Lundbergs v Fu
[2025] QSC 135
•6 June 2025
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
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, considered
Homsi v Homsi (2016) 51 VR 694, considered
Jaensch v Coffey (1984) 155 CLR 549, considered
King v Philcox (2015) 255 CLR 304, applied
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, considered
Page v Smith [1994] 4 All ER 522, considered
Page v Smith [1996] AC 155, considered
Purkess v Crittenden (1965) 114 CLR 164, applied
Skea v NRMA Insurance Limited [2005] ACTCA 9, considered
Stevens v DP World Melbourne Ltd [2022] VSCA 285, applied
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, applied
Watts v Rake (1960) 108 CLR 158, applied
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New Wales (2010) 241 CLR 60, cited
Civil Liability Act 2003 (Qld), s 9, s 11, s 12, s 51, s 60, s 61, s 62
COUNSEL:
M Horvath, with S F Lamb and K N Milana, for the plaintiff
No appearance for the first defendant
R J Lynch, with E J Jensen, for the second defendant
SOLICITORS:
Turner Freeman Lawyers for the plaintiff
No appearance for the first defendant
Jensen McConaghy Lawyers for the second defendant
The plaintiff claims damages for psychiatric injury she claims she suffered as a result of the first defendant’s negligence. The second defendant, the compulsory third party insurer of the first defendant, defends the claim. The case concerns what was once termed “nervous shock”. The circumstances in which the claim arises can be briefly stated.
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 driver of the other car was the first defendant. He caused the accident through his negligent driving and was entirely at fault. Both cars sustained no more than minor damage. Each was able to be driven away from the scene of the accident and no-one was physically injured.
The plaintiff did not witness the incident. She was a personal injuries lawyer with her own practice and was at work at the time. 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. The plaintiff claims she went into shock when her daughter told her about the accident. She was concerned and decided she needed to go to the scene to be with her family.
As she was getting ready to leave her work, the plaintiff received a second telephone call, this time from an ambulance officer who was present at the scene and rendering assistance. He also told her that everyone was okay and that no-one needed to go to the hospital. Despite this assurance, the plaintiff claims she was still in shock.
A short time later, as the plaintiff was driving to the location of the accident, she received another call from the ambulance officer. He told her that her youngest daughter was hyperventilating; that they had decided that they would take her to the hospital as a precaution; and that her other daughter would accompany her in the ambulance. The plaintiff claims she went deeper into shock. She decided to drive to the hospital to meet her daughters. Her partner and son remained at the accident scene but later left in their vehicle and drove home.
Upon arrival at the hospital, the plaintiff met her daughters on the ward. She claims she felt distress by seeing them there and being concerned for their welfare. She confirmed they were both okay. Her youngest daughter had by then calmed down and was no longer hyperventilating. Neither of her daughters required admission or any further observation or treatment and were able to leave with the plaintiff. The plaintiff’s partner also attended the hospital to be checked out but did not require admission. The plaintiff took each of her family members to see their general practitioner the next day and he confirmed none of them had suffered any physical injuries from the accident.
Although none of the plaintiff’s family members sustained any physical injuries during the collision, each of them is said to have later developed a psychiatric injury. Each subsequently commenced their own action for damages for the personal injury they claimed they sustained as a result of the first defendant’s negligence. The plaintiff’s firm handled their claims and commenced the relevant proceedings in the District Court on behalf of each of them.
The plaintiff claims that over time she too subsequently developed a psychiatric injury, or aggravated a pre-existing condition, as a result of the incident, the phone calls she received about it and her subsequent attendance at the hospital; or alternatively, as a result of a combination of those matters and having to thereafter assist her partner and her children and attending with them at their post-accident counselling and medical appointments as they progressed through their ongoing treatment and their own legal proceedings.
Although there is no dispute that the first defendant caused the accident through his negligent driving, liability is in issue. Whether the first defendant owed a duty to the plaintiff and the scope of any such duty is disputed. Reasonable foreseeability of harm is at the heart of this dispute. While there is also no dispute that the plaintiff has a psychiatric condition, the nature and cause of that condition is in issue. The plaintiff’s case is that the incident, the phone calls and subsequent events resulting from the incident are, at the very least, a cause of her psychiatric injury and therefore the element of causation in her claim is established. The second defendant’s case is that the incident and subsequent events did not cause or significantly contribute to any psychiatric condition suffered by the plaintiff. It contends that 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 are the more likely cause of the plaintiff’s psychiatric condition.
In the event that liability is established, the quantum of damages recoverable is disputed.
LIABILTY
The incident
It is necessary to provide some further details of the accident and its immediate aftermath.
At about 3.30 pm on 2 August 2016, the plaintiff’s partner, Mr Jason Jeanes, was driving his Toyota Hilux on the Gateway Motorway near the Gold Coast exit at Eight Mile Plains. In the car with him were their children, Daniel Lundbergs Jeanes (“Daniel”), aged 14 years, Susanna Lundbergs Jeanes (“Susie”), aged 13 years, and Johanna Lundbergs Jeanes, (“Josie”), aged 10 years.[1] As Mr Jeanes was driving south in the left lane, the first defendant, Mr Fu, was driving his Holden Astra in the same direction just in front of him. As they approached an exit lane leading off to the left-hand side of the motorway, Mr Fu began to take the exit then suddenly changed direction and veered back onto the motorway in front of Mr Jeanes. As a result of this manoeuvre, Mr Fu’s car was now travelling at a much slower speed than Mr Jeanes’ car when it cut back in front. Although he braked in an attempt to avoid a collision, Mr Jeanes’ Hilux collided with Mr Fu’s Astra.
[1]For clarity and simplicity, I will hereafter use just the first names of the children.
The second defendant admits the incident occurred as alleged by the plaintiff, save in respect of the alleged speed of the vehicles at the time of the accident. The plaintiff contends that the vehicle driven by Mr Jeanes was “travelling at or below the speed limit of 100 kilometres per hour”. The second defendant says it was a “low speed” collision of minor to moderate intensity.
There was no clear evidence that would allow the speeds the vehicles were travelling at the time of the collision to be determined with any degree of certainty. Josie did not know the speed limit and was unable to say what speed either car was doing at the time of the collision. She just remembered her father braking when the other car swerved in front of them and then they crashed into him. Daniel thought that the speed limit on the section of the highway where the collision occurred was 80 kilometres per hour. He did not know what speed his father was doing, nor what speed the other car was doing, at the time of the accident. He estimated that the two cars were going at about the same speed. Josie said she did not know what the speed limit was, nor was she able to say what speeds the two cars were doing before the collision.
Mr Jeanes gave evidence that the speed limit at the relevant section of the motorway was 100 kilometres per hour. When asked how fast he was going just before the collision, he said he was not sure but estimated approximately 100 kilometres an hour or maybe a little less. He could not say what speed the other car was travelling but said that he had come from a “stop start” to merge back onto the motorway, coming across the median strip straight in front of his car. When asked what speed he was going at the time of the collision itself, he said, “Couldn’t tell you, and added that he had not looked at his speedometer at the time. All he could say was that he was not going over the speed limit, because there was traffic everywhere. When asked what speed the other vehicle was doing compared to his car, Mr Jeanes said, “I couldn’t tell you”, adding, “… all I know is he’s come out in front of me, and he was there before I knew it”. He recalled braking before the collision. He was unable to say what the speed difference was between the two cars before they hit.
The Logan Hospital Emergency Department clinical records in respect of Mr Jeanes, completed on 2 August 2016, note that Mr Jeanes was involved in a “MVA” and was the driver of a vehicle travelling at 80 kilometres per hour. The records for Josie note that she had been a backseat passenger in a “MVA” which rear-ended another vehicle. The notes further record that it was a “low speed impact”. Similarly, the Queensland Ambulance Service records in respect of the attendance upon Josie record, “Today she was travelling in a car driven by her father that was involved in a low mech RTC with nil injuries”. I infer the notes refer to a low-speed road traffic collision.
I also note that the subsequent record in respect of Mr Jeanes’ visit to his general practitioner on 3 August 2016 incorrectly and inaccurately stated, “Head-on collision running at 80k to a merging car almost stationary”. I do not consider that to be any reliable contemporaneous record of what took place. Similar records were made by the same doctor in respect of his consultations with Daniel, Susie and Josie, all repeating the same inaccurate description.
There was not a great deal of evidence adduced at trial with respect to the damage done to the vehicles. Photographs taken after the incident confirmed that neither car sustained much damage at all and that both were able to be driven away from the scene of the collision.
Having regard to the evidence of the witnesses, the photographs of the minor damage to the vehicles and the contemporaneous medical records recording the history of the incident, I conclude that Mr Jeanes was driving well below 100 kilometres per hour at the time and, regardless of whatever speed the vehicles may have been doing, the speed differential between them at the time of impact was not great, perhaps somewhere in the vicinity of about 20-30 kilometres per hour. In my view, the collision would be properly described as a low-speed impact, noting that the Astra was travelling at a lower speed than the Hilux, but that Mr Jeanes was braking in order to avoid the collision at the time of impact.
Events after the accident
Mr Jeanes made a 000 call after the collision. In the recording of that call, he sounds calm and composed. Amongst other things, he told the operator, “I’ve just had a car pull in front of me and I’ve run up the back of him and my daughter’s in shock.” After the operator asked whether it was just the one patient that was hurt or injured, Mr Jeanes said, “Yeah, she’s just in shock, I don’t think she’s hurt…”
QAS records note that the 000 call for assistance was made at 3.35 pm; an ambulance was dispatched a minute later and was on scene at the site of the accident at 3.55 pm; officers were with Josie at 3.56 pm; and she had been loaded into the ambulance to be taken to the hospital at 4.20 pm. The records further note that the ambulance arrived at the hospital at 4.40 pm; Josie was assessed in triage at 4.45 pm and was “off stretcher” at 5.13 pm. The ambulance officer’s assessment of Josie’s condition was “anxiety”.
The Logan Hospital Emergency Department records show that Josie was assessed in triage at 4.43 pm, and her presenting problem was:
“Back seat passenger in MVA today which rear ended another vehicle. No airbags deployed, self exticated [sic. self-extricated]. Nil injury noted by QAS. Reason stated for transport was that Pt had Hx of anxiety and post MVA has had anxiety attack. Hyperventilating on scene. Has since subsided enroute. All vital signs reported within normal limits by QAS.”
