Lundbergs v Fu[2025] QSC 135

SUPREME COURT OF QUEENSLAND

1. [1]
   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.
2. [2]
   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.
3. [3]
   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.
4. [4]
   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.
5. [5]
   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.
6. [6]
   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.
7. [7]
   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.
8. [8]
   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.
9. [9]
   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.   
10. [10]
    In the event that liability is established, the quantum of damages recoverable is disputed.

LIABILTY

The incident

11. [11]
    It is necessary to provide some further details of the accident and its immediate aftermath.
12. [12]
    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. 
13. [13]
    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.
14. [14]
    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.
15. [15]
    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.
16. [16]
    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.
17. [17]
    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.
18. [18]
    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. 
19. [19]
    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

20. [20]
    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…”
21. [21]
    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”.
22. [22]
    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.”

23. [23]
    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.
24. [24]
    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.
25. [25]
    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.
26. [26]
    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.
27. [27]
    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.
28. [28]
    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.
29. [29]
    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.
30. [30]
    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.
31. [31]
    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.
32. [32]
    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

33. [33]
    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.”

34. [34]
    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.”

35. [35]
    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”.
36. [36]
    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”.
37. [37]
    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. 
38. [38]
    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.”

39. [39]
    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”.
40. [40]
    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. 
41. [41]
    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”. 
42. [42]
    While there, the plaintiff saw another doctor, Dr Balaji, for a skin check-up.
43. [43]
    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.
44. [44]
    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.
45. [45]
    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.
46. [46]
    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. 
47. [47]
    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”.
48. [48]
    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.
49. [49]
    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.
50. [50]
    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”.
51. [51]
    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.
52. [52]
    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.
53. [53]
    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.
54. [54]
    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.
55. [55]
    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.”

56. [56]
    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. 
57. [57]
    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.
58. [58]
    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.
59. [59]
    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.
60. [60]
    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

61. [61]
    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

62. [62]
    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

63. [63]
    Mr Jeanes has experienced various mental health symptoms since the accident, impacting most aspects of his life and his relationship with the plaintiff.
64. [64]
    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. 

65. [65]
    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.
66. [66]
    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.
67. [67]
    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.
68. [68]
    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.
69. [69]
    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.
70. [70]
    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.
71. [71]
    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.”
72. [72]
    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.
73. [73]
    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.
74. [74]
    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.
75. [75]
    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.
76. [76]
    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.
77. [77]
    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.
78. [78]
    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.
79. [79]
    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

80. [80]
    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.
81. [81]
    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.
82. [82]
    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”.
83. [83]
    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.
84. [84]
    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.
85. [85]
    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. 
86. [86]
    On 15 August 2016, the plaintiff signed a Notice of Claim for Josie as her agent.  She subsequently commenced her own personal injuries claim.
87. [87]
    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”.
88. [88]
    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.”

89. [89]
    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.
90. [90]
    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.”
91. [91]
    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.
92. [92]
    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.
93. [93]
    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.
94. [94]
    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.
95. [95]
    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.
96. [96]
    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.
97. [97]
    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.
98. [98]
    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

99. [99]
    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.
100. [100]
     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.
101. [101]
     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.
102. [102]
     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”.
103. [103]
     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.
104. [104]
     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.
105. [105]
     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.
106. [106]
     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.
107. [107]
     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.
108. [108]
     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.
109. [109]
     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.
110. [110]
     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.
111. [111]
     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.
112. [112]
     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.
113. [113]
     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.
114. [114]
     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.
115. [115]
     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.
116. [116]
     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

117. [117]
     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.

118. [118]
     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.
119. [119]
     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)”.
120. [120]
     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

121. [121]
     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.
122. [122]
     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

123. [123]
     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.
124. [124]
     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…”

125. [125]
     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”.
126. [126]
     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.”

127. [127]
     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.
128. [128]
     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.”

129. [129]
     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.”
130. [130]
     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

131. [131]
     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.
132. [132]
     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.
133. [133]
     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.

134. [134]
     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.

135. [135]
     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.
136. [136]
     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.
137. [137]
     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.
138. [138]
     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.
139. [139]
     On 20 June 2017, Sandra was seen by the Community Geriatric Clinic, PA Hospital, at an aged care respite facility where she was staying at the time.  Subsequent correspondence from the clinic to her general practitioner, dated 29 June 2017, confirmed that amongst other issues Sandra had right breast cancer and underwent a mastectomy in 2015 and that she subsequently developed psychotic behaviour a few months post-operatively; that she had been diagnosed with late-onset schizophrenia and had been subjected to two involuntary treatment orders; and that she had been diagnosed with vascular dementia in December 2016.  The correspondence noted that Sandra had currently been in respite care for six weeks and had been referred to the clinic by the plaintiff for an opinion on her care needs for when she returned home; that the plaintiff has been providing meals daily, bathing weekly, hygiene and all “IADLS” and that she was “experiencing some carer stress” and understood her mother would soon need residential care for full support, however her brother would not consent to sale of their mother’s house, as needed to fund the nursing home bond payment.  On examination, Sandra was noted to be irritable and angry and exhibited some paranoid behaviour/visual hallucinations.  Information from nursing home staff confirmed her behavioural symptoms had increased over the past two days, raising the possibility of delirium.  In view of her cognitive decline and paranoid psychotic behaviour, the clinic recommended strict 24-hours supervision, ideally in supported accommodation.
140. [140]
     When asked again about this period, the plaintiff said that around June 2017 her mother was in respite.  She said that she had improved when she got out of the QEII Hospital.  She was able to get out of the bed and was eating meals herself and able to watch television.  She explained that her mother had gone to respite a few times and in June 2017 was in a local nursing home doing respite for a temporary stay.  She recalled an assessment was done on her mother after she had gotten out of the hospital sometime around November 2016.
141. [141]
     The plaintiff confirmed that her mother eventually moved into an aged care home in 2021 but subsequently passed away in June 2022.  When asked how she felt about her mother going into aged care, the plaintiff said she felt like it was time as it was getting difficult for the carers and her mother had lost mobility by that time and it was difficult to attend to her showering and daily living activities.
142. [142]
     When asked how she felt about her mother passing, the plaintiff said that she was sad, but in the end it came as a relief because her mother, “wasn’t there any more”.

The plaintiff’s law firm

143. [143]
     The plaintiff purchased her law firm in 2007 for $500,000.  She bought the practice from the firm’s former principal, for whom she had worked as an employed solicitor.  The office was located in Goodna.  She changed the name to Landmark Lawyers some years later.
144. [144]
     In about 2008, the plaintiff opened a second office at Redbank Plains which operated for a few years, before it was shut down and the firm again operated solely from the Goodna office.  In 2011 the Goodna office was completely submerged in the January floods.  All the paper files were destroyed but the firm had retained some electronic records.  The firm was not properly insured.  Work stopped for a period of time.  Staff worked from home for many months until a new office was set up in April.
145. [145]
     In late 2015, the plaintiff again commenced a second office of her law firm, this time at Augustine Heights.  The plaintiff was based in that office and her employed solicitor, Rae Harrild, remained at the Goodna office.  The plaintiff ran all the personal injury files and was responsible for marketing the firm and supervising staff.  At the end of the 2015-2016 financial year, the plaintiff employed three solicitors and other staff, including Mr Jeanes who provided IT support and did handyman jobs on a casual basis.
146. [146]
     The plaintiff gave evidence that there was a break-in at her office sometime around 2017.  When asked if that affected her mental health, the plaintiff said that she did not think so and she did not think about it.
147. [147]
     In about February 2020, the plaintiff shut down the Goodna office and the remaining staff moved into the Augustine Heights office.  In March 2023, the plaintiff ceased operating her law firm practice and sold it to Ms Harrild.  The plaintiff said in her evidence that it was very hard for her to give up her practice.  She recalled that she made the decision around July or August 2022, after working on a particular file one day when she thought to herself, “I just can’t do this anymore.” Ms Harrild gave evidence that the plaintiff had said to her that mentally or psychologically she was no longer able to do the work because it was quite triggering.  Ms Harrild gave evidence that she had noticed a change in the plaintiff’s personality in about the last quarter of 2022 and it was about that time that the plaintiff had approached her about taking over the firm.  She said she had noticed at that time the plaintiff’s declining capacity as a practitioner and business owner.

The plaintiff’s psychiatric condition

148. [148]
     Although the plaintiff did not specify in her claim the psychiatric injury she allegedly suffered, the particulars of her claim for loss and damage state, under the heading of “Pain and suffering”, “serious mental disorder, item 11, ISV range 11 to 40” and “the plaintiff claims an ISV of 15”.
149. [149]
     It is of course not necessary to establish liability that the plaintiff prove that she has suffered any particular psychiatric injury, provided that she proves that she has a recognised psychiatric illness that was caused by the first defendant’s negligence.

Evidence

150. [150]
     Evidence of the nature of the plaintiff’s psychiatric condition was given at trial by two consultant psychiatrists, Dr Lotz, called by the plaintiff, and Dr Steinberg, called by the second defendant.

Dr Lotz

151. [151]
     Dr Lotz was engaged by lawyers acting for the plaintiff to assess the plaintiff and provide medico-legal reports.  He first saw the plaintiff on 7 November 2018 and provided his first report on 13 November 2018.
152. [152]
     In his first report, Dr Lotz summarised the plaintiff’s history:

“… Ms Lundbergs who is working as a personal injury solicitor, was informed that her former partner Jason and the three children were involved in a motor vehicle accident.

She became panicky, and distressed, and was concerned how the children were managing.  She left work to go to the hospital where the children had been taken by the ambulance.

In her imagination, she envisaged significant trauma to her family, and the possibility of further motor vehicle accidents as they were parked on the side of a highway.”

153. [153]
     Dr Lotz noted the plaintiff described being directly affected by the psychological consequences of the motor vehicle accident involving her family.  She related that her 15-year-old daughter had stopped going to school and become withdrawn; and her 12-year-old daughter had insisted on sleeping in the same bed as her, had restless sleep and a nervous tic.  She told Dr Lotz both her daughters became hypervigilant in traffic and were currently seeing counsellors to assist them with their anxiety.  With respect to her partner, Mr Jeanes, the plaintiff reported that he had become anxious, hypervigilant, withdrawn, teary and generally appeared unable to cope.  He, too, was receiving counselling.
154. [154]
     In terms of psychological symptoms, Dr Lotz noted that the plaintiff described increased tension between herself and Mr Jeanes since the incident, related to his change in behaviour and her heightened anxiety, which included “… ruminations of what could have happened in the motor vehicle accident, and visualisation of the motor vehicle accident”; and that she was in a state of shock and felt a sense of helplessness.  Dr Lotz noted that at the time of the accident the plaintiff had been staying with her mother, who had just been discharged from hospital for her own issues, and then had to return home to look after her family.
155. [155]
     Dr Lotz recorded that the plaintiff said she had daily reminders through the reactions of her children and Mr Jeanes, such as hypervigilance, exaggerated startle response, general anxiety and significant anxiety in traffic; and she had become socially withdrawn and avoidant to the point where she was tending to do more work from home than go to the office and was no longer dealing with clients face to face.  Dr Lotz noted that the plaintiff’s general practitioner had apparently diagnosed her with PTSD.  He recorded the plaintiff said she continued to have anxiety with palpitations and noted that she became easily tearful; that she continued to have nightmares of motor vehicle accidents generally, which often involved the death of her children; and that she described tightness in her chest, teary episodes, fatigue, palpitations, distraction at work and meetings, scattered thinking, a flat mood and irritability and general intolerance.  The plaintiff also reported being particularly anxious driving past the site of the motor vehicle accident, which would cause her distraction and fixated thinking, and that she had persistent thoughts of death, not only to her family but generally.
156. [156]
     In terms of treatment, Dr Lotz noted the plaintiff had been seeing a psychologist and had undergone EMDR treatment in three sessions to date.  She had initially been reluctant to use any psychotropic medication due to its effects upon her cognitive abilities and decline in work quality, however, she had since been prescribed antidepressant medication.  He noted the plaintiff felt that there had been some side effects from the medication causing some flattening of her moods.  Dr Lotz recorded that the plaintiff had no past psychiatric history.  In terms of a family psychiatric history, he noted the plaintiff’s brother appeared to suffer from depression and abused various substances, related to body building.
157. [157]
     Upon examination, Dr Lotz found the plaintiff’s mood was dysthymic, her affect was restricted, congruent with her mood, and there were no abnormalities of speech or formal thought.  Dr Lotz was of the view that the plaintiff had experienced features of a major depressive disorder, with a specific anxiety in traffic, as a result of the motor vehicle accident involving Mr Jeanes and their three children.  Using the DSM-IV-TR criteria, Dr Lotz diagnosed the plaintiff with major depression with anxiety.  He further noted, “Stressors that continue are her involvement in the recovery of her three children and her ex-partner, and the added financial stress of inability to function fully in her own legal firm”.
158. [158]
     Dr Lotz considered the plaintiff’s prognosis was guarded.  He observed that although two years had passed since the motor vehicle accident, the plaintiff continued to have features of both anxiety and depression.  He noted she was capable of doing some part-time work, and was effectively a carer for her family, whilst dealing with her own anxiety issues.  He considered it was difficult to state when she would be fully capable of returning to employment as that appeared to be contingent on the recovery of her own family members.
159. [159]
     Dr Lotz recommended the plaintiff continue to seek out the services of a psychologist to help her deal with her anxiety.  He thought she should increase the dosage of her medication.  He did not consider there was a need for her to see a psychiatrist unless her response to other treatment was protracted.  Dr Lotz assessed the plaintiff on the PIRS scale as having a 5% impairment. 
160. [160]
     In response to specific questions he was asked to address, Dr Lotz, noted that the plaintiff herself was not involved in the accident, however she fantasised over it and created a scenario which keeps recurring.  He also noted that she described features of anxiety and depression which are related to a motor vehicle accident in which her three children and Mr Jeanes were involved.  Dr Lotz observed that there did not appear to be any other stressors possibly precipitating her significant psychological condition, noting that she appeared to be managing her legal firm and everyday issues such as her mother’s deteriorating health prior to the motor vehicle accident.  He did not consider the plaintiff had any pre-existing psychiatric condition which was aggravated by the motor vehicle accident but considered she would remain vulnerable and susceptible to future exacerbations of anxiety and depression if there were to be any other motor vehicle accidents in her family, and that she may be oversensitive to any perceived stressful life incidents.
161. [161]
     Dr Lotz assessed the plaintiff again on 1 December 2021, and provided a further supplementary report, dated 2 December 2021.  In that report he noted the plaintiff had undergone an independent psychiatric assessment by Dr Steinberg, who had provided a report, dated May 2019.  He noted Dr Steinberg’s opinion that the plaintiff’s psychiatric injury was not caused by hearing or receiving news of the motor vehicle accident.
162. [162]
     Dr Lotz noted the plaintiff’s current work situation was that she did most of her work at home, that she could not focus, and that she could only do a few minutes at a time before she would need to get up from the computer and walk around and do other things; that she was not seeing clients; and that her junior colleague whom she had been relying upon to do the face-to-face meetings with remaining clients had left and now the plaintiff was running the remains of her legal firm by herself.  He further noted she had started working doing night-fill at Coles as, “she needed a distraction from the overthinking of the trauma of the motor vehicle accident, and an excuse to leave the home without having to interact with clientele”.
163. [163]
     As for her current psychological symptoms, Dr Lotz noted the plaintiff advised that whenever she read a client’s file related to personal injuries that would trigger anxiety related to her own experiences following the motor vehicle accident involving her family; that she avoided watching the news, as motor vehicle accidents on the news also triggered her flashbacks of her own experience of the stress she felt at the time of receiving the news of her family’s motor vehicle accident; that she was triggered by accident training protocols through the workplace health and safety training she received at Coles; and that she was triggered by any association with personal injuries motor vehicle accidents or injury.  Dr Lotz further noted the plaintiff described significant problems with concentration and attention; that her thinking was “scattered”; that she had anxiety whenever she attended at a hospital, such as when her daughter had to attend for counselling; that she described “her head spinning and being unable to think”; that she was anxious in public places and preferred to stay at home; that she tried to avoid talking about motor vehicle accidents; and that she was reportedly triggered by driving and “often thinks about what could have happened to her family and the severe injuries, including mortality, that could have occurred”.
164. [164]
     Dr Lotz noted the plaintiff continued to see a counsellor and a psychologist, but that despite psychotherapy she admitted to still being emotional with a labile mood and was often teary and had to regroup and return to a task at hand.  He recorded that she remained on antidepressants, which had been briefly increased in dosage but reduced due to side effects.  He noted she had also been prescribed diazepam which she used for predominantly social anxiety. 
165. [165]
     As to whether a differential diagnosis of PTSD might be made, Dr Lotz stated:

“Ms Lundbergs does have some symptoms of Post-Traumatic Stress Disorder.  These include triggers as described above, labile mood and a sense of vulnerability and mortality. 

