Lundbergs v Fu

Case [2025] QSC 135

SUPREME COURT OF QUEENSLAND

CITATION:

Lundbergs v Fu & Anor [2025] QSC 135  

PARTIES:

PAULA KAREN LUNDBERGS

(plaintiff)

v
KIT TANG FU

(first defendant)
AAI LIMITED TRADING AS SUNCORP INSURANCE
ABN 48 005 297 807
(second defendant)

FILE NO/S:

BS 15093 of 2021

DIVISION:

Trial Division

PROCEEDING:

Claim for Damages

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2024; 15 October 2024; 16 October 2024; 17 October 2024; 18 October 2024

JUDGE:

Crowley J

ORDER:

1.   Judgment for the defendants against the plaintiff.

2.   I will hear the parties as to costs.

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – REASONABLE FORESEEABILITY – where the first defendant caused a car accident involving the plaintiff’s partner and three of her children – where no-one was injured in the accident and only minor property damage was sustained – where the first defendant breached the duty he owed to the plaintiff’s partner and her three children as a road user – where the plaintiff was called by her middle daughter and told they had been in a car accident – where the plaintiff’s youngest daughter suffered from a panic attack at the scene of the accident and was transported to hospital by ambulance – where the plaintiff was later diagnosed with a recognised psychiatric illness – where the plaintiff claimed that the psychiatric illness was caused by her being told about the car accident over the phone and imagining the harm that her family had suffered – whether the first defendant owed a duty of care to the plaintiff

TORTS – NEGLIGENCE – MENTAL OR NERVOUS SHOCK OR PSYCHIATRIC HARM – AT COMMON LAW – DAMAGE AND CAUSATION – where the first defendant caused a car accident involving the plaintiff’s partner and three of her children – where no-one was injured in the accident and only minor property damage was sustained – where the first defendant breached the duty he owed to the plaintiff’s partner and her three children as a road user – where the plaintiff was called by her middle daughter and told they had been in a car accident – where the plaintiff’s youngest daughter suffered from a panic attack at the scene of the accident and was transported to hospital by ambulance – where the plaintiff was later diagnosed with a recognised psychiatric illness – where the plaintiff claimed that the psychiatric illness was caused by her being told about the car accident over the phone and imagining the harm that her family had suffered – where the family had not actually suffered any serious physical harm – where there were many stressors in the plaintiff’s life both resulting from the car accident and unrelated to the car accident – whether the plaintiff’s recognised psychiatric illness was caused by the first defendant’s breach of a duty owed to the plaintiff, if such a duty exists

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AGLC
Lundbergs v Fu [2025] QSC 135
Case
[2025] QSC 135
Decision Date

CaseChat Overview and Summary

The case of Lundbergs v Fu involved the plaintiff, who brought an action against the first defendant for injuries she claimed to have suffered as a result of a car accident. The accident involved the plaintiff's partner and three of her children, with no serious injuries or fatalities. The plaintiff claimed that she developed a psychiatric illness due to being informed about the accident by her daughter and imagining the harm that her family had suffered. The court had to determine whether the first defendant owed a duty of care to the plaintiff, and if so, whether this duty was breached and whether the plaintiff's psychiatric illness was caused by this breach.

The primary legal issues before the court were the existence of a duty of care owed by the first defendant to the plaintiff, the causation of the plaintiff's psychiatric illness, and the remoteness of the damage. The court had to consider whether the first defendant's actions were reasonably foreseeable to cause harm to the plaintiff, and whether the psychiatric illness was a direct result of the first defendant's breach of duty.

The court concluded that the first defendant did not owe a duty of care to the plaintiff, and even if such a duty existed, the plaintiff had not established that her psychiatric condition was caused by any breach of that duty. The court found that the plaintiff's psychiatric illness was influenced by multiple stressors, both related and unrelated to the accident, and thus could not be directly attributed to the first defendant's actions. Therefore, the first defendant was not liable in negligence for the damages claimed by the plaintiff.

In terms of damages, the court considered a notional assessment based on the plaintiff suffering a psychiatric injury. The court calculated the general damages under the Civil Liability Act, determining the appropriate injury scale value based on the plaintiff's psychiatric condition. Ultimately, the court decided that any award of general damages should be nominal, considering the primary causes of the plaintiff's major depressive disorder were unrelated to the accident.

The final orders of the court were that judgment be entered for the defendants against the plaintiff, with further directions to be given regarding the costs of the proceedings.