A subsequent clinical summary record noted the attending doctor made a primary diagnosis of “panic attack” at 5.50 pm. The notes also recorded that Josie denied any pain anywhere; that “Mother in presence and happy to look after her at home”; and that Josie was discharged with her mother, with a plan to see her general practitioner tomorrow. The discharge time was recorded as 7.02 pm.
Mr Jeanes gave evidence that after the collision he got out of the car and talked to the other driver. He thought he had called emergency services. He remembered police, fire and ambulance emergency services came. He did not know what Daniel, Josie or Susie were doing after the collision, as he was out of the car. He did not know if Susie had any reaction to the collision but said that Josie was “distraught”. He said she was “hyperventilating” and described her “breathing heavy” and “panicking”. He had not seen her do that before. He recalled Susie and Josie left in the ambulance and went to the hospital and that he and Daniel drove home. He did not remember if he spoke to the plaintiff when at the scene. He recalled seeing the girls at the hospital a few hours later. He said he had met the plaintiff at home, and she had taken him to the hospital. He did not speak to the girls there and did not see what was happening with them as he went for an X-ray. He said he had previously broken a few ribs and fractured his right scapula in a quad bike accident a few weeks before the accident and he went for an X-ray on his scapula to make sure there was no further damage from the accident. He accepted he had been drinking alcohol before the quad bike accident. He did not think he had his arm in a sling at the time of the accident. He could not remember what he had been told about the X-ray results at the hospital.
Daniel confirmed in his evidence that he was not physically injured and felt fine after the collision. He recalled seeing Josie hyperventilating. He said she was “freaking out a little and breathing in and out really fast.” He had not seen her like that before. He did not know what Susie was doing. He saw his father get out of the car to talk to the other driver. He recalled the ambulance arriving but did not have anything to do with it. He and his father drove home together but both his sisters went in the ambulance. He did not go the hospital or to a doctor that day and did not speak to his mother after the accident that day.
Josie described the inertia of moving forward then back in her seat at the time of the collision. She said her father then pulled over. Although she could not remember what he was then doing, she said that she and Susie were telling him not to get mad at the other driver and Susie was telling him not to yell. She did not recall what Daniel was doing.
Josie gave evidence that she was “just very shocked in the moment” after the collision. She was that when the ambulance arrived and checked her out that she was “fine” and “good to go” but then she started having a panic attack and they took her to the hospital. When asked to describe her “panic attack” she said she “started hyperventilating and getting dizzy”. She recalled Susie came with her to the hospital and Daniel went home in the car with her father. She said her mother eventually came to the hospital, but she did not remember when she arrived. She confirmed she was discharged that night.
When cross-examined, Josie said she did not know if she had suffered any physical injury in the accident. She said that at the scene she did not feel any pain but the next morning she was “in a lot of pain”. She said she had an upcoming appointment to see a doctor about her neck and back but did not know if she had suffered some neck and back injuries from the accident. She agreed that she found it difficult to remember what had actually happened. I note here that I do not accept her evidence of being in pain the next day. It is contrary to the GP records, which simply record that she had a headache.
Susie gave evidence that she was on her phone at the time of the accident. She heard her father beeping the horn and looked up to see the other car which they then rear-ended. She recalled her father then pulled to the side of the road, got out and was yelling at the other driver. She did not remember what Daniel was doing. She said she felt scared at the time and was just sitting there watching. She recalled Josie started having a panic attack and hyperventilating. She said Josie was “struggling to breathe”. She estimated it was maybe a few minutes after the collision that Josie started to hyperventilate. She could not remember seeing Josie doing that before but had seen her do it since. She recalled the firefighters came and checked Josie out and that she went into the back of the ambulance to the hospital. She said her father decided that she and Josie would go to the hospital.
Susie also gave evidence that she was the one who called the plaintiff. She said, “I told her we’d been in an accident and that we have to go to the hospital for Josie.” She explained that the “we” was her and Josie. When asked if she told her mother why they had to go the hospital she said, “Um, I don’t remember.” When asked to describe how her mother sounded on the phone she said, “Um, very distressed. She was, like, freaking out a bit. Um, like, stumbling over her words.” She said that she also sounded nervous compared to normal when speaking on the phone.
Susie recalled going to the hospital with Josie. She remembered her mother and father came later. She said she did not have any physical injuries and did not think she was checked out by hospital staff. She said she was feeling scared. She did not think Josie had any injuries. She recalled that when her parents arrived, her father looked “stressed” and her mother looked “worried”. She remembered going home that night.
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.”The plaintiff then described the second telephone call. She said the ambulance driver called her not very long after Susie had called. She said at the time she was still “regrouping from – processing what – what was going on”. When asked to describe her thoughts at that period of time, she said that she was really just trying to figure out what she should do at that point and, “I was just trying to stay calm, I suppose”. When asked if she had any feelings at the time she said, “… I can’t say what I was feeling at that time”. When asked what the ambulance driver had told her when he called, the plaintiff said:
“… what I can recall is that he told me that Josie – he was, sort of, tossing up whether or not she needed to go to the hospital and he – he said that she was in - in shock, ah, and he said, um, oh, look, maybe he didn’t need to take her to the hospital and I remember saying, ‘Well, I can take her to the – the GP, um, would – would that be okay to do that?’ and he, sort of, said, ‘Oh, okay, well, we’ll do that’ and he decided not to take her to the hospital.”
The plaintiff said she could not recall whether Susie had told her that Josie had been in shock or whether she first found out when the ambulance driver told her. She said it was possible that Susie might have told her that. She could not remember if the ambulance officer had actually used the word “shock”.
The plaintiff said that during the conversation with the ambulance driver she thought it was good that he was saying that they did not need to be rushed to the hospital. When asked whether she had any feelings during the telephone conversation, the plaintiff said, “Oh, I – I think I was in shock”.
The plaintiff then gave evidence that a short time later she received a second phone call from the ambulance officer, who then said to her, “Oh, look, she’s hyperventilating. I think I should take her to the hospital.” She said that the ambulance officer told her that Susie would be going to the hospital with Josie. She said she was concerned about “my small child going in the ambulance by herself.” She thought that they must have told her they were going to the Logan Hospital. After the call she thought that she needed to go to the hospital. She said she felt scared, sad and overwhelmed.
The plaintiff said that she had thought about the series of phone calls a lot since they happened. She said that when she does, she starts to cry, her heart beats fast and she has to stop and try to block it out as it is just overwhelming. When asked whether she had figured out why she felt that way, she said:
“Because that was most of my family in that car and I didn’t know if they were alright or not and I wasn’t there.”
The plaintiff gave evidence that she then drove to the hospital. She said that on the way, “I just remember thinking, ‘I’ve just got to get to that hospital. … I can’t think about anything else. I just have to get to the hospital. I can’t think about what’s happened. … I just have to get to the hospital.” She said it took about 40 minutes to get there, and that when she arrived, she saw Susie and Josie. She believed they were in an examination room and she was shown to them. She said that no-one else was there with them when she arrived. Josie was examined at some stage while she was there. She agreed that she had been told that Josie had been hyperventilating but said that she had calmed down by the time she got to the hospital. She did not recall Josie ever hyperventilating before. She said the hospital decided that Josie had calmed down and was okay to go home. When asked how she felt about that, the plaintiff said, “I was happy that I could take her home”.
When asked where Mr Jeanes was at the time, the plaintiff said that she knew he had to get the car off the road as he could not leave it there in peak hour and she believed he went home. She could not recall if he came to the hospital. She recalled seeing Daniel at home later that night but could not recall whether Mr Jeanes was there. She could not remember if she spoke to Daniel about the accident that night.
The plaintiff confirmed that the following day, 3 August 2016, she took Mr Jeanes, Daniel, Susie and Josie to see their general practitioner, Dr Rad. She was present when each of them was seen by the doctor. When asked what had happened in the consultation, the plaintiff said that Dr Rad had spoken to each of them one by one and asked them about any symptoms. She recalled Susie said she had hurt her foot; Josie said “something about her back or her neck or something”; Daniel said he was completely fine; and Mr Jeanes mentioned his scapula was hurting more than it had been previously. When asked how she felt about the consultation with Dr Rad, the plaintiff said, “I was relieved that they were all in one piece, that it wasn’t any worse than – than they were talking about”.
While there, the plaintiff saw another doctor, Dr Balaji, for a skin check-up.
The plaintiff said that after the first attendance upon Dr Rad she took each of her family members to various medical appointments on later dates. She said that when she did, she would have different reactions depending on the family member concerned, but it was the hardest with the girls.
The plaintiff confirmed that later in 2016 and 2017 she lodged claims with the CTP insurer on behalf of each of her four family members. She said that she arranged the CTP medical certificates and sent them to the insurer. She agreed she was the person handling the claims. She confirmed that the three claims for the children were still ongoing, but that Mr Jeanes’ claim was not. She also lodged her own claim around June 2017 and was initially responsible for handling it.
It is the plaintiff’s case that her psychiatric symptoms became manifest on or about 8 June 2017, when she had a panic attack and “breakdown” after Mr Jeanes told her he was going on a fishing trip; and that she subsequently saw Dr Rad about this incident on or about 11 June 2017.
When asked about her “breakdown”, the said that everything was going well until one day Mr Jeanes told her that he was going “away on a fishing trip or a camping trip, or somewhere away with a mate”. She said she thought that was good but then, “I just had this overwhelming feeling of just fear and sadness, and – and loss, and – and it just hit me … I just had to get out of there because … it felt like I was going to cry, and I – I left the house”. The plaintiff said that she did not understand why she felt that way at the time but that when she found her thoughts she just started thinking about, “Susie calling me in that little voice, and how scared she sounded. And I thought why, why am I – why am I thinking about this?”. She said it was at that point that she decided she needed to go and see a doctor.
The plaintiff said she saw Dr Rad and told him what had happened and the “breakdown” that she had experienced. She said it was difficult to talk to him. He subsequently referred her to Mind Wise Psychology. When asked further why it was difficult to talk to Dr Rad, the plaintiff said, “… it was just always difficult to talk about what had happened in that accident”.