However, Ms Lundbergs herself did not experience a direct threat to her health and wellbeing.

Although she does have some symptoms of PTSD she does not fulfill the DSM criteria for this disorder.

I maintain my postulation of the appropriate diagnosis as Major Depressive Disorder with anxious distress.”

166. [166]
     Dr Lotz further opined that PTSD had always remained an alternative diagnosis and may still develop.  He noted the symptoms of PTSD experienced by the plaintiff were “the flashbacks and the triggers, the association with motor vehicle accidents and personal injuries of her clients”.  He noted the symptoms of major depression experienced by the plaintiff were “the depressed mood, the tearfulness, anergia, anhedonia, social withdrawal, social anxiety, irritability and poor concentration and cognitive difficulties”.
167. [167]
     As for the commencement of the plaintiff’s condition, Dr Lotz stated that it appeared her psychiatric symptoms started approximately six months after the motor vehicle accident.  He said it was not unusual for there to be a period of time before the symptomology became pathological.  Dr Lotz expressed the view that often, people in circumstances like the plaintiff, where they had to “keep it together” to look after family, suppressed their own feelings but once the family was stable, they then exhibited symptomology. 
168. [168]
     As to the cause of the plaintiff’s condition, Dr Lotz opined that it was:

“… the revelation of the motor vehicle accident which was the original stressor.  However as stated above, Ms Lundbergs has to manage the psychiatric distress of the members of her family including her young daughters, had to keep the family income, had to arrange and transport her family members to counselling etcetera…  Ms Lundbergs was not in a position to deal with her own psychiatric distress”. 

169. [169]
     Dr Lotz considered the enormity of the motor vehicle accident, and the potentially fatal outcome, was the cause of her psychiatric disorder.  He did not consider it was possible to separate out the contribution of other stressors.
170. [170]
     Dr Lotz also thought the plaintiff had deteriorated since his last assessment.  He noted the decline in her ability to undertake chores and attend to personal hygiene and the impacts on her ability to work.  He noted that she had become socially withdrawn and no longer met with clients.  As for ongoing treatment, Dr Lotz was of the view the plaintiff should see a psychiatrist for at least five sessions and noted the medication she was currently on did not appear to be effective and that should be reviewed by a psychiatrist.  He provided an updated PIRS rating of 15%.
171. [171]
     Dr Lotz further assessed the plaintiff on 21 November 2023 and provided an updated report of the same date.  In that report, Dr Lotz noted the plaintiff had formally given away her legal practice in March 2023; had attempted working at Coles doing night-fill but had suffered a physical injury in August 2022; and was now on workers compensation for that injury.  Dr Lotz further noted the plaintiff was not currently seeing either a psychologist or a psychiatrist but that her general practitioner had increased her antidepressant medication a few weeks before the assessment; that her daily activities involved staying at home and in bed, remaining in the same clothes for several days at a time, avoiding leaving the home due to social anxiety and being reluctant to talk to people on the phone other than her own children; and that she was dependent on her partner, Mr Jeanes, who did all the cooking and managed the household.
172. [172]
     In terms of current psychological symptoms, Dr Lotz noted the plaintiff described an overwhelming fatigue, lethargy and loss of motivation; anergia, anhedonia and a flat mood; episodes of anxiety and panic; and that she admitted to feeling “safe” in her bed and that she “avoids the stress of the world”.  Dr Lotz specifically noted the plaintiff described anxiety in traffic, that she was hypervigilant to the point of being panicky, and that her anxiety was worse as a passenger.  He recorded that the plaintiff stated she had limited concentration.
173. [173]
     Upon examination, Dr Lotz considered the plaintiff’s mood was dysthymic and noted she was teary throughout the assessment when describing the loss of quality of life.  He thought she appeared anxious and ill-at-ease and that her affect was congruent with her depressed mood and anxiety.  In terms of diagnosis, Dr Lotz reiterated that he maintained his former opinion of major depressive disorder with anxious distress.  In terms of prognosis, Dr Lotz noted the plaintiff appeared to have deteriorated over a period of seven years, despite psychological and psychiatric treatment.  He assessed the plaintiff with a PIRS rating of 14%.
174. [174]
     Dr Lotz recommended the plaintiff should be under the care of a psychiatrist and expressed the view that her antidepressant medication dosage may not be sufficient and that she may need additional mood stabilisers or a combination antidepressant medication.  He recommended ten sessions with a psychiatrist.  He did not think the plaintiff was capable of returning to work as a legal practitioner, even on a part-time basis.  He considered she would be a significant liability, considering her psychological condition, which was permanent.  He thought the plaintiff’s prognosis appeared poor.
175. [175]
     Dr Lotz conducted a further assessment of the plaintiff on 29 May 2024 and provided a further report, dated 19 June 2024.  He recorded the plaintiff said she continued to have symptoms of anxiety and depression and symptoms of trauma, including occasional flashbacks and triggers; that the frequency of flashbacks had decreased and there were no longer any triggers such as reading the briefs of her clientele; that she continued to have a labile mood with spontaneous episodes of tearfulness and a general anergia, anhedonia and social avoidance; that she was anxious driving and at times she described what appeared to be a panic attack, with palpitations and episodes of tearfulness, and she would have to pull over; that she was a liability on the roads and her anxiety was worse as a passenger; that she had problems with memory, concentration and was scattered in thinking and distracted and described what appeared to be dissociative episodes, stating “My brain switches off”.
176. [176]
     In terms of diagnosis, Dr Lotz noted that he had changed his opinion.  He was now of the view that she fulfilled the diagnosis of PTSD, with a delayed onset of symptoms.  In that respect, Dr Lotz stated:

“The motor vehicle accident, and the potential of serious injury to Ms Lundbergs’ family was the precipitant of Ms Lundbergs’ psychiatric distress, leading initially to the diagnosis of Major Depressive Disorder with anxious distress and now Post Traumatic Stress Disorder.”

177. [177]
     As to the plaintiff’s non-attendance at the accident scene, Dr Lotz stated:

“Whether the person not involved in the accident attends the scene of the incident, may not necessarily be of relevance. 

Often the imagination of the scene is more traumatic than actual visualisation of the scene.

…

It is difficult to state whether being told of an incident or witnessing is worse.

Often persons have a greater imagination of what could have occurred, ultimately creating a more significant trauma than the reality of the accident.

This appears to be the case with Ms Lundbergs who did not attend the specific incident.”

178. [178]
     Dr Lotz also observed that the nature and extent of any actual physical or psychological injuries to persons in the car was not necessarily the trigger for psychological distress.  Rather, the imagination of what could have occurred may be more relevant.
179. [179]
     With respect to the plaintiff’s “breakdown” after being told by Mr Jeanes that he was going on a fishing trip, Dr Lotz noted this was a normal reaction.  He considered it triggered her sense of vulnerability and her imagination of a further motor vehicle accident.  Dr Lotz stated:

“… in this recent assessment of 29/05/2024, I specifically enquired of Ms Lundbergs the relationship between the fishing trip and her distress.

She stated that she did not want to acknowledge the psychological symptoms she was struggling with after the motor vehicle accident, however when her partner Jason did state he wanted to go on a fishing trip, she became overwhelmed with her own suppressed psychological distress.”

180. [180]
     As to the relevance of the plaintiff’s family situation and whether it contributed in any way to the plaintiff’s psychiatric condition, Dr Lotz stated:

“… it is difficult to separate the distressed (sic. distress) caused directly by the motor vehicle accident, and the following months of family upheaval due to their respective psychiatric conditions.”

181. [181]
     Dr Lotz revised his assessment of the plaintiff’s PIRS to 19%, with no allowance for other stressors.  His opinion was that the plaintiff should continue with regular psychotherapy for at least another two years, on a monthly basis; that she should be reviewed by a psychiatrist for at least five sessions; and that she may need a prescription for a psychotropic medication.
182. [182]
     At the request of the plaintiff’s lawyers, Dr Lotz provided a further report clarifying certain matters, dated 15 August 2024.  In that report, Dr Lotz expressed opinions that the plaintiff was a person of “normal fortitude” before the motor vehicle accident; that a person of normal fortitude in similar circumstances could have suffered a recognisable psychiatric condition; and that the motor vehicle accident did cause the development of the plaintiff’s psychiatric condition.  Dr Lotz reiterated his opinion that it was possible that by not going to the scene to meet the family and visualising the effects of the motor vehicle accident, the plaintiff’s own imagination could make the trauma worse, observing, “Often the imagination is more catastrophic and traumatic than reality”.  He further noted:

“In Ms Lundbergs’ specific circumstances, Ms Lundbergs was a lawyer who often dealt with the litigation of her clients in motor vehicle accidents.  She has had vicarious exposure to motor vehicle accidents.

When she heard of the motor vehicle accident affecting her family, she imagined the worst.”

183. [183]
     In response to a question asking whether a realisation that people were not visibly physically injured, but could have been, was relevant, and if so, how, Dr Lotz noted:

“Yes.  The perceived scene and physical injuries in the imagination could have been severely traumatic and recovery from such imaginings would have been protracted even after the realisation that the physical injuries were not as severe.”

184. [184]
     In his view, the plaintiff experienced symptoms of panic and a sense of helplessness as soon as she heard of the motor vehicle accident.  He concluded that the phone calls following the motor vehicle accident informing her that the family had had a motor vehicle accident contributed to her initial psychological symptoms.  He stated:

“In my opinion the imagination that the motor vehicle accident was catastrophic was the cause of her traumatic symptoms.”

185. [185]
     Dr Lotz confirmed his opinion that the plaintiff fulfilled the criteria for a diagnosis of PTSD.  He noted that at the time of her breakdown, the plaintiff was suffering from symptoms of anxiety, depression and trauma and did meet a recognisable psychiatric condition, which could relevantly have been diagnosed as major depressive disorder, adjustment disorder, other specified trauma and stressor related disorder or PTSD.  He confirmed that at the time of the breakdown he considered the plaintiff met the criteria for major depressive disorder with anxious distress.  Dr Lotz’s confirmed his conclusion that the disclosure of the motor vehicle accident was the primary cause of the plaintiff’s breakdown.  He stated that the plaintiff decompensated when advised of the proposed fishing trip as she imagined further harm occurring.  He did not think she would have had the same reaction had she not been previously exposed to the trauma of the motor vehicle accident.
186. [186]
     In terms of contributing factors, Dr Lotz acknowledged that the plaintiff’s family situation would have contributed to her psychiatric condition, however, it was difficult to separate the motor vehicle accident itself from the aftermath contributions, such as family members’ injuries, psychological stress and dependency on care.  Dr Lotz further opined:

“In my opinion, the initial incident, then the contribution of family situation resulted in the breakdown, i.e. there was the trauma from the initial incident and then the ongoing family situation causing psychological deterioration leading to the ‘breakdown’.

Subsequently the family situation and the demands on Ms Lundbergs to manage the family.

Over time it appears the family have recovered but Ms Lundbergs has continued to deteriorate.

Objectively, it can be considered that the family are no longer a stressor as they have recovered.  However, the trauma with anxiety, depression continue, and have not resolved.”

187. [187]
     In his evidence in chief at trial, Dr Lotz identified a document which he had prepared that set out the diagnostic criteria for PTSD from the DSM-5 and indicated how those criteria were satisfied in the plaintiff’s case.  For criterion “A” Dr Lotz had marked the following:

“A. The person has been exposed to a traumatic event in which both the following were present:

☒  The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death of [sic. “or”] serious injury, or a threat to the physical integrity of self or others

☒  The person’s response involved intense fear, helplessness, or horror.”

188. [188]
     In cross-examination Dr Lotz agreed that he had relied heavily on the history and information provided by the plaintiff.  He agreed that the summary of the events relating to the incident contained in his report was what had been reported by the plaintiff.  He accepted that the plaintiff did not describe any family psychiatric history when he first saw her.  He agreed it would be important to know however (as the plaintiff had confirmed in her evidence) that her father had spent time in a prisoner of war camp in Europe and that he subsequently suffered significant symptoms including outbursts of anger.  He said he was now aware of her father’s history and that he had suffered symptoms of PTSD.  He accepted the family history would be important insofar as it showed genetic predisposition.  He said he was not told by the plaintiff that her father’s condition made her childhood difficult.  He was aware that the plaintiff had difficulties with her brother and believed that he had been violent.
189. [189]
     When asked to assume that Josie had a pre-existing history of panic attacks and anxiety, similar to that which she exhibited on the day of the incident, and that afterwards the plaintiff had formed the view that this was just another manifestation of those pre-existing symptoms of anxiety, whether it would be difficult for her to then, months later, have relived some sort of imagined traumatic event, Dr Lotz agreed.
190. [190]
     Dr Lotz agreed that nightmares can be a manifestation of a major depressive disorder.  He agreed that when he first saw the plaintiff, he formed the view she had a low-grade major depression, but by the time he saw her in December 2021 she had significantly deteriorated.  When asked whether he was aware of the plaintiff having other stressors in her life at that time, Dr Lotz said he believed her mother had dementia and there were issues with her daughter, Josie, who was unstable.  He agreed that he was also aware Mr Jeanes had significantly decompensated.  He agreed that he had assessed Mr Jeanes on 23 March 2022 and had concluded that he had a significant psychiatric condition with a PIRS rating of 28%.  He concluded that Mr Jeanes had not recovered from the motor vehicle accident despite intensive treatment.  Dr Lotz agreed that that would have been very stressful for the plaintiff living in those circumstances given that the symptoms of Mr Jeanes’ condition included erratic behaviour, irritability, criticism and labile moods as well as impairments in his daily tasks and functioning. 
191. [191]
     When asked whether that sort of circumstance could, over time, be the cause of the development of the plaintiff’s own symptoms of depression, Dr Lotz said it was difficult to say but it could certainly contribute.  When asked about the plaintiff’s mother’s condition in late 2016, Dr Lotz could not recall whether he was aware that her condition had deteriorated to the extent that she had escaped from hospital, had a fall and suffered multiple facial fractures and required significant amounts of care either through care agencies or by family members.  He accepted that if the plaintiff was providing the family care for her mother at that time that was a circumstance that could add to stress.  He accepted that if the circumstance was protracted it could potentially cause depression.
192. [192]
     When asked if Susie’s long-standing issues with attendance at school and school refusal could be a cause of stress, Dr Lotz agreed.  He did not however accept that it could cause symptoms of depression but accepted that it could certainly add to it.  He further accepted that Natasha’s horse-riding accident in October 2016, and her subsequently being put into an induced coma, was the sort of event which could cause a parent stress.  Similarly, he accepted that if the Josie had anxiety issues that also could cause stress.
193. [193]
     In response to the suggestion that these issues and circumstances could all combine to cause a major depressive disorder, Dr Lotz at first stated that it would not necessarily cause such a disorder but certainly would add to the stress leading to it.  When further pressed as to whether those circumstances could cause the condition in their own right, Dr Lotz stated “That’s possible.  Yes.”
194. [194]
     Dr Lotz agreed that he had changed his initial opinion that the plaintiff had a major depressive disorder to PTSD.  When asked how the plaintiff would satisfy criterion A of the criteria for PTSD, Dr Lotz said the event she had experienced, witnessed or had been confronted with, that “involved actual threat of death or serious injury or a threat to the physical integrity of self or others”, was the motor vehicle accident of 2016.  He said it did not matter that no-one was physically injured in the accident.  He disagreed with Dr Steinberg’s contrary opinion on that point.
195. [195]
     Dr Lotz confirmed his view that the plaintiff should be under the care of a psychiatrist and agreed that she had been undertreated for her psychiatric condition.
196. [196]
     In re-examination, Dr Lotz stated that there was nothing further in any of the material that had been provided to him, or in any of the scenarios he was asked to assume in cross-examination, that would cause him to change his opinion.  When asked what had changed in order to cause him to move from an opinion of major depressive disorder to PTSD, Dr Lotz said that he felt the symptoms were more severe than when he had initially assessed the plaintiff.
197. [197]
     When I then asked Dr Lotz to further explain how the plaintiff would satisfy criteria A for the diagnosis of PTSD, Dr Lotz stated:

“… often people think that the event has to happen directly to you, but in layman’s terms it would be called vicarious PTSD.  Often happens in first responders, police officers, paramedics, and it is a case of something has happened to someone close to you and in your imagination you can – you’ve basically conjured up this horrendous scene and then it’s hard to get that out of your mind.  So, effectively you’ve been traumatised by your imagination of what actually happened, even though it didn’t happen.”

