Can you make a common law claim for stress?

Common law claims are designed to compensate injured workers for their pain and suffering and in some circumstances their loss of income suffered as a result of their work related injury. 

Work-related psychiatric injuries are on the rise in Victoria but the common law regime surrounding compensation remains challenging for claimants. However, if you have suffered a stress-related psychiatric injury at work it is worth speaking to a lawyer about whether you can make a common law claim in negligence.

 To successfully pursue a common law claim for a stress-related psychiatric injury, you must show that you suffered a serious injury and that the injury came about in negligent circumstances. 

‘Serious’ injury

Before you can bring a common law claim against your employer for compensation, you must first establish that your injury is ‘serious’. To determine whether you have a serious injury, firstly your injury must be stable. Secondly, as assessment must be made of the consequences that your injury as had on your life as well as an assessment of your level of employ ability. If WorkCover or a Court is satisfied that you have suffered a serious injury, you will be granted a serious injury certificate which entitles you to commence a common law claim in negligence.


In addition to establishing that you have suffered a serious injury, you must also prove negligence on the part of your employer or another party. The question becomes, did your employer or another party fail to take reasonable care to avoid a foreseeable risk of injury to you? 

Should you tell your employer that you are suffering from a diagnosed stress related injury?

It is important to advise your employer that you are suffering from a diagnosed stress related injury.

Sadly, many workers are not aware that they are suffering from a stress related injury until they have a breakdown of some sort. Others might be too scared to tell their employer about their injury for psychiatric injury claims, an employer’s duty of care is engaged when they become aware of the psychiatric condition. Once an employer is aware, they must take reasonable steps to address the situation that is causing the condition.

Wearne v State of Victoria

In Wearne v State of Victoria, the Victorian Supreme Court awarded a government employee, Ms Gaylene Wearne, over $600,000 in damages after finding that her employer, the Department of Human Services, was aware of her psychiatric difficulties related to work and failed to take reasonable steps to address those difficulties. Ms Wearne was a youth justice case manager and suffered a breakdown as a result of a deteriorating relationship with her manager. Whilst the Court found that the manager’s conduct did not constitute bullying, it did find that the Department had been long aware of the stress the employee was experiencing and that she was at risk of psychiatric harm as a result. 

This case demonstrates that a duty of care exists once an employer becomes aware of their employee’s psychiatric injury. Once an employer is aware, they are under a legal duty of care to manage the risk of exacerbating the existing injury. 

Is there a time limit for bringing common law claims?

Common law claims must be made within 6 years from the date of injury. 

However, with psychiatric injuries, establishing negligence can be very challenging so it is imperative that you seek legal advice as soon as possible if you suspect you may be eligible for common law damages. Contact our experts today on 9603 3000.

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