When asked if she had been experiencing any symptoms between the accident and the day of her breakdown, the plaintiff said that she had and described heart palpitations, getting tearful and nightmares. She said she would have symptoms when she was at work and it would happen when she was reading files or talking to clients. She said she would listen to what they were saying but, “I’m just feeling like it’s my family. Like, this has happened to me”. She said that before the accident she did not feel that way and that she was “very strong”. She explained that she had handled lots of cases that involved lots of horrendous things and that she could feel for the client, but she would just keep going and it was not something that was a problem for her. She said she would also avoid reading newspapers or watching the news, which is not something that she had done before.
The plaintiff said that she later saw Dr Rad again for a CTP medical certificate. She recalled at some stage he put her on some medication. She said that on another occasion she went to see him after she had woken up at night and “the room started spinning”. She said he checked her out but then wanted her to go to the hospital. As a result, she went to the Logan Hospital. She said that when she was asked by the triage nurse if her attendance was related to a motor vehicle accident, “… I just started crying and sobbing and hyperventilating and … they gave me some medication to try and calm me down, and I was still crying”. She said they wanted to take a blood sample but were unable to find a vein and so did not do any blood tests or other investigations.
The plaintiff confirmed that during this period she was running claims for her family members as well as for herself in respect of the accident. She said she started making file notes of her own at this stage, documenting any symptoms or any difficulties that she had when they happened. The file notes were a trial exhibit. When asked whether there were any particular occasions when she would have difficulties or problems, the plaintiff explained that Susie had been attending a day program at the Queensland Children’s Hospital and the counsellor there had wanted to know about the accident, which was very distressing. She recalled getting tearful. She also recalled another occasion when she was in a group parenting session and again had the sensation of her head spinning and felt like she was going to black out and had to leave the room. She added, “So a lot of the counselling, when they would sort of touch on something that would remind me of the accident – um, they seemed to be the times that I’d have some problems”.
The plaintiff said that around June 2017 she saw Tzoe Wong, at Mind Wise Psychology. She said she was the counsellor for Mr Jeanes and therefore already knew the facts. She said Ms Wong gave her some strategies and some explanations about why things were happening to her. She recalled seeing her around ten times over a period of a maybe six months from July 2017. The plaintiff said that she felt terrible going to see the counsellor and it always made her feel worse, but she felt better when she left, then terrible again and she would have to go back.
The plaintiff said she had also done EMDR, (Eye Movement Desensitization and Reprocessing), treatment with Penny Lewis, a psychologist to which Mr Jeanes had also been referred. She said the treatment did not work. She recalled doing about three sessions of EMDR and said, “it was just bringing up things that I hadn’t even thought about for – for years and years … I kind got a bit scared … I couldn’t do it anymore”. She described that in one of the sessions she started hyperventilating and could not breathe.
When asked whether she had any specific nightmares she could recall, she said that she would frequently wake up with her heart racing and could not always remember what she had dreamt about but on one occasion she recalled being in the car with her children and they drove into some water and the car sank. She said she woke up from the dream because she could not get them out of the car and they could not breathe and in the last part of the dream she took in water and they were all dead.
The plaintiff said the symptoms she experienced would usually start in her chest with her heart, which would start pounding fast, then she would get tearful and then, if she did not stop, she would feel it in head like her brain was spinning and it felt like she was going to shut down. She said that she was able to shut down the symptoms if she could get away and stop engaging with whatever the symptom was. She said she never experienced anything like that before the accident.
When asked whether driving was an issue these days, the plaintiff said that it was “really difficult”. She said that when she was driving after the accident, she would have a sensation like a car was about to hit her and she would feel a tingling through her body. She said, “It feels like you’re about to die”. She further recalled on one occasion, “I actually saw a car coming towards me and there wasn’t a car there”. She said that when she is driving by herself, she tended to start thinking about the kids and the accident and would cry in the car a lot. She further said she was terrified driving with anyone as a passenger. She said she found driving with Mr Jeanes uncomfortable. When asked why, she said:
“I’m just scared. I’m just scared of being hit by a car, and I haven’t got control over the car, so I see things happening and he’s not putting his foot on the brake fast enough, and I think we’re going to have a collision.”
The plaintiff said that the symptoms that she had experienced after the accident had never gone away. When asked about her current circumstances and daily routines, she said that recently she would generally stay in bed as long as she could and that she generally would not shower. She said she would just stay in the clothes that she was wearing in bed and might shower once every one or two weeks. She said she was trying hard to clean her teeth at least once a day. She would not change her clothes unless she had to go see a specialist doctor.
When asked if she was interested in social outings and how often she would leave the house, the plaintiff said she only went out for medical appointments. She did not meet any friends. She tried to avoid driving as much as she could and that was one of the reasons why she did not go out. She said before the incident she would drive all the time.
The plaintiff said that she could concentrate for moments at a time but then her mind “just sort of turns off”. She said she might be able to read the first few lines of something but would lose concentration. When asked to describe her mood, the plaintiff said that she was, “embarrassed, disappointed … I feel anxious all the time”. She said that she did not have any tolerance for any sort of stressors now, so she stayed in bed because she was safe there and nothing could bother her there.
When asked about her memory, the plaintiff said that there was, “so much that I block out”. She said that she still had memories, but it takes her longer to access them. She added that those were the more sort of long-term memories, but her short-term memory was terrible. She said if something happened a moment ago, she would not register it and did not even know what she had done. She could not recall exactly when that had started but said it had been for some time and had commenced after the accident.
When asked to describe what she was like before the accident, the plaintiff said she had not had the feelings she described experiencing after the accident, that she liked to keep busy, that she liked to be at work as much as possible and had liked to always be doing something, keeping occupied.
Other events and stressors in the plaintiff’s life
The evidence at trial established the plaintiff and her family had experienced several other significant events and stressors, both before and after the accident.
Mr Jeanes’ quad bike accident
On 16 July 2016, Mr Jeanes had the quad bike accident and fractured his scapula and several ribs. The plaintiff took him to hospital. He admitted to her that he had been drinking alcohol and smoking cannabis before the accident. He was on medication and had his arm in a sling for several weeks, including up to 1 August 2016, the day before the accident on the Gateway Motorway
Mr Jeanes’ mental health issues
Mr Jeanes has experienced various mental health symptoms since the accident, impacting most aspects of his life and his relationship with the plaintiff.
The plaintiff gave evidence that after the accident, Mr Jeanes became very irritable and angry. She said that he had been through a very hard time with his anxiety, that he would become irritable and then would go away and shut himself down in his shed and just isolate himself. She said that most recently he had been taking medicinal cannabis which had helped him to sleep as he had a lot of trouble sleeping after the incident. She confirmed that he never went back to work after the accident. She said that he had tried on one occasion, when he succeeded in obtaining a position as a tow-truck driver, but he had a “meltdown” the night before he was due to start work.
The plaintiff said not long after the accident she took him to see Dr Rad to find out what was wrong with him. She recalled it was perhaps days or a week after. She recalled that on the first occasion she stayed in the room during the consultation but after that, on subsequent visits, he sent her out of the room.
On 23 November 2016, the plaintiff went with Mr Jeanes to see Dr Rad. At that time, he had stopped his medication and was “acting wired”. The same day, the plaintiff went with Mr Jeanes to see Ms Wong at Mind Wise Psychology. The plaintiff reported then that Mr Jeanes was highly agitated; had mood changes and difficulty coping following the motor vehicle accident; had been unable to return to work as he was easily frustrated and struggled to complete tasks; and found it difficult to maintain social interactions. The plaintiff agreed in her evidence that by this stage, Mr Jeanes had completely cut her off, was blaming her for the way he was feeling, and was “a lot more wired” following the accident.
On 27 November 2016, the plaintiff went with Mr Jeanes to see Dr Rad. At that time, he was suffering from worsening depression and anxiety and had not worked for months. The plaintiff agreed in cross-examination that at this stage they had a lot of mortgages and a lot of debt; that she and Mr Jeanes were having relationship issues; that he was dependent on her to take him to medical appointments; and that he had stopped taking his medication and was drinking more.
On 22 December 2016, the plaintiff went with Mr Jeanes to Mind Wise Psychology. It was reported then that Mr Jeanes was trying to do more, such as mowing the lawn, but could not complete tasks; that he had started to engage more with the kids; that he was doing a bit more cooking; that he thought of the accident once in a while but tried to distract himself; and that he got upset when he thought about how his own daughter was in the car. The plaintiff reported that Mr Jeanes was unable to go back to work because of the social aspect of work, as he was feeling “jittery” all the time and was unable to talk to people.
On 29 January 2017, the plaintiff went with Mr Jeanes to see Dr Rad. Mr Jeanes was then reportedly struggling with sleep and was highly irritable. Dr Rad referred him to a psychiatrist. On 3 February 2017, the plaintiff accompanied Mr Jeanes to Mind Wise Psychology. He was at that time withdrawing further from social interactions and was having nightmares about being attacked and not being able to protect his children. On 12 February 2017, the plaintiff again went with Mr Jeanes to see Dr Rad, as he was not getting any better. On 24 February 2017, Mr Jeanes attended Mind Wise Psychology with the plaintiff. The plaintiff was at this time concerned about the responses of the children to Mr Jeanes’ difficulties.
On 12 March 2017, the plaintiff again went with Mr Jeanes to see Dr Rad. On 21 March 2017, the plaintiff accompanied Mr Jeanes to see a psychiatrist at the Southside Specialist Centre. The plaintiff provided information on his behalf during the appointment, advising the psychiatrist that he was struggling with sleep, having nightmares, had significant anger, agitation and poor motivation and had poor self-esteem and had lost interest in social activities. The appointment was cut short when Mr Jeanes walked out. The plaintiff agreed in her evidence that living with Mr Jeanes was difficult at this time; that they were effectively separated; that she was living at her mother’s house with the children; but they would visit Mr Jeanes on the weekends.
On 22 March 2017, Mr Jeanes attended Mind Wise Psychology with the plaintiff. Part of the history given during that session was that the plaintiff’s office had been broken into. The plaintiff explained in her evidence that someone had broken in and stolen some medication out of the first-aid kit, some laptops and computer discs. She said they then had to send a letter out to clients, advising them to change their passwords for security, because they were not sure whether any client information had been accessed. When asked in cross-examination if this was another stressful event for her, the plaintiff said, “…it was another – another hurdle to overcome, you would say, yeah.”