Dr Steinberg

198. [198]
     Dr Steinberg was engaged by the second defendant to conduct an independent medical examination and provide medico-legal reports in respect of the plaintiff.  He first saw the plaintiff on 3 September 2018.  He had also previously seen the plaintiff’s partner, Jason Jeanes, on 1 August 2018 for the purposes of preparing an independent medico-legal report.
199. [199]
     In his first report, dated 3 September 2018, Dr Steinberg noted the plaintiff’s current psychiatric symptoms: she felt suicidal but was unable to say how often or what triggered those thoughts; she had difficulty focusing on work; she would have palpitations during the day if she was reading reports about the incident in August 2016 or if she read reports about children being in car accidents;  she was occasionally tearful and some days she felt depressed, but her mood had improved considerably since her daughter returned to school in 2018.
200. [200]
     Dr Steinberg noted that the plaintiff had attended a psychologist for ten visits for relaxation therapy and education and had reportedly felt better in her mood because of the help offered by the psychologist; that she reported being fearful of heart problems but had not had an ECG; that she said her heart palpitations were helped with relaxation therapy and that she had recently been started on antidepressant medication prescribed by her general practitioner.
201. [201]
     In terms of the history of the 2 August 2016 incident and subsequent events, Dr Steinberg recorded that the plaintiff had been at work on the day while her partner was picking up the children from school and he was then involved in a motor vehicle accident.  The plaintiff’s 15-year-old daughter contacted her about the accident.  Dr Steinberg then noted:

“Everyone was OK physically.  The car was driveable.  Nobody was injured physically.  Her youngest child had a panic attack and was hyperventilating, she was taken to the Logan Hospital.  She met both girls at the hospital and both were OK.  She was relieved.  The next day her youngest child slept with her and her middle daughter was ‘quiet’.

The day after the accident she claims that Jason was crying and she took him to a GP.”

202. [202]
     Dr Steinberg noted other incidents in the plaintiff’s life before, during and after the incident, including issues with her mother who suffered from strokes and dementia and who had a fall in November 2016 and the difficulties with her daughter, Susie, refusing to attend school.  Dr Steinberg also noted the history provided by the plaintiff with respect to her breakdown:

“In approximately April or May 2017 she felt that she had ‘a breakdown’.  She was very stressed looking after Jason.  She was worried, she was suffering from palpitations and went to her GP.  Her GP sent her to hospital for cardiac testing which showed no abnormalities.  Her GP told her that she had Posttraumatic stress disorder (PTSD) which she claims involved symptoms of shakes and palpitations.  She thinks she might have had nightmares but can’t recall exactly the nature of these dreams.  She thinks she might have had one bad dream about the accident.”

203. [203]
     Dr Steinberg also noted from Mind Wise Psychology records provided to him:

“Broke up with Jason May 2016 split up and had property settlement, on good terms, co-parenting living in the same house, Jason severely affected by the accident, kids going to CYMHS, daughter not going to school.  Daughter was having difficulties at the school prior to the accident, since the accident refusing to go to school.”

204. [204]
     Dr Steinberg recorded that the plaintiff said that her middle daughter (i.e., Susie) had anxiety symptoms prior to 2016, which then increased after the accident in 2016, and that it was in late 2017 that she refused to go to school.  He noted she had thoughts about imagining if she was in the accident herself.  He further noted the plaintiff claimed she did not have any past psychiatric history prior to 2016 but there was a family history of dementia and her younger brother suffered from some depression, had significant illicit drug problems and possibly used steroids for body building.
205. [205]
     Upon examination, Dr Steinberg assessed the plaintiff as having a mildly depressed mood with anxiety symptoms.  He noted that she claimed that if she had thoughts about car accidents, particularly if they involved children, that she suffers worse anxiety symptoms.  He noted that she claimed to be anxious during the interview and took a tablet of diazepam. 
206. [206]
     Dr Steinberg’s initial diagnosis of the plaintiff’s condition according to the DSM-IV TR was “Major Depressive Disorder - mild” and “Panic attack”.  With respect to other stressors, he noted:

“…Difficulty coping with ex-partner, daughter’s behaviour following motor vehicle accident which occurred on 2 August 2016, daughter’s school refusal, ex-partner dependent on her. Difficult business as a lawyer, mother dementia, falls and a stroke.”

207. [207]
     Dr Steinberg’s view was the plaintiff required treatment with antidepressant medication, which could be increased.  He further recommended that her general practitioner should continue to manage her condition and that she could be referred to a consultant psychiatrist if it worsened or she did not respond to the antidepressant medication.  In his view, the plaintiff had a good prognosis for a full recovery.
208. [208]
     As to whether the plaintiff’s reported symptoms were consistent with having been caused by the accident, Dr Steinberg stated:

“Documents show that she presented to her GP in mid-2017 with symptoms of anxiety and depression in the context of her recent life stressors including the stressors following the motor vehicle accident, especially her ex-partner’s decompensation and her daughter’s school refusal.

I note that she visited a GP on 3 August 2016 and there was no report of any psychiatric symptoms 24 hours after the motor vehicle accident.”

209. [209]
     Dr Steinberg reiterated that the plaintiff’s major depressive disorder was “mild” and appeared to be precipitated by the consequences of the motor vehicle accident because she had been stressed coping with her ex-de facto’s increased dependence and her distress caused by the fact her daughter refused to go to school, possibly as a consequence of being involved in the motor vehicle accident. 
210. [210]
     Dr Steinberg assessed the plaintiff as having an impairment of 4% on the PIRS Rating Scale.  He noted she did not have any pre-existing psychiatric condition.  His opinion was that her major depressive disorder should be successfully treated with an appropriate dose of antidepressant medication and that within the next three to six months her PIRS score should reduce.  He considered she had a mild impairment of her capacity to work but believed that she should be able to continue her role as a solicitor and would be able to gradually build up her work capacity over the next three to six months.  Dr Steinberg thought the major impact on the plaintiff’s capacity to work full time had been dealing with her ex-de facto’s dependent behaviour and her commitment to helping her children, especially when her daughter was suffering from school refusal.
211. [211]
     Dr Steinberg provided a supplementary report, dated 27 May 2019, in which he provided the following opinion:

“It is my opinion that the psychiatric condition of Major Depressive Disorder - and mild and Panic Attack, did not begin after she ‘received the news of the motor vehicle accident’.

It is my opinion that the psychiatric condition of Panic Attack and Major Depressive Disorder began in the context of multiple stressors identified in early 2017 leading to her presentation in mid-2017 to the GP and then to the psychologist.

Therefore, Ms Lundbergs psychiatric injury was precipitated by stressors throughout early-2017.  The psychiatric injury was not caused by hearing or receiving news of the motor vehicle accident which occurred in August 2016.”

212. [212]
     Dr Steinberg examined the plaintiff again on 20 June 2022 and provided a further report.  He noted that the plaintiff’s mother had passed away about two weeks earlier but that the plaintiff claimed she had coped well with the grief; that she described herself as being happy most of the time; that she slept about four to six hours each night, which was normal for her, but occasionally had initial insomnia; that she occasionally had “head spins” when she was reading for work; that work did not cause her anxiety; that she loved her work and definitely still wanted to be a lawyer, but found it very difficult working with injured children who had been involved in any accident.
213. [213]
     Dr Steinberg further noted that the plaintiff said the counsellor she had been seeing, and her GP, had each told her that she needed to “do something for myself”.  As a result, she had obtained a night-fill job at Coles where she worked from 7.00 pm to 10.00 pm five nights a week.  Dr Steinberg recorded that the plaintiff had not received any counselling from the beginning of 2022 and that she felt “counselled out”.  He further noted:

“She thinks about the accident in 2016 that her children and her partner Jason were in and says that she feels grateful they are OK and no one was injured.  She claims that it still bothers her that she wasn’t there when the accident occurred but she realises that ‘I couldn’t do anything to stop it happening’.  She claims that her clients who are suffering from personal injuries due to accidents, ‘my clients are doing better than me’ and ‘being exposed to people in accidents doesn’t help’ but she still wants to work in this area.”

214. [214]
     Dr Steinberg noted the plaintiff said that she “plays over the accident and can see it in my head” and although she was not there at the time of the accident, she imagines what it would have been like if she had been.  Dr Steinberg further noted the plaintiff said that she was very worried about Mr Jeanes and that she was coping better now and was prepared to wait for her husband’s mental health to improve.  She described Mr Jeanes as irritable and angry. 
215. [215]
     In terms of a diagnosis, Dr Steinberg’s opinion was that the plaintiff was experiencing “bereavement” following the death of her mother.  As for other stressors, he recorded:

“Challenging work as a lawyer, recent bereavement after death of mother, difficulty coping with her long-term partner Jason Jeanes’ behaviour, concern about her daughter who previously suffered from anxiety and depression.”

216. [216]
     In summary, Dr Steinberg concluded:

“… Ms Lundbergs has coped well with the death of her mother after a long period of suffering from dementia and the past 12 months in aged care and she has an uncomplicated grief reaction.  Ms Lundbergs describes her mood as being mostly happy, she denied any current psychiatric symptoms.

…

She has been distressed by the irritable and angry behaviour of her partner Mr Jason Jeanes, but she is very tolerant of his behaviour.  She is able to attend to all activities of daily living.  There is no current evidence that she is suffering from a psychiatric condition.

Ms Lundbergs did not have any previous psychiatric history prior to her defacto partner and her children being involved in a motor vehicle accident in August 2016.  When I interviewed Ms Lundbergs in 2018 she had symptoms consistent with Major Depressive Disorder - mild.  She no longer appears to be suffering from this condition.

Overall, she has a good prognosis from a psychiatric perspective.

She is not currently suffering from any form of psychiatric symptoms that are impairing her capacity for work.”

217. [217]
     Dr Steinberg pointed out the plaintiff was not currently describing any form of psychiatric or psychological symptoms arising from the motor vehicle accident, apart from upsetting memories, noting again that she was not herself involved in the accident.  He noted that her work as a lawyer in personal injury law led her to occasionally hear about children involved in motor vehicle accident which upset her, but this was an emotional upset within the normal range and not consistent with a psychiatric condition.  He therefore assessed her overall impairment according to the PIRS scale as 0%.  He did not consider she required any form of psychiatric or psychological treatment and concluded there was no evidence that her earning capacity was currently impaired by a psychiatric illness.
218. [218]
     On 4 December 2023, Dr Steinberg again interviewed the plaintiff and prepared a further medico-legal report.  He noted that the plaintiff had given up her business in March 2023 to one of the solicitors that she previously employed in the firm;  that she claimed she could not talk to her clients about personal injuries in accidents because she would “try and block it out” and “get dizzy” because of her own past experience of when her husband and children were in a motor vehicle accident in August 2016; and that although she had reportedly always been busy at work and loved her work, she claimed she could not do any work because she felt too upset and dizzy.  Dr Steinberg again noted the plaintiff had been working at Coles doing night-fill work since November 2021, four to six shifts per week, but that she had developed a wrist injury and had been on WorkCover from around August 2022.  He noted she had tried to return to work between August 2022 and early 2023.
219. [219]
     As for her current psychiatric symptoms, Dr Steinberg noted that the plaintiff claimed that since she stopped working in early-2023 she had not been doing much, she watches the television and stays in bed; that she claimed she does not want to interact with people, does not feel confident enough to interact with them and has trouble motivating herself to get up and dressed and do things; that she claimed to be scared about driving in the car and worried about “physical sensations, fear of getting hit” because of what had happened when her husband and children were in the accident in 2016; that she does drive a car but avoids driving whenever she can and worries that “anything can happen” and that she would “try to block it out”; and that she still had panic attacks frequently and “stays in bed to be safe”. 
220. [220]
     Dr Steinberg noted that the plaintiff claimed, “all of her emotional problems date from the motor vehicle accident experienced by her husband and children in 2016 but she has trouble talking about this accident”.  He further noted that the plaintiff had previously been able to cope well with her clients who had difficulty with traumatic histories but that she could not cope with hearing traumatic histories now and could not tolerate hearing about other people’s trauma, especially children who have had traumatic experiences.  He noted that she still thinks that her children were very lucky in the motor vehicle accident, and she continues to worry about their safety.
221. [221]
     Upon examination, Dr Steinberg considered the plaintiff presented as mildly depressed.  He noted her thoughts were concerned with how she was distressed by having to stop work and can no longer work as a solicitor dealing with people who have experienced life traumas.  In his view, her insight and judgement were possibly partially impaired.  He noted she claimed she could not attend counselling or take medications of any kind for her psychiatric condition.
222. [222]
     Dr Steinberg’s diagnosis was that the plaintiff was experiencing a recurrence of major depressive disorder.  He provided the following summary:

“Ms Lundbergs has experienced stress recently because she was unable to work in her legal practice.  She has financial resources despite selling her legal practice and ceasing her work as a Lawyer, she has three investment properties and owns her home.  She is unable to work in her job at Coles because of a workplace injury and is now receiving WorkCover payments.  There appears to have been a relapse of major depressive disorder due to her suffering from physical symptoms related to a workplace injury.  Her mood has been worsened by her inability to tolerate work as a solicitor which she claims is due to memories of finding out that her husband and children were in a motor vehicle accident approximately eight years ago in 2016.”

223. [223]
     Dr Steinberg assessed the plaintiff’s whole person impairment on the PIRS scale as 6%.  He further noted that she should be referred to a consultant psychiatrist for management of her major depressive disorder and that her antidepressant medication should be changed because it had not prevented her relapse.  He noted that she could be trialled on different medications and that she should see a consultant psychiatrist fortnightly for three months and then monthly for the next 12 months and that if she improved with treatment, she should then be referred back to her general practitioner for monitoring of her psychiatric condition.  Dr Steinberg considered that if the plaintiff received appropriate psychiatric treatment, then her PIRS rating would reduce by at least 50%.  He considered that if she received appropriate psychiatric treatment, she would be able to return to work as a solicitor in a different role to a personal injury lawyer, although he acknowledged that might require her to retrain.
224. [224]
     In the final part of his report, Dr Steinberg stated:

“It is my opinion that her first episode of psychiatric illness started in 2017.  She appeared to recover from major depressive disorder, she has reconciled with her husband and she recovered from bereavement related to the death of her mother.

It is my opinion that she now suffers from major depressive disorder-recurrent.  She has developed another episode of major depressive disorder in recent times precipitated in part by her distressing memories related to the motor-vehicle accident in 2016 and in part by her physical injury while working at Coles.  She decided to stop working as a lawyer because she was reminded of the accident that occurred in 2016.

I have not changed my opinion expressed in my supplementary report, dated 27 May 2019.”

