Psychiatric and Psychological Injuries

You should engage a personal injury lawyer as soon as possible. This is so:

• We can make sure you do not miss any important time limits.
• We can provide you with advice about your rights and obligations.
• We can make sure that what you are telling the doctors and the Insurer is consistent – ie your story about what happened needs to remain the same, or conflicting versions need to be clarified as soon as possible, as credibility is critical in these claims.
• We can make sure that you are telling the doctors and the Insurer the full story (eg disclosing previous injuries or claims), so that your credibility remains intact.
• We can make sure that your medical certificates list all psychological (and, where applicable, physical) injuries you have sustained, no matter how insignificant – sometimes the doctors need some guidance in that regard.
• We can help prepare your claim and serve it on the defendant, respondent, CTP insurer or WorkCover when the time is right.
• We can make sure that all of your injuries are being fully investigated and treated.
• We can start putting your offer of settlement together.

The process involved depends on how your injury occurred (eg in a motor vehicle accident, at work, in a public place or in a hospital).

Click here to find out how to start a claim if your psychological injury occurred as a result of a motor vehicle accident.

Click here to find out how to start a claim if your psychological injury occurred at work or as a result of a work accident.

Click here to find out how to start a claim if your psychological injury arose as a result of an accident or incident that occurred in a public place, at someone else’s home, business or venue.

Click here to find out how to start a claim if your psychological injury arose as a result of one or more events that occurred at a school, at a church or in prison.

Click here to find out how to start a claim if your psychological injury was caused by medical negligence.

Ordinarily, the rule of thumb is that you have three (3) years from the date that a doctor would have diagnosed you as suffering from a diagnosable psychiatric injury (like Post Traumatic Stress Disorder, Adjustment Disorder, Anxiety Disorder or Major Depressive Disorder) to commence court proceedings.

There are, however, other stricter time limits that need to be adhered to which change depending on how you were injured (eg in a motor vehicle accident, at work, in a public place or in a hospital).

Car accidents (and other accidents on the road):

Vehicles that have been identified (even if unregistered):

A person suffering psychological injuries as a result of a motor vehicle accident, where the vehicle at fault has been identified, has one (1) month from the date they first consult with a lawyer or nine (9) months from the date of accident, whichever is the earlier, to serve a Notice of Accident Claim Form on the CTP Insurer of the vehicle.  In the case of unregistered vehicles, the claim form has to be served on the Nominal Defendant, a government insurer.

A Notice of Accident Claim Form can still be served on the insurer after the nine (9) month timeframe up to three (3) years  after the date of injury provided it contains a reasonable excuse for the delay.

You must then settle your CTP claim with the CTP insurer, or commence court proceedings (by filing a Claim and Statement of Claim), within three (3) years of the date of injury.

Subject to some very limited exceptions, your right to receive compensation for your personal injuries will be lost completely if court proceedings are not commenced within three (3) years of the date of injury. If you are outside that timeframe, please seek legal advice urgently to find out if there are any exceptions that apply to you.

Vehicles that remain unidentified:

A person injured in a motor vehicle accident, where the vehicle at fault has NOT been identified (eg in a hit and run), only has one (1) month from the date they first consult with a lawyer or three (3) months from the date of accident, whichever is the earlier, to serve a Notice of Accident Claim Form on the Nominal Defendant (a government insurer).

A Notice of Accident Claim Form can still be served after the three (3) month timeframe up to nine (9) months  after the date of accident provided it contains a reasonable excuse for the delay.

If a Notice of Accident Claim Form is not served on the Nominal Defendant within nine (9) months from the date of accident, all rights to receive compensation are lost.

Provided a Notice of Accident Claim Form has been served within nine (9) months from the date of accident, you must then settle your CTP claim with the CTP insurer, or commence court proceedings (by filing a Claim and Statement of Claim), within three (3) years of the date of injury.

Work accidents:

An injured worker has three (3) years from the date of injury to serve a Notice of Claim for Damages on their employer and WorkCover Queensland and to receive a “compliance” response from WorkCover confirming that they have provided all necessary information.

