
| Severity of psychological injury | More severe psychiatric conditions receive higher compensation. A mild anxiety disorder that resolves with short-term therapy yields less compensation than chronic PTSD, requiring years of intensive treatment. |
| Duration and permanence | Temporary emotional distress that improves within months receives lower compensation than permanent psychiatric impairment affecting you for life. Courts consider both current impact and future prognosis. |
| Impact on daily functioning | How dramatically your emotional trauma affects your life matters significantly:
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| Medical evidence quality | Strong psychiatric evaluations, comprehensive treatment records, and credible expert testimony increase compensation. Inconsistent documentation or gaps in treatment weaken claims. |
| Pre-existing conditions | If you had prior psychiatric conditions, compensation may be reduced to account for your baseline psychological state. However, aggravation of pre-existing conditions is still compensable. |
| State-specific frameworks | Each Australian state uses different calculation methods and compensation limits for emotional distress claims:
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Case summaries and settlements
The following real-world case examples demonstrate how Australian courts and insurers assess emotional distress lawsuits.
| Settlement | Case details |
|---|---|
| $110,000 emotional distress settlement | Multiple family members sought our assistance after experiencing severe emotional distress following the death of a loved one due to medical negligence. Psychiatric evaluations confirmed diagnoses, including depression, anxiety, and complicated grief. Â With strong medical evidence and expert psychiatric support, we secured a $110,000 settlement, distributed among the family members to compensate for their psychological suffering. |
| $350,000 nervous shock settlement from hospital negligence | A family from the Hunter Region, NSW, pursued a claim against a hospital after the death of their father and husband. He was mismanaged following heart surgery, despite being at high risk of cardiac complications. Â Instead of being placed in ICU for close monitoring, he was returned to a general ward. Signs of delirium and deterioration were overlooked and he tragically passed away two days later. Â Our team obtained expert cardiology and psychiatric evidence that revealed clear failures in care and significant psychological harm to four family members. Â To spare the family the trauma of a court trial, the case was resolved at mediation. The settlement exceeded $350,000, providing some justice and closure for the grieving family. |
Disclaimer: Every emotional distress case is unique, and outcomes can vary widely. For advice tailored to your situation and to learn what’s possible in emotional distress cases won in Australia, speak with one of our experienced lawyers today.