On 12 April 2017, the plaintiff went with Mr Jeanes and Susie to see Mind Wise Psychology in separate sessions. In relation to Mr Jeanes, she told the psychologist that he had experienced a recent breakdown and was threatening to harm himself over the failed attempt to return to work while home alone at the family property, which had resulted in the plaintiff calling an ambulance and the police to conduct a welfare check on him. When asked in cross-examination if this was a stressful event, the plaintiff said she was not concerned that Mr Jeanes was actually going to do something to himself. She said she did not consider it stressful as it was not the first time that he had threatened to do something to himself but acknowledged she was upset for him that he was in that state.
On 16 May 2017, the plaintiff went with Mr Jeanes to see Dr Rad. The plaintiff told Dr Rad they were having relationship issues, financial issues, and that Mr Jeanes was still not working at the time. The plaintiff agreed in cross-examination that at this time Mr Jeanes would become irritable at the slightest thing; that he had stopped doing housework; that he was having issues with anger management and impulse control and was verbally abusive; and that he was drinking excessively.
On 17 May 2017, the plaintiff attended at Mind Wise Psychology with Mr Jeanes. By this stage, he was receiving some sort of income protection payment. He told the counsellor that he was unsure about his relationship with the plaintiff. The plaintiff apparently wanted to continue the relationship with him, but Mr Jeanes considered it was better for her and the children if they stayed at her mother’s home at Wishart. The plaintiff agreed in her evidence that Mr Jeanes was in a bad way at this time.
On 18 October 2018, the plaintiff made a statutory declaration, in which she declared that since the accident Mr Jeanes had become dependent on her for most household chores and the care of the children and that he was no longer able to manage their investment portfolio or work in her firm in the handyman and IT roles he had previously done. On 26 October 2021, the plaintiff made a further statutory declaration, in which she confirmed that from the date of the accident until 2 August 2017, she had provided Mr Jeanes with 16 hours per week of gratuitous assistance.
On 13 February 2019, Dr Trevor Lotz, consultant psychiatrist, saw Mr Jeanes for an independent psychiatric assessment of his condition, at the request of the plaintiff’s firm, Landmark Lawyers. In his subsequent report, dated 12 March 2019, Dr Lotz concluded that Mr Jeanes had developed significant social withdrawal, irritability, depressed mood and specific anxiety to any association with vehicles since the August 2016 motor vehicle accident. His diagnosis was Post-Traumatic Stress Disorder (“PTSD”). He recommended Mr Jeanes continue with anti-depressant medication and return to EMDR treatment with Ms Lewis.
On 23 March 2022, Dr Lotz again assessed Mr Jeanes. In his further report of the same date, Dr Lotz noted that all the children except their eldest daughter (i.e., Natasha) had left home due to Mr Jeanes’ erratic behaviour, including irritability, criticism and labile moods. Dr Lotz further noted that Mr Jeanes had been unable to return to work and described himself as being socially withdrawn, irritable and having a flat mood. He was experiencing ongoing suicidal ideation. Dr Lotz confirmed his diagnosis of PTSD.
On 20 June 2022, Dr Jon Steinberg, consultant psychiatrist, examined Mr Jeanes for the purposes of preparing a medico-legal report. In his report, Dr Steinberg noted that Mr Jeanes had not worked since the accident; was socially withdrawn; presented as irritable and mildly depressed; was not seeing a psychologist or psychiatrist; was smoking cannabis for chronic knee pain and because he claimed it calmed him down; but refused to take anti-depressant medication due to apparent adverse side effects. Dr Steinberg diagnosed adjustment disorder, with anxiety and depressed mood – chronic, and cannabis dependence. He did not consider Mr Jeanes had any symptoms of PTSD. He considered he exhibited irritable and angry behaviour at times which caused him to be intermittently estranged from his family. Dr Steinberg noted Mr Jeanes had made little progress in his life over the past six years since the 2 August 2016 accident.
The plaintiff confirmed in her evidence that she had been to many medical appointments with Mr Jeanes since the accident. When asked how frequently she had attended at such appointments between 2017 and the present date, the plaintiff said it was difficult to estimate, but perhaps once every couple of months.
Josie’s mental health issues
Josie had significant issues with learning, anxiety and school attendance before and after the accident. The issues became a particular concern when she was in Grade 4 in 2015.
On 28 October 2015, the school, guidance counsellor saw Josie because of concerns about her continued slow academic performance and nervousness around school assessments. The counsellor recorded that the plaintiff had described Josie’s behaviours were characterised by “fears and anxiety”, that she exhibited some “facial tics”, such as lip licking, and that she struggled with both the social and academic sides of school. The counsellor assessed Josie as a “D-Level” student.
On 2 March 2016, Josie saw her general practitioner for a mental health care plan and for referral to a psychologist. The doctor noted a history of “anxiety and low school performance” but also “anger and aggressive behaviour”. He also noted a family history of ADHD, which the plaintiff confirmed in her evidence was in respect of Daniel who had been diagnosed with that condition at one stage. The doctor’s diagnosis of Josie was “anxiety/abnormal behaviour”.
The plaintiff said that after the car accident that Josie started sleeping in the bed with her. She described that she was, “thrashing around in the bed next to me and crying out, making sounds, like, she was having some sort of bad dreams”. She said that started straight after the accident. She said that she then took her to see Dr Rad but that she would not speak to him. He then referred her for counselling.
On 11 August 2016, Josie went with the plaintiff to see Dr Rad. Josie reportedly was having some “PTSD features”, such as nightmares or flashbacks. The plaintiff requested a referral to a psychologist. Dr Rad conducted a mental health assessment and referred Josie to see Mrs Bindi Cilento.
The plaintiff confirmed that before the accident Josie had exhibited physical tics, where she would repeatedly lick her lips or do something inside her shoe so that no-one could see what she was doing. She said that after the accident she noticed that she was making a funny noise in her throat like a grunting noise. She took Josie to a psychologist at Mind Wise Psychology, who treated her for anxiety. She had a series of treatments thereafter.
On 15 August 2016, the plaintiff signed a Notice of Claim for Josie as her agent. She subsequently commenced her own personal injuries claim.
On 17 August 2016, the plaintiff took Josie to see Dr Rad after she had experienced a loss of consciousness while playing as school. Upon examination, Josie was observed to be well and not in distress. Dr Rad’s impression was that Josie had possibly suffered a panic attack. He recommended further tests be carried out, including blood tests. The plaintiff gave evidence that there was also another occasion when she was doing volunteer work at the school and had found Josie in the kitchen, “sort of balled up in the corner, crying”.
On 18 August 2016, the plaintiff took Josie to see Dr Rad for a blood test, but the test could not be done as Josie was scared of needles. Consequently, Dr Rad referred her to the Logan Hospital for sedation so that blood could be taken. On 19 August 2016, the plaintiff took Josie to the Logan Hospital where blood was taken. Further examinations were conducted which confirmed “No injury found”. The hospital notes recorded:
“…recent exacerbation of anxiety in the context of being involved in a MVA 4 weeks prior. Johanna has always been anxoius [sic. anxious] but in the last 1 to 1 and 1/2 yrs it has worsened and this may be secondary to anxiety in relation to difficulties faced in various domains in school-reading, spelling, retaining new information.”
On 25 August 2016, the plaintiff took Josie to see Dr Rad again. Dr Rad noted a history of Josie being restless, fidgety and hypervigilant and that she had an “unusual fear of being in car” as well as “Recurrent nightmare with a focus on MVA”. He further noted she had developed a vocal tic. Dr Rad’s impression was Generalised Anxiety Disorder, Tic Disorder and PTSD. On 31 August 2016, Dr Rad completed a mental health care plan for Josie and referred her to a psychologist.
On 1 September 2016, Dr Gajjr at the Logan Hospital completed a CTP medical certificate for Josie, in respect of his initial examination of her at the hospital on 2 August 2016. He noted she had experienced “panic attack secondary to low speed MVA” and further recorded, “No physical injuries from the MVA. Psychological stress/Panic attack due to witnessing the event.”
Before the accident, the plaintiff took both Josie and Susie to the Griffith University Psychology Clinic at Mt Gravatt, as they were conducting a trial treatment for children with anxiety. She said it was quite successful for Susie and she was doing quite well. After the accident, she took Josie back there as she was familiar with the environment.
Between 7 September and 5 December 2016, Josie was seen by the Psychology Clinic. The clinic’s summary report noted she had been seen for nine sessions in total. It further noted that Josie’s presenting problems, as described by the plaintiff, emanated from the August 2016 car accident; that since then she had a number of physical symptoms, including frequent headaches, nausea, dizziness, body aches, pains in her chest and a rapid heartbeat; that she experienced nightmares almost every night since the accident that revolved around her dying or being involved in a car accident; that she felt responsible for the accident as she had broken a mirror; that she had frequent memories of the accident and intrusive images which involved her and her family being killed in a car; that she had become hypervigilant to other cars on the road when being driven; and that she had developed a verbal tic. The plaintiff also advised that Josie had a history of underlying issues with anxiety that may have precipitated the development of her current difficulties following the car accident. The report noted that Josie would need ongoing support and treatment to deal with her PTSD symptoms related to the accident. The plaintiff confirmed in her evidence that Josie went into the sessions at the Psychology Clinic by herself, and she did not know what had happened during those sessions.
On 17 October 2016, the plaintiff took Josie to see Dr Rad. In late November 2016, the plaintiff was with Josie when she again saw Dr Rad to obtain a mental health care plan. Josie was then still having learning issues at school and had been referred to, but not accepted into, a child development program. On 11 December 2016, the plaintiff again took Josie to see Dr Rad in relation to her learning difficulties.
On 27 June 2017, the plaintiff took Josie and Susie to an appointment at the Child and Youth Mental Health Service (“CYMHS”) at Mt Gravatt. The plaintiff reported that the family was currently living in the family home, while her mother was in respite care, and that they were “all very aware of how close to the edge we are”. The plaintiff also reported being uncomfortable when Susie became emotional and distressed and that led to her avoiding situations that Susie found emotionally distressing. The plaintiff agreed in cross-examination that she had also told the counsellor that other events, such as her mother’s hospitalisation, her separation from Mr Jeanes, the full-time care of her mother and her eldest daughter Natasha’s head injury, had put stress on the family system at the time. She told the counsellor that she and Mr Jeanes were still separated then and that he had refused to engage in the counselling process with CYMHS.
