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James v State of Queensland

 

[2018] QSC 188

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

James v State of Queensland [2018] QSC 188

PARTIES:

PAUL ANTHONY JAMES

(Plaintiff)

and

STATE OF QUEENSLAND

(Defendant)

FILE NO/S:

S390 of 2008

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland at Cairns

DELIVERED ON:

10 December 2018

DELIVERED AT:

Mackay

HEARING DATES:

30 April, 1 May, 2 May, 3 May, 6 August, 7 August 2018

JUDGE:

Henry J

ORDERS:

  1. Claim dismissed.
  2. I will hear the parties as to costs if costs are not earlier agreed at 9.15 am 30 January 2019.

CATCHWORDS:

TORTS – NEGLIGENCE– ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – GENERALLY –– whether the Queensland Ambulance Services’ Priority One system for managing risk of psychiatric injury was adequate to safeguard the risk – whether there was a failure to comply with the priority One system by not activating a Critical Incident Stress Debriefing – whether misbehaviour at a training incident signalled the need for psychiatric support –  whether an employer’s duty of care extends to imposing counselling without request of the employee.

EMPLOYMENT LAW – CONTRACT OF SERVICE – TERMS OF CONTRACT – IMPLIED TERMS – whether the Queensland Ambulance Services’ Priority One system for managing risk of psychiatric injury was adequate to safeguard the risk – whether there was a failure to comply with the priority One system by not activating a Critical Incident Stress Debriefing – whether misbehaviour at a training incident signalled the need for psychiatric support –  whether an employer’s duty of care extends to imposing counselling without request of the employee.

Hegarty v QAS, [2007] QSC 90, followed.

Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, cited.

COUNSEL:

G C O’Driscoll for the plaintiff

G W Diehm QC with A Luchich for the defendant

SOLICITORS:

Hall Payne Lawyers for the plaintiff

Crown Law for the defendant

  1. [1]
    The plaintiff claims damages for a psychiatric injury caused by his exposure to traumatic events when working as a paramedic at Doomadgee in 2004.[1]  He claims the Queensland Ambulance Service (“QAS”)[2] failed to respond reasonably to the risk of such injury from exposure to such trauma. 
  2. [2]
    His case is an exercise in hindsight identification of a means by which his injury might have been avoided by an all-knowing and intrusive employer.  It fails to acknowledge his employer did take reasonable care, conscientiously educating him about signs of adverse reaction to traumatic events and providing a system of support which respected his autonomy and was a reasonable response to the risk of injury from exposure to such events.

PART A: INTRODUCTION TO THE CASE

Introduction

  1. [3]
    Mr James commenced ambulance work in 1991 with the Metropolitan Ambulance Service in Melbourne.  In 1999 he went to the United Kingdom and worked there as an ambulance officer for two years.  He then returned to Australia, gaining a temporary position as an ambulance officer at Ingham.  By 2004 he was working as a paramedic with QAS at Mount Isa, where he lived with his wife and two children, aged 14 and five. 
  2. [4]
    Mr James would sometimes do relieving work at Doomadgee, a single officer station.  When he performed such work it was rostered as eight days on at Doomadgee and six days off, when he would return to Mount Isa. 
  3. [5]
    The present case is concerned with three incidents in which Mr James was the attending paramedic at Doomadgee, as well as a training incident which occurred in Mount Isa between the second and third incidents.  Briefly stated those incidents were:
    1. (a)
      The first incident:  On 30 September 2004 Mr James attended a teenage boy who had been gruesomely mauled by dogs.
    2. (b)
      The second incident:  On 16 October 2004 Mr James transported a three year old girl who had been orally raped.
    3. (c)
      The training incident:  On 10 November 2014 Mr James reacted badly to being publicly corrected during training (“the ISEP training”) for auscultating in the wrong part of the body. 
    4. (d)
      The third incident:  On 13 November 2014 Mr James attended a six year old girl who had been vaginally raped and injured.
  4. [6]
    During the one a half month period spanned by those incidents Mr James psychological state declined.  He also lodged grievances in connection with the training incident.
  5. [7]
    Mr James ceased work on 23 November 2004.  He was at first diagnosed as suffering an adjustment disorder with mixed anxiety and depressed mood and later diagnosed as suffering post-traumatic stress disorder.  He was unable to resume work as a paramedic and did not resume any form of paid employment until over a decade later.   He now works at Serco Immigration Detention Centre in Western Australia and has done so for about the last three years.[3]

