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A case with no winners - State of Queensland not liable for firefighter's PTSD

In the matter of Giles v State of Queensland [2020] QDC 332, a firefighter sought damages for PTSD suffered when attending a particularly horrific housefire in which 11 people, including eight children, lost their lives. The fact that Mr Giles was suffering from PTSD was not in dispute at Trial.

Mr Giles was part of the initial crew that attended upon the scene of the fire just after midnight. Mr Giles and his crew remained at the scene for almost nine hours, where Mr Giles worked as a pump operator for the entire duration.

Mr Giles contended that his employer, the Queensland Fire and Emergency Services, was negligent in failing to rotate him away from the scene of the fire at an earlier point in time and for failing to undertake adequate welfare checks to ensure he was coping with his role at the scene. The Defendant argued that the employer's response to the risk of injury to Mr Giles was reasonable.

The key facts of the case were as follows:

  • The Defendant did not contest that it made a deliberate decision to keep Mr Giles at the scene of the fire for the entire duration.
  • The employer justified the decision to keep Mr Giles' crew at the scene by reasoning that replacing the crew would simply expose twice as many people to the potentially traumatic scene.
  • The Trial Judge found the Station Officer in charge of Mr Giles' crew checked on Mr Giles on at least two occasions by asking how he was going and on each occasion, Mr Giles did not report any difficulty. The Station Officer said if any crew member had indicated concern at any point in time, he would have made arrangements for that person to be replaced at the scene.
  • The Trial Judge found the employer had assigned a Safety Officer to attend the scene and that the Safety Officer watched over all crew members for signs of stress or anxiety, twice checking on Mr Giles to ensure he was coping. The Trial Judge accepted Mr Giles did not report or display any signs of difficulty when checked on by the Safety Officer.

Having established what happened on the night in question,  two very experienced and well-credentialled psychiatrists, Professor Harvey and Professor Whiteford, presented evidence to determine whether the employer's response to the risk of injury was reasonable and whether any alternative system would have prevented Mr Giles' injury.

Professor Harvey told the Court it was "well known" that increased exposure to a traumatic event increases the risk of developing PTSD. Professor Harvey made reference to two studies - a study of first responders attending the scene of the September 11 World Trade Centre attacks and a study involving women exposed to sexual abuse in the United States.

The Trial Judge did not accept Professor Harvey's conclusion that to limit Mr Giles' exposure from three or four hours rather than nine hours would have prevented PTSD.

The Trial Judge noted the conclusion of the September 11 study was that the risk of PTSD in first responders from one day of exposure was doubled by the time there was 200 days of exposure, and this did not support a conclusion that limiting Mr Giles' exposure would have prevented PTSD given the shorter timeframes involved.

Professor Harvey relied on a sexual abuse survivor study to suggest that an identical pattern to the September 11 findings had been shown when exposure was measured in hours rather than days. Professor Whiteford disagreed with this opinion, and considered it was impossible to know whether removing Mr Giles at an earlier time would have prevented PTSD.

The Trial Judge did not agree with Professor Harvey and noted that the sexual abuse study highlighted that:

  • increased exposure to sexual trauma made a "small significant contribution" to clinical presentation in the immediate aftermath of assault but not to long term patient outcome;
  • victims' perceptions of sexual assault duration can be influenced by a multitude of factors and are not necessarily accurate;
  • it was not certain whether the studies' findings could be applied to non-sexual trauma; and
  • the study involved over-representation of economically-disadvantaged groups in which daily stressors might contribute to the development of PTSD.

Professor Harvey put forward the view that a "reasonable alternative" to rotating Mr Giles' crew away from the scene would have been to monitor Mr Giles' level of distress by making "detailed enquiries" about how he was coping, preferably away from his work duties. Professor Whiteford agreed in principle but said a "low-key" enquiry was appropriate as repeated probing could suggest Mr Giles was not capable of performing his job or assessing his own wellbeing.

Ultimately the Trial judge preferred the evidence of Professor Whiteford and found that the enquiries made by the Station Officer and Safety Officer about Mr Giles' welfare were reasonable and sufficient to discharge the employer's duty of care, and that the employer was not negligent in keeping Mr Giles at the scene of the fire for the duration that it did (almost nine hours).

While this case involves a successful defence by an employer and is no doubt of particular interest to legal practitioners involved in the defence of similar litigation, it is important to remember that Mr Giles is also a victim of this tragic event. It was not in dispute that Mr Giles acted with fortitude and professionalism in the face of a traumatic and ultimately career-ending set of circumstances, nor that he was genuinely suffering from a significant psychiatric illness caused by his work as a first responder.

The Trial Judge perhaps best sums up this case in the following paragraph from his opening remarks:

"The role of a firefighter can be a demanding one and one that can place a significant emotional burden on those that perform that role to ensure, so far it can be done, that others in the community are safe. Unfortunately that emotional burden can become overwhelming, without fault of the individual firefighter or of his employer. This is such a case."

Article written by Cameron Seymour (Partner) and David Isaac (Associate).

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."