225. [225]
     On 26 March 2024, Dr Steinberg participated in a telephone conference with lawyers for the second defendant.  According to the file note of that telephone conversation, Dr Steinberg clarified that the opinion he expressed in the last part of his 4 December 2023 report was to be read in light of his earlier opinion that the plaintiff’s original psychiatric condition of major depressive disorder did not begin until after she suffered stress in early-mid 2017 and there was no indication that she suffered a psychiatric condition in the immediate time after she “received the news of the motor vehicle accident”.  Dr Steinberg reaffirmed his opinion that the plaintiff’s psychological issues which arose in April/May 2017 were the result of a number of other stressors going on in her life at the time.  He further stated the view that the cause of her psychological injury was the various non-accident-related stressors in her life in 2017, including her husband’s behaviour, her mother’s dementia, problems with her business and her daughter’s behaviour and school refusal.  He confirmed his opinion expressed in his original report of 27 May 2019 that the plaintiff’s psychiatric condition did not begin after she received the news of the motor vehicle accident.
226. [226]
     Dr Steinberg further expressed his view that the plaintiff’s complaint of driving anxiety was inexplicable.  He noted that she was not driving when the accident occurred, was not in the accident itself and the accident was not life-threatening.  He also noted that when he first saw her in September 2018, she did not report any driving anxiety.  He further noted that the plaintiff had never seen a psychiatrist, which was quite unusual, and had been controlling her own treatment, picking and choosing it.  He expressed the view that she could be seen as non-compliant to a degree.  He noted that her low dose of medication was not working and that she required treatment by a psychiatrist. 
227. [227]
     Dr Steinberg saw the plaintiff again on 13 August 2024 and prepared a further medico-legal report that day.  He noted the plaintiff’s updated background and history, commenting that the plaintiff’s WorkCover payments for the wrist injury she sustained working at Coles stopped in December 2023; and that she was now proceeding with a civil claim against Coles for that workplace injury.
228. [228]
     Dr Steinberg noted that the plaintiff described herself as being unmotivated; that she was not sure whether she felt depressed or not; that she denied experiencing suicidal ideas but said that at times she feels that she “can’t think of anything that keeps me going” but would then think about her granddaughter and her children and those thoughts prevented her from developing suicidal thoughts; that she said she slept six hours a night and spent a lot of her day in bed; that she described having no motivation to eat; that she would go out to medical appointments with her family or for herself; that she was able to drive a car but said she would experience anxiety symptoms and felt “terrified”; that she never did anything socially, did not have any friends and that she did not like leaving the house and did not want to see people; that she had dreams at night about work and about the people she worked with and would sometimes wake up feeling exhausted and right in the chest; that she would have dreams that are “terrifying” but did not actually recall the content of those dreams; that many years ago she had a dream about dying in a car with her family but that had not recurred; that when working at Coles she became upset because her colleagues were talking about car accidents or about their own childhood experiences of abuse; that those type of conversations made her feel that something bad would happen; and that she claimed she was often worried about something bad happening to the family but she did know that all her children were okay. 
229. [229]
     Dr Steinberg noted the plaintiff had previously recommenced antidepressants in December 2023 but that she had recently stopped taking the medication as she felt overwhelmed with increasing anxiety and felt irritable.  She further reported that her husband had noticed those symptoms and she therefore restarted the medication because she thinks it might have been helping her anxiety and symptoms.  She also told Dr Steinberg that she thought the antidepressant medication might cause her to suffer from decreased motivation as well as side effects of abdominal or gastric symptoms.  Dr Steinberg further noted that the plaintiff was not currently seeing a psychologist or counsellor but that she had apparently seen a psychiatrist in July although she could not recall their name.  She said did not know whether she would continue to see the psychiatrist as she was worried about the expense.
230. [230]
     The plaintiff reported that she was not sure why she was still suffering emotional problems.  She told Dr Steinberg that she thought, “something must happen to your brain after it happened to your own family”.  She said that she felt she was unable to be empathetic with clients when still working in her legal practice and that she would have panic attacks at work.
231. [231]
     Upon examination, Dr Steinberg noted that the plaintiff’s mood remained mildly depressed but slightly brighter than when he saw her previously.  He noted that she was tearful when talking about work and missing her work as a lawyer.  He noted that she had variable insight and was not committed to gaining treatment for her illness.  In terms of diagnosis according to the DSM-V, Dr Steinberg concluded the plaintiff had a “Major Depressive Disorder - chronic”.  In his summary, he noted:

“Ms Lundbergs appears reluctant to receive psychological and psychiatric treatment, she is concerned about the cost of psychiatric and psychological treatment and she is also concerned about the usefulness of talking to a psychologist … She has not seen a psychologist for three years.  She is currently prescribed citalopram which she blames for poor motivation.  She also claims to have gastrointestinal symptoms from citalopram which is a known side-effect of this medication.”

232. [232]
     Dr Steinberg noted that the lack of treatment for major depressive disorder was a significant factor predisposing the plaintiff’s development of chronic major depressive disorder symptoms.  He thought she required treatment by a consultant psychiatrist with a change of her antidepressant medication and appropriate psychological therapy.  His view was that her prognosis for a full recovery from major depressive disorder was now poor because of her lack of treatment, ongoing stress with emotional problems suffered by her daughter and her husband, ongoing stress with her loss of her practice as a lawyer and her fear of future car accidents.  He also noted that her legal claim regarding the consequences of the car accident in 2016 and her subsequent civil claim regarding her left wrist injury were also factors that perpetuated her depressed mood.
233. [233]
     Dr Steinberg assessed the plaintiff’s impairment on the PIRS scale as 6%.  He noted there was no diagnosable pre-existing psychiatric condition before the family were involved in the motor vehicle accident in August 2016.  In his view, the plaintiff had mildly impaired concentration due to her major depressive disorder, but he did not think there was any significant cognitive impairment.  He noted her long-term memory appeared to be intact and did not detect any abnormalities in her short-term memory.  Ultimately, Dr Steinberg concluded that he had no reason to change his opinions expressed in any of his previous reports regarding the plaintiff.
234. [234]
     With specific reference to the diagnosis by Dr Lotz after his assessment on 29 May 2024, that the plaintiff had developed PTSD, Dr Steinberg stated:

“In my opinion, Ms Lundbergs does not suffer from Posttraumatic Stress Disorder, she has worries about the safety of her family and in general her worries are amplified because of her Major Depressive Disorder.  She does not have other symptoms of Posttraumatic Stress Disorder.  Her social avoidance behaviour and her fear of driving in my opinion is consistent with her Major Depressive Disorder symptoms.  In my opinion, her fear of driving is out of proportion with the nature of the accident in 2016.”

235. [235]
     Dr Steinberg had a further telephone conference with the legal representatives for the second defendant on 8 October 2024.  According to the file note of that conference, Dr Steinberg reviewed the records of Penny Lewis, psychologist, the recording of the 000-call made by Mr Jeanes immediately after the accident, records from 14 November 2016 in respect of the plaintiff’s consultation with Dr Balaji of Medicross Greenbank and the supplementary report of Dr Lotz of 19 June 2024.  Dr Steinberg also reviewed the Mind Wise Psychology records in respect of Jason Jeanes.
236. [236]
     Dr Steinberg noted the records of Penny Lewis showed the plaintiff had disclosed a further history of family psychiatric illness and a traumatic childhood.  In particular, she disclosed that her father suffered from post-traumatic stress disorder after being a prisoner of war as a child, her mother suffered sexual abuse as a child and was thought to suffer anxiety and chronic post-traumatic stress disorder and her brother suffered from mental health issues.
237. [237]
     Dr Steinberg listened to the 000 recording of the call made by Mr Jeanes.  He noted that Mr Jeanes appeared calm in the immediate aftermath of the accident, did not report any injuries, had checked the remaining passengers of the vehicle and confirmed they were all unharmed and expressed some concern that his nine-year-old daughter, Josie, was suffering from shock.  Dr Steinberg observed that the call recording confirmed his view that the accident was minor, the car was drivable, and nobody was physically injured.
238. [238]
     With respect to the GP records of Dr Balaji, Dr Steinberg noted that the plaintiff expressed concerns to Dr Balaji about the welfare of her daughter (i.e., Natasha) who had been injured in the horse riding accident and was in a coma as well as the welfare of her mother who was suffering dementia at the time and in respite care, and the possibility of having contracted a sexually transmitted disease following unprotected sex and as well as her own skin issues.  She did not mention the August 2016 incident as one of her concerns.
239. [239]
     In cross-examination, Dr Steinberg was asked about his assessment in June 2022, when he considered the applicant had a condition of “bereavement”.  He explained it was not technically a psychiatric disorder but was a subject of interest of someone’s mental state.  Dr Steinberg said notwithstanding, his impression at the time was that the plaintiff’s condition had improved in terms of her major depressive disorder.
240. [240]
     Dr Steinberg was asked about his opinion that the plaintiff had suffered a recurrence of her major depressive disorder.  When asked whether it was the same psychiatric condition the plaintiff had previously experienced, Dr Steinberg explained that it was a recurrent condition; that it can dissipate on its own with treatment or without treatment; and that in the plaintiff’s case she was suffering from the condition when he first saw her in 2019 [sic. 2018] and then her illness recurred later on.  He further explained that when he saw her in 2023 his impression was that she had untreated major depressive disorder.
241. [241]
     When asked whether the assessment in June 2022, when the plaintiff had a PIRS of 0%, was therefore a temporary phase, Dr Steinberg said that it can be difficult between making a correlation as to diagnosis and PIRS because sometimes people will suffer from a psychiatric illness and have no disability according to that scale.  He further explained that it was his assessment at the time that she had a 0% PIRS but he did not think she was suffering from a psychiatric condition.  He said it was not possible to have a PIRS assessment if you do not have a diagnosable psychiatric condition. 
242. [242]
     In terms of causation, Dr Steinberg maintained his view that the plaintiff receiving news of the incident did not cause her psychiatric condition.  He further explained that:

“… there were a number of stressors that came in the months after the accident that I thought had been closer to the precipitant of her major depressive disorder rather than hearing about the accident.”

243. [243]
     In response to a further suggestion that hearing about the accident, even though it had occurred months earlier, could still be part of the causative mix for a psychiatric condition occurring, Dr Steinberg stated:

“… in terms of the diagnosis of post-traumatic stress disorder, certainly hearing about severe life-threatening accidents or an accident could be a precipitant for a[n] episode of post-traumatic stress disorder or major depressive disorder or another post-trauma type psychiatric illness.  In my opinion, Ms Lundbergs acted in a way of any mother protecting her – well, making sure the children were okay, making sure her husband was okay at the time, and then was relieved.  So there did not seem to be a psychiatric illness developing chronologically immediately after she heard the news … of the accident.”

244. [244]
     Dr Steinberg further explained that he formed this view because the accident was apparently a relatively minor accident, everyone was safe, that one of the plaintiff’s daughters had a panic attack and was managed appropriately at the hospital and that the hospital did not recognise any physical illness at the time had been suffered by the plaintiff’s daughter.  Dr Steinberg stated:

“… in my opinion, the accident wasn’t severe enough to precipitate a psychiatric illness at the time.  Certainly, the consequences that came after the accident in Ms Lundbergs’ life I thought was severe enough to precipitate major depressive disorder.”

245. [245]
     When asked about the three telephone calls that had been made to the plaintiff after the incident, Dr Steinberg agreed that a description that Josie was hyperventilating could be consistent with symptoms of a panic attack. Dr Steinberg was then taken through the circumstances of the telephone calls, the plaintiff’s daughters being transported to the hospital, and the plaintiff’s subsequent attendance there, and was then asked what level of seriousness of accident would be required before he would consider it would be foreseeable that a mother would be psychiatrically injured by that series of events.  In response, Dr Steinberg stated:

“… I think … the most relevant thing to me is that Ms Jeanes (i.e., the plaintiff) went to the hospital and saw her daughter and … sought help for her family, and was relieved that they were all physically well and that Josie recovered from her panic attack at the time, and that’s what Ms Lundbergs told me, and it’s also – that’s supported by the information from … her general practitioner, who followed her up a number of times in – in the interim after the accident but also, um, follow – the following up of the children as well, that they didn’t develop any physical illnesses afterwards.  But I think the relief that everyone was okay is a relevant factor, that it wasn’t a serious accident.  And certainly on the base [sic. basis] of the information that I know, the … the accident was not a – what I would qualify as being a serious life-threatening motor vehicle accident.”

246. [246]
     In response to the suggestion that the incident did not have to be life-threatening before a mother hearing about three children and the father of those children being in a car accident to get a psychiatric reaction, Dr Steinberg stated:

“… I don’t think it necessarily has to be life-threatening.  I think there’s the seriousness aspect to it, but I also think the relief that Ms Jeanes felt after the accident that her family wasn’t injured and that everyone was fine, and they went home.”

247. [247]
     When asked whether there could be delayed onset of symptoms, Dr Steinberg explained that he considered the plaintiff’s major depressive disorder was due to a number of events that happened after the accident and accumulating events that had been happening before, particularly with respect to the plaintiff’s mother and her own children’s anxiety conditions, relationship issues, all of which had been made a lot worse after the accident.  He said that in the months after the accident there was a “buildup of stress” that, in his opinion, would have precipitated or put the plaintiff at risk of precipitating a major depressive disorder, particularly with her possible family vulnerability to that condition.  Dr Steinberg said it was in that way that there was a delayed onset of psychiatric illness, but he did not think it was right to say that it came from hearing about the accident rather, there were other stressors that came after the accident that had precipitated her illness. When further asked then whether major depressive disorder could be caused by hearing of the car accident and going to the hospital, Dr Steinberg stated:

“I don’t think it was a significant factor.  I think the stressors that occurred in the months – many months after the accident, before the – mid-2017 really contributed to the stress – mounting stress in Ms Lundbergs’ life that precipitated the episode of major depressive disorder.”

248. [248]
     Dr Steinberg reiterated his opinion that the plaintiff did not have PTSD.  When asked whether the plaintiff might have features of PTSD, Dr Steinberg said that major depression can have a traumatic precipitant and the plaintiff would have been preoccupied by all those traumatic experiences, not just the accident.  When asked what criteria would be missing for a diagnosis of PTSD, Dr Steinberg stated:

“I think she’s missing the criterion A, … the type of trauma, because I don’t think it was a serious accident at the time.  She expressed relief after the event.  There was no serious injury.  Josie recovered from her panic attack … Ms Lundbergs did everything she could to support her family afterwards. … in fact, she seemed to be taking on a lot of the burden of everybody’s, um – helping everybody at the time, and I think that became stressful over time.  But I don’t think hearing about the accident caused post-traumatic stress disorder.”

249. [249]
     Dr Steinberg did not consider that an adjustment disorder was an appropriate alternative diagnosis.  He said he would have considered it, but in his view the major depressive disorder was a more important diagnosis to make.  When asked whether an adjustment disorder would be a lower psychiatric condition than a major depressive disorder, Dr Steinberg disagreed.  He explained that they were different conditions and that a major depressive disorder was, in part, psychological and part social and that was what happened in the plaintiff’s case.  He said that when he first saw her, the major depressive disorder was of mild severity noting that she was still working, still supporting her family and her mother.  He disagreed that an adjustment disorder was at one end of the spectrum and major depressive disorder at the other end, noting that they were not on the same spectrum.  He agreed that anxiety could be part of a major depressive disorder and it was very common to have anxiety and a major depressive disorder.  He also stated that an adjustment disorder can have anxiety as part of it.
250. [250]
     In response to the suggestion that it was possible that a different person, other than the plaintiff could have suffered an adjustment disorder in reaction to the incident, the telephone calls and the trip to the hospital, Dr Steinberg stated that an adjustment disorder was a possible outcome of a stressful life event.  When further pressed as to whether it was possible in the particular factual scenario which had occurred here, Dr Steinberg said:

“… I don’t think, from what Ms Lundbergs has told me, that she was emotionally distressed other than normal worry of any mother … and wife in that situation.  And she was relieved at the end of it … there’s a, um – a degree of the severity of the stress that I don’t think was there to precipitate a major depressive disorder.  An adjustment disorder could have arisen because of the multiple other stressors she had in her life, which I don’t think reached that level when she got the phone call about the accident.”