The plaintiff’s case

  1. [8]
    Mr James alleges his psychiatric injury would have been materially less severe and long lasting, if QAS had supported him as proscribed by its own system for supporting the mental well-being of its staff, a programme called “Priority One”.
  2. [9]
    Priority One involved four core support services, namely:
  1. peer support by peer supporters,
  2. self-referral counselling,
  3. a telephone counselling service, and
  4. critical incident stress debriefing (“CISD”). 

The first three of those services applied to individuals whereas the fourth, clinical incident stress debriefing (“CISD”), applied to groups.  That is, while all four services were calculated at assisting staff in dealing with clinical incident stress, it was only CISD which was calculated at providing such assistance to multiple persons when together as a group.  It is a distinction which assumes some significance later in these reasons.

Duty of care

  1. [10]
    It is well established the employer’s duty of care to employees includes an obligation to take all reasonable steps to provide a safe system of work[4] and an obligation to take reasonable care to avoid psychiatric injury.[5] 
  2. [11]
    It is not in issue that QAS owed Mr James such a duty.  The determinative issue in the case are not whether QAS owed Mr James a duty to take reasonable care to avoid psychiatric injury to him but whether it breached that duty of care.

Breach

  1. [12]
    The amended Statement of Claim (“ASOC”) alleges a variety of breaches by QAS, which, paring away apparent overlap and duplication of themes, may be summarised as:
    1. (a)
      failing to have a system which was an adequate and sufficient response to the risk of psychiatric injury;[6]
    2. (b)
      failing to adequately inform itself of the dangers of injury or illness to which Mr James was exposed and the means by which such dangers could be avoided;[7]
    3. (c)
      failing to implement effective systems and policies to assist and deliver peer support and professional counselling to paramedics in isolated ambulance stations involved in incidents like those in this case;[8]
    4. (d)
      failing to have an adequate system whereby Mr James’ supervisors were trained to identify signs of dysfunction in staff regularly exposed to critical incident stress so that they could be referred for clinical psychological assessment and treatment;[9]
    5. (e)
      failing to have a system of training and or educating Mr James to know and recognise the symptoms or effects of anxiety and distress after exposure to critical incident stress;[10]
    6. (f)
      failing to ensure Mr James received counselling or psychological support, treatment or intervention for his anxiety and distress occasioned by the incidents.[11]
    7. (g)
      failing to activate Priority One, particularly the holding of a Clinical Incident Stress Debriefing (“CISD”), in support of Mr James, after the first and second incidents and after the training incident;[12]
    8. (h)
      failing to adequately train or supervise those responsible for such activation;[13]
    9. (i)
      failing after the training incident to counsel Mr James, refer him to a psychologist or psychiatrist for assessment and treatment, remove him from active duty pending such assessment, review him to ensure there was delayed effect from the first and second incidents, remove him from Doomadgee to prevent further exposure.[14]
  2. [13]
    The generalised allegations in (a) – (f) above were not pressed with any specificity in closing submissions.  They can be adequately addressed and dispensed with collectively by canvassing the adequacy of QAS’s systemic response to the management of the risk of psychiatric injury, namely the Priority One programme (“adequacy of Priority One”).
  3. [14]
    By the time of closing addresses the allegations of breach that were persisted with appeared to mainly derive from (g), (h) and (i) above and were said to be:
    1. (a)
      failing to activate a CISD after the first incident as allegedly required by Priority One (“failure to activate CISD”);[15] or alternatively
    2. (b)
      failing in light of Mr James’ allegedly aberrant or unusual behaviour at the training incident to send him to a CISD and then a psychologist or psychiatrist and remove him from Doomadgee (“failure to respond to the training incident as signalling a need for intervention”).[16]
  4. [15]
    These reasons will therefore resolve whether there was a breach of the duty of care by reference to:
  • the adequacy of Priority One, 
  • the alleged failure to activate CISD, and
  • the alleged failure to respond to the training incident as signalling a need for intervention.

