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How do you calculate damages for emotional distress?

Emotional distress

Emotional distress can profoundly impact one’s life, leading to psychological conditions such as anxiety, depression, and post-traumatic stress disorder. Calculating damages for such non-physical injuries can be complex. This guide aims to clarify the process, helping you understand the factors that influence compensation amounts, the legal underpinnings of different types of emotional distress claims, and the method of quantifying damages in Australia.

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Factors that determine the amount of emotional distress damages

Emotional distress is a psychological response to traumatic experiences, which can include workplace incidents, accidents in public spaces, and more personal circumstances like abuse. In Australia, when suing for emotional distress, claims are categorized as either intentional or negligent infliction of emotional distress. Damages are calculated based on several factors:

  • Severity of Psychological Impact: The extent to which the distress affects your daily life, including your ability to work and maintain relationships, is a primary factor. A deeper impact often correlates with higher compensation.
  • Evidence of Trauma: Medical records, psychological evaluations, and personal journals documenting the distress contribute to the strength of your claim. Consistent and detailed evidence can significantly bolster the case for damages.
  • Duration of Suffering: The length of time you have been or will be affected by the emotional distress influences the amount of compensation. Longer periods of suffering may result in higher damages being awarded.
  • State Legislation: Each Australian state has its caps and regulations concerning non-physical damage compensation, affecting the potential compensation amount.
  • Intent or Negligence: The nature of the defendant’s actions—whether intentional or due to negligence—can also impact the damages. Intentional infliction of distress is taken very seriously and may lead to a higher compensation amount.
  • Economic and Non-Economic Damages: Compensation includes both economic damages like lost wages and medical expenses, and non-economic damages such as pain and suffering or loss of enjoyment of life.
  • Statute of Limitations: The timeframe within which you file your claim is also crucial. Different states have varying time limits, and timely filing can be a critical component of a successful claim.

Types of emotional distress claims and their legal basis

Emotional distress claims in Australia can arise from a multitude of events, such as accidents, abuse, or witnessing traumatic incidents. The legal system recognizes various types of claims:

  • Negligent Infliction of Emotional Distress: This claim is valid when an individual or entity fails to uphold a duty of care, resulting in emotional trauma. The claimant must show that reasonable care was not provided, leading to their suffering.
  • Intentional Infliction of Emotional Distress: When there is a deliberate act that causes severe emotional harm, a claim for intentional infliction may be pursued. The actions must be proven to be extreme and outrageous, causing significant distress.
  • Wrongful Death Emotional Distress: If a loved one’s death is caused by someone else’s actions or negligence, the survivors may claim damages for the emotional impact of their loss.
  • Nervous Shock Claims: These claims are for those who witness a shocking event, such as a severe accident or death. Claimants must prove that it was foreseeable that such negligence could cause emotional trauma to others.

How do you calculate damages for emotional distress?

The calculation of damages for emotional distress involves a careful assessment of the individual circumstances of each case:

  • Assessing the Psychological Impact: The degree of mental harm and its effect on one’s life, such as the ability to work or engage socially, plays a critical role in determining the value of a claim.
  • Economic Damages: These refer to the direct financial losses suffered, including medical costs and lost income. They are calculated based on actual expenses and financial impacts traced back to the emotional distress.
  • Non-Economic Damages: These are more subjective and cover the non-monetary aspects, like pain and suffering or reduced quality of life. Calculating these damages often requires expert testimony and a detailed account of the personal suffering.
  • Documenting Evidence: Comprehensive documentation through medical records, psychological assessments, and personal diaries is imperative. It provides a factual basis for the claim and helps to substantiate the extent of the emotional distress.
  • Legal Representation and Negotiations: Engaging with a specialized psychological injury lawyer can help navigate the complexities of the claim process. Lawyers can advise on the collection of evidence and represent the claimant in negotiations or court proceedings if necessary.
  • Statutory Caps and Limitations: Some Australian states have limitations on the amount that can be claimed for non-economic damages, which must be considered when calculating potential compensation.


Calculating damages for emotional distress is a nuanced process that hinges on the interplay between the severity of the emotional impact, the evidence presented, and the legal framework in place. In Australia, while there are overarching principles, the specifics can vary significantly by state and the nature of the claim—whether it stems from negligence or intentional harm. The two-pronged approach to damages, encompassing both economic and non-economic losses, seeks to offer a holistic compensation for the claimant. It’s imperative to act promptly and seek professional legal advice to ensure that the claim is filed within the appropriate time frame and that all requisite evidence is meticulously documented.


What is the difference between emotional damage and mental damage?

Emotional damage typically refers to the distress and turmoil one feels as a result of a traumatic event, whereas mental damage often implies a diagnosed psychological disorder that may have been caused by such distress or trauma.

What damages are awarded for emotional distress?

Damages for emotional distress can include compensation for pain and suffering, psychological treatment costs, lost wages due to inability to work, and reduced quality of life.

What is an example of an emotional distress claim?

An example of an emotional distress claim could be a person developing anxiety and depression after witnessing a catastrophic car accident, leading them to seek compensation for their psychological suffering.

How much compensation can you claim for stress?

The amount of compensation for stress varies depending on the severity and impact on one’s life, with claims potentially reaching into hundreds of thousands of dollars, as influenced by medical costs, lost earnings, and personal suffering.