If those steps are not taken within the three (3) year limitation period to protect the worker’s interests, all rights to receive compensation are lost. There are some limited exceptions to this rule, however, so if you are outside that timeframe, please seek legal advice urgently to find out if there are any exceptions that apply to you.

There is also the possibility of being able to pursue a “common law only” claim if you suffered a psychological injury at work but never lodged a statutory workers’ compensation claim. A “common law only” claim must be commenced within three (3) years of the date of injury.

Public liability injury claims:

To commence a public liability claim for psychological injury, you have to serve a Form 1 Part 1 Notice of Claim on the individual or company that caused your injury (“the Respondent”).

That claim form has to be served on the Respondent within one (1) month from the date you instruct a lawyer to act on your behalf or within nine (9) months from the date of accident, whichever is the earlier.

A claim can still be commenced outside the nine (9) month timeframe up to three (3) years after the date of injury but you have to provide a reasonable excuse for the delay.

You must then settle your claim with the public liability insurer or commence court proceedings (by filing a Claim and Statement of Claim), within three (3) years of the date of injury. There are some limited exceptions to this rule, however, so please speak with one of our expert personal injury lawyers to discuss any options you might have in that regard.

Medical negligence claims:

To commence a medical negligence claim for a psychological injury, you must serve an “Initial Notice” on the hospital, doctor or other health practitioner that caused your injury (“the Respondent”).

That Initial Notice has to be served on the Respondent within one (1) month from the date you instruct a lawyer to act on your behalf or nine (9) months from the date the medical negligence occurred (or from the date your symptoms first appeared), whichever is the earlier.

An Initial Notice can still be served upon the Respondent outside the nine (9) month timeframe up to three (3) years from the date of injury but you have to provide a reasonable excuse for the delay.

Once any relevant clinical notes surrounding your medical treatment have been received, you then have twelve (12) months to serve a Form 1 Part 1 Notice of Claim and a supporting medical report on the Respondents.

You must then settle your claim with the Respondent’s professional indemnity insurer or commence court proceedings (by filing a Claim and Statement of Claim), within three (3) years from the date of injury. There are some limited exceptions to this rule, however, so please speak with one of our expert personal injury lawyers to discuss any options you might have in that regard.

Car accidents (and other accidents on the road):

Your claim for psychological injury will be against the CTP insurer of the vehicle that caused the accident.  You will be alleging that the driver of that vehicle was at fault but the CTP insurer is the one that conducts the defence of the claim on behalf of that driver.

In circumstances where the vehicle is unregistered or cannot be identified, then the claim is against the Nominal Defendant (a government insurer).

Work accidents:

In order to pursue a workers’ compensation common law claim you have to prove that your employer or a co-worker was negligent in some way.  Your employer will be held vicariously liable for the actions of any co-workers, provided they were acting within the scope of their employment.

As a result, when you bring a common law claim for psychological injuries, you are effectively suing your employer for negligence but they are then covered by their insurer, which is WorkCover Queensland (or a self-insurer). WorkCover assumes the defence of the claim and ultimately pays out any settlement amount or court award.

Public liability injury claims:

Your claim for psychiatric injury will be directed at the individual or company that caused the accident, event or circumstances that led to your injury (“the Respondent”).

The Respondent may have to pay a relatively small excess on their insurance and their public liability insurer then takes over the conduct of the claim and pays out any compensation.

Medical negligence claims:

Your claim for psychological injury will be directed at the hospital, doctor or other health professional whose treatment fell short of the standard reasonably expected of them.

They may have to pay a relatively small excess on their insurance and their professional indemnity insurer then takes over the conduct of the claim and pays out any compensation.

Car accidents (or other accidents on the road):

Provided your family member’s vehicle or friend’s vehicle was registered and there is nothing else untoward (see the exceptions listed below), then there will be absolutely no issue at all. They will not even have to pay an excess to the CTP insurer. The CTP insurer of the vehicle simply assumes conduct of the claim and communicates directly with your lawyers.

This means that passengers in cars can bring claims against their own family member, if the accident was caused by their family member, without fear of any financial or other penalty.