Causation

  1. [16]
    On Mr James’ own case he would still have had an adverse mental reaction even if there had been the earlier interventions he contends for.  Nonetheless he alleges the breaches by QAS caused him to suffer a more severe and prolonged psychiatric injury than would otherwise have occurred.
  2. [17]
    He submits:

“(a)  the appropriate implementation of the Defendant’s system would have recognised the unfolding PTSD early; he would have been assessed by a psychologist or psychiatrist and not sent back to Doomadgee, and occupied some alternate role in the ambulance service; or

  1. (b)
    the alternate case is that at least at the ISCEP training, the Defendant employer [should have] recognised that he had an unfolding PTSD, intervened and facilitated access to counselling and treatment at that stage …[i]n doing so not exposing him to the third incident…”[17]
  1. [18]
    The above reference to recognising the “unfolding PTSD” is presumably intended to mean recognising symptoms indicating a need for psychological assistance.

Determination

  1. [19]
    An analysis of the facts is necessary before returning to the alleged breaches and causation.

PART B: FACTS

Past mental health assistance

  1. [20]
    In evidence-in-chief Mr James testified that prior to the incidents of concern in this case he had on one previous occasion been prescribed Effexor, an anti-depressant, when he had chest tightness at a time when his son was having problems at school.[18]  However, he claimed not to have taken the Effexor.[19]  He was not being candid with the court.
  2. [21]
    A medical attendance report provided to Mr James’ insurer on 30 August 2004 disclosed Mr James had been prescribed Effexor on 7 November 2012 for “anxiety depression”.[20]  His medical records confirm that and also record that the same drug was prescribed on 7 May 2003.[21]  According to his medical records he was also prescribed Effexor on 30 December 2003 and 16 July 2004.[22]  He conceded in cross-examination that he probably would have taken the Effexor and could not explain why he had said differently in evidence-in-chief.[23] 
  3. [22]
    Mr James was equivocal in his responses as to whether he had informed the psychiatrist he dealt with after the incidents in question about his history of anxiety and depression.[24] The reports of his treating psychiatrist, Dr Likely, the expert on which his case relies, make no reference to it.  To the contrary, according to Dr Likely’s report of 20 January 2005 Mr James positively asserted that prior to the incidents in question “he had never before had problems with his mental health”.[25] 
  4. [23]
    None of this boded well for Mr James’ credibility or the existence of an accurate factual foundation for the expert psychiatric opinion in the case.

The first incident and its aftermath

The first incident

  1. [24]
    In respect of the so-called “first incident” the parties jointly admitted:

“11. On Thursday 30 September 2004 when the Plaintiff was relieving at Doomadgee, the plaintiff responded to a request that he attend and treat a “dog bite” case.

12. Upon his arrival at the scene that morning, the Plaintiff encountered a young male person, then naked and unconscious, who had been mauled.”[26]

