Can I make a public liability claim for mental harm?

Published 20 Nov 2017

Public liability claims offer the chance to fight for fair compensation for any injury, illness or disability suffered due to someone else's negligence.

NSW legislation offers protection and potential compensation for people from a range of harmful instances - but what many people aren't aware of is whether or not legislation covers mental harm. A traumatic experience can leave lasting mental damage that can be even more injurious in the long run than some cases physical harm.

However, the parameters of what encompasses mental harm, and presenting tangible evidence of its negative effect on your life, is more difficult to pin down precisely.

Mental harm under public liability

Mental harm refers to any case of lasting mental injury, condition or impairment suffered as a result of negligence, personal injury or traumatising injury to another party.

There are two important distinctions to be made in defining mental harm:

  • Consequential mental harm refers to any mental harm or impairment that occurs as a result of a simultaneous physical injury suffered, e.g. depression suffered following an immobilising leg injury.
  • Pure mental harm refers to any mental harm or impairment that occurs as a result of standalone mental or emotional trauma to a happening, e.g. anxiety caused by witnessing violent events.

If you suffered from either of these, you may be eligible for compensation under a variety of legal provisions.

One important factor to note is the duty of care that defendants owe. Here, defendants must consider that when a person of normal fortitude (considered the average person) enters their duty of care, they could suffer from an existing psychological condition that could be exacerbated by a defendant's negligent actions.

Where mental harm cannot be claimed

NSW legislation makes clear exceptions to civil liability compensation cases for instances of mental harm. For example, the plaintiff in motor accident cases cannot claim mental harm compensation - this is covered in another area of legislation.

Additionally, if the defendant has made fair provision to warn the plaintiff of the potential for mental harm in line with the defendant's duty of care, the plaintiff's compensation claim may be negated.

Finally, it should be noted that in instances of pure mental harm, compensation can only be claimed in harm cases which resulted in a recognised psychological illness or condition.

Am I eligible for mental harm compensation?

If you want to learn more about mental harm as a case for a public liability claim, or if you want to meet with a specialist lawyer to discuss compensation you may be owed under NSW legislation, please contact our team today.