251. [251]
     When further asked whether a person of normal fortitude could suffer a psychiatric condition as a result of the accident, the phone calls and going to the hospital, Dr Steinberg stated “I would say it’s low likelihood”.
252. [252]
     When asked about his report of 4 December 2023, Dr Steinberg agreed that he had written in that report that the plaintiff developed another episode of major depressive disorder in recent times “precipitated in part by the distressing memories related to the motor vehicle accident”.  In response to the suggestion that he therefore agreed the car accident and the news and the visit to the hospital had brought about a separate independent major depressive episode by December 2023, caused by the accident, Dr Steinberg disagreed.  He accepted that was “a broad way” to interpret what he had written but explained that the plaintiff had distressing memories about the accident and what he was referring to was the time after the accident when there was distress to the plaintiff’s family and other issues related to her husband.  Dr Steinberg stated that the plaintiff had been exposed to a number of different stressors both throughout her early life, then through her marriage, her working life and her children and then subsequent to the accident and he considered all those stressors were relevant.  Dr Steinberg agreed the plaintiff had no past psychiatric history but noted she had a number of stressors before the accident, and then after the accident there was dysfunction in the family that would have caused her to be stressed.  He also noted the ongoing illness of her mother and that her older daughter had been in hospital with a very serious head injury and the plaintiff was supporting her.  He said there were a number of different stressors in the plaintiff’s life that could have precipitated major depressive disorder.  Dr Steinberg noted there were a number of stressors that happened after the accident leading up to when she saw the GP in 2017, feeling distressed and depressed.
253. [253]
     Dr Steinberg was then asked whether the GP’s record that the plaintiff had been having symptoms since the car accident was consistent with the car accident contributing to her having a psychiatric condition.  In response, Dr Steinberg stated that in his view, it was consistent with her developing a psychiatric illness over time since the accident, contributed to by multiple life events.
254. [254]
     With respect to the plaintiff’s apparent “breakdown” in June 2017, Dr Steinberg said that he had never heard anything about that until recently and that the plaintiff had never mentioned anything to him about a fishing trip.  When asked about the Mind Wise Psychology services records of Ms Wong, which recorded that on 14 July 2017 the plaintiff had presented after a recent episode where she had a breakdown, Dr Steinberg stated that, in his opinion, that was the time when she was suffering from major depressive disorder, noting that her symptoms of tearfulness and emotional distress were symptoms of that disorder.
255. [255]
     When asked to assume that the plaintiff’s breakdown was precipitated by the fishing trip conversation with her partner, Dr Steinberg disagreed that it would be an isolated or innocuous event.  He explained that it was on the continuum of problems that had happened between the plaintiff and her partner and the difficulty had come because of longstanding difficulties between them, and in circumstances where the plaintiff was very stressed by her life circumstances in 2017 after experiencing multiple traumatic life events.  In response to the suggestion that the plaintiff’s reaction was not annoyance but rather fear, Dr Steinberg said the plaintiff had not said any of this to him in interviews and it was therefore hard for him to understand the nature of her reaction.  He considered that she was very depressed at the time and obviously very emotional and it was perhaps because of the lack of support she was being offered.  He was not prepared to speculate as to whether the reaction might be fear of danger of injury to Mr Jeanes as the plaintiff had not provided any information to him or told him about this.
256. [256]
     Dr Steinberg stated that the plaintiff was able to think about traumatic events in her life and one of those was that the family was focussed on the accident.  He explained that this was not necessarily the call about the accident but certainly the accident itself was in her husband’s mind and in the children’s mind and he thought that as the plaintiff became more depressed she would have worried about that.  When asked to assume that the plaintiff’s reaction to being advised of a possible fishing trip was fear of injury to Mr Jeanes, and her mind was then taking her back to the day of the accident, whether he would accept that the accident was a contributing factor to her suffering a psychiatric injury, Dr Steinberg stated:

“No, I think her reaction to that at the time indicates that she was already suffering from a psychiatric illness that made her more vulnerable to her heightened emotional state.”

257. [257]
     When asked whether the plaintiff having an increased heart rate and having to see a GP after seeing paperwork in relation to the accident was an indicator that the car accident was a contributing factor for her developing a psychiatric condition, Dr Steinberg disagreed.  He again maintained that it was the stress that happened after the accident and ongoing stress in the family which, together with the paperwork, would have heightened her feelings of stress.  Similarly, a response to seeing documents or details of car accidents in her work, Dr Steinberg said that the plaintiff was very worried about her family and the consequences after the car accident and he thought hearing about accidents and injuries in the workplace with her own clients contributed to her major depressive disorder.
258. [258]
     Dr Steinberg said he thought the plaintiff’s psychiatric condition developed over time around the first part of 2017 and was worsening in the middle of the year.  When asked if the plaintiff attending at counselling for her children and becoming upset and crying in response to the accident being discussed indicated it was contributing to her developing a psychiatric condition, Dr Steinberg noted that her situation in life was extremely stressful and one of the components of that was the accident and the consequences of the accident for her family.  He thought it would be entirely valid that she would become emotional under those circumstances given what was happening in her life at the time.
259. [259]
     When asked if the applicant imagining cars when driving would be consistent with the car accident in 2016 contributing to her having a psychiatric condition, Dr Steinberg said he did not necessarily think that was so.  He stated his view was that her depressive illness at times had been bad enough to develop symptoms of impending doom or catastrophe happening.  He noted that in her own practice as a lawyer she had dealt with people who had been injured in car accidents or had catastrophic life events and was familiar with such events and then she also had her family in a minor car accident as well.  He noted that someone who was depressed can often enough develop catastrophic thoughts and thoughts about accidents could be one of those potential disasters they might have in mind.  He distinguished that however from PTSD symptom of flashbacks or re-experiencing an event because the person was not there at the event to get those experiences.
260. [260]
     When asked whether the plaintiff having nightmares, particularly about her daughter’s drowning in a sinking car and she could not save them was indicative of the car accident contributing to her psychiatric condition, Dr Steinberg again said that in his view the plaintiff was having terrible thoughts during the day about catastrophic events happening in part because her thoughts were skewed in that direction because of her major depressive disorder.  He did not think it was surprising that she would have nightmares about catastrophic life events, noting that she might have been fearing the death of her family because she was depressed, not necessarily because they were in that particular accident.  He considered it would be more consistent with a major depressive disorder where she was thinking catastrophically bad about the future and the world.  He considered the general theme of such a nightmare was important which was that when she is depressed, harm coming to her family is a major theme.
261. [261]
     When asked whether getting symptoms while she is thinking about the telephone calls from the day of the incident, such as heart palpitations and a spinning head showed that the symptoms were linked to the phone calls occurring, Dr Steinberg said he would not rule out that she was worried about those things and that she might experience some anxiety symptoms, but he did not necessarily think that was a psychiatric illness.
262. [262]
     When asked about the circumstances of Mr Jeanes, having been involved in the “low speed” impact, sounding calm on the 000 call within minutes after the incident, yet subsequently developing psychiatric symptoms, Dr Steinberg stated that the incident may have affected Mr Jeanes differently because he was driving the car in the accident.  He also noted that Mr Jeanes had developed psychiatric symptoms within about a month after the accident.  He considered Mr Jeanes’ mental state did have a detrimental effect on his wife’s mental state and caused her significant stress.
263. [263]
     When asked whether the fact that four of the plaintiff’s family members were involved in the accident might have been relevant to the nature and extent of the event to her, Dr Steinberg agreed that she would have been concerned but he did not necessarily think the event was severe enough to precipitate a psychiatric condition at the time.
264. [264]
     With respect to his PIRS ratings and assessment, Dr Steinberg agreed that category 6 (“Adaptation”) was work related and he had given the plaintiff a category 3 rating of impairment for adaptation.  He agreed that that was a moderate impairment.  He said that his assessment that the plaintiff could work in a different role was that she could use her qualifications and experience in a different way, for example as a solicitor in a non-personal injury related role.  He accepted that would require the plaintiff to concentrate and be able to meet with non-injured clients.  He further agreed that the plaintiff would have to communicate with clients by phone and by email.  He accepted that she would have issues with her memory and that would impair her capacity to work as a solicitor and that was why he had expressed the view that she could not work on a full-time basis because she has a chronic major depressive disorder.  He reiterated that the plaintiff’s chronic major depressive disorder developed because she had not received appropriate treatment for that condition which placed her at a much higher risk of it becoming chronic.  He agreed that if the plaintiff had difficulty making decisions that would be a problem for her work capacity, again saying that was part of her major depressive disorder.
265. [265]
     Dr Steinberg agreed that any exposure to stress could place the plaintiff at risk of recurrence or relapse or recurrent major depressive disorder, whether it was in respect of potentially being exposed to traumatic events in the office or otherwise.
266. [266]
     Dr Steinberg agreed that his prognosis for the plaintiff had become worse, noting that his main concern has become heightened over time because of the chronicity of her major depression.  When asked if the likelihood of any treatment working now, eight years after the onset of symptoms was low, Dr Steinberg stated that major depressive disorder was a treatable condition.  He noted the plaintiff had received intermittent episodes of psychological treatment but had never had a chance to be treated by a psychiatrist with a full range of antidepressant medications and appropriate psychological therapy from the psychiatrist.  He said that if she had done so, her prognosis would have improved significantly.  He said that technically she still has a treatable condition even eight years after the incident.  He noted that a number of the stressors in her life had improved and have reduced the stress that she experienced and there were some positive factors, but the fact that she had not had a chance to receive appropriate psychiatric treatment remained a major factor.
267. [267]
     When asked about the EMDR treatment the plaintiff had undergone with Ms Wong, and the plaintiff reporting that she felt worse afterwards, Dr Steinberg stated that was not an uncommon scenario when somebody had to talk about traumatic life events or had been through other traumas in their life.  Dr Steinberg noted that EMDR was a treatment for post-traumatic psychiatric problems and was often better for acute stress than chronic stress.  He further added:

“… one of my theories about why she didn’t respond to the EMDR, she didn’t have the post-traumatic condition.  She had major depressive disorder.  That required appropriate biological treatment medication, psychological therapy, cognitive behavioural therapy, and support psychotherapy.  So she wasn’t getting the treatment, in my view, that she needed at the time.  And she’s quite accurate; she wasn’t helped by the EMDR.”

268. [268]
     When asked to assume that if the image the plaintiff had selected as her target image for the EMDR treatment was the phone call she received from her daughter at the accident whether he would agree that the accident contributed to her psychiatric condition, Dr Steinberg stated:

“… I agree that the consequence of the accident for the family and for Ms Lundbergs, the events that happened after the accident contributed to the major depressive disorder.  The focus on that phone call in that session can be for multiple different reasons … it might be the beginning of when the accident happened.  So that, in her mind, was when – what caused the psychiatric illness, but it’s not necessarily – it’s only very much part of the answer to why she’s got a psychiatric illness, not the whole answer, which is multifactorial.”

269. [269]
     When it was put to him that it was not possible then to split the plaintiff’s condition into some sort of apportionment of contributing factors, Dr Steinberg noted that one of the psychiatrists, Dr Ben Duke, who had conducted an independent medico-legal examination of Susie, had opined that 30% of her problems were due to the accident and 70% were due to pre-existing problems.  He said that was consistent with his own opinion.  Accordingly, he said it was possible to make an apportionment of the accident causing the family’s distress and then that contributing to the plaintiff’s major depressive disorder.  He added:

“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. …  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.”

270. [270]
     When asked whether he would accept that there was some contribution to the plaintiff’s psychiatric condition from the incident, phone calls and the trip to the hospital, Dr Steinberg stated:

“I don’t think that, in particular, caused a psychiatric illness.  I think the accident and the consequences for the family, as I’ve said, provided some part of the causation.  And I’ve said that in my report.”

271. [271]
     In re-examination, Dr Steinberg was asked about the criterion A for PTSD and what type of trauma would qualify.  He said that it would be if the event happened to an individual the person was present at the time of the trauma, if it was serious and their personal integrity was seriously harmed or at risk of serious harm.  He also said witnessing that happening in your near person was a potential risk factor. He said the types of incidents could range from a very severe car accident to a sexual assault or a physical assault and that witnessing that happening in your near person was a potential risk factor.  He noted that in the DSM-5 a criterion had been added for people who hear about traumatic events but that the wording specifically referred to “serious events” and it emphasised “serious” on a number of occasions in describing the events.  He noted that the addition in the DSM-5 was really to apply to first responders or people who accept 000 calls and hear about a lot of traumatic events.  He noted that the seriousness of the event that you hear about is a very relevant factor in considering whether a person qualifies for criterion A of PTSD.
272. [272]
     When asked whether the horse-riding accident involving the plaintiff’s daughter might qualify for criterion A of the PTSD criteria, Dr Steinberg said that it might.  He noted however that the plaintiff had never told him about that event.

Medical records

273. [273]
     Various medical records tendered as exhibits in the trial provide further evidence of the plaintiff’s condition.
274. [274]
     On 11 June 2017, the plaintiff saw Dr Rad.  The consultation notes record that the plaintiff’s family had been involved in a motor vehicle accident in August 2016 and since then the plaintiff had complained of irritability, hyperarousal state and poor sleep along with recurrent nightmares and flashbacks with a focus of the traumatic event.  The notes also record that the plaintiff presented with recurrent spontaneous episodes of intense anxiety accompanied with adrenergic symptoms such as tremor, headache, dry mouth, palpitations and “CP/dizziness”.  The notes further record that upon examination the plaintiff was in tears, slightly fidgety and tense but not agitated and that her mood was anxious with congruent reactive affect.  Dr Rad’s impression was “PTSD/adjustment disorder”.
275. [275]
     On 12 June 2017, the plaintiff again saw Dr Rad.  The consultation notes for that occasion state the plaintiff presented for a mental health care plan.  Dr Rad referred the plaintiff to Tzoe Wong, psychologist.
276. [276]
     On 18 June 2017, the plaintiff again saw Dr Rad.  The consultation notes record the plaintiff presented with a history complaining of palpitations, shortness of breath, and dizziness for a couple of months, which was “worse today”.  The notes further record that upon further questioning the plaintiff revealed palpitation and dizziness were accompanied with intense anxiety along with other adrenergic symptoms such as tremor, headache and dry mouth.  Dr Rad recorded that the plaintiff had been recently stressed and had a known anxiety disorder/PTSD.  Dr Rad’s impression was the palpitations were likely due to anxiety/panic attack.  He referred the plaintiff to the Emergency Department at the Logan Hospital for further assessment and management.  His referral letter noted that the plaintiff had experienced “palpitations/dizziness and ECG changes”.
277. [277]
     The Logan Hospital Emergency Department records for the plaintiff’s attendance on 18 June 2017 note that the plaintiff had been referred by her general practitioner after experiencing palpitations/dizziness intermittently for the last six months and that episodes lasted for about five to 10 minutes, around once per week.  The clinical summary notes recorded similar details, noting however that the intermittent palpitations were, on average, once per day and lasted three to four minutes.  The notes further recorded, “Recent major stressor with family in major MVA Aug 2016 – pt been experiencing PTSD-type symptoms, worsening last few weeks.  Been referred to psychologist by GP”.  The impression of the examining doctor was “palpitations? cause”.  The plaintiff was discharged for further follow-up with her general practitioner.  The notes further recorded that the plaintiff was teary and anxious after explaining the motor vehicle accident in August 2016.
278. [278]
     On 19 June 2017, Dr Rad completed a CTP medical certificate for the plaintiff.  The certificate noted the plaintiff’s medical diagnosis or description of injury as “PTSD/adjustment disorder”.  The recorded clinical findings were “hypervigilance, anxiety and nightmare”.  The proposed treatment plan was indicated as being long term, greater than 12 weeks and was to involve psychotherapy and antidepressant medication.  The certificate noted the plaintiff had been referred to Mind Wise Psychology for psychotherapy.  The plaintiff was certified as being unfit for work from 19 June to 19 July 2017. 
279. [279]
     On 14 July 2017, the plaintiff saw Ms Wong at Mind Wise Psychology for an initial appointment.  The plaintiff’s symptoms on that occasion were noted as anxious mood, heart palpitations, feeling shaky, sick in the stomach, avoidance of triggers and reminders, difficulties with concentration and memory, low motivation and tiredness.  It was noted that the plaintiff denied suicidal ideation or intent.  The consultation notes also recorded a number of other reported stressors namely, a previous break-in at her office, a staff member dying suddenly from a stroke, floods that had affected the office; that the plaintiff was finding it hard to balance work and trying to help Mr Jeanes and the kids; that the plaintiff was staying with her mother now and the two children were going to school; that her mother was previously at respite but was now back at her own place, so the plaintiff was going back to live with her; and that just before coming in today the plaintiff got a message that her mother had had a fall and had been sent to hospital.
280. [280]
     The plaintiff next saw Ms Wong on 27 September 2017.  The session notes from that occasion recorded difficulties the plaintiff was having struggling to cope with Mr Jeanes’ fluctuating moods, which was affecting her own mood, and that she had been putting things off at work and was struggling to focus and found it overwhelming.  The notes further recorded the plaintiff had been “feeling low, teary all the time” and reported that she can’t stop crying sometimes.  The notes recorded the plaintiff was feeling anxious, had a sense of tiredness and was feeling drained from trying to help Mr Jeanes and her children and trying to balance work responsibilities.  She had a sense of sadness that Mr Jeanes and the children had been negatively impacted by the accident.  The notes further recorded that the plaintiff “can’t turn to Jason for support anymore because of his current state.  Feels that she has to keep it all in because everyone is relying on her to get them through”.
281. [281]
     The plaintiff next saw Ms Wong on 18 October 2017.  The session notes for that appointment recorded that the plaintiff reported things had progressed well in the last few weeks.  The plaintiff then saw Ms Wong again on 8 November 2017.  The session notes from that occasion noted the plaintiff reported she was teary and was feeling low.  The plaintiff reported that she had been getting an average of five hours sleep at nights and would sometimes wake in the middle of the night feeling panicky.  The plaintiff reported being stressed after yesterday attending a family session with her daughter, Susie.
282. [282]
     The plaintiff next saw Ms Wong on 4 April 2018.  The notes from that appointment recorded that the plaintiff reported that things did improve but she was feeling overwhelmed again and finding it hard to cope with daily tasks.  She advised that she was mostly working from home and continuing to attend counselling with Susie which could be quite intense.  She had also been managing Josie’s transition to high school which had taken a while.  The notes further recorded:

“Reported that recently she has been thinking a lot about what it would be like in the car during the accident.  Reported that the thoughts are distressing.”