  1. [25]
    The ambulance report form in which Mr James recorded the details of his attendance noted he arrived at the scene at 6.45 am.[27]  Despite having been tasked to attend a case of dog bite, Mr James testified that in the yard of the premises in question a teenage boy was being mauled by a group of dogs.  The mauling had evidently been in progress for a substantial time.  There were pieces of clothing, human flesh and intestine lying about and the dogs were still biting and pulling at the boy.[28] 
  2. [26]
    When Mr James went to intervene, the dogs were not readily deterred and were also aggressive towards him.  After he had thrown some ambulance equipment at the dogs and some bystanders joined in repelling the dogs, Mr James was able to tend to the patient.  The boy’s genitalia had been gnawed at and were partly missing.[29]  His stomach had been bitten into and entrails pulled out.[30]  The boy bore many other bite injuries, had lost a lot of blood and was semi-conscious.[31]
  3. [27]
    Mr James drove the boy to Doomadgee Hospital and thereafter assisted the nurses’ emergency treatment of him.[32]  Mari Nourse, one of the nurses who tended to the unfortunate patient when Mr James had brought him to the hospital, testified that at the hospital Mr James was shaking his head and looked shattered.[33]  After some hours the Royal Flying Doctor Service arrived.  By the time the patient was being loaded onto the plane it appeared the boy had died, but because of concerns about an angry local crowd which had gathered, the service took off to Mount Isa with the patient rather than returning him back to hospital.[34]
  4. [28]
    After the first incident Mr James returned to the ambulance station where he cleaned out the ambulance and filled out the ambulance report form.[35]  His account of events as recorded in the ambulance report form did not suggest the dog attack had still been happening when he arrived at the scene.  Rather, it recorded he had been advised by bystanders of the fact dogs had attacked the boy.[36]  When this was pointed out to Mr James he maintained his account, explaining he did not write the document for court.[37]  The report is likely to be more accurate than Mr James’ present recollection, although it is apparent that Mr James was asserting a memory of the dogs feeding on the boy by late 2004.[38]  However, even if Mr James did not actually see the dogs attacking the boy his discovery and treatment of the boy’s state was still a very traumatic experience.  The inconsistency is unlikely to be a product of deliberate exaggeration and more likely to result from the combined contaminating impact upon memory of the trauma, stressful rumination over it and the probable fact that dogs were at least nearby.

Interaction with locals and Ms Barr

  1. [29]
    Mr James testified he felt numb and that the experience had not seemed real or expected.[39]  He felt anger towards the dogs and wanted to kill them.[40] 
  2. [30]
    On Mr James’ account the police telephoned him, explaining they could not shoot the dogs because of concerns about evidence contamination and enquiring, rather improbably in my view, whether Mr James had anything he could do to the dogs.[41]  Mr James recalls he gathered some syringes and potassium into a blue bag[42] and then encountered Ms Mandy Barr, the acting officer-in-charge of the ambulance service at Doomadgee. 
  3. [31]
    It is common ground Ms Barr did speak with Mr James that day.[43]  On Mr James account he told Ms Barr he was going to go and kill the dogs, but she directed him that he was not to do so; a direction he complied with.[44]  Ms Barr testified she has no recollection of any discussion about Mr James intending to kill the dogs.[45]  It is unlikely she would forget her fellow officer mentioning such a plan and her so directing him.  This is likely another instance in which Mr James has developed a contaminated recollection of erroneous detail.
  4. [32]
    Ms Barr gave the following account of the conversation in a statement to investigators made on 12 January 2005:

“9. On 30 September 2004, I was on days off at home. Paul completed a job and I met him at the bottom of the stairs. Paul told me that he had attended a job where a male had been virtually mauled to death by dogs. Paul described the injuries to me in great detail. The male’s genitals were virtually non-existent, his armpits were ripped out, and he had puncture marks everywhere. Paul wasn’t visibly distressed about it. It was more like he was telling me, as a work colleague, about an interesting job. It’s one of our ways of coping with a bad situation if we’re affected by the job. He had a bit of a laugh about it.

10. At the end of the conversation, I asked him if he was OK about it. He said, “Yep, it’s OK. I’m right, mate. It’s good.”, or words to that effect, which suggested to me that he was coping all right with it. Everyone has their own coping mechanisms, and I’m not the type of person to badger someone about it if they seem OK.”[46]

