That question may sound blunt, but it reflects an important legal distinction.
A person can be genuinely angry, distressed or deeply affected by the way they have been treated without necessarily having a personal injury claim.
On the other hand, what initially appears to be ordinary emotional upset may sometimes develop into a recognised psychological condition requiring treatment.
The purpose of legal advice is not to dismiss how a person feels. It is to work out whether the experience amounts to a compensable injury and, if it does, whether the other elements of a claim can be established.
What does a personal injury claim usually require?
A personal injury claim generally requires more than poor treatment or an unpleasant experience.
There will usually need to be:
- a recognised physical or psychological injury;
- a legal duty owed by another person or organisation;
- a breach of that duty;
- a connection between the breach and the injury; and
- some compensable loss.
The fact that an event was unfair, unpleasant or badly handled does not, by itself, establish those elements.
The law does not provide compensation for every wrong
A person may have been treated unfairly, spoken to badly, embarrassed, ignored, disappointed or put through a stressful experience. Their anger or distress may be completely genuine.
However, the legal system does not automatically award damages simply because someone has behaved poorly or because an event should not have happened.
Compensation is generally only available where the law recognises a cause of action and the required elements can be proved.
There are many situations where conduct may be rude, unreasonable, insensitive or morally wrong, but does not amount to a compensable legal wrong. There are also situations where a legal wrong may have occurred, but no recoverable loss has resulted.
This distinction can be difficult to accept.
People often feel that because something was wrong, someone should have to pay. The law is more limited. It provides remedies in defined circumstances, not for every experience of unfairness, disappointment or distress.
That does not mean the person’s experience is unimportant. It means that not every problem has a legal remedy, and not every legal remedy involves financial compensation.
Emotional distress is not necessarily a psychological injury
Feeling angry, embarrassed, anxious, stressed or disappointed after a difficult event may be entirely understandable. Those feelings alone, however, do not necessarily amount to a recognised psychological or psychiatric injury.
There is an important difference between ordinary emotional distress and a recognised psychological condition supported by medical evidence. Conditions such as adjustment disorder may involve ongoing emotional or behavioural symptoms following a significant stressor. Symptoms can include anxiety, sadness, worry, withdrawal or changes in behaviour.
The distinction is not always obvious.
A person may believe they are simply upset when their symptoms are persistent and require treatment. Equally, experiencing genuine distress does not automatically mean that a psychiatric condition has developed.
Where symptoms continue, interfere with work, relationships or ordinary activities, or become difficult to manage, the appropriate first step is usually to speak with a general practitioner or mental health professional.
A diagnosis is important, but it does not automatically establish an entitlement to compensation. The condition must still be connected to an event for which another person or organisation is legally responsible.
| Ordinary emotional distress | Recognised psychological injury |
|---|---|
| Ordinary distressAnger, embarrassment, anxiety, sadness or disappointment after a difficult event | Recognised injuryA diagnosable condition, such as an adjustment disorder, identified by a health professional |
| Ordinary distressUnderstandable and genuine, but typically short-lived | Recognised injuryPersistent symptoms that continue over time |
| Ordinary distressDoes not usually interfere with work, relationships or daily activities | Recognised injuryInterferes with work, relationships or ordinary functioning |
| Ordinary distressNo medical evidence required | Recognised injurySupported by medical records, treatment notes and specialist reports |
| Ordinary distressNot, by itself, a compensable injury | Recognised injuryMay be compensable – but only if connected to a legally responsible event |
Psychological injuries are real injuries
A genuine injury does not always involve a broken bone, surgery or an obvious physical impairment.
Psychological injuries can be serious and disabling.
The question is not whether the injury can be seen. The question is whether there is reliable medical evidence of the condition and sufficient evidence connecting it to a legally compensable event.
That evidence may include medical records, treatment notes, reports from psychologists or psychiatrists, employment records, witness evidence and evidence of the effect on the person’s daily life.
The cause of the injury matters
Sometimes a person has a genuine psychological injury, but the legal cause of that injury is not straightforward.
This often arises in workers’ compensation matters.
An injured worker may feel distressed by decisions made by their employer, including performance management, disciplinary action, a transfer, demotion, redeployment, retrenchment or dismissal. In some cases, those events may contribute to a diagnosed psychological condition.
However, a diagnosis does not necessarily mean that the condition will be accepted as a compensable workers’ compensation injury.
