In Queensland, you may have a public liability claim for psychological injury if:
- You’re injured in an accident and develop a recognised psychiatric illness as a result or
- A close relative dies in an accident and you develop a recognised psychiatric illness as an emotional response or
- You directly witness an accident and this causes you to develop a recognised psychiatric illness and
- The psychiatric illness was caused by someone else’s negligence and
- Your Injury Scale Value is at least 1.
Proving medical negligence
To prove negligence, you need to meet three criteria:
- That a duty of care exists: The other party must owe you a ‘duty of care’. While most people have a general duty to consider the safety of others, this duty is especially relevant for business and property owners and occupiers.
- The medical professional breached their duty of care: Their conduct must have fallen below an acceptable standard. This means the other party acted recklessly or failed to take reasonable precautions that another person would have taken.
- Their negligence cause your injury: You need to demonstrate a direct link between your psychiatric condition and the action (or inaction) of the other party.
Injury Scale Value (ISV) assessments
Your Injury Scale Value is a measure of the severity of your injuries. This assessment is performed by a registered psychiatrist, who will look at several factors in determining your ISV. This includes:
- The Psychiatric Impairment Rating Scale (PIRS).
- Age and life expectancy.
- Whether you have ‘reduced insight’ e.g. if you are aware of any abnormal behaviour.
- Pain and suffering.
- Loss of amenities of life.
- The likelihood that you would have experienced these difficulties regardless of the accident.
Understanding the PIRS
The Psychiatric Impairment Rating Scale (PIRS) is one of the main tools a psychiatrist uses to determine your Injury Scale Value. PIRS breaks down psychological injuries into six key areas of ‘impact’:
- Self-care and personal hygiene: whether you’re capable of performing everyday activities without a support person, such as bathing yourself and cooking.
- Social and recreational activities: if you can visit recreational venues like cinemas and restaurants without assistance. They will also take into account any social activities and club memberships.
- Travel: whether you can travel to new environments without help.
- Social functioning: your ability to form new relationships and sustain your existing ones.
- Concentration, persistence and pace: the length of your attention span and whether it impacts your capacity to carry out essential tasks and hold conversations.
- Adaptation: also known as ‘deterioration’, this is your ability to attend work regularly and perform required tasks without extensive supervision.
For each category, the psychiatrist will give you a rating between one and five. A rating of one means you’re experiencing no impairment, while five signals extreme impairment.
You can read more on the PIRS and its use in psychological injury claims, see Schedule 5 of the Act
Determining your ISV
The court will use your PIRS ratings (coupled with the other factors above) to assign you an ISV between 0 and 100. The lower your ISV, the less severe your injuries:
- 0 – 1 ISV: minor mental disorder with a PIRS rating of 1 – 3%.
- 2 – 10 ISV: moderate mental disorder with a PIRS rating of 4 – 10%.
- 11 – 40 ISV: serious mental disorder with a PIRS rating of 11 – 30%.
- 41 – 65 ISV: extreme mental disorder with a PIRS rating of 31 – 100%.
Calculating your general damages
Your ISV determines your compensation for general damages, as well as care and assistance. The exact amount is calculated by adding your base and variable compensation amounts. Both of these amounts are determined by your ISV and increase every year with inflation.
For example, if you were injured after 1 July 2023 and have an ISV of 15, you would be entitled to:
- $19,300 (base amount) +
- (ISV – 10) x $2,440 (variable amount).
In this case, your variable compensation is (15 – 10) x $2,440 = $12,200. That means you may receive up to $31,500 in total compensation.
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