The plaintiff gave evidence that after the accident, Josie would be very irritable in the car. She said Josie would not want any music or the radio on and would be annoyed by any sounds that Daniel might be making. She said Josie would just go to sleep in the car and at some stage told her that she was doing that to avoid how she was feeling about being in the car.
The plaintiff confirmed that Josie did not finish school and left at about grade 10. She said Josie commenced a relationship around the time she turned 16 in 2022 and gave birth to a baby girl on 16 March 2023. The plaintiff said that between 2017 and the time of the trial she had attended at medical appointments with Josie, probably at least one every couple of weeks.
On 30 January 2024, Josie was assessed by Dr John Chalk, psychiatrist, for the purposes of preparing a medico-legal report for her own litigation in the District Court. In his report, dated 5 February 2024, Dr Chalk noted that Josie suffered from chronic anxiety, generalised anxiety disorder and panic disorder. He did not think there was any compelling evidence that she suffered from PTSD.
On 7 February 2024, Josie was seen by Dr Lotz for the purposes of a medico-legal assessment and report. In his report, dated, 8 February 2024, Dr Lotz noted Josie’s past social anxiety, panic attacks and severe cognitive difficulties; that her anxiety had worsened after the motor vehicle accident on 2 August 2016; and that she had previously received psychological counselling. He noted she had an 11-month-old child, was unemployed, and was living between her parents’ home and her partner’s parents’ home. Dr Lotz recorded that Josie described current symptoms of general anxiety; that she was constantly worried about further motor vehicle accidents whenever she was a passenger within a vehicle; and that she tended to catastrophise, imagining injury to members of her family. In terms of diagnosis, Dr Lotz’s opinion was, “Other specified trauma and stressor related disorder (adjustment like disorder of prolonged duration of over six months without prolonged duration of stressor)”, “panic disorder”, and possibly a “pre-existing non-specific anxiety disorder”. He considered Josie’s prognosis was poor as she had struggled for seven years with symptoms of anxiety but, despite intensive treatment, she had not recovered to enable her to finish school, sustain employment or have any semblance of a normal life.
Susie’s mental health issues
Susie had significant issues with anxiety and school refusal before and after the accident. The issues became a particular concern when she was in Grade 6 in 2015.
On 18 February 2015, Susie saw her general practitioner for anxiety disorder, recurrent abdominal pain and a fear of school. The doctor completed a mental health care plan, diagnosed her with “anxiety disorder” and referred her to “Child Aware”. On 4 May 2015, Susie again saw her general practitioner for anxiety, with a reported history of associated school refusal, nausea and abdominal pain.
In September 2015, Susie saw a psychologist at “Head Space”. By that time, she had converted from mainstream school to distance education, however she was still having attendance issues and had stopped attending school altogether. According to the plaintiff, Susie did not cope well with the transition from primary to secondary school. She complained of nausea and headaches in the mornings; continued to see Head Space; and was given a provisional diagnosis of anxiety disorder.
In February 2016, Susie saw a psychologist at Head Space after she had fallen and bumped her head on a wall while playing with her brother. At this stage the plaintiff was attempting to get Susie to return to school. Later that month, the plaintiff was involved in an email exchange with Susie’s high school about her poor school attendance. The plaintiff confirmed in her evidence that at this stage she was concerned about Susie not going to school. She obtained a referral for Susie to see Dr Laura Hamilton at “Thoughtful Health” for an assessment in respect of Susie’s “longstanding anxiety with school issues”.
The problems with Susie’s school attendance continued into April 2016. At that time, the plaintiff was attempting to get Susie to go to school by going to school with her and staying for a period. In around mid-2016, Susie and Josie, participated in the anxiety treatment trial being conducted by the Psychology Clinic at Griffith University.
The plaintiff gave evidence that Susie was not able to go back to school after the accident happened on 2 August 2016. She said Susie initially went to see a counsellor at Mind Wise Psychology, but only for a couple of sessions. She said that she had spent time liaising with the school counsellor to try to find someone who could help her and ended up getting into contact with the CYMHS at Mt Gravatt. She said Susie started going there and because she was refusing to go to school at all they referred her to the CYMHS day program at the Queensland Children’s Hospital, where instead of going to school the children would go to the hospital daily, receive treatments and do some school at the hospital. The plaintiff described Susie’s behaviour in refusing to go to school, recalling that she would sit in the car and not get out, she would not put on her uniform or get dressed. Sometimes the school would try sending somebody down, such as the counsellor or the guidance officer, to escort her into the school, but it was not going very well and was traumatic for her.
By the end of the first half of the 2016 school year, Susie had been absent from school on 50.5 days. By the end of the third school term in September 2016, Susie’s attendance improved, and she was attending four out of every five days of school and had only missed a further nine days.
The plaintiff said that she also took Susie to the local GP at Wishart who referred her to a child psychologist. She said that as Susie was receiving the same sort of treatment at CYMHS they just kept doing that instead of seeing the psychologist.
On 3 November 2016, the plaintiff took Susie to see Dr Ryan, general practitioner, as she had injured her neck and hand after falling from a scooter. On 15 November 2016, the plaintiff took Susie back to Dr Ryan, who placed her arm in plaster after confirming she had in fact fractured her wrist in the fall.
On 14 December 2016, the plaintiff attended with Susie at Head Space for a further session in relation to her difficulties with school attendance. She had missed 30 days of school in the last semester of 2016 and her academic performance had declined. The plaintiff told the counsellor that sometimes Susie did not attend school because she was unwell, and their general practitioner had said this may be due to anxiety rather than any physical cause. Susie told the counsellor her attendance had dropped off because of laziness.
On 16 December 2016, the plaintiff took Susie to see Dr Ryan for removal of the plaster cast on her arm. While there, Dr Ryan prepared a mental health care plan for Susie, a referral letter to Head Space, and a medical certificate for the Motor Accident Insurance Act. The medical certificate noted Susie’s diagnosis was “anxiety” and the clinical findings were “anxiety while travelling in car”. Dr Ryan noted in his consultation notes that Susie had ongoing anxiety in cars since the motor vehicle accident on 2 August 2016 and wanted to lodge a claim for counselling.
On 21 December 2016, the plaintiff’s law firm lodged a Notice of Claim form for Susie in respect of the 2 August 2016 accident.
On 16 March 2017 the plaintiff went with Susie to see Dr Ryan for her anxiety. Dr Ryan’s consultation notes recorded Susie was having difficulties getting back to school and was experiencing headaches, dizziness, abdominal pains and diarrhoea. Dr Ryan referred her to see Dr Laura Hamilton at Thoughtful Health, noting in his referral letter that Susie’s anxiety and school refusal had worsened following the motor vehicle accident in 2016. On 7 June 2017, the plaintiff went again with Susie to see Dr Ryan.
On 25 July 2017, Susie fell off her bike and was treated by ambulance officers for a possible head injury. She was later assessed at the Lady Cilento Children’s Hospital Emergency Department, where she underwent a CT scan and was diagnosed with post-concussion syndrome. The plaintiff agreed in cross-examination that she had not mentioned this incident to the medico-legal psychiatrists she had seen, as she did not think it was relevant and probably did not even remember it at the time.
The plaintiff confirmed in her evidence that Susie finished grade 12. She said Susie continued to have issues with school attendance after the accident, noting that she had attended at the day program over nine months and in the last quarter of the program she started transitioning back to attending school. She said the attendance issues never actually resolved and Susie struggled through school, but she made it to the end. She said that when Susie started doing the day program independently, somebody else helped her to get back to school and the plaintiff stepped back.
On 29 October 2021, Dr Lotz examined Susie for the purposes of providing a medico-legal report. In his subsequent report, dated 1 November 2021, Dr Lotz noted Susie’s past issues with anxiety and school attendance; that since the accident she had become more socially withdrawn and introverted and was anxious in traffic and anticipated further motor vehicle accidents; that she had previously been prescribed anti-depressant medication and had been referred to a psychologist to help with her general anxiety and specific fear of vehicles and traffic; but that she was not currently receiving any psychological or psychiatric treatment. With respect to diagnosis, Dr Lotz’ opinion was “Other specified trauma and stressor related disorder (adjustment like disorder with prolonged duration)”. He considered Susie’s prognosis was guarded.
On 17 August 2022, Susie saw Dr Benjamin Duke, consultant psychiatrist, for the purposes of a medico-legal report. In his report, dated 30 August 2022, Dr Duke noted Susie reported ongoing anxiety about driving and being involved in accidents since the incident on 2 August 2016. He noted her pre-existing history of social anxiety and the treatment she had previously received for that condition and the symptoms she experienced after the motor vehicle accident. His diagnosis was “Social anxiety (pre-existing), traffic phobia (due to motor vehicle accident)”. He did not think further treatment would provide any significant functional benefits for Susie and was therefore not required.
On 19 July 2023, Susie saw Dr Lotz for a further assessment. In his report, dated 20 July 2023, Dr Lotz noted that Susie reported she felt she had recovered since the motor vehicle accident with the help of psychotherapy and the passage of time, but that she was still very anxious in traffic, worse as a passenger. Dr Lotz considered the diagnosis remained, “Other specified trauma and stressor related disorder (adjustment like disorder of prolonged duration of more than six months without prolonged duration of stressor)”. He did not think there would be any further improvement in Susie’s condition in the foreseeable future and that she had had all the psychotherapy necessary, and no further treatment was required.
Daniel’s mental health issues
The plaintiff gave evidence that Daniel had been diagnosed with ADHD when he was younger. She confirmed that Daniel finished grade 12. She said he did not have any issues with attendance at school between the time of the accident and when he finished high school. She said he had no issues with attending school after the accident because he had moved into his grandmother’s house and after the plaintiff and her daughters left and returned to the family home, Daniel remained there until he finished school.
On 29 July 2021, Dr Rad issued a CTP medical certificate in respect of Daniel, in which he wrote that Daniel had been involved in a motor vehicle accident in 2016 and since then had been having symptoms suggestive of PTSD.