Orders

Orders of the court

1. Judgment for the defendants against the plaintiff.

2. I will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

When cross-examined, Susie agreed that aside from her father, who already had a hurt arm and had it in a sling, no-one was hurt in the accident. She agreed that her father had gotten out of the car and was yelling at the driver and that she was scared about what might happen between him and the other driver. She agreed that when she spoke to her mother on the phone that she would have told her that no-one was hurt but that Josie was “upset”.The plaintiff’s evidence of her reaction to the incident and subsequent events The plaintiff recalled that she was at work on 2 August 2016 when she received a phone call in her office from Susie, at around 3.40 or 3.45 pm. Her evidence at trial, describing the call and her response, was as follows:“You received a phone call and it’s from?‑‑‑Susie. Well, what did she say?‑‑‑She said they’d been in an accident. Did you respond?‑‑‑Um, yes. What did you say?‑‑‑I remember asking her where her father was. I couldn’t understand why she was the person who was calling me. It didn’t make sense for her to be calling me to tell – to tell me that. And did she tell you?‑‑‑She said that he had got out of the car and was – had gone to see the other driver. And how did she sound in that phone call?‑‑‑She sounded scared. What were you thinking as the phone call’s occurring?‑‑‑I was concerned about the other people – about all of them, how they were. Um, I knew that Susie was alive because I was speaking to her. Um, but I didn’t know – um, I – I – I felt scared to ask, um ‑ ‑ ‑ Did you ask?‑‑‑Oh, I feel like I must’ve asked. Well, did you find out, during that phone call, what happened to the others in the car?‑‑‑Um, I must have. I must have found out somehow. As the phone call’s occurring, at that point in time, as far as you were concerned, how many people were in the car in the accident from your family?‑‑‑Four. And why did you think that?‑‑‑Because I knew that Jason would’ve been bringing the kids home from school. So we get to that point. Is there any discussion about, ah, anything else happening at the scene at that stage?‑‑‑Um, Susie told me that a – like, a traffic response unit was there. And was that relevant or irrelevant to you?‑‑‑It made me think, well, at least there’s somebody, sort of, helping to direct the traffic around this accident; that at least there’s somebody official there who can help them. And why does that matter?‑‑‑Because otherwise they were sitting on the road in – in peak hour traffic with cars all around them and no – no father in the car with them. But why is that a problem?‑‑‑Because they were scared.I’m sorry?‑‑‑They were scared. Well, how were you feeling during this phone call?‑‑‑I was scared. I – I wanted to – I was – I wasn’t there and I wanted to be there to make sure they were okay. What were you going to do at the scene?‑‑‑I would just have been there. I could see them myself, if they were okay.”

Decision

Reasons for decision

In that part of their Honours’ judgment, Gummow and Kirby JJ were dealing with the point that there was no requirement to establish “sudden shock” as a precondition for liability in cases of this kind. It was not necessary for the Court in Skea to consider that point. In any event, when analysed by reference to principles of causation and remoteness, the plaintiff’s claim fails as I am not satisfied she has established factual causation on this limited aspect of her claim. Furthermore, I would not consider it appropriate in the circumstances of this case to extend the scope of the first defendant’s liability to any such harm caused by the plaintiff through caring for family members who may have sustained psychiatric injuries as a result of the first defendant breaching the duty of care he owed to them. Conclusion on liability I find that the first defendant did not owe a duty of care to the plaintiff of the kind she claims. Further, even if he did, I find that the plaintiff has failed to establish that her psychiatric condition is an injury caused by any breach of such a duty. Accordingly, I find that the first defendant is not liable in negligence for damages as claimed by the plaintiff.QUANTUM Notwithstanding the conclusion I have reached on liability, I will consider the quantum issues and provide a notional assessment of damages on the basis that she suffered psychiatric injury in the form of the major depressive disorder diagnosed by Dr Steinberg.Assessment of damages The plaintiff’s Further Amended Statement of Claim calculated the total damages claim across all heads of damage as $3,036,314.60. Ultimately, the final sub-totals of some of the heads of damage claimed, and hence the final total itself, varied in accordance with the evidence adduced at trial. General damages The assessment of general damages is governed by the Civil Liability Act[53] and the Civil Liability Regulations 2014 (Qld).[54] The Court cannot make an order for payment of interest on an award for general damages.[55][53]Civil Liability Act, ss 51, 61, 62.[54]Reg 7, Schedules 3 to 6.[55]Civil Liability Act, s 60(1)(a). The Court is required to make an assessment of the plaintiff’s injury scale value (“ISV”). The plaintiff’s claim is for $25,800 on the basis that she has suffered a serious mental disorder, item 11, ISV range 11 to 40 and that she claims an ISV of 15. The second defendant submits that any award of general damages should be nominal as the primary causes of her major depressive disorder are unrelated to the accident. It submits that the injury is within item 13, a minor mental disorder, and the appropriate ISV is 1, which equates to an award of $1,440.00. Schedule 4 of the Regulations provides a mental disorder with a PIRS rating between 11% and 30% as the example of an injury that is a serious mental disorder; and a mental disorder with a PIRS rating of between 0% and 3% as the example of an injury that is a minor mental disorder. Dr Lotz’s final assessment of the plaintiff’s PIRS rating was 19%. He made no allowance for any contribution by other stressors in his assessment. Dr Steinberg’s final assessment was a PIRS rating of 6%.

Ratio Decidendi

Legal Principle Established

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