Employer not liable to Fire Fighter for exposure to traumatic scene

Giles v State of Queensland [2020] QDC 332

Judge Reid DCJ 

Delivered 18 December 2020 

Background

The plaintiff was a Fire Fighter who was on shift on 24 August 2011, when the tragic house fire at Wagensveldt St, Slacks Creek occurred. 11 people, including 8 children, lost their lives in the fire.

There was no doubt the plaintiff developed a significant psychiatric injury as a result of his exposure to the fire.

The plaintiff claimed for $684,621.48 for damages and loss as a result of the psychiatric injury suffered.

Liability

Specifically, and importantly, the plaintiff’s case was that his injury resulted due to prolonged exposure to the traumatic scene and the understandable demonstrous grief of the community that had congregated shortly after his arrival at the scene. As the pump operator, the plaintiff was required to remain with the truck, which was located approx. 15 to 20 metres from a police barricade and the crowd. The plaintiff was not involved in the physical fire-fighting, and did not view the deceased.

The key issue was whether the Queensland Fire and Emergency Services (QFES) was negligent in their management of the plaintiff at the fire, and whether such negligence was causative of the plaintiff’s subsequent psychiatric illness. This was vigorously contested.

The defendant argued the QFES discharged its obligations to take reasonable care of the plaintiff by:

• Determining the number of QFES personnel at the fire would be limited by not rotating crews;
• Taking steps to monitor the plaintiff’s wellbeing during attendance at the fire.

The plaintiff argued the QFES failed to discharge its duty because they failed to rotate him from the scene and undertake appropriate questioning and assessment of him.

Judgement/findings

The credit of the plaintiff was a critical factor in the determination of the case. This is because the plaintiff’s evidence about what distressed him at the fire, what his level of observable distress may have been and what he was told by those managing him on the day are all of high importance to determination of liability.

After reviewing the evidence in detail, the Court reached an adverse conclusion about the plaintiff’s credibility and reliability. This related to the Court’s view that the plaintiff had failed to be frank about the symptoms of unrelated physical conditions (which gave rise to doubts about honesty) and the plaintiff’s failure to recall pre-existing psychological symptoms and treatment (which gave rise to doubts about reliability of the plaintiff’s memory of historical events).

It was undisputed that a conscious decision was made by QFES to keep the plaintiff and his crew at the fire, rather than to rotate the crew out and rotate a new crew in, exposing more personnel to the traumatic event.

The question was not only whether this decision not to rotate the plaintiff’s crew was a breach of duty, but also whether, had the plaintiff been rotated from the fire scene earlier, this would have prevent him sustaining injury.

The Court accepted the evidence of Prof Whiteford, Psychiatrist that “it is impossible to know whether, in the hypothetical situation, assuming this man’s removal from the scene at an earlier point in time after arrival, he would nonetheless develop a PTSD and if so of what severity”.

The psychiatric specialists ultimately agreed that once the decision not to rotate had been made, a reasonable alternative was to ensure the personnel were monitored for signs of distress (welfare checked).

The question then turned to whether the welfare checking undertaken with respect to the plaintiff was reasonable and adequate. As a result of the credit findings, the Court found that the plaintiff had only a poor recollection of the details of the events of the night and did not accept the plaintiff’s evidence about the contents of his discussions with his supervisor and the safety officer. The Court accepted the evidence of the supervisor and safety officer, finding the plaintiff was welfare checked on at least 4 occasions total during the 9 hour attendance at the fire. There was a great deal of evidence about the nature of the enquiries made, and whether the extent of the enquiries were adequate. The Court noted Prof Whiteford’s opinion about the enquiry needing to be made in a “low key” way, to monitor his wellbeing and whether he was becoming increasingly distressed over time. The Court found that the enquiries made by the supervisor and safety officer were sufficient to adequately monitor any distress.

The Court found there was no basis for concluding that the QFES was negligent in its management of the plaintiff on the night of the fire and the plaintiff’s claim was dismissed.

An Appeal has been lodged on behalf of the plaintiff which is yet to be determined.

Discussion / implications

• Credibility of witnesses can have a significant impact on the Court’s finding, especially in a case which turns heavily on witness oral evidence and recollection.
• Where a worker is required to be exposed to a potentially traumatic scene for extended periods, periodic welfare checking by superiors is imperative.
• There was an allegation by the plaintiff that the QFES was negligent in failing to identify and educate its senior staff in critical stress impact of prolonged exposure to traumatic events. It is important to ensure supervisors have adequate tools and training to make these welfare enquiries, to handle these discussions and to identify basic signs of welfare concerns