On 3 August 2022, Daniel saw Dr Benjamin Duke, consultant psychiatrist, for the purposes of a medico-legal report. In his subsequent report, dated 19 August 2022, Dr Duke provided diagnoses of “Specific phobia (traffic), mild (accident related)
OCD, ADHD (pre-existing)”.
On 19 July 2023, Dr Lotz saw Daniel for the purposes of a medico-legal assessment and report. In his report of 24 July 2023, Dr Lotz noted that Daniel had not accessed any psychological treatment since the motor vehicle accident six years ago; that he was in relatively good health and had no physical injuries from the accident; but that he continued to have specific anxiety in cars, worse as a passenger. Dr Lotz noted he had previously examined Daniel and had postulated he was experiencing a generalised anxiety disorder; but that he had now shown significant improvement over the past 18 months in all areas of his psychological functioning, apart from travel. Dr Lotz confirmed his diagnosis and was of the view that his prognosis remained guarded.
Hotel break in and robbery
Sometime before 23 January 2017, Josie and Susie were staying with their aunt and cousin at a hotel when a person broke in and stole some of their aunt’s belongings.
Josie reported this incident during sessions with the Griffith University Psychology Clinic and it was the subject of therapy to enable her to emotionally process what had occurred. In cross-examination, the plaintiff agreed that it was a frightening incident and Josie had been rattled by it. She denied that it was very concerning to her and said she did not ruminate about it and what could have happened to her daughters.
Natasha’s horse-riding accident
In late October 2016, the plaintiff’s eldest daughter, Natasha Lundbergs Bower, fell off a horse in a riding accident. She suffered a head injury and was placed in a coma at the Lady Cilento Children’s Hospital for at least ten days.
The plaintiff gave evidence that Natasha was put into the induced coma because she was “being violent towards the, um, ambulance drivers when they found her … there wasn’t really any treatment that she required as such”. The plaintiff said that Natasha had broken her ankle and had to wear a moon boot for a while. She said Natasha had been in the induced coma for about a week. When asked what her reaction was to those events, the plaintiff said:
“… they told me that she was fine, that she was in a – an induced coma. They sort of told me that she was – seemed to be okay. Um, her brain was okay. Um, but just seeing her there, um, asleep with, um, tubes coming out of her, I … don’t now if it was relief seeing that she was okay and being told she was okay, but I had a complete … I started crying, and I was – I was quite upset…”
The plaintiff said that she did not see a doctor about her reaction at that time and that she was given some medication and had a sleep at the hospital and was then fine. She said the medication must have been some type of Valium. She said she did not need to take Valium after that time. She further said that the horse-riding incident did not feature in her thoughts these days and that Natasha was back riding horses again and was “perfectly fine”.
When asked about the incident in cross-examination, the plaintiff said:
“I received a phone call from her boyfriend telling me that, um, she was in hospital. Um, and I went to the hospital, and I remember they told me that all the scans were fine, but they had had to put her into an induced coma because after the fall she had started swinging at the ambulance officers who turned up… So they didn’t know what injuries she may have sustained, so they…put her in an induced coma.”
When challenged about the plausibility of her account and her understanding as to why Natasha had been placed into an induced coma, the plaintiff maintained that she had been told that it was because Natasha was being aggressive to ambulance officers, and they did not know what was with wrong with her at that stage.
She agreed that she found the incident to be incredibly stressful and that they did not know when she was going to wake up. When asked if it was the case that the doctors suspected she had a head injury and that was why she had been placed in a coma, the plaintiff said:
“…they told us that she – that they had checked her out and they – they didn’t think that she had any – any problem. They were waiting for her to wake up, but they were fairly confident that she was okay.”
When asked why she had not mentioned this incident to any of the medico-legal psychiatrists that she had seen, the plaintiff said she just answered the questions they asked her and it nothing to do with the car accident and she did not see any connection between the events. When asked if she thought it might have been relevant in terms of stressors she had experienced, the plaintiff said, “By the time I saw them, she was fine. She had moved on. It just wasn’t something that I really thought about.”
Natasha gave evidence that she had been in the coma for ten days and then remained in hospital for about another two months in a rehabilitation ward because she had bleeding in the brain. She recalled being home before Christmas 2016.
The health issues and death of the plaintiff’s mother
The plaintiff’s mother, Sandra Lundbergs, (“Sandra”), had significant health issues before, during and after the 2 August 2016 accident. The plaintiff was assisting her mother and providing care to her throughout.
Sometime in 2015, Sandra was diagnosed with cancer. She subsequently had a mastectomy. On 5 April 2016, the plaintiff telephoned the PA Hospital and expressed concerns to her mother’s caseworker about her mother being depressed, not eating and having auditory hallucinations and delusions. Later that month, Sandra had a psychotic episode and was hospitalised. In May 2015, she had a further psychotic episode, was hospitalised at the PA Hospital and subjected to an involuntary treatment order. She was experiencing delusions, believing she was someone else. Various diagnoses were made, including late-onset schizophrenia and delirium. Sandra remained in hospital for some time under the involuntary treatment order. After discharge, she continued to be seen by a psychiatrist and remained on medication. The plaintiff was living nearby at the time and was checking on her mother on a regular basis. She agreed in her evidence that she was concerned about her mother during this period.
The plaintiff gave evidence that in around October 2016 her mother had some health issues but that she had improved. She said her mother was on medication and seeing a psychiatrist at the time. On 10 October 2016, the plaintiff again called the PA Hospital over her concerns about the mother’s weight and functioning. At the time, Sandra was living back at her home at Wishart and the plaintiff was visiting her every morning. The plaintiff agreed in her evidence that her mother was having difficulties eating, her personal hygiene had deteriorated, and Anglicare were providing some cleaning services at the home at this time. The plaintiff thought her mother should be examined to see if there were reasons for her weight loss. She took her mother to the PA Hospital to see a liaison officer and then took her to the QEII Hospital, where she was admitted on 11 October 2016.
On 15 October 2016, Sandra escaped from the QEII Hospital and had a fall outside. She suffered multiple facial fractures. A CT scan showed she had bilateral subdural haemorrhage. The plaintiff gave evidence that her mother was not supposed to leave but she did because she did not like being in hospitals and she then fell over on some rocks and injured her head. Following the incident, a diagnosis was made that her mother had severe vascular dementia. When cross-examined, the plaintiff did not agree these events were stressful for her, rather, she said she was “very angry” because she had told the hospital that her mother had a history of escaping and they had said they would take care of her.
On 27 October 2016, the plaintiff telephone the PA Hospital to advise that her mother had been discharged from hospital, and that she had visited two aged care facilities but due to long waiting lists she had decided to take her mother home. Thereafter, the plaintiff set up a bedroom for her mother on the ground floor of her mother’s Wishart home and arranged for some in-home nursing care.
The plaintiff gave evidence that later in 2016 her mother was living in her own home at Wishart, whereas she and her family were living at North MacLean. However, the plaintiff explained that she and the children left the family home at around this time and went to stay at her mother’s house for about a week or so. She said this happened because Mr Jeanes asked them to leave as he wanted to be by himself. She said that after her mother was discharged from hospital she came back home, and it was then that she moved into her mother’s house with the children. The plaintiff said that during this time, her mother had carers who would come into the home, and they would be there for about a six-hour period during the time so that she could go to work and then come back before they left. She said she was able to work in the office about three days a week and the other two days she was working from home.
On 31 October 2016, the plaintiff again telephoned the PA Hospital and advised that her mother was not coping very well at home; was not as independent as she was prior to her hospitalisation; and was incontinent and irritable. When asked in cross-examination if she agreed that she was under considerable stress at that time in respect of caring for her mother, looking for an aged care residential facility for her, and having her eldest daughter then in hospital in a coma, the plaintiff agreed.
On 2 November 2016, the plaintiff telephoned the PA Hospital to advise that she had found her mother two-weeks’ respite care at a residential aged care facility. The plaintiff agreed in her evidence that around this time there was an issue with respect to selling her mother’s home in order to provide a bond for an aged care facility but that would require her brother to agree, and he did not. She said that her mother wanted to stay at home in any event, so she decided to care for her at home for as long as possible. She agreed that she was primarily responsible for caring for her mother.
A further aspect of the plaintiff’s evidence that greatly concerned me was her evidence about the nature and circumstances of Natasha’s horse-riding accident and subsequent hospitalisation. I reject as inherently improbable and implausible her evidence that Natasha was put in an induced coma, for more than a week, because she was aggressive towards ambulance officers. It is obvious she had sustained a serious head injury and was in an induced coma for medical reasons. Natasha herself confirmed that she had bleeding on the brain as a result of the fall. I am satisfied the plaintiff deliberately sought to minimise the seriousness of this incident as she knew that it was a very significant stressful incident in her life that contributed substantially to her emotional distress and it would not assist her case to acknowledge it as such. I find her evidence on this point was contrived and it bears adversely on my assessment of her credibility, both on this issue and more generally.
I also consider it to be of some significance that the plaintiff did not disclose to Dr Lotz or Dr Steinberg the previous family psychiatric history and Natasha’s horse-riding accident. I do not accept her evidence that she did not tell the psychiatrist about these things because they did not ask. As an experienced personal injury lawyer, the plaintiff would have been well aware of the relevance and importance of providing an expert witness with a full and frank history. I am satisfied the plaintiff deliberately withheld those details in recounting her history to the psychiatrist as she realised they may undermine her claim. I reject her explanation that she did not volunteer the information as she simply answered the questions asked of her.
I accept the plaintiff’s evidence that she had some type of “breakdown” in June 2017 and that it was precipitated by Mr Jeanes telling her that he was going on a fishing or camping trip. However, I do not accept that this was linked to the 2 August 2016 incident. I also do not accept the plaintiff’s evidence that she had experienced symptoms since the motor vehicle accident that were linked to the occurrence of the incident, her finding out about it, and later seeing her daughters at the hospital. Whilst I accept that the plaintiff experienced psychological symptoms many months later, I find they were the result of the other accumulated stressors to which she was exposed over time.
I cannot accept Dr Lotz’s evidence that the plaintiff might have suffered a psychiatric injury caused by her conjuring up a horrendous scene which resulted in her being traumatised by her own imagination of what actually happened, even though it did not happen. That cannot possibly be an acceptable basis upon which a defendant ought to be held liable for the consequences of their negligent act in a case like this.
