Lawyer sues for damages over car accident she was not involved in

The lawyer was not at the scene, and no party suffered physical harm, but she claimed a phone call from one daughter and the need to transport another daughter via ambulance to hospital for hyperventilating caused her to go into shock. The hyperventilation was brief, and the physical safety of her family was quickly confirmed.

She claimed the driver of the other vehicle owed her a common law duty to take reasonable care, while driving, not to cause an incident, any injuries to her family, or a psychiatric injury as a result of her family being involved or injured and her finding out about it.

There was no question the other driver was responsible due to negligent driving, but Suncorp Insurance – as his compulsory third-party insurer – said he did not owe the lawyer a common law duty of care because a reasonable person in his position would not have foreseen a risk of causing a psychiatric injury.

Suncorp also emphasised the minor nature of the traffic accident, that no significant damage was done, and no one was physically injured.

Justice Lincoln Crowley said that in a general sense, the lawyer’s argument seemed sound because the other driver did owe a duty of care to other road users to not cause them harm through negligent driving.

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The driver would also conceivably owe a duty to other non-road users who could be harmed by an accident caused by negligent driving.

However, in this case, the lawyer’s family were not physically harmed.

“It may be accepted that they were imperilled by the first defendant’s negligent driving, but the plaintiff did not witness the fact, nor is there any evidence about what she was told about that aspect of the accident when she received the various telephone calls informing her of the incident,” Justice Crowley said.

This meant her case depended on whether her distress and psychological disturbance were suffered as a result of her imagining danger to her family members and not as a result of what she feared had happened to them as a result of what she had been told.

However, absent details of the incident and injuries involved, how the lawyer found out about the accident and what she was told, Justice Crowley said it was “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 to care upon a defendant regardless of how the plaintiff’s psychiatric injury arises as a result of ‘an incident’, without any context or content,” he said.

Justice Crowley determined Suncorp’s position on reasonable foreseeability was correct, having found it would be “far-fetched or fanciful” to expect the other driver to have reasonably foreseen his negligent driving could have caused her psychiatric injury.

“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,” Justice Crowley said.

Even if the driver owed a duty of care to the lawyer of the kind claimed, Justice Crawley determined she failed to establish her psychiatric condition was an injury caused by any such breach.