283. [283]
     The therapy notes recorded that the accumulation of stressors and their impact on the plaintiff’s mood in coping had been discussed.  So too had identifying recent triggers and links between the plaintiff’s thoughts (about the accident) and feelings.  Ms Wong recorded that the therapy had involved rescripting the thoughts or images to change emotional reaction to them and that the plaintiff “[i]nitially found it difficult to challenge images relating to the accident but eventually able to provide a suggestion. … Reported that she felt much calmer and more in control”.
284. [284]
     The plaintiff next saw Ms Wong on 2 May 2018.  The session notes on that occasion indicated that the plaintiff reported Susie’s transition back to mainstream school had been positive and she was gradually doing more classes in school and that Josie was also still in school and teachers had been supportive.  The plaintiff reported that she had been struggling to keep up with all the appointments for the kids, Jason and herself.  The therapy notes indicated the plaintiff reported she had been feeling teary and further recorded:

“Review use of imagery for managing thoughts about the accident.  Reported that it has helped to calm her anxiety.”

285. [285]
     The plaintiff next attended an appointment with Ms Wong on 1 June 2018.  The session notes from that occasion recorded that the plaintiff reported she had been attending sessions with Josie at CYMHS, hospital sessions with Susie and attending Mr Jeanes’ appointments as well.  The therapy notes recorded that there had been a brief psychoeducation discussion with the plaintiff about EMDR.
286. [286]
     Upon referral by Dr Rad, the plaintiff began seeing psychologist, Penny Lewis.  The first appointment with Ms Lewis was on 27 July 2018.  In total the plaintiff had six sessions with Ms Lewis, the last being on 12 October 2018.  In three of the sessions the plaintiff underwent EMDR therapy treatment.  In response to a request made by the plaintiff’s solicitors, Ms Lewis provided a letter in which she outlined the details of each of the six sessions and the course of treatment with the plaintiff.  She also produced copies of her session notes.
287. [287]
     In her summary letter, Ms Lewis outlined the EMDR treatment that had been provided to the plaintiff.  She also noted the plaintiff’s symptoms that she had volunteered in the clinical interview and session stages were:  anxiety, increased heartrate, tearfulness when reading client cases involving accidents, shaking, avoidance of injury cases, avoiding all clients, avoiding reading accident cases, anxiety about getting teary and shaky when with clients, inability to talk to clients about their accidents, recurrent nightmares every night involving dreams about being in a car accident with her children and waking with a pounding heart, poor concentration, poor memory, low mental energy nearly every day, and a little loss of libido recently.
288. [288]
     Ms Lewis further noted that the triggers for the plaintiff’s anxiety included:  going past the hospital where her daughter, Susie, was taken; seeing the therapist; the children; injury cases; client accident reports; meetings and client settlement conferences; driving; reading about accidents involving children; seeing insurance advertisements on TV; seeing emotional advertisements on TV about family; seeing Jason struggling with his symptoms or getting angry; thinking about the phone call from her daughter on the day of the accident.  Ms Lewis further noted that the symptoms experienced by the plaintiff related to the accident that her partner and children had been involved in on 2 August 2016 and the associated mental health issues that they had developed following the accident.  As to when the symptoms started, Ms Lewis noted that when the plaintiff first presented on 27 July 2018, she had informed Ms Lewis that she had “lost the plot” six months after the accident when Mr Jeanes said he was going on a trip.  The plaintiff reported that she had been surprised at her reaction and had “had a breakdown” for which she had seen her GP.  When asked further about how her problem had evolved, the plaintiff told Ms Lewis that “six months after the accident” she had had heart palpitations, went to the hospital, “started shaking and crying uncontrollably” and calmed down after receiving some medication.

Did the first defendant owe the plaintiff a duty of care?

289. [289]
     Against the foregoing background and detailed summary of the relevant evidence, I will turn now to consider the disputed liability issues, commencing with whether the first defendant owed the plaintiff a duty of care.
290. [290]
     The plaintiff case is that the first defendant owed her a common law duty to take reasonable care, while driving, not to cause:

     1. an incident by his driving;
     2. any injuries to the plaintiff’s family in an incident;
     3. the plaintiff a psychiatric injury as a result of her family being involved or injured in an incident and the plaintiff finding out about it.
291. [291]
     The plaintiff submits that the relevant test at common law with respect to whether the first defendant owed the plaintiff a duty of care of the kind alleged is whether in all the circumstances it was reasonably foreseeable that she would sustain a psychiatric injury.^[2]  The plaintiff emphasises the close nature of her relationship to her family members who were involved in the traffic accident and submits that the risk that she would suffer such an injury was reasonably foreseeable in the circumstances and thus the first defendant owed her a duty of care of the kind she asserts.
292. [292]
     The second defendant:

     1. admits the first defendant owed a common law duty of care to other road users to exercise reasonable care and skill in the driving, management and control of his vehicle;
     2. admits the first defendant owed common law duty of care to people who might foreseeably suffer recognisable psychiatric injury from a collision of the kind which occurred here; but
     3. denies the first defendant owed a common law duty of care to the plaintiff, because a reasonable person in the position of the first defendant would not have foreseen that there was a risk of the plaintiff suffering recognisable psychiatric injury, which was not insignificant, from a collision of the kind which occurred here.
293. [293]
     The second defendant emphasises the minor nature of the traffic accident, namely that it occurred at low speed; no significant damage was done to either vehicle; and no person was physically injured.  It submits that in those circumstances it was not reasonably foreseeable, viewed objectively, that psychiatric injury would eventuate to someone closely connected to the occupants of Mr Jeanes’ Hilux.  Accordingly, it submits, no duty of care was owed to the plaintiff by the first defendant.

Consideration

294. [294]
     Although the parties focused their cases on the question of reasonable foreseeability of injury, the scope of the inquiry as to the existence of a duty of care is broader.
295. [295]
     Determining whether the first defendant owed the plaintiff a duty of care requires consideration of the issue of reasonable foreseeability but also an examination of the relationship between them and whether legal responsibility for the plaintiff’s alleged harm should be attributed to the first defendant.  As Gleeson CJ said in Tame:^[3]

“What a person is capable of foreseeing, what it is reasonable to require a person to have in contemplation, and what kinds of relationship attract a legal obligation to act with reasonable care for the interests of another, are related aspects of the one problem.  The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility.”

296. [296]
     The three strands of the plaintiff’s claim in this regard that I have set out above must be considered compendiously.  Considered in that way, the plaintiff stands in the position of what is sometimes termed as a “secondary victim”, who claims to have suffered pure psychiatric injury caused by the first defendant’s negligent driving.  This is not a case where it is well-established that the law recognises a duty of care arising from the relationship between the parties.  Further, unlike the position that pertains in other jurisdictions, liability is not regulated by statute.  Whether the second defendant owed a duty of care to the plaintiff is to be determined in accordance with ordinary common law principles of negligence.^[4]
297. [297]
     There is no dispute that the previous control factors that developed under the common law, of “sudden shock”, a person of “normal fortitude” and “direct perception” of distressing phenomenon or its aftermath have long since been done away with and are not preconditions for liability in a case such as this.^[5]  Nevertheless, such matters remain relevant to the inquiry as to whether a duty of care existed in a case involving pure psychiatric injury.^[6]
298. [298]
     Reasonable foreseeability of the kind of injury suffered by the person to whom the duty is said to be owed is a necessary, although not sufficient, condition of the existence of a legal duty of care.^[7]  Nevertheless, in deciding whether a defendant owed a plaintiff a duty to take reasonable care to avoid causing a recognisable psychiatric injury to another, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.^[8]
299. [299]
     It should also be noted that in King v Philcox,^[9] Nettle J relevantly observed that the issue of whether a duty of care is owed cannot be properly decided by reference only to the nature of the relationship between the victim of an accident and the claimant, or the victim and the defendant; rather, the question of whether a duty of care is owed in particular circumstances falls to be resolved by a process of legal reasoning, by induction and deduction by reference to the decided cases and, ultimately, by value judgments of matters of policy and degree.^[10] 
300. [300]
     Up to this point, it may be said that the plaintiff and the second defendant were essentially agreed as to the relevant principles of law to be applied in this case.  Where they departed however was on the scope of the relevant circumstances that are to be considered when determining whether the second defendant owed the plaintiff a duty of care.  The plaintiff’s position admits of only the general circumstances of a hypothetical accident in which the plaintiff might suffer a psychiatric injury as a result of finding out her family had been involved or injured in “an incident” caused by the first defendant’s negligence.  The second defendant’s position is that the specific details of the collision which actually occurred in this case must be considered, namely a low-speed, minor collision in which no-one was physically hurt and where the plaintiff was informed of those circumstances when she was told about the accident.
301. [301]
     In a general sense, the plaintiff’s argument seems sound.  As a driver of a motor vehicle, the first defendant owed a duty of care to other road users not to cause them harm through his negligent driving.  That is an established relationship in which a duty of care will be imposed as a legal obligation.^[11]  The existence of that duty here would oblige the first defendant to operate his vehicle with reasonable care and skill according to the traffic conditions; to obey road rules; and to pay due care and attention when performing driving manoeuvres.  He would conceivably also owe a duty to other persons, who are not road users, whom he ought reasonably have in contemplation as persons who might be harmed by an accident caused by his negligent driving.  Any such duty of care to an individual in that class of persons would be independent of the duty owed to other road users, however the potential for such harm to persons in that class would only arise in the event of a negligent breach of the duty he owed to other road users.  It is reasonable to assume that persons in that latter class would include non-road users, such as family members of primary victims, who might suffer a recognisable psychiatric injury as a result of finding out that their family members have been killed or seriously injured in a traffic accident caused by the first defendant’s negligence.
302. [302]
     But here of course, the plaintiff’s family members were not physically harmed at all.  It may be accepted that they were imperilled by the first defendant’s negligent driving, but the plaintiff did not witness that fact, nor is there any evidence about what she was she told about that aspect of the accident when she received the various telephone calls informing her of the incident.  What she was initially told by Susie, and again a short while later by an ambulance officer at the scene, was that there had been an accident but that everyone was okay.  Although she was subsequently told by the ambulance officer that her youngest daughter was hyperventilating and was being taken to hospital as a precaution, it remained the fact that the plaintiff knew that the collision was relatively minor in nature and her family members had not suffered any physical injury.  Ultimately therefore, the plaintiff’s claim depends on the distress and psychological disturbance she says she subsequently suffered as a result of her imagining the danger to which her family members had been exposed, and not as a result of what she feared had happened to them as a result of what she had been told.
303. [303]
     I am not aware of any decided case in Australia that has held that a defendant owes a common law duty of care to a plaintiff in a case such as the present.  The parties referred to a range of other cases involving plaintiffs who claimed to have sustained psychiatric injury as a result of a defendant’s negligent driving but none of these cases were entirely comparable in their circumstances.  Nevertheless, it is instructive to consider the details of analogous cases as part of the process of deduction and induction described by Nettle J in King.
304. [304]
     In Jaensch v Coffey^[12] the High Court recognised that Mrs Coffey, the wife of a man injured in a road accident, could recover damages for “nervous shock” caused by witnessing the aftermath of the accident.  Mrs Coffey was not present at the time of the accident.  She had later come to the hospital and had seen her injured husband and had been told by hospital staff that he was “pretty bad”.  The next morning, she was told he was in intensive care and a short time later she was told that he had “had a change for the worse” and she was asked to come to the hospital as quickly as possible.  Mrs Coffey suffered severe anxiety and depression as a result of what she had seen and been told.  The Court held that the negligent driver owed a duty of care to Mrs Coffey.  The existence of such a duty of care did not require the plaintiff to witness the accident herself.
305. [305]
     Although the Court was divided on the issue of whether reasonable foreseeability alone was sufficient to establish a duty of care, and the concept of “proximity” favoured by Deane J, with whom Gibbs CJ agreed, is no longer considered as a universal test for determining when a duty of care will be owed, it is instructive to note the following passage from the main judgments given by members of the Court in Jaensch.
306. [306]
     In agreeing with Deane J, Gibbs CJ stated:^[13]

“Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery.

…

In the present case there was a very close relationship, both legal and actual, between the respondent and her husband. She was notified of the accident, and went to the hospital, as soon as practicable on the evening when it occurred. She personally perceived the aftermath of the accident, although not at the scene but at the hospital. The fact that, in addition, she was informed by those on duty at the hospital of her husband's condition cannot, in my opinion, defeat her claim. She was, in my opinion, a "neighbour" of the appellant within Lord Atkin's principle; it was foreseeable that a person in her position would suffer nervous shock, and there is no reason of policy why her claim should not succeed.”

307. [307]
     On the concept of “proximity” Deane J said:^[14]

"It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space [and] time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained.”

308. [308]
     In considering the role of foreseeability as a determinant of liability, Deane J stated:^[15]

“While it must now be accepted that any realistic assessment of the reasonably foreseeable consequences of an accident involving actual or threatened serious bodily injury must, in an appropriate case, include the possibility of injury in the form of nervous shock being sustained by a wide range of persons not physically injured in the accident, the outer limits of reasonable foreseeability of mere psychiatric injury cannot be identified in the abstract or in advance. Much may depend upon the nature of the negligent act or omission, on the gravity or apparent gravity of any actual or apprehended injury and on any expert evidence about the nature and explanation of the particular psychiatric injury which the plaintiff has sustained.

…

The limitations upon the ordinary test of reasonable foreseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonable foreseeability of risk of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable. The other is that, on the present state of the law, such a duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury…”

And further:^[16]

“It should be stressed, at the risk of undue repetition, that the fact that the requisite duty relationship in a case of mere psychiatric injury may be satisfied by a plaintiff who is not a close relative of the injured person should not be seen as indicating that the relationship between the plaintiff and the injured person will be unimportant on the prior question of reasonable foreseeability of injury in that form. In many, if not most, cases of mere psychiatric injury, the major difficulty in the path of the plaintiff is that of showing that there was, as a matter of law, a reasonable foreseeability of injury in that form to a class of persons of which he or she was a member. The factors which will be relevant on that question cannot be precisely identified in the abstract since much will depend on the nature of the particular act or omission or on the gravity or apparent gravity of the particular accident and its aftermath.”

309. [309]
     Brennan J, who considered reasonable foreseeability was the sole test for a duty of care, relevantly stated:^[17]

“The capacity of a phenomenon to cause a person who perceives it to suffer a psychiatric illness depends in part upon the distressing aspects of the phenomenon which are manifest to be perceived by anybody and in part upon any special significance which the phenomenon may have for the person who perceives it.

…

The scene of a road accident where an injured victim is to be seen is usually more distressing and dramatic, more inherently shocking, than the scene in a hospital ward where the victim is recovering from his injuries. There is, however, no legal principle which precludes a plaintiff from relying on phenomena other than the scene of an accident or, as in Hambrook v. Stokes Bros., the scene of a potential accident.

…

… I know of no principle which precludes a plaintiff from relying on any phenomenon which is a reasonably foreseeable result of the defendant's carelessness. It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric illness.”

310. [310]
     In Hancock v Nominal Defendant,^[18] the Court of Appeal confirmed that damages for psychiatric injury could be recovered by the father of a young man who was killed as a passenger in an horrific single motor vehicle accident caused by the negligent driver, where the father had had neither witnessed the accident nor its immediate aftermath but had been informed of it in a telephone call.
311. [311]
     In considering whether a duty of care was owed, Davies JA noted that the case involved a question of principle for which there was no binding authority, namely whether, and if so in which circumstances, a person who, by a negligent act, causes injury or death to another, may owe a duty of care to a third person who was not present at the scene of the incident which caused the injury or death or its aftermath but heard about it from another, not to cause that person psychiatric injury in consequence of so hearing about it.^[19]  After an extensive review of relevant English and Australian authorities, including Jaensch, and other decided cases from other common law and foreign jurisdictions, Davies JA stated:^[20]

“In my opinion, unless there are strong policy grounds for so stultifying the development of the common law in this area, the requirement of direct perception of the relevant incident or its immediate aftermath should not be accepted, at least where there are close ties of affection between the plaintiff and the person injured or killed…”

312. [312]
     After considering and dismissing various policy considerations as limitations on liability, Davies JA concluded:^[21]

“If, as I have accepted, there are factors, in addition to foreseeability and causation, which must guide and limit recoverability of damages for pure psychiatric injury, those factors should, if possible, be found in flexible criteria which permit an incremental development of the common law.  And whilst it is no longer possible to accept Deane J's statement of what is involved in proximity as stating the elements of a universal conceptual determinant of liability, it may nevertheless be a useful guide to the factors relevant to such limitation and consequently to a determination of whether liability should be extended to a new facts situation.

