Case Summary: Lundbergs v Fu & Anor [2025] QSC 135

4th September 2025

Lundbergs v Fu & Anor [2025] QSC 135

Crowley J, decision delivered 6 June 2025

 Facts 

The plaintiff brought a claim for damages for psychiatric injury claimed to be suffered as a result of the first defendant’s negligence.

The plaintiff’s partner and three of her children were involved in a minor traffic collision when their car rear ended another car on the highway.

The plaintiff did not witness the incident. She found out about the accident when one of her daughters telephoned her from the roadside, told her what had happened and confirmed that everyone was okay.

While there was no dispute that the first defendant caused the accident through his negligent driving, liability was in issue. Whether the first defendant owed a duty to the plaintiff and the scope of any such duty was disputed. Reasonable foreseeability of harm was at the heart of the dispute.

While there was no dispute the plaintiff had a psychiatric condition, the nature and cause of that condition was in issue.

The plaintiff’s case was that the incident, phone calls, and subsequent events resulting from the incident were, at the very least, a cause of her psychiatric injury and therefore the elements of causation of the claim were established.

The second defendant’s case (Suncorp as the CTP insurer) was that the incident and subsequent events did not cause or significantly contribute to any psychiatric condition suffered by the plaintiff.

The second defendant contended the plaintiff experienced a host of other life stressors both before and after the accident and having regard to the minor nature of the accident, those other factors were more likely the cause of the plaintiff’s psychiatric injury.

The plaintiff’s assertion was that the scope of any duty of care owed extended to the general circumstances of a hypothetical accident in which the plaintiff might suffer a psychiatric injury as a result of her family being involved or injured in an incident caused by the first defendant’s negligence.

The second defendant’s position was that the specific details of the collision which actually occurred in this case must be considered, namely a low speed, minor collision in which no one was physically hurt and where the plaintiff was informed of those circumstances when she was told about the accident.

The plaintiff knew that the collision was relatively minor in nature and that her family members had not suffered any physical injury. Therefore the plaintiff’s claim depended on the stress and psychological disturbances she said she subsequently suffered as a result of her imagining the danger to which her family members had been exposed, and not as a result of what she feared had happened to them as a result of what she’d been told.

Decision

 1. Judgment for the defendants against the plaintiff.

 2. The court was to hear the parties as to costs.

Ratio

The court considered that in determining whether the first defendant owed the plaintiff a duty of care, a consideration of the issue of reasonable foreseeability was required and also an examination of the relationship between them and whether legal responsibility for the plaintiff’s alleged harm should be attributed to the first defendant.

The court identified there was no decided authority in Australia that had held the defendant owed a common law duty of care to the plaintiff as asserted by the plaintiff that her injury arose as a result of imagining the damage to which her family members had been exposed.

The court accepted the nature of the relationship between the primary victim and a secondary victim is important in determining the existence of a duty of care owed by a negligent tortfeasor in a case such as the present.

It is for that reason that persons in a close and loving relationship with the primary victim, such as a spouse, child or other immediate family member, who does not directly perceive the accident or its immediate aftermath, but who are informed of it and subsequently suffered a psychiatric injury as a result, have been held to be persons to whom a duty of care is owed.

It is not however the existence of that relationship alone which makes such an injury foreseeable or which results in the duty being owed. 

One constant which the court identified had been seen from a review of the authorities in each case is that the existence of a duty of care arose in circumstances where, among other things, the secondary victim suffered psychiatric harm after being informed of the death or serious injury of a primary victim caused by the negligence of another. The court also acknowledged the cases recognise a duty of care may exist where the primary victim is in peril or in danger but does not sustain injury or death.

The question of reasonable foreseeability in a case such as the present, examines the reasonableness of a driver having two events in contemplation, firstly whether it is reasonably foreseeable that if a driver failed to take reasonable care in the manner of his or her driving that an accident may be caused by his or her negligence such that another road user may suffer physical harm and secondly, whether it is then reasonably foreseeable that, by reason of the accident and the harm caused by the other road user, and having been informed of those matters, that a close family member of the person harmed could experience an emotional psychological reaction that might develop into a recognisable psychiatric illness.

The court considered the position of the second defendant to be correct, and that the question of reasonable foreseeability may be framed as to whether the first defendant’s negligent driving may cause the plaintiff to suffer a recognisable psychiatric injury as a result of her being told that members of her family had been involved in a minor traffic accident in which none of them sustained physical injuries.

The court gave an answer to the question in the negative, determining that the plaintiff might suffer such an injury as a result of a collision of that kind was not reasonably foreseeable. Such a prospect was considered farfetched or fanciful and in all the circumstances it was not reasonable for the first defendant to have in contemplation the risk that the plaintiff might suffer psychiatric injury and therefore the first defendant did not owe the plaintiff a duty of care of the kind asserted.

The court separately identified that while the plaintiff had a recognised psychiatric illness, it was caused by the accumulation of other life stressors and not by the subject accident.

In considering the general principles under s11 of the Civil Liability Act and more particularly, proof of causation, the court was ‘very far from satisfied’ that the plaintiff’s psychiatric injury was caused by the incident, the phone calls and the plaintiff seeing her daughters at the hospital, or alternatively those matters together with the plaintiff subsequently providing assistance to her partner and children including attending various counselling and medical appointments. The court was not satisfied the plaintiff had established factual causation.

The court’s conclusion on liability was that the first defendant did not owe a duty of care to the plaintiff of the kind she claimed.  Even if he did, the court held the plaintiff failed to establish her psychiatric injury was caused by any breach of duty owed by the defendant.

 

The ALA thanks Michael Callow for this contribution. 

This is an edited version of an article first published by Travis Schultz & Partners.

The views and opinions expressed in this article are the authors and do not necessarily represent the views and opinions of the Australian Lawyers Alliance.

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