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What are Emotional Distress Damages in Personal Injury Cases?

Emotional distress damages can be a major factor in recovery of a personal injury claim. If you were injured and filed a successful lawsuit, you may be able to obtain compensation for pain and suffering (in addition to economic and other damages) related to your injuries.

The amount and availability of non-economic damages such as emotional distress differs depending on the nature of the injury and the jurisdiction in which your lawsuit is filed. Even if you didn't file a lawsuit for your injuries, you can negotiate a settlement with an insurance provider that includes emotional distress damages.

What are emotional distress damages?

Emotional distress damages are monetary damages that are designed to compensate you for the psychological impact of your injury on your daily life. There is a long and varied list of emotional distress indicators.

Loss of sleep, anxiety and fear are the most common types of emotional distress. Some cases of depression, weeping, humiliation and fright also fall under the umbrella of emotional distress. Emotional distress is a very subjective type of damage and can change from one person to the other, and a hard and fast definition does not really exist. If you experience psychological symptoms after an accident, it is best to make a record of the symptoms as these may be able to be compensated. Also take note that what is distressing to you may not be distressing to others, and vice versa.

How to document emotional distress

If you are seeking medical treatment, it is likely that your injuries have reached a level where you will be able to make a claim. You need to tell your doctor about any psychological symptoms you’ve been experiencing since an accident. Emotional distress that has been medically documented is a powerful tool in your claim.

It is also recommended that you keep a journal documenting what you’re feeling in light of the accident and the injury, and the ways in which your life has been affected.

Having more evidence about your emotional distress gives you a stronger claim and higher chances of your recovery.

Does the severity of emotional distress matter?

Yes, it matters. Everyone experiences a certain level of emotional distress after an injury. The severity of the distress you are experiencing has a direct impact on your recovery potential. As a result, it is important that these feelings are documented through a medical provider. 
You will need to prove the ongoing emotional stress that you have suffered. You have to show how it affects your daily life and how it is directly related to the injury that you experienced. Whilst people with pre-existing psychological conditions are not exempted from claiming, it is still best to show that the distress did not occur before the injury.

Intentional infliction of emotional distress

There will be instances that you may want to make a separate claim for the intentional infliction of emotional distress. Whilst not as common as simple claims, there are cases, such as motor vehicle negligence cases, where you can prove that the other party is negligent in intentionally causing you emotional distress and physical harm.  Road rage cases are a perfect example for a separate emotional distress claim. In these types of cases, your recovery for emotional distress can be significantly higher.

Emotional distress and caps on damages

Different states and territories have different limits on how much to pay for non-economic damages, including emotional distress. These are affected by various factors such as the severity of the injury, the type of case, and the particular laws of jurisdiction. In no-fault states, all non-economic damages are subjected to statutory caps.

Ways to prove the claim

  • Intensity

The more intense your mental anguish, the better are your chances of proving that your emotional distress is severe and deserves compensation. For cases such as intentional infliction, intensity is usually accompanied by some sort of physical harm.

  • Duration.

Post traumatic stress which has persistent and recurring pain that stays with you for a long period of time also helps prove emotional distress claims.

  • Related Bodily Harm.

Though it may be difficult to point out evidence of emotional distress, in some circumstances you can provide evidence of related bodily injuries such as headaches, ulcers, or other physical signs.

  • Underlying cause.

The more severe the underlying cause of the distress, the more likely that the court will find an emotional distress.

  • Doctor’s certificate or report.

This should be provided to support every claim.

These methods should be incorporated together to prove the claim.

Emotional distress is a real result of an injury. While there are times where the other parties involved in the case will be sceptical about its nature, the fact of the matter is that emotional distress can have serious psychological ramifications. Emotional conditions such as fear of driving after a car accident, agoraphobia after an assault, or depression after a long course of rehabilitation, are all real and very distressing. They are also compensable as part of your claim.

Contact The Personal Injury Lawyers today on 1300 782 202 for your free claim assessment pack.





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