Lundbergs v Fu & Anor

A fairly unique issue concerning liability arose in this matter: whether the negligent driver of a motor vehicle which collided with a vehicle driven by the plaintiff’s de-facto partner, in which the plaintiff’s children were passengers, but not the plaintiff, owed a duty of care to the plaintiff. Despite not witnessing the accident, in which no-one was physically injured and only minor property damage was sustained, the plaintiff claimed that she had suffered psychiatric injuries resulting from it. After an extensive review of the authorities, Crowley J concluded that the alleged duty was not owed.

Crowley J

6 June 2025

The plaintiff’s partner and three of her children had been involved in a minor traffic collision in which the driver of the other car was the first defendant. He was at fault. [2]. The plaintiff did not witness the accident. [3]. No physical injuries resulted from the accident. [7], [302].

The plaintiff alleged that subsequently she developed a psychiatric injury, or aggravated a pre-existing condition, as a result of the incident and its aftermath, including the fact she had learnt about the car accident over the phone and imagined the harm that her family had suffered. [8]. She claimed that the first defendant owed her a common law duty to take reasonable care while driving not to cause:

(a)an incident by his driving;

(b)any injuries to the plaintiff’s family in an incident;

(c)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. [290].

Justice Crowley dismissed the plaintiff’s claim and observed as follows:

(1)The defendant did not owe the plaintiff a duty of care since the psychiatric injury to her was not reasonably foreseeable in the particular circumstances of the accident and surrounding circumstances, and in fact “such a prospect would be far-fetched or fanciful”. [330], [333].

(2)Although it is generally accepted that a duty of care should not be formulated retrospectively, it does not follow that the severity of a potential accident and its consequences for road users and others are immaterial in determining whether a duty of care exists in a case such as the present. Rather those matters are “critically important” to the question of reasonable foreseeability of harm. [323].

(3)Whilst concepts developed under the common law of “sudden shock”, a person of “normal fortitude” and “direct perception” of distressing phenomenon or its aftermath are not preconditions for liability, they remain of relevance regarding whether a duty of care existed in cases involving pure psychiatric injury. [297].

(4)It did not appear that any previously decided case in Australia had held that a defendant owes a common law duty of care to a plaintiff in a case such as the present. [303].

(5)The nature of the relationship between the primary victim and a secondary victim is a relevant matter in determining the existence of a duty of care owed by a negligent tortfeasor in a case such as this. Nonetheless, the existence of that relationship alone is insufficient to result in the duty being owed. [322].

(6)It was appropriate to have regard to the accident that actually occurred, and how and what the plaintiff was told about the accident, in considering the question of reasonable foreseeability of harm to her. [325].

(7)Drivers are not obliged to take precautions against the possibility that a plaintiff might unreasonably imagine a state of affairs that does not exist: see Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, [198].

(8)Here, the question of reasonable foreseeability was “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”. And the answer was “no”. [332]–[333].

Disposition

The Court found in the defendants’ favour and heard the parties as to costs.

A Jarro