Exceptions to the rule:

1. If the vehicle was being used without the owner’s authority or without legal justification or excuse, then the insurer may have a right to recover all the compensation and costs paid from the driver.
2. If the driver intended to harm you or some other person (resulting in your injury), then the insurer may have a right to recover all the compensation and costs paid from the driver.
3. If the driver was under the influence of alcohol or drugs at the time of the accident, which then caused or contributed to the accident, the insurer may have a right to recover all the compensation and costs paid from the driver.
4. If the vehicle was being used to commit a crime or for some other illegal purpose, then the insurer may have a right to recover all the compensation and costs paid from the driver.
5. If the vehicle was not registered at the time of the accident, then the Nominal Defendant may have a right to recover all the compensation and costs paid from the driver or owner of the vehicle.

Public Liability Claims

It does not matter if your psychological injury was caused by a family member or friend as the public liability insurer will be the one paying out any compensation. Your friend or family member simply has to pay a relatively small excess (if any) and the insurer then assumes the conduct of the claim.

The public liability insurer will, of course, want your family member or friend to provide a statement about what happened and, in the extremely unlikely event that the matter was to proceed to trial, they might be called upon to give evidence about what happened but that would be it.

There are, however, some exceptions to this rule. If your family member or friend was under the influence of alcohol or drugs, intended to harm you, was using something without the owner’s authority or without legal justification or was undertaking an illegal activity at the time, the public liability insurance policy may be voided, so that your friend or family member is not covered.  We would look into this for you before proceeding with any claim.

There is no adverse impact on your co-workers at all. They may have to give a statement about what happened but that would be it. They may also be required to give evidence if the matter went to trial, which is extremely unlikely (less than 2% of personal injury claims actually proceed to trial).

In terms of the impact on your employer, their future workers’ compensation premiums might be affected to some extent.

How much compensation or damages you will be entitled to receive is dependent on a lot of different factors, including:

• What ongoing problems you are likely to have as a result of your psychological injury – obviously, we won’t know this until your psychological injuries are stable and stationary and have been assessed by the medical experts
• Your age, which impacts on how long you were going to work for and how long you will experience pain and suffering from your psychiatric injuries
• What the doctors say about your psychological injuries, particularly the degree of impairment and the level of disability you have as a result of your psychiatric condition
• Whether you had a pre-existing psychiatric or psychological condition, previous injuries or other health issues that were impacting on you, or are going to impact on you in the future
• What restrictions and difficulties you have, particularly with respect to your work capacity
• What your income and earning capacity was like pre-accident, compared to what your income and earning capacity is now like
• What treatment, care and support needs you will have because of your psychiatric condition
• Whether you have needed paid care and assistance because of your psychological injury and, if so, the nature and extent of that support
• Whether you have needed voluntary (unpaid) care and assistance because of your psychological injury and, if so, the nature and extent of that support
• Whether you will continue to require paid care and assistance because of your psychological injuries and, if so, the nature and extent of that support
• Whether you will continue to require voluntary (unpaid) care and assistance because of your psychological injury and, if so, the nature and extent of that support
• How much ongoing treatment and medication you need in the future

Psychological injury claims often settle for hundreds of thousands of dollars or more.

It depends on how much legal work it takes to settle your claim. Every matter is different. Our hourly rates are extremely competitive. For more information on how we charge, click here.

This is extremely unlikely. You only have to pay some of the insurer’s costs if you proceed to trial and lose completely or if you receive a judgment for less than what the insurer has previously offered to pay you.

The number of personal injury claims that actually proceed to trial is less than 2 in 100, so the chances of you having to pay the insurer’s costs are very slim. 

During the course of your claim, we will provide you with detailed advice on what we believe the quantum of your claim to be, so that you know what amount would be considered to be a good settlement amount.

No. In personal injury claims in Queensland we only claim net losses (after tax), so the ATO does not impose tax on any settlement monies. If, however, you invest those funds and earn income then you may well have to pay tax on that income. You should seek advice from your accountant or financial advisor in that regard.