The most important of these in a case of this kind, in my opinion, is the closeness of the tie of love and affection between the plaintiff and the person injured or killed. Indeed where that tie is very close I do not think it should be necessary to look for any further control mechanism.

…

Where, as in this case, the plaintiff did not observe the accident or its horrifying effect shortly afterwards and it is said that the plaintiff's injury results from what was said to him shortly after the accident, the most important factors are what was said to him during the course of the day after his son was killed, the nature of his relationship with his son and the effect which, on the medical evidence, the conveying of this information had upon him.”

313. [313]
     In Gifford v Strang Patrick Stevedoring,^[22] the High Court allowed appeals in favour of three teenage children who had claimed damages for negligently inflicted psychiatric injury resulting from the death of their father who was crushed to death by a forklift in a workplace accident.  The children did not witness the accident.  They were all informed of what had occurred later on the same day.  They each claimed to have subsequently suffered psychiatric injury as a result of learning what had happened to their father.  At issue was whether the man’s employer owed a duty of care the children.  Their claims were each dismissed at trial.  The Court of Appeal dismissed their subsequent appeals on the basis that no duty of care was owed to them as they did not directly perceive either the event that resulted in the death of their father or its aftermath.  In allowing their further appeals, the High Court noted the Court of Appeal’s decision was given before its decision in Tame and was contrary to the Court’s reasoning in that case that direct perception of the incident or its aftermath were not preconditions for liability.  The Court determined that the relationships of parent and child which existed between the appellants and the deceased, and employer and employee, which existed between the deceased and the respondent, were sufficient to attract liability.

314. [314]
     On that issue, Gleeson CJ stated:^[23]

“The relationship of parent and child is important in two respects. First, it goes to the foreseeability of injury. That a child of the age of the various appellants might suffer psychiatric injury in consequence of learning, on the day, of a terrible and fatal injury to his or her father, is not beyond the "common experience of mankind".  (The fact that all three of the victim's children are said to have suffered psychiatric injury might give rise to some questions for the experts on a new trial, but is not presently relevant).  Secondly, it bears upon the reasonableness of recognising a duty on the part of the respondent.  If it is reasonable to require any person to have in contemplation the risk of psychiatric injury to another, then it is reasonable to require an employer to have in contemplation the children of an employee.

…

Not all children have a close and intimate relationship with their parents; and it may be that, even when parents are killed in sudden and tragic circumstances, most grieving children do not suffer psychiatric injury. However, as a class, children form an obvious category of people who might be expected to be at risk of the kind of injury in question. Where there is a class of person, such as children, who are recognised, by the law, and by society, as being ordinarily in a relationship of natural love and affection with another class, their parents, then it is not unreasonable to require that an employer of a person in the second class, whose acts or omissions place an employee at risk of physical injury, should also have in contemplation the risk of consequent psychiatric injury to a member of the first class.”

315. [315]
     Similarly, McHugh J stated:^[24]

“…The collective experience of the common law judiciary is that those who have a close and loving relationship with a person who is killed or injured often suffer psychiatric injury on learning of the injury or death, or on observing the suffering of that person. Actions for nervous shock by such persons are common. So common and so widely known is the phenomenon that a wrongdoer must be taken to have it in mind when contemplating a course of action affecting others. Accordingly, for the purpose of a nervous shock action, the neighbour of a wrongdoer in Lord Atkin's sense includes all those who have a close and loving relationship with the person harmed. They are among the persons who are likely to be so closely and directly affected by the wrongdoer's conduct that that person ought reasonably to have them in mind when considering if it is exposing the victim to a risk of harm.

…

…Ordinarily, the love and affection between a parent and child is such that there is a real risk that the child may suffer mental injury on being informed of the harm to, or of observing the suffering of, the parent. The ordinary relationship between parent and child is so close and loving that a wrongdoer cannot reasonably disregard the risk that the child will suffer mental injury on being informed that his or her parent has been harmed or put in peril as a result of the wrongdoer's negligence.”

316. [316]
     On the same point, Gummow and Kirby JJ stated:^[25]

“The respective positions of the child of an employee and his or her employer may readily be seen to attract the ‘neighbourhood’ principle encapsulated by Lord Atkin in Donoghue v Stevenson.  From the point of view of the employer, children of an employee are ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.”

317. [317]
     Finally, Hayne J stated:^[26]

“It may readily be accepted that an employer may reasonably foresee that, if an employee is killed or seriously injured at work, others who have close ties of affection for the employee may suffer psychiatric injury on learning of the death or injury.  Reasonable foreseeability of psychiatric injury is a necessary condition for finding a duty of care to avoid injury of that kind, but it alone is not a sufficient condition.  In Tame and Annetts, the Court held that some forms of control mechanism, which it has been suggested should be applied to limit recovery for psychiatric injury, should not be adopted…

…

Following Tame and Annetts, however, I consider that I am now bound to conclude that an employer owes a duty to take reasonable care to avoid psychiatric injury to an employee's children.  (It may be that the duty is wider than that but it is not necessary, in this case, to decide whether it is.)

…

The conclusion that the respondent owed the appellants a duty to take reasonable care to avoid causing them psychiatric injury follows from the combination of two matters.  First, the respondent, as employer of the appellants' father, controlled the work which he did, and how, and where, he did it.  Because, as employer, it controlled those matters, the respondent was bound to take reasonable care, and ensure that reasonable care was taken, to avoid harm to the employee.  Secondly, the employer can reasonably foresee that children of the employee may suffer psychiatric injury if the employee is killed or seriously injured at work.”

318. [318]
     In King, the respondent’s brother was killed as a passenger in a motor vehicle accident caused by the negligent driving of another.  The appellant did not witness the accident.  He heard about it a few hours later.  When he did, he realised that he had driven past the scene of the accident earlier in the day while the vehicle in which his brother was trapped and dying was still there.  He subsequently developed a major depressive disorder.  At trial, the respondent succeeded in his claim for damages against the appellant.  The Court of Appeal dismissed an appeal brought by the appellant.  The issue of liability was to be determined according to the common law, as modified by provisions of the Civil Liability Act 1936 (SA).  One such provision, s 33, provided that a person did not owe another a duty of care not to cause mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness.  Another provision, s 53, required that a claimant for damages for mental harm brought by someone who was other than the parent, spouse or child of a person killed, injured or endangered in an accident could not recover damages unless they were present at the scene of the accident when the accident occurred.  In allowing the appeal, the Court concluded that on the proper construction of s 53, the respondent had not been present at the scene when the accident occurred.  Of note, the majority relevantly stated with respect to the issue of duty of care:^[27]

“At common law, as under s 33, the existence of a duty of care not to cause another person pure mental harm is dependent upon a number of variables which inform the foreseeability of risk.  Section 33 does not prescribe any particular pre-existing relationship.  It does not require the plaintiff to have witnessed at the scene a person being killed, injured or put in peril.  It does not require a sudden shock.  It does require that the defendant has in contemplation a person of normal fortitude in the plaintiff's position.  Having regard to the variables which can be taken into account for the purpose of determining the existence of the duty of care, it cannot be said that the conclusion reached by the Full Court in this case was wrong.  This Court has considered the extent of the common law duty of care not to cause mental harm to a person connected with the primary victim in decisions which have necessarily focused upon the particular relationships between the victim and the plaintiff.  To say that a duty of care is owed to a parent, spouse, child, fellow employee or rescuer of a victim is not to say that it cannot be owed to the sibling of a victim.  The terms of s 33 are consistent with that approach for they include, as one of the circumstances relevant to the foreseeability that is a necessary condition of the duty of care, "the nature of the relationship between the plaintiff and any person killed, injured or put in peril".  A sibling relationship is a circumstance of that character.  Whether it is a close or loving relationship or a distant one may go to the question of causation more than the existence of a duty of care, but it is not necessary to explore that issue further for the purposes of this case.”

319. [319]
     In Homsi v Homsi,^[28]J Forrest J struck out a claim for damage for psychiatric injury in a case where the plaintiff was the mother of a man who died in a motor vehicle accident caused by his own negligent driving and where she was not present at the scene of the accident but learnt of her son’s death by telephone soon after it happened, purportedly causing her to suffer a severe psychiatric reaction.  Forrest J found no common law duty of care was owed.  The plaintiff had framed the duty as one where her son “…owed her a duty of care in the driving of his vehicle to ensure that he did not suffer injury or death and that, as a consequence of his negligent driving and breach of the duty owed, she suffered psychiatric injury, loss and damage.”  In contrast, the defendant expressed the duty as “…a duty to prevent the infliction of self-harm and thereby to avoid causing psychiatric injury to a person to whom he or she should have reasonably had in contemplation.”  His Honour concluded that neither party’s view was correct and instead determined the duty was properly stated as one where the defendant owed a duty of care in the driving of his motor vehicle to ensure that he did not suffer injury or death that may result in psychiatric injury to his close relatives and, particularly, his mother.^[29]
320. [320]
     Forrest J ultimately found no duty was owed because there was no authority in Australia which supported the existence of such a duty of care and because there were “powerful policy reasons” for refusing to recognise such a duty.^[30]  After expanding upon those factors, his Honour concluded:^[31]

“Hopefully, it has become apparent that I consider that the common law recognises that a negligent driver of a motor vehicle owes a duty not to cause psychiatric injury to those in the immediate vicinity of an accident or its aftermath occasioned by his or her lack of care.  The common law also recognises a discrete duty in relation to psychiatric injury sustained by close relatives (or those in some other relevant relationship, such as fellow employees or rescuers) of a person injured or killed by a tortfeasor’s negligence.  Such a duty is dependent upon an established and pre-existing duty of care being owed by the tortfeasor to the primary victim.

But the common law goes no further.  Even accepting that the categories are never closed, the common law does not recognise a general duty on the part of the driver of a motor vehicle (or, for that matter, any person who does not take sufficient care for his or her safety) not to cause psychiatric injury to a close relative as a result of injury to himself or herself.  The relationship between mother and son and foreseeability that the mother would suffer psychiatric injury as a result of the harm, injury or death is insufficient to found a duty of care on the part of the son.”

321. [321]
     In AAI Limited v Caffrey,^[32] the Court of Appeal confirmed that the driver of a motor vehicle who killed himself in an accident caused by his own negligence owed a duty of care to a police officer who suffered psychiatric injury as a result of what he had witnessed when he arrived at the scene as a first responder in the course of carrying out his duties.  The appellant insurer argued that no duty of care could be owed by a person, who causes horrific and distressing injuries to himself or someone else, not to cause psychiatric harm to a person who in the course of their occupation was required to attend such an event.  In dismissing the appeal, the Court agreed^[33] with the following statement made by Mossop As J in Jausnik v Nominal Defendant (No 5),^[34] a case which had involved similar circumstances and which had been considered by the trial judge:

“Put as a general proposition the question becomes: should a negligent driver have foreseen that a police officer of normal fortitude, attending the scene of the accident caused by the driver involving the death and injury caused in the present case, might suffer mental harm?  When so expressed the answer is clearly ‘yes’.  It is reasonably foreseeable that a police officer may suffer mental harm when attending the scene of an accident such as occurred here.”

322. [322]
     I accept that the nature of the relationship between the primary victim and a secondary victim is important in determining the existence of a duty of care owed by a negligent tortfeasor in a case such as the present.  It is for that reason that persons in a close and loving relationship with a primary victim, such as a spouse, child or other immediate family member, who does not directly perceive the accident or its immediate aftermath, but who are informed of it and subsequently suffer a psychiatric injury as a result, have been held to be persons to whom a duty of care is owed.  However, it is not the existence of that relationship alone that makes such an injury foreseeable, nor which results in the duty being owed.  One constant that can be seen from the foregoing review of relevant authorities and decided cases is that in each case the existence of a duty of care arose in circumstances where, amongst other things, the secondary victim suffered psychiatric harm after being informed of the death or serious injury of a primary victim caused by the negligence of another.  The cases also recognise that such a duty of care may also exist where the primary victim is imperilled or endangered but does not sustain injury or death.  Those circumstances were invariably considered in each case as relevant to the existence of a duty of care.
323. [323]
     Although it has been said that a duty of care should not be formulated retrospectively, that does not mean that the severity of a potential accident and its consequences for road users and others are irrelevant to an inquiry as to the existence of a duty of care in a case such as the present.  Indeed, in my view those matters are critically important to the question of reasonable foreseeability of harm to a person in the position of the plaintiff.
324. [324]
     In Kuhl v Zurich Financial Services Australia Ltd,^[35] French CJ and Gummow J observed:

“Two things must be said as to the formulation of a duty of care and its scope and content.  First, there is an inherent danger in an action in negligence to look first to the cause of damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content.  In Koehler v Cerebos (Australia) Ltd^,[36] McHugh, Gummow, Hayne and Heydon JJ observed that ‘to begin the inquiry by focusing only upon questions of breach of duty invites error.  It invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account.’

…

The second point is that the formulated duty must neither be so broad as to be devoid of meaningful content, nor so narrow as to obscure the issues required for consideration.  With respect to the latter, Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan^[37] said:

‘A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach.’

Different classes of care may give rise to different problems in determining the nature or scope of a duty of care.  In many cases a duty formulated as being one to take "reasonable care" may suffice for the finding of duty in that particular case.  Cases that involve the duty of a solicitor to his or her client to exercise professional skill in accordance with the retainer, the duty of a motorist towards other users of the road, or the duty owed by an occupier of land to an entrant with respect to the condition of the premises, ordinarily involve no real controversy over the scope and content of the duty of care; these are considered at the "high level of abstraction" spoken of by Glass JA in Shirt v Wyong Shire Council.^[38]  But where the relationship falls outside of a recognised relationship giving rise to a duty of care, or the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term "reasonable" and hence the content of the duty of care.  These are matters essential for the determination of this case, for without them the issue of breach cannot be decided.  The appropriate level of specificity when formulating the scope and content of the duty will necessarily depend on the circumstances of the case.”

325. [325]
     Amongst other things, the circumstances of a case of this kind are that the secondary victim plaintiff claims to have suffered psychiatric injury as a result of what they were told about an event they did not witness and in which no-one was physically injured.  In my view, it is not only permissible, but necessary, in such a case to have regard to the accident that actually occurred, and how and what the plaintiff was told about the accident, in order to assess the question of reasonable foreseeability of harm to the plaintiff.
326. [326]
     In the Court of Appeal decision in Page v Smith,^[39] Hoffman LJ summarised the relevant propositions for liability in cases involving psychiatric injury to a secondary victim in such a case as:

“… (1) Damage caused by mental trauma is a separate head of damage in the law of negligence with its own conditions of liability. (2) The conditions of liability are foreseeability … and causation. (3) Foreseeability means foreseeability of damage caused by mental trauma. Foreseeability of physical injury is neither necessary nor sufficient. (4) The question of whether damage caused by mental trauma was foreseeable is asked with hindsight, in the light of the accident as it actually happened. (5) For the purposes of foreseeability, the plaintiff must be assumed to be a person of normal fortitude. (6) Normal fortitude is a matter of judicial notice and does not require medical evidence or statistical inquiry. (7) If some damage caused by mental trauma was foreseeable and the other conditions of liability are satisfied, the plaintiff is entitled to be compensated for all damage caused by mental trauma, whether its precise nature and extent were foreseeable or not.”