I would also add that I have difficulty accepting that the plaintiff later imagining what could have happened in the accident, a year and more after it occurred, in circumstances where she knew what actually happened and that her family were safe, could satisfy the PTSD criterion of being “confronted” with an event involving death or serious injury to another. While it is not a precondition for liability that the plaintiff received a “sudden shock” the diagnostic preconditions for PTSD suggest that in a case like this it is a requirement for such a diagnosis that the plaintiff was unexpectantly told or informed of a serious, traumatic event. In such a scenario, where the plaintiff did not witness the event herself, it must surely be confrontation with the actual serious consequences of the accident that is critical. That is entirely absent here. In this case, the plaintiff knew right from the start what the consequences were. No-one was physically harmed.
I accept Dr Steinberg’s evidence that the accident was not severe enough to precipitate the plaintiff developing a psychiatric illness at the time but that the consequences that came thereafter in the plaintiff’s life were severe enough to precipitate a major depressive disorder.
The contemporaneous events and medical records concerning the plaintiff provide no support for the plaintiff’s claim that she suffered a psychiatric injury as a result of the incident in the way she claims. The plaintiff took Mr Jeanes and her children to see Dr Rad on 3 August 2016. Dr Rad examined each of them and confirmed they had not suffered any physical injuries. The plaintiff did not see Dr Rad about any concerns she had after being “confronted” with the events of the previous day. Instead, she saw Dr Balaji for a skin check-up.
There is no record of the plaintiff experiencing symptoms or raising any concern about her mental health with any doctor, counsellor or practitioner until she saw Dr Rad on 17 June 2017. The circumstances of the event that led the plaintiff to consult Dr Rad are not entirely clear, but even if I accept the plaintiff’s evidence that she had a panic attack and “breakdown” after Mr Jeanes told her he was going on a fishing trip, that episode provides no support for the plaintiff’s case in my view. In that respect, I again prefer and accept Dr Steinberg’s evidence.
Although Dr Lotz gave evidence that there could have been a delayed onset of symptoms in the plaintiff’s case, I do not accept that is what happened here. The more probable explanation is that the plaintiff did not experience symptoms earlier in time after the incident because it just did not affect her in the way she claims. That is not to say however that the manifestation of a psychiatric injury must occur immediately or soon after the distressing event. I accept that a psychiatric injury may develop over time. However, in the scheme of things, the 2 August 2016 accident was not a precipitating or contributing cause of the plaintiff’s psychiatric illness here. I am satisfied that it was an event that undoubtedly caused the plaintiff concern but that any immediate concerns she may have had when Susie told her of the accident were quickly replaced by relief as she was assured repeatedly that her family members were okay and were not physically harmed. I accept Dr Steinberg’s evidence that in the months after the accident, the plaintiff experienced a build-up of stress from other factors that put her at risk of precipitating a major depressive disorder and she ultimately succumbed to that illness.
That the plaintiff had developed psychiatric symptoms or a particular anxiety associated with driving does not provide any real support for her claim. As Dr Steinberg said in his evidence, that the plaintiff claimed to have had symptoms since the accident was consistent with her developing a psychiatric illness over time, contributed to by multiple life events, and not with the accident itself contributing to her developing a psychiatric condition.
I accept that over time the plaintiff has had to deal with the ongoing effects of the accident as she sought to support and care for each of Mr Jeanes, Susie, Josie and Daniel as they developed psychiatric illnesses of their own. The fact that she assumed the burden of caring for her injured family members, as well as commencing and running their own personal injury claims, compounded the impact of the stress she was subjected to as a result of other accumulated life stressors. But those consequences of the accident do not establish causation.
On my assessment of the evidence, the very strong likelihood is that the plaintiff has fixed upon the motor vehicle accident as the source of her mental health difficulties because the consequences of that incident for her and her family have been such a pervasive factor over the years since August 2016. The plaintiff has had to cope with her partner and her children suffering psychiatric symptoms caused by the accident; has had to care for her family, by taking them to doctor’s appointments and counselling; continued to work for a time running her own personal injuries practice in which she constantly dealt with accidents and injuries; and had taken on the responsibility of acting for her own family in respect of their motor vehicle accident claims. Concurrently, she developed her own psychiatric illness. It is not surprising that she blames the accident for her predicament. But that does not establish causation. In my view, the evidence given by Dr Steinberg explains the plaintiff’s preoccupation with the motor vehicle accident and the symptoms she experiences when thinking about or being reminded of similar scenarios. Her thoughts have been skewed in that direction because of the effects it has had on her family. She has been worried about her family and the consequences for them after the accident and as her depressive illness worsened, she developed symptoms of impending doom or catastrophe happening, which included thoughts and nightmares about harm coming to her family. As Dr Steinberg explained, such symptoms of a depressive illness are distinguishable from flashbacks or re-experiencing an event as occurs with PTSD.
One final aspect of Dr Steinberg’s evidence that I thought was quite prescient was his opinion that the reason the plaintiff did not benefit from the EMDR treatment she had received from Penny Lewis was because she did not actually have PTSD. I accept his evidence that she had a major depressive disorder and her symptoms continued and worsened because she was not getting the appropriate treatment she required for that condition.
The final aspect of the plaintiff’s claim to address here is the contention that caring for her injured family members could alone be a compensable cause of her psychiatric injury. The plaintiff said that although in Jaensch, Brennan J had observed that, “[t]he spouse who has been worn down by a tortiously injured husband or wife and who suffers psychiatric injury as a result goes without compensation”, the position was now different following the High Court’s decision in Tame.
The parties were unable to identify any case in which a plaintiff had been compensated for pure psychiatric injury caused solely by caring for family members injured as a result of another’s negligence. In Skea v NRMA Insurance Limited,[49] the appellant suffered psychiatric injury after her husband and two children had been involved in a motor vehicle accident for which the respondent was liable. The appellant was not with them in the car at the time but received two telephone calls informing her of the accident, the second call coming from her injured husband who told her that he was unable to find their children and thought they might be dead and that the appellant needed to come and find them. The appellant went immediately to the scene, where she saw her badly injured husband and eventually located her children, who were alive but also badly injured. Her husband and the children each spent several weeks in hospital recovering from their physical injuries. When they were eventually discharged, the appellant was primarily responsible for their care at home. Her husband and daughter continued to have difficulties at home. Her husband had received serious head injuries which left him with severe impairments. Both suffered personality changes which dramatically affected their relationships with one another and made the appellant’s life quite difficult. The appellant developed PTSD and a major depressive disorder as a result of what she had witnessed and her condition was aggravated by the ongoing stress of caring for her injured family members.
[49][2005] ACTCA 9.
Although the appellant succeeded with her claim at first instance, the trial judge concluded the effects which resulted from the stresses placed upon the appellant in having to care for her husband and her children, the changes of personality suffered by her husband and her daughter, and the effect on their relationship, were non-compensable. As a result, the damages awarded to the appellant were limited to the extent to which her psychiatric injury was due to the direct impact of the accident as opposed to her ongoing role as a caregiver for her severely injured husband and children.
In allowing the appellant’s appeal in respect of the damages awarded, the Court held that the appellant’s psychiatric injury caused by the nervous shock was compensable but so too was the subsequent aggravation of that injury caused by the appellant having to care for her injured family members. Such damage was a reasonably foreseeable consequence of the initial nervous shock.[50] The Court emphasised however, that if the appellant were to be suffering from a psychiatric illness which was caused solely by her caring and concern for the injured members of her family, she would not be entitled to recover damages at all.[51] In my view, that is a correct statement of the law and the same result applies here. This is not a case where the plaintiff sustained an initial psychiatric injury caused by the first defendant’s negligence, which was then aggravated by having to care for her injured family members.
[50]Ibid, [115]-[121].
[51]Ibid, [117].
I do not accept the plaintiff’s argument that the decision in Skea overlooked portions of the judgment of Gummow and Kirby JJ in Tame,[52] particularly at [210] where their Honours stated:
“Cases of protracted suffering, as opposed to ‘sudden shock’, may raise difficult issues of causation and remoteness of damage. Difficulties of that kind are more appropriately analysed with reference to the principles of causation and remoteness, not through an absolute denial of duty.”
[52]Tame, [205]-[213].
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%.
Because of his ultimate conclusion that the plaintiff’s condition was not caused by the motor vehicle accident, Dr Steinberg did not attempt any apportionment between causes related to the accident and those related to other life stressors in any of his medico-legal reports. Whilst he maintained that opinion when giving evidence at trial, he also reiterated that the plaintiff’s condition was caused by multiple different stressors, stating:
“She certainly had family evidence of that that would predispose her to major depressive disorder. In 2015, she had to cope with her mother being very unwell, admitted to hospital with a psychiatric disorder…she had major depression with psychotic symptoms or developed dementia soon after that…she had a number of stressors before the accident, and then after the accident there was dysfunction in the family that would’ve caused her to be stressed, as well as the ongoing illness of her mother and also … her older daughter was in hospital with a very serious head injury, and Ms Lundbergs was also supporting her. So there are a number of different stressors in Ms Lundbergs’ life that could have precipitated major depressive disorder.”
When asked whether it was possible to separate the “accident related” and “non-accident-related” causes, Dr Steinberg noted the opinion Dr Duke had expressed in respect of Susie, that 30% of her psychiatric condition was caused by the accident and 70% caused by a pre-existing condition. He agreed that was consistent with his opinion. Although he did not expressly state his opinion that the causes of the plaintiff’s condition might be apportioned in that way between her non-accident related and accident-related causes, it is patent that this was the effect of his evidence. Throughout his evidence, both in his reports and his oral evidence at trial, Dr Steinberg identified what he considered were the numerous non-accident-related causes that in his opinion were the substantial cause of the plaintiff’s condition. He reiterated at trial that the causes of her condition were therefore “multifactorial”. When it was put to him in cross-examination that it was not possible to make an apportionment of contributing factors, Dr Steinberg disagreed, again referring to Dr Duke’s opinion in respect of Susie, and stating,
“I think it is – it is possible to make a apportionment of the accident causing the family’s distress and then that contributing to Ms Lundbergs’ major depressive disorder. So I think it certainly is a possibility to make a – make a percentage or, er, not. We can never be completely accurate with these percentages, but certainly a proportion of what’s happened to Ms Lundbergs is due to the consequence of the accident… the burden of both looking after her children and her mother and all those stressors would’ve contributed to a psychiatric illness. So there’s a apportionment from each party, as well as a apportionment from the fact she is, in my view, predisposed to psychiatric illness because of her parents’ psychiatric illness and because of, perhaps, other issues that were highlighted by the psychologist to do with, um, the problems in her relationship with her parents as a child, particularly her father.”
