I have previously reported on the difficulty first responders face when suing their employer for negligence in causing or managing PTSD – see
- Negligence claims relating to PTSD (May 14, 2018); and
- QAS not negligent in management of paramedic’s PTSD (December 12, 2018); but see, on the other hand
- NSW Police liable for mismanagement of officers PTSD (February 9, 2019).
The latest case on this point is Giles v State of Queensland  QDC 332.
Mr Giles had been a firefighter with Queensland Fire and Rescue and then Queensland Fire and Emergency Services. On 24 August 2011 he attended a fire where 11 people, including 8 children died. As a result of this event, Mr Giles developed PTSD. He ‘was retired, medically unfit, on 6 November 2013’ ().
Fire commanders recognised the traumatic nature of the incident and determined to limit the number of firefighters exposed to the scene. Therefore, the first crews to arrive where held there rather than being rotated away from the scene. Mr Giles was on scene for about 9 hours () but that was not active firefighting [(96]) as the fire was extinguished within three hours of the brigade’s arrival ().
Mr Giles alleged that the defendant’s negligence was (at )
(a) A failure to rotate the plaintiff away from the scene at an earlier point in time than occurred in fact;
(b) The adequacy or otherwise of the welfare checking undertaken with respect to the plaintiff.
The plaintiff’s expert, Professor Harvey, gave a report () that said
If those managing the operational response to the Wagensveldt Street fire opted to not rotate Mr Giles’ crew automatically, then an acceptable alternative might have been to keep Mr Giles in place at the incident, but to take reasonable steps to monitor his level of distress. The contact between Mr Mountain and Mr Giles (as outlined in s 1.18) does not constitute and adequate check of Mr Giles’ level of distress. He needed to be spoken to, ideally way from his duties and co-workers, with detailed inquiries about how he was coping and his level of fatigue and distress. The option of taking a break from the distressing scene should have been normalised and encouraged.
There was evidence by Mr Giles and by senior officers as to what happened at the scene and the steps that the senior officers took to check on the welfare of each firefighter. In the District Court, Reid DCJ preferred the evidence of the senior officers to Mr Giles. Accepting that those officers were more pro-active than Mr Giles reported the court said (-):
Whilst Professor Harvey says these checks should take place “ideally away from his duties and co-workers” I find the particular circumstances of Mr Giles’ duties – largely working on his own, beside his vehicle and, on the occasion of Mr Salisbury’s second visit, sitting inside that vehicle, and in circumstances where his job was not, after the initial set up, physically demanding or particularly busy, though undoubtedly important – did not require that he be removed from that work area in order that they might have a suitable conversation.
I find the plaintiff, at the various times he was spoken to by Mr Mountain and Mr Salisbury, did not express, or demonstrate any particular distress so as to indicate he was not coping with the trauma of the fire and that the enquiries by those officers were sufficient to adequately monitor any distress. …
I consequently find the actions of QFRS met the standard of the “acceptable alternative” suggested by Professor Harvey.
At - Reid DCJ said:
 I accept Professor Whiteford’s opinion 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”. I also accept that his opinion that in:
“Deciding whether to remove emergency services personnel from a scene which will or may expose them to stressors, there are competing considerations. For example, many personnel would be distressed and resentful at the idea of being removed from the scene before the fire they were fighting was adequately contained.
Having a hard and fast rule about removing emergency services personnel from the emergency scene within some immutably fixed interval could never be recommended.”
 Professor Whiteford said that “it was not necessary for QFRS personnel to have a mandatory rotation of staff away from the scene of the fire… to manage the risk of psychiatric injury. I believe it was an acceptable alternative to keep Mr Giles and (others) at the incident and to monitor their level of distress.”
 In that same exhibit (at the first paragraph on page 2) Professor Whiteford opines the critical issue would be to determine if they were coping with the prolonged exposure or if they were becoming increasingly distressed over time. He said that so long as the firefighters had not communicated or displayed indicia of distress, there was a lower risk of psychological injury associated with leaving those firefighters in place to finish the job rather than to requiring them to be replaced, exposing a new group of firefighters to the traumatic event and who would have to assimilate the stress of the exposure from scratch.
 I accept that opinion. I also accept Professor Whiteford’s opinion (expressed in the third paragraph of that same page of exhibit 38) that a “low key enquiry” was a reasonable way of monitoring the plaintiff’s wellbeing. Consistent with my earlier finding that the plaintiff had the opportunity to express any concerns he had as to his own wellbeing, Professor Harvey says:
“Being asked if he was ‘OK’ provided Mr Giles the opportunity to voice any distress or concerns he might (or) was experiencing”.
 I accept the enquiries made of Mr Giles in that regard at least twice by Mr Mountain and twice by Mr Salisbury were adequate. Professor Whiteford says that “if there was evidence those enquiries were made more than twice, that would be an even better level of oversight of Mr Giles’ wellbeing”.
 I also accept Professor Whiteford’s opinion that:
“An answer by Mr Giles said he was “fine” or “OK” would not in my opinion, necessitate further enquiry by the person asking the question. It is generally undesirable to repeatedly probe in respect of the psychological wellbeing of an officer such as a firefighter during an active incident where they are performing their duties. A balance has to be struck, because asking too often may be interpreted by the officer as the supervisor implying that he is not capable of doing his job, or not capable of judging his own wellbeing. It (sic) my opinion, it is reasonable for the officer to be asked the question in a low key way, giving the officer the opportunity to evaluate their own wellbeing, respect the response and validate it by an observation of how the officer is performing their duties.
If Mr Giles was asked if he was ‘OK’, answered in the affirmative and gave no signs of distress I do not consider there are psychological grounds for him to be pulled away from the job. That could be perceived as an unwarranted and even humiliating experience… additionally, he would then have to be replaced with someone else who will have their own risk of psychological injury due to exposure to the trauma of the incident scene.”
 In the circumstances there is in my view no basis for concluding that the QFRS was negligent in its management of the plaintiff on the night of the fire. The plaintiff’s action should therefore be dismissed.
In short, the decision to keep the crew on scene and to check on their welfare at the scene was a reasonable response when there was no report or evidence of any distress. In dismissing the case, Reid DCJ said (at ):
It is understandable that the plaintiff’s psychiatric condition maybe adversely affected by this outcome. It is important the plaintiff understands that I do not doubt he has developed a significant psychiatric injury following his exposure to the fire and that he understands that I do not doubt that he performed his role as pump operator on the night of the fire well. The failure of his action is unrelated to either of those issues. 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 is 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.