Giles v State of Queensland [2021] QCA 206

The Queensland Court of Appeal dismissed the appellant’s claim for PTSD sustained while working as a firefighter at a fire scene involving 11 fatalities.

This decision follows on from the recent amendments to the Workers' Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’) where the effect of sections 36EA to 36ED provides a rebuttable presumption that first responders who develop PTSD, sustained the PTSD as a work-related injury. However, this amendment would not have affected the outcome in this decision as the appellant’s PTSD was clearly related to his work.

The decision highlights the difficulties that plaintiffs face when bringing ‘nervous shock’ claims suffered while working as emergency services workers, particularly with proving breach of duty and causation. 

Background

The appellant developed PTSD after attending a fire scene on 24 August 2011 where 11 individuals, including 8 children, were killed when they were trapped in a burning house at Slacks Creek in Queensland. This was Australia’s worst domestic house fire.

The appellant drove the first fire truck to arrive at the scene. At that time he had been employed as a firefighter by the Queensland Fire and Rescue Services (‘QFRS’) for nearly 25 years. The appellant remained at the scene for approximately 9 hours.

During that period, the appellant could hear cries of distress and anguish from the gathered crowd of the local community and the deceased’s family members. The appellant developed severe PTSD as a result of this experience. This resulted in the appellant being ‘ill-health retired’ from the QFRS.

At first instance, the trial judge found for the QFRS as the Court held there was no breach of the duty of care owed to the appellant. 

Evidence

The psychiatrist who supported the appellant’s claim gave the following evidence:

  • The appellant was distressed by feelings of helplessness while hearing the community and family members’ distress and grief for so many hours.
  • The appellant should have been rotated away from the distressing scene earlier, which would have reduced the risk of him developing PTSD and improved the prospects of the appellant recovering from PTSD.
  • The rotation of duties should have been done at ‘about the 3 to 4 hour mark’.
  • The appellant’s supervisor should have done more than asking ‘Are you ok?’ in order to assess how the appellant was coping at the scene, and whether he should have been relieved from duty. 

The psychiatric evidence in support of the QFRS’ defence was:

  • The scene was sufficient to cause PTSD, but most people would not develop PTSD in response.
  • The severity and duration of trauma does make a significant difference, with the greater and the longer the duration, the higher the risk of an individual developing PTSD.
  • However it would be ‘extremely rare’ for an individual to develop PTSD from 9 hours of being exposed to ‘demonstrous grief’.
  • It was impossible to know whether the appellant’s removal from the scene at an earlier point in time would have prevented the appellant developing PTSD and, if so, what the severity of the PTSD would be.
  • Deciding whether to remove emergency services workers from a scene involved competing considerations. For example, many personnel would be distressed at being removed from the scene before the fire had been adequately contained.
  • Therefore, a hard and fast rule about removing emergency services personnel at some fixed interval could never be recommended.

The trial judge preferred the psychiatric evidence in support of the QFRS’ defence, particularly around rotating personnel where that would expose others’ to a risk of injury’, and that periodic welfare checks (which the trial judge found had occurred on two occasions) was an acceptable response to the risk of the appellant developing PTSD.

Submissions

The appellant’s submissions during the appeal were that:

  • The trial judge erred in preferring the respondent’s psychiatric evidence. Therefore, the system of work was unsafe for allowing personnel such as the appellant to be exposed to the scene for more than 3 to 4 hours.
  • The QFRS should have done more than simply asking the appellant ‘Are you OK?’ to check his level of distress.

McMurdo JA (with whom Fraser JA and Wilson J agreed) held:

  • There was no demonstrable error in the trial judge preferring the expert psychiatric evidence of the QFRS over the appellant’s expert psychiatrist.
  • The general principles concerning the breach of a duty were those contained in section 305B of the WCRA (which are effectively the same principles as contained in similar legislation throughout Australia such as section 5B of the Civil Liability Act 2002 (NSW)).
  • McMurdo JA cited with approval the judgment of Mason J in Wyong Shire Council v Shirt where His Honour (as he then was) said:

‘The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and convenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.’ [1] (Emphasis added)

  • There was no error in principle in the trial judge balancing the competing consideration of the risks of injury to other firefighters if the appellant had been relieved at the 3 to 4 hour mark.
  • The appellant’s psychiatric evidence was not supported by research.
  • There was no evidence of any practice in similar agencies in Australia or elsewhere that 3 to 4 hours was the safe limit of exposure to such a scene.
  • Relieving an emergency services worker from duty at a fixed point in time could result in certain individuals being distressed at such a decision.

McMurdo JA also observed the appellant’s case failed on causation in any event because:

  • Even if the appellant had been relieved of duty after 3 to 4 hours, there was no evidence to prove that would have prevented the appellant from developing PTSD, or even that the appellant’s PTSD would have been minimised.
  • If there had been a more extensive examination of the appellant’s level of distress at the scene there was no evidence that such an examination would have revealed that he should have been relieved from duty.
  • Finally, if the appellant had told his supervisor that he was not coping, the supervisor’s evidence was that the appellant would have been relieved of duty.

Comment

This decision is a cautionary tale that superficially attractive arguments (as McMurdo J described the appellant’s submissions about his length of exposure to the scene and the need for more thorough testing of his level of distress) must be carefully considered in light of the nature of a given worker’s duties, and the fact that minimising the exposure to a hazard for one worker will result in another worker being exposed to the hazard. This difficult balancing exercise is compounded in nervous shock cases where the risk of an individual suffering an injury is unpredictable, including the possibility that relieving a worker from duty at an earlier point in time could also be distressing. 

 

Further information / assistance regarding the issues raised in this article is available from the author, Scott Cowell –Partner, Hamish Craib – Special Counsel or your usual contact at Moray & Agnew.

[1]  (1980) 146 CLR 40 at 47 to 48.

 

The content of this publication is intended to provide a summary and commentary only. It is not intended to be comprehensive nor does it constitute legal advice, and has been prepared based on applicable legislation at the date of publication. You should seek legal advice on specific circumstances before taking any action.