I accept Dr Steinberg’s evidence. I am satisfied that the second defendant has established, with some reasonable measure of precision, in accordance with the principles in Watts v Rake[56] and Purkess v Crittenden[57] that there were a range of non-accident-related conditions that have significantly contributed to the plaintiff’s condition, symptoms and impairments. That being so, I would apportion two-thirds of the plaintiff’s symptoms and impairments to non-accident causes.
[56](1960) 108 CLR 158.
[57](1965) 114 CLR 164.
I accept and prefer Dr Steinberg’s PIRS rating. In my view, Dr Lotz’s PIRS rating overstates the extent of the plaintiff’s impairments. Dr Lotz also did not consider any part of his rating was attributable to other factors.
I would therefore assess the plaintiff’s ISV as 2% and calculate general damages as $2,880.[58]
[58]Schedule 7, Table 7, Civil Liability Regulation 2014, Reprint No.2 (Nil Base amount and Variable amount of 2 x $1,440).
Past special damages
The amounts were agreed by the parties. Medication expenses total $465.59 and treatments costs were $2,347.60. The Medicare refund was $699, and the second defendant previously paid $1,320 for six sessions of treatment with Ms Wong. Travel expenses were $738.35.
The plaintiff claims the entire amounts. The second defendant submits the amount awarded should not exceed $1,000, having regard to Dr Steinberg’s opinions with respect to causation and that the plaintiff’s major depressive disorder had initially resolved by 20 June 2022 but recurred because of the impact of other stressors and because the condition had not been properly treated in the first place. I agree that the plaintiff is not entitled to the full amounts claimed for those reasons.
I would allow $2,000 and $351.28 for interest on that sum.[59]
[59]Civil Liability Act, s 60 – applying half the relevant RBA rate of 4.391%.
Future special damages
The plaintiff claims $1,091.62 for medication expenses; $5,242.55 for treatment sessions with a psychologist; $3,000 for GP visits and $532.64 for her travel expenses. For the reasons previously identified, based on Dr Steinberg’s opinions, the second defendant submits that the plaintiff any award for future special damages should be limited to $2,000.
I accept, for those reasons, that the plaintiff is not entitled to be compensated to the full extent claimed. I would award $3,300.
Past economic loss
In determining the plaintiff’s claims for damages for economic loss it is to be borne in mind that she was previously self-employed as a solicitor and was the principal of her own firm. Her claim for past economic loss is premised on the gradual reduction over time in her ability to work as a solicitor and to carry on the work of her firm, from the date of the accident. She ceased operating her firm and stopped practising as a solicitor in March 2023. Thereafter, the only paid work she did was when she was employed by Coles doing night-fill. In support of her claims, the plaintiff relied upon the evidence of an accountant, Mr Michael Lee, who produced various tables and calculations and Mr Andrew Dare, a recruitment professional specialising in the legal industry.
The plaintiff emphasised that the relevant compensable loss is a loss of earning capacity, not loss of earnings. On that basis, she claims up to $1,358,931 for past loss of income, plus interest, and $129,098 for past loss of superannuation. The plaintiff’s claim for loss of past income is put on the following alternative bases:
(a)the difference between $2,350.00 nett per week, her earning capacity, and what she actually received in earnings since the incident (a total of $491,597). She also claims the loss of opportunity to grow her business, the equivalent of $1,000.00 nett per week ($386,000), bringing her total claim for past loss of income to $877,597 in total; or
(b)the reduction of business income, claiming the difference between the average nett profit and the actual nett profit ($1,358,931); or
(c)the reduction in her personal billings, claiming the difference between her average billings and her actual billings ($1,149,960); or
(d)the cost of replacement labour, had the plaintiff hired a solicitor to do her work ($853,161); or
(e)the loss of salary had the plaintiff closed the firm and become an employed solicitor at any time earlier than 2023 when she transferred the business (less actual earnings from all employment, equating to $448,620.75 in total); and
(f)as an alternative to (a) to (e), a global allowance to take into account her reduced earning capacity.
I note s 54 of the Civil Liability Act provides that the maximum award that may be made for damages for loss of earnings is an amount equal to the present value of three times average weekly earnings for each week of the loss of earnings. Section 55 of the Civil Liability Act applies where the plaintiff’s loss of earnings cannot be precisely calculated by reference to a defined weekly loss. Regardless, the maximum amount must not exceed the limit provided by s 54.
The second defendant submits that the plaintiff is not entitled to recover for either past or future economic loss as the evidence does not reliably establish her claim by any of the various methods she relies upon and, in any event, she has not proven the extent to which such loss was caused by her psychiatric injury from the accident and its effects, as opposed to other causes. It also submits that she is not entitled to recover any loss of superannuation as she was previously self-employed.
Each of the bases for the plaintiff’s claim in (b) to (d) above are ultimately grounded in the tables and calculations contained in Mr Lee’s report. I am however unable to accept Mr Lee’s conclusions and the calculations he has provided. They are ultimately based on assumptions that I do not find established by the evidence. Principally, I note that Mr Lee accepted in cross-examination that he assumed the plaintiff had suffered a psychiatric injury on 2 August 2016 and from that date forward her earning capacity was affected as a result of that factor alone and for no other reason. That is contrary to the facts that I have found, whereby there were multiple other stressors that led to the plaintiff’s condition, and which were the major causes of her developing her psychiatric illness. The plaintiff did not attempt to have Mr Lee qualify his calculations and opinions to take account of such matters. The end result is that I am not satisfied that the plaintiff has proved her claim according to bases (b) to (d) above.
As for basis (a), the plaintiff’s pleaded case is that she earned an average of $2,350 nett per week in the 2016 financial year before the incident. Her claim in that respect was said to be supported by the report of Mr Dare. I am unable to see how Mr Dare’s report, which deals with salary levels and earnings in the legal profession, establishes the plaintiff’s average earnings for the financial year 2016, before the accident, were $2,350 nett per week. That figure is not contained in Mr Dare’s report. The report does not provide any evidence of the plaintiff’s actual earnings during that period at all. The plaintiff’s closing submissions styled the matter somewhat differently, asserting that the figure of $2,350 net per week was the plaintiff’s “earning capacity”, as opposed to her actual earnings. In that respect, Mr Dare stated in his report that he would assess the plaintiff’s earning potential, in 2016, to lie between $195,000 - $240,000 per annum (inclusive of superannuation) as a salaried employee practising in personal injuries law in Brisbane. I assume that it is from that opinion that the figure of $2,350 nett is derived. Again though, this figure does not take into account any other cause of the plaintiff’s loss of earning capacity other than the incident of 2 August 2016, which is contrary to the facts I find.
As for the lost opportunity to grow her business, said to equate to a loss of $1,000 nett per week from the date of the incident, there is no evidence to support that aspect of the claim. Mr Dare’s report contains a table which reflected the changes in the levels of earnings the plaintiff could have been expected to have received since 2016 as an employed solicitor, ranging from $152,500 in 2017 to $212,500 in 2023. It is not possible for me to determine from this, or any other evidence, how the asserted $1,000 nett per week figure is derived.
Doing the best I can, I conclude that the plaintiff suffered some diminution in her earning capacity as a result of the effects upon her ability to work to her full potential caused by the 2 August 2016 incident. Adopting the plaintiff’s final option, (f), I would therefore allow a global amount for past economic loss of $97,995. I calculate that amount by estimating about 10% of the loss of her pre-injury earning capacity (i.e., $235 nett per week since her breakdown) was caused by the incident. In that respect, I again prefer and accept Dr Steinberg’s evidence, including his opinion that if the plaintiff received appropriate psychiatric treatment for her major depressive disorder, then she would be able to return to work as a solicitor in a different role to personal injury law, albeit that might require her to retrain. Further, in his last PIRS Rating Form, Dr Steinberg assessed the plaintiff’s impairment under the employment category of “Adaptation” as a class 3, “moderate impairment”, noting she could work in a different role for less hours per week. I note that under Schedule 5 of the Civil Liability Regulations, an assessment of that level equates to a percentage impairment range of 11% to 30%. One third of the top of that range is 10%.
Mr Lee accepted at trial that the plaintiff was not entitled to claim a separate amount for past loss of superannuation as she was self-employed. Accordingly, I make no separate allowance in that respect.
Future economic loss
The plaintiff’s claim for future economic loss is $1,016,153. The plaintiff calculates the figure on the basis that:
(a)before the incident, she had an earning capacity of $2,350 nett per week;
(b)she would have been able to grow her business, resulting in additional average income of $1,000 nett per week;
(c)she has a residual earning capacity of 20% of her pre-incident earning capacity;
(d)she therefore claims 80% of $2,350 nett per week ($1,880 per week) for the remaining 13 years of her work life (multiplier 502.3) less 15% for vicissitudes (totalling $802,675); and
(e)she also claims 50% of the loss of her business’s growth potential ($500 per week) for the remaining 13 years of her work life (multiplier 502.3) less 15% for vicissitudes (totalling $213,478); or alternatively
(f)she claims an equivalent global amount to reflect her lost earning capacity.
Using the same approach above, I would allow the plaintiff a global figure of $100,335 ($235 nett per week, for 13 years, multiplier of 502.3, less 15%).
I would not make any separate allowance for future loss of superannuation.
Summary of notional damages
In summary, I would make the following award of damages:
| Head of damage | Amount |
| General damages | $2,880 |
| Past special damages | $2,000 |
| Past loss of interest | $351.28 |
| Past economic loss (incl. superannuation) | $97,995 |
| Future economic loss (incl. superannuation) | $100,335 |
| Future special damages | $3,300 |
| TOTAL AWARD OF DAMAGES | $206,861.28 |
Orders
I make the following orders:
Judgment for the defendants against the plaintiff.
I will hear the parties as to costs.
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