327. [327]
     It can be seen that Hoffman LJ’s fourth proposition above is generally consistent with the argument made here by the second defendant.
328. [328]
     In the subsequent appeal,^[40] each of the members of the House of Lords accepted that in the case of a negligence claim for damages for pure psychiatric injury suffered by a secondary victim, the nature of the accident or event that actually occurred was to be taken into account on the question of reasonable foreseeability of harm.^[41]  As Lord Lloyd of Berwick explained, “if you do not know the outcome of the accident or event, it is impossible to say whether the defendant should have foreseen injury by shock”^[42] and therefore it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all.^[43]
329. [329]
     In Morgan v Tame,^[44] Spigelman CJ said that, aside from the concept of proximity, the law of Australia in this area was as summarised by Hoffman LJ in the Court of Appeal decision in Page v Smith.^[45]  Obviously enough, that statement cannot stand without revision in light of the subsequent decision of the High Court in Tame, at least in respect of the proposition that no duty of care is owed to a plaintiff unless a person of normal fortitude would suffer psychiatric injury by the negligent act or omission of the plaintiff.  Nevertheless, nothing said in any of the judgments of the members of the Court in Tame otherwise eschewed such an approach to the question of reasonable foreseeability.  Indeed, in my view it is implicit that the events that actually occurred were considered in determining the issue of the existence of a duty of care in each of the cases of Tame and Annetts.
330. [330]
     In my view, it is therefore necessary in this case that I consider the particular circumstances of the accident and surrounding circumstances when determining whether the first defendant owed the plaintiff a duty of care of the kind asserted.  To do otherwise would be to consider the question from too high a degree of generality and abstraction.  The plaintiff’s pleaded case ultimately posits that the first defendant’s duty was to take reasonable care not to cause the plaintiff a psychiatric injury as a result of her family being involved or injured in “an incident” and the plaintiff finding out about it.  Absent details of the incident and injuries involved, how the plaintiff found about the accident, and what she was told, it is simply not possible in my view to assess whether it was reasonably foreseeable that the plaintiff might suffer a psychiatric injury caused by the first defendant’s negligent driving.  It surely cannot be reasonable to impose a duty of care upon a defendant regardless of how the plaintiff’s psychiatric injury arises as a result of “an incident”, without any context or content.  As Gummow and Kirby J noted in Tame, drivers are not obliged to take precautions against the possibility that the plaintiff might unreasonably imagine a state of affairs that does not exist.^[46]
331. [331]
     In cases like the present, the question of reasonable foreseeability examines the reasonableness of a driver having two events in contemplation.  First, whether it is reasonably foreseeable that if the driver failed to take reasonable care in the manner of his or her driving that an accident might be caused by his or her negligence, such that another road user might suffer physical harm. Second, whether it is then reasonably foreseeable that, by reason of the accident and the harm caused to the other road user, and being informed of those matters, that a close family member of the person harmed could experience an emotional or psychological reaction that might develop into a recognisable psychiatric illness.  In such a scenario, it seems to me that it is necessary to consider the circumstances of the type of accident and injury involved and how the plaintiff came to be informed of those matters.  I consider those matters are essential features of the inquiry and the relationship between the first defendant and the plaintiff here.
332. [332]
     Accordingly, I consider the position of the second defendant is correct.  More directly, the question of reasonable foreseeability may therefore be framed as whether the first defendant ought reasonably to have foreseen that his negligent driving might cause the plaintiff to suffer a recognisable psychiatric injury as a result of her being told that members of her family had been involved in a minor traffic accident, in which none of them sustained physical injuries.
333. [333]
     In my opinion, the answer to that question must be “no”.  That the plaintiff might suffer such an injury as a result of a collision of that kind was not reasonably foreseeable.  Such a prospect would be far-fetched or fanciful. In all the circumstances, it was not reasonable for the first defendant to have in contemplation the risk that the plaintiff might suffer a psychiatric injury and therefore the first defendant did not owe the plaintiff a duty of care of the kind asserted.

What caused the plaintiff’s psychiatric condition?

334. [334]
     Ultimately, the plaintiff’s pleaded case is that she has suffered a “psychiatric condition or an aggravation” as a result of the incident, the phone calls she received and her subsequent attendance at the hospital; or alternatively as a result of a combination of those factors and her having to assist Jason and the children after the incident and attending at their counselling/medical appointments.
335. [335]
     The plaintiff claims that between the incident and her breakdown in June 2017, she suffered various psychiatric symptoms related to the incident, the phone calls, and her attendance at the hospital.  She characterises the breakdown as a “panic attack” and claims it was brought about Mr Jeanes telling her that he was going on a fishing trip.  She further claims that had there been no incident, no phone calls and no attendance by her at the hospital, she would not have suffered the breakdown when told by Mr Jeanes about the fishing trip.
336. [336]
     The plaintiff relies on Dr Lotz’s evidence and submits that she developed PTSD as a result of the incident and subsequent events.
337. [337]
     The second defendant’s case is that the plaintiff has a psychiatric condition, in the form of a depressive illness, but that it was not caused by the accident and subsequent events as the plaintiff claims.  Rather, the plaintiff’s condition developed as a result of the accumulated stress caused by the various other life-stressors she experienced before and after the 2 August 2016 accident.  In that respect, the second defendant relies upon the evidence of Dr Steinberg.

Consideration

338. [338]
     I accept that the plaintiff has a recognised psychiatric illness.  However, as to the nature of that condition and its cause, I prefer and accept the evidence of Dr Steinberg over Dr Lotz. I conclude that the plaintiff suffers from a major depressive disorder which was caused by an accumulation of other life stressors and not by the 2 August 2016 incident and related events as the plaintiff claims.
339. [339]
     On the issue of proof of causation, s 11 of the Civil Liability Act provides:

General principles

1. A decision that a breach of duty caused particular harm comprises the following elements—
1. the breach of duty was a necessary condition of the occurrence of the harm (factual causation);
2. it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).
2. In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.
3. If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—
1. the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
2. any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
4. For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.

340. [340]
     Noting that the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation,^[47] I will state plainly that I am very far from satisfied that the plaintiff’s psychiatric condition was caused by the incident, the phone calls and the plaintiff seeing her daughters at the hospital, or alternatively those matters together with the plaintiff subsequently providing assistance to Mr Jeanes and the children and attending their various counselling and medical appointments.  In my opinion, it is far more likely that the plaintiff developed her condition as a result of the accumulated stress occasioned by the various stressors she had experienced before and after the incident.  Those events included:

     1. Josie having ongoing learning difficulties, problems with school attendance and social anxiety;

     2. Susie having ongoing severe problems with school attendance and anxiety;
     3. The plaintiff’s mother having cancer, episodes of psychoses for which she was subjected to ITOs and hospitalised, dementia, physical injuries after falling when she absconded from the QEII Hospital, an inability to live independently due to her health issues, frailty and old age, and the plaintiff having to provide constant care for her in the home at increasing levels, and ultimately her passing;
     4. Natasha sustaining what could only be described as a serious head injury and being placed in an induced coma as a result of the horse-riding accident she had in November 2016; and
     5. The plaintiff’s relationship difficulties with Mr Jeanes after the incident, which included the impact of Mr Jeanes’ mental health struggles and changes in his personality and functioning, whereby he became irritable, angry and dependent upon the plaintiff, Mr Jeanes’ expressing thoughts of self-harm, the financial issues they experienced, the pair separating and living apart at times at Mr Jeanes’ insistence and the plaintiff’s ongoing difficulties coping with the challenges of living with and caring for Mr Jeanes; and
     6. The emotional difficulties, stress and exhaustion the plaintiff experienced dealing with her injured family members and their own claims after the accident.
341. [341]
     It follows that I am not satisfied the plaintiff has established factual causation. 
342. [342]
     I find Dr Steinberg’s evidence as to the nature and aetiology of the plaintiff’s condition to be compelling.  I also note that Dr Lotz initially considered that the plaintiff had suffered a major depressive disorder and ultimately conceded in cross-examination that such a condition could be caused by the accumulated stress experienced by the plaintiff as a result of other life stressors.
343. [343]
     That the defendant developed a major depressive disorder which became evident in about mid-June 2017 makes complete sense when viewed against the background of distressing events and circumstances in the plaintiff’s history and the goings on in her life at that time and over the previous year or two.  As Dr Steinberg said, the symptoms of tearfulness, anxiety and emotional distress that she apparently exhibited when she saw Dr Rad are entirely consistent with major depressive disorder.  Dr Steinberg confirmed that anxiety could be a part of the disorder, and it is very common that the two are experienced together.  I accept Dr Steinberg’s evidence that when he first saw the plaintiff on 3 September 2018 she was then suffering from a mild major depressive disorder, which had begun in the context of multiple stressors identified in early 2017, leading to her “breakdown” and seeing Dr Rad in mid-2017; that when he next saw her on 20 June 2022 that condition had resolved and there was no evidence that she was suffering from a psychiatric condition; but that when he next saw her on 4 December 2023, she had again experienced symptoms and a recurrence of major depressive disorder brought on by stress induced by her life circumstances, including ceasing work in her legal practice and the physical symptoms she had from her workplace injury at Coles; and finally when he last saw her on 13 August 2024 that her major depressive disorder had become chronic, largely because it had not been properly treated by appropriate medication, psychotherapy and psychiatric care and because of the ongoing stress she continued to experience through other life-stressors.
344. [344]
     I accept Dr Steinberg’s opinion that the plaintiff’s condition was not caused by hearing or receiving news of the 2 August 2016 accident.  I also accept his evidence that to the extent that he referred in his reports to the “consequences of the motor vehicle accident” as a precipitating factor for the plaintiff’s condition, he was referring to the secondary consequences of the plaintiff having to deal with the stress of coping with Mr Jeanes increased dependence and the difficult post-accident behaviours of Mr Jeanes and their daughters.
345. [345]
     The fundamental difficulty I have with Dr Lotz’s opinion, both as to the nature of the condition and its cause, is that it is premised upon his assessment that the DSM criteria for PTSD are satisfied by the plaintiff being told of the accident and her then imagining what might have happened.  I simply cannot accept his view that criterion A is satisfied.  The plaintiff of course did not experience or witness the accident.  Accordingly, she would only satisfy the first part of criterion A if she was “confronted with an event or events that involved actual or threatened death [or] serious injury, or a threat to the physical integrity of self or others.”  I accept that the plaintiff being telephoned by Susie and then by the ambulance officer about the accident, and later seeing her daughters at the hospital, might possibly satisfy the requirement that she was “confronted” with an event or events related to the accident.  However, despite Dr Lotz’s evidence to the contrary, in my view it is obvious, and evident from the statement of the criterion itself, that the seriousness of the accident is an essential factor.  It must be of such a severity that it would qualify as a “traumatic” event.  I prefer and accept Dr Steinberg’s evidence in that respect that the seriousness of the event that a person hears of is a very relevant factor in considering whether a person qualifies for criterion A.
346. [346]
     This does not seem to be a case involving a threat to the physical integrity of self or others.  It is a case where to satisfy criterion A the plaintiff would have to have been confronted with an event or events that involved “actual or threatened death or serious injury” to her family members.  Irrespective, in circumstances where the accident was a low-speed, minor collision, in which no-one was physically hurt, that aspect of criterion A simply is not satisfied.  I accept and prefer Dr Steinberg’s evidence in that respect that the plaintiff did not qualify for a diagnosis of PTSD because criterion A was not satisfied as the accident was not a serious traumatic event of the kind contemplated by the diagnostic criteria.
347. [347]
     I make plain that I reject Dr Lotz’s evidence that this aspect of criterion A might be satisfied on the basis of what the plaintiff imagined about the accident.  Whilst in theory it might be postulated that imagination can be worse than reality, the evidence in this case leaves no room for the imagination.  I am satisfied, and find as a fact, that the plaintiff was told in the very first telephone call from Susie that no-one was hurt, and everyone was okay.  That was Susie’s best recollection, and it accords with common sense.  Although the plaintiff could not remember whether, or how, she found out about the others being okay, the obvious first inquiry the plaintiff would have made when told of the accident would be to ask if the others were okay.  The subsequent telephone calls from the ambulance officer confirmed that no-one was hurt.  The plaintiff was assured that everyone was okay, and that Josie was being taken to the hospital because she had experienced a panic attack.
348. [348]
     There is no evidence that the plaintiff was told in any of the telephone calls about the circumstances of the accident and how her partner and children had been imperilled, such that she was confronted with events that involved threatened death or serious injury to her family members.  Furthermore, the plaintiff did not give any evidence herself that that was what she imagined or thought when she received any of the telephone calls.  That Josie was hyperventilating and having a panic attack was again a matter that the plaintiff would rightly have been concerned about.  However, in my view, it provides no basis to conclude that the plaintiff may have thought the accident was of a particular severity or any worse than what she already been told.  There is no basis in my view for Dr Lotz’s opinion that the plaintiff’s imagination of the enormity of the motor vehicle accident, and the potentially fatal outcome, were the cause of the plaintiff’s psychiatric disorder.
349. [349]
     I will also record here that I did not find the plaintiff to be a particularly impressive witness.  I found several aspects of her evidence most unconvincing, to say the least, including on this point in particular.  In making these assessments, I have regard to the nature of the plaintiff’s psychiatric illness and the potential impacts it may have upon the cogency and reliability of her evidence and her presentation in court.^[48]
350. [350]
     It is to be recalled that when asked in evidence in chief to describe what she felt or thought at the time she was told about the accident, the plaintiff’s evidence was that she knew Susie was okay and was alive, as she was talking to her, but did not know about the others and was concerned for them but felt scared to ask.  She did not say anything about imagining that they were dead or seriously injured.  That is not surprising, as on her own account after being told by Susie there had been an accident, she immediately asked Susie where her father was and was told by her that he had got out of the car and had gone to see the other driver.  The plaintiff could hardly have thought then that her other children might have been left dead or seriously injured, while her partner was off swapping details with the other driver.  She was then unable to say how she found out what had happened to the others but said that she must have asked and found out somehow during that phone call.  The plaintiff’s evidence in this respect was wholly unsatisfactory.  On my assessment, she was deliberately vague and attempted to avoid answering the question about how she found out about the welfare of the others by feigning an absence of actual recollection.  That is simply an implausible prospect in my view.  It is the initial event of receiving the phone call from Susie that the plaintiff claims she was confronted with and which induced her psychiatric reaction.  As criterion B of the PTSD criteria suggests, the indelible traumatic event, the vivid recollections and intrusive flashbacks of reliving the moment are hallmarks of PTSD.  Yet, the plaintiff was unable to give a cogent account of the call from Susie or what she thought at the time.  The absence of such detail is telling and in my view is not explained simply as a potential consequence of her mental condition.
351. [351]
     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.
352. [352]
     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.
353. [353]
     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.
354. [354]
     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.
355. [355]
     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.
356. [356]
     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.
357. [357]
     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.
358. [358]
     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.
359. [359]
     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.
360. [360]
     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.
361. [361]
     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.
362. [362]
     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.
363. [363]
     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.
364. [364]
     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.
365. [365]
     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.
366. [366]
     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.
367. [367]
     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.
368. [368]
     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.”

369. [369]
     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

370. [370]
     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.
371. [371]
     Accordingly, I find that the first defendant is not liable in negligence for damages as claimed by the plaintiff.

QUANTUM

372. [372]
     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

373. [373]
     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

374. [374]
     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]
375. [375]
     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.
376. [376]
     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%.
377. [377]
     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.”

378. [378]
     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.”

379. [379]
     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.
380. [380]
     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.
381. [381]
     I would therefore assess the plaintiff’s ISV as 2% and calculate general damages as $2,880.^[58]

Past special damages

382. [382]
     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.
383. [383]
     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.
384. [384]
     I would allow $2,000 and $351.28 for interest on that sum.^[59]

Future special damages

385. [385]
     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.
386. [386]
     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

387. [387]
     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.
388. [388]
     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:

     1. 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
     2. the reduction of business income, claiming the difference between the average nett profit and the actual nett profit ($1,358,931); or
     3. the reduction in her personal billings, claiming the difference between her average billings and her actual billings ($1,149,960); or
     4. the cost of replacement labour, had the plaintiff hired a solicitor to do her work ($853,161); or
     5. 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
     6. as an alternative to (a) to (e), a global allowance to take into account her reduced earning capacity.
389. [389]
     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.
390. [390]
     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.
391. [391]
     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.
392. [392]
     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.
393. [393]
     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.
394. [394]
     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%.
395. [395]
     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

396. [396]
     The plaintiff’s claim for future economic loss is $1,016,153.  The plaintiff calculates the figure on the basis that:

     1. before the incident, she had an earning capacity of $2,350 nett per week;
     2. she would have been able to grow her business, resulting in additional average income of $1,000 nett per week;
     3. she has a residual earning capacity of 20% of her pre-incident earning capacity;
     4. 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
     5. 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
     6. she claims an equivalent global amount to reflect her lost earning capacity.
397. [397]
     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%).
398. [398]
     I would not make any separate allowance for future loss of superannuation. 

Summary of notional damages

399. [399]
     In summary, I would make the following award of damages:

Orders

400. [400]
     I make the following orders:

1. Judgment for the defendants against the plaintiff.
2. I will hear the parties as to costs.