Narrowing of the nervous shock floodgates
Mar 2021 | InsuranceIn the recent case of Giles v The State of Queensland,1 the District Court of Queensland was tasked with assessing the conduct of the employer of a fire fighter who suffered psychiatric injury as a result of his attendance upon a tragic scene in the course of his work.
The Court, despite acknowledging the very challenging conditions under which first responders work, found no breach of duty by Mr Giles’ employer.
In doing so, the Court did not need to distinguish the decision of Caffrey v AAI Limited2 which raised concerns of a floodgates effect for nervous shock claims, but the Giles decision serves to demonstrate the limited scope of nervous shock claims against an employer.
The claim
South East Queensland locals likely recall the tragic case of a house fire in Slacks Creek which claimed the lives of eleven people, eight of them children, in August 2011.
Mr Giles was a firefighter employed by Queensland Fire and Rescue Service (QFRS) who assisted in fighting the blaze. He alleged, as a result of attending that emergency, he developed post-traumatic stress disorder (PTSD). He sued his employer QFRS in negligence for damages arising out of that psychological injury.
In his claim, Mr Giles alleged QFRS failed to manage or monitor him or remove the crowd further from the fire, failed to rotate him to reduce the duration of his exposure to the fire and failed to appreciate Mr Giles’ propensity to decompensate and provide immediate support.
The issues considered at trial were whether:
- the risk of injury was foreseeable and not insignificant;
- a reasonable person in the position of QFRS would have taken the precautions Mr Giles alleges it ought to have taken in the circumstances; and
- the precautions, if taken, would have probably prevented Mr Giles from suffering his injuries.
After further examination, the Court disregarded several of Mr Giles’ allegations and focused on the alleged failure to rotate him away from the scene and the adequacy of welfare checks. The parties strongly contested whether QFRS was negligent in its management of Mr Giles at the fire and whether any such negligence caused his injury.
In an effort to fulfill its duty of care, QFRS limited the number of personnel exposed to the fire by avoiding rotating crews. A rotation was not required to accommodate the physical exertion of the initial crew. Therefore, although Mr Giles and his crew were exposed to the fire for longer, fewer personnel of QFRS were exposed to the trauma of the fire than would have been the case if the crews had been rotated. Further, QFRS monitored Mr Giles’ wellbeing by having more senior personnel question him to assess his well-being during the course of his attendance at the fire.
Mr Giles alleged QFRS failed to undertake appropriate questioning and assessment and disputed the frequency of approaches alleged by QFRS. In considering the factual dispute, the Court considered a broad range of contemporaneous records regarding unrelated physical conditions and found Mr Giles’ credit to be lacking.
Mr Giles alleged he was distressed by the lengthy period he remained at the scene, the large crowd of onlookers gathered nearby who were in distress, the deaths of the eleven victims and the involvement of media. He also recounted distress over being told the circumstances of the fire and observations of those on the scene.
The Court accepted QFRS’s evidence that Mr Giles did not report any distress when questioned at various stages during his presence at the fire and had he done so, QFRS would have made arrangements for Mr Giles to leave. In relation to support, the Court found there was no evidence that the provision of immediate counselling would have avoided Mr Giles’ diagnosis of PTSD.
Professor Harvey, psychiatrist, provided expert evidence for Mr Giles that 'increased duration of exposure to a potentially traumatic event increased the risk of psychological decompensation such as PTSD’. The Court concluded Prof Harvey’s opinion was insufficiently supported by peer reviewed evidence and noted the absence of evidence that QFRS was aware of a risk of trauma in keeping the same crew on site.
Ultimately, the Court held Mr Giles had failed to demonstrate that QFRS breached its duty of care in not rotating him earlier or that, if he had been rotated, that he would have avoided suffering from PTSD. The Court found no other breach of duty by QFRS in relation to Mr Giles’ involvement at the fire.
Comments
Incidents such as a tragic house fire, which personnel from QFRS and other first responders are tasked with attending daily in the course of their work, no doubt cause significant distress.
In general, public service organisations such as the QFRS cannot be held accountable for shock, distress and psychological symptoms suffered by their personnel simply by virtue of their experience with these events. There is some level of knowledge held by those personnel of the violent, tragic or otherwise traumatic nature of the scenes they attend. Public service organisations are tasked with taking ‘reasonable steps’ to manage their personnel and assist them to process their observations in order to avoid long term suffering. This is an important and evolving process.
In this instance, the Court was sympathetic to Mr Giles’ injury and the enormous emotional toll his job can take, without fault of QFRS or his own.
The State of Queensland successfully defended the claim, being awarded a costs order against Mr Giles on a standard basis.
Claims for nervous shock traditionally require the plaintiff to demonstrate a close nexus to the traumatic event. This has been demonstrated in cornerstone cases such as Jaensch v Coffey3 where the wife of a man seriously injured in a motor vehicle accident due to the negligence of another driver succeeded in a claim for psychiatric injury caused by medical advice that he would probably not survive.
The more recent claim by Senior Constable David Caffrey of the Queensland Police Service4 was of particular interest as he successfully sued the driver of a vehicle who suffered fatal injuries as a result of his negligent behaviour while driving. This decision essentially determined that general members of the public can, in some circumstances, be found to owe a duty of care to those who have to deal with the aftermath of their negligent behaviour if it was reasonably foreseeable that a recognisable psychiatric injury could be suffered as a result of their experiences at the scene. The court found that the fact the person that suffered the psychiatric injury attended the aftermath in the course of their employment, for example as a first responder, was not a bar to recovery.
It is possible we may see more efforts by first responders to pursue damages for PTSD and other psychiatric conditions arising out of their experiences during their work. The decision of Giles reinforces the difficulties associated with pursuing an attentive employer, but alternative defendants with a closer degree of responsibility may be a path that is more regularly explored going forward.
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1 [2020] QDC 332.
2 Caffrey v AAI Limited [2019] QSC 7 which was upheld on appeal in AAI Limited v Caffrey [2019] QCA 293.
3 [1984] HCA 52.
4 AAI Limited v Caffrey [2019] QCA 293.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