Under Queensland workers’ compensation law, a psychiatric or psychological disorder is generally excluded where it arises from reasonable management action taken by the employer in a reasonable way. The exclusion can also apply where the condition arises from the worker’s expectation or perception that reasonable management action will be taken.
This means the legal analysis is not limited to whether the worker has developed a genuine condition. It may also be necessary to consider:
- what management action was taken;
- whether that action was reasonable;
- whether it was carried out in a reasonable way; and
- what medical and factual evidence identifies as the cause of the condition.
An employer does not obtain automatic protection merely by describing its conduct as performance management or disciplinary action. The action itself, and the way it was carried out, must be examined.
The cause of the condition can also be important where a worker is distressed by the management of a WorkCover claim.
That distress may arise from the claims process itself, or it may form part of a secondary psychological condition developing from the original physical injury and the difficulties of recovery.
Queensland workers’ compensation legislation also excludes a psychiatric or psychological disorder arising from action taken by the Regulator or an insurer in connection with the worker’s compensation application.
A psychological condition arising from the original workplace injury and its consequences may therefore be treated differently from a condition said to arise from reasonable management action by the employer or from the insurer’s administration of the claim.
Medical evidence and the particular facts must be considered carefully.
We discuss that issue further in: Can I sue WorkCover for mishandling my claim?
Sometimes there is an injury, but the wrong person is being blamed
A person may have suffered a real injury but direct their complaint towards the wrong person or organisation.
For example, they may blame a claims officer, manager, complaints department or insurer when the relevant injury arose from the original accident or workplace event.
Identifying the correct cause of the injury, the relevant legal duty and the proper respondent is an important part of the initial legal assessment.
A claim cannot succeed merely because a person is frustrated with the way a matter has been handled.
Truth and proof are not the same thing
A person may be telling the truth about what happened but still have difficulty proving a legal claim.
A viable claim may depend on:
- medical records;
- contemporaneous complaints;
- witness statements;
- incident reports;
- photographs or video;
- employment records;
- correspondence; and
- other documents created at or near the time of the event.
A genuine account may still be difficult to pursue where the necessary evidence is unavailable or where the medical evidence does not support the claimed injury or its cause.
This can be frustrating, but the court must decide claims based on evidence, not simply on who feels most strongly about what occurred.
Compensation may not be the appropriate remedy
Even where a person has been treated poorly, a damages claim may not be the best or most appropriate response.
Depending on the circumstances, other options may include:
- making a formal complaint;
- seeking an internal or external review;
- appealing a decision;
- requesting a correction, refund or apology;
- using a workplace grievance process; or
- reporting conduct to a regulator or professional body.
These options may not provide financial compensation, but they can sometimes address the actual problem more effectively than litigation.
The right question is not always “Can I sue?”. Sometimes the better question is “What outcome am I actually trying to achieve?”.
Having a possible claim does not always mean it should be pursued
Even where there is an injury and a possible legal basis for compensation, it is still necessary to consider the strength and practical value of the claim.
Personal injury claims can involve:
- legal costs;
- medical examinations;
- disclosure of private records;
- delays;
- uncertainty;
- stress;
- factual disputes; and
- the risk of an adverse costs order if court proceedings are unsuccessful.
For more information, see: The hidden financial risks of making a personal injury claim.
It is also important to distinguish between what a claim feels like it should be worth and what Queensland law actually allows.
Compensation is assessed by reference to recognised heads of damage, evidence of loss and any applicable statutory restrictions. It is not simply a monetary assessment of how badly a person feels they were treated.
We discuss that issue further in: Why your injury claim is not worth what you think.
Do not assume that you have no claim
This article is not intended to discourage an injured person from obtaining advice.
The distinction between emotional distress and psychological injury is not always obvious.
There may also be strict time limits and notification requirements applying to a potential claim.
If symptoms are continuing, an injury has affected your ability to work or function, or you are unsure whether another person may be legally responsible, obtain medical and legal advice promptly.
Clear advice is still valuable
A personal injury lawyer’s role is not to turn every upsetting experience into a claim.
It is to identify whether there is a recognised injury, whether someone else is legally responsible, whether the necessary evidence exists, and whether pursuing the matter is likely to leave the client better off.
- Sometimes the right advice is to make a claim.
- Sometimes it is to use a complaint, review or appeal process.
- Sometimes it is to obtain treatment and move forward without litigation.
Clear advice about which category your situation falls into can be valuable in itself.