  1. [33]
    Ms Barr’s testimony at trial was to similar effect.  She also testified there was nothing abnormal about Mr James’ speech or appearance.[47]  While she agreed what occurred was not a laughing matter she also explained the neutral significance of laughter in that staff sometimes engage in black humour as a coping mechanism.[48]  Mr James denied in cross-examination that he had told Ms Barr he was okay, saying, “There’s no way I would have”.[49]  He struggled to explain how he would have been exhibiting his distress to an observer[50] despite asserting Ms Barr would have “picked up on” the fact he was not his normal self.[51]  That assertion was not put to Ms Barr,[52] unsurprisingly, for it imputes a quite improbable level of disregard of a fellow officer by her.  It is obvious she did not “pick up on” the extent to which Mr James alleges he was then affected.  I accept that Mr James did indicate to Ms Barr he was okay and gave no contrary indication.
  2. [34]
    Mr James testified that in the days following the first incident he wanted to talk to someone about the incident, to “debrief”.  He explained there had been one particularly traumatic incident he had attended whilst working in Victoria, and two in the United Kingdom, in respect of which he had found debriefing beneficial.[53]  He testified that he tried without success to telephone Karen Franklin who was the peer support officer (“PSO”) under the Priority One programme for the region.[54]  He at one point in cross-examination unconvincingly claimed that in doing so he was hoping to ask for a Critical Incident Stress Debriefing[55] but later said he was just intending to seek her help.[56]  As will become apparent, in a contortion of the requirements of Priority One, his case contends for the conclusion there ought have been a CISD and it is obvious he was here trying to shape his case in aid of such a conclusion.
  3. [35]
    He also claimed in cross-examination it should have been recognised by QAS that the first incident was a traumatic event and QAS should of its own volition have initiated a CISD rather than it being left up to him seek out Ms Franklin and others.[57]  Such protestations in his evidence were quite unconvincing.  As will also become apparent he well knew of the available components of Priority One and that the CISD component was for groups not an individual officer.
  4. [36]
    Mr James testified that after he had tried contacting Ms Franklin a couple of times without success, he spoke with a nurse at Doomadgee, enquiring whether he could participate in the nurses’ debriefing but was told they had already had it.[58]  On his account he was sobbing during this conversation with the nurse.[59] 
  5. [37]
    That nurse appears to have been Mari Nourse.  She recalled Mr James came to the nurses’ quarters on the afternoon of the mauling or possibly some later date, perhaps even after one of the later incidents at Doomadgee.[60]  She testified of herself, Mr James and other nurses present:

“He was – we, sort of, all got together trying to talk it out.  There was nobody else there but us to talk to each other and try and just let it out somehow or other.”[61]

  1. [38]
    Ms Nourse explained she had tried to get a formal debriefing for the nurses but had been unsuccessful in doing so.  She recalled Mr James showed interest, if she was able to procure such a debriefing, in participating in it.[62]  In the end result though there was no formal nurses’ debriefing in relation to the first incident at Doomadgee.[63] 
  2. [39]
    Mr James testified he enquired of the police whether they had had a debriefing but was also told they had already had theirs.[64]  Conversely, Ms Nourse’s recollection was the police informed her they were not having a debriefing session.[65]

Interaction with Franklin

  1. [40]
    On Mr James’ account he persisted in telephoning Karen Franklin, the PSO, estimating he would have done so about four times from Doomadgee and a further three times when he returned to Mount Isa.[66]  On his account none of his telephone calls were answered,[67]  there being no recorded message at the other end of the telephone line proffering some other number to ring.[68]  He testified he did not communicate with Ms Franklin until he saw her at the ISCEP training when the training episode happened, over a month later, and she apologised, explaining she had been on leave.[69]  It was never put to Ms Franklin that she had not spoken with Mr James at that earlier time nor was it put she had apologised to him at the training episode. 
  2. [41]
    Mr James’ claim of attempting to seek assistance does not rest well with the position taken by him in a statement he made to an investigator on 14 January 2005.  That statement was made in the presence of his union representative, Mr Damien Jardine, on 14 January 2005 to Ingrid Schmelzle of Maurice J Kerrigan & Associates, a private investigation firm, apparently commissioned to investigate the grievances.  In that signed statement, after describing the first incident, he wrote:

“15. No-one got debriefed about the incident, and no-one called me about it. I had been working by myself at the time. I didn’t contact Priority One or any other type of QAS staff support service about the incident, because I felt that they should have contacted me.”[70] (emphasis added)

  1. [42]
    Karen Franklin’s testimony clearly contradicted Mr James.  She testified that she did speak with Mr James about the first incident by telephone from Mount Isa whilst he was in Doomadgee.[71]  She could not recall how she had become aware of the first incident, explaining she could have received a message on a paging system from the communications centre[72] or may simply have heard about it in general conversation amongst ambulance crews.[73]  She was at her home at the time of the phone call and Mr James was at Doomadgee.[74]  She was uncertain whether the conversation occurred during Mr James’ stint at Doomadgee during which the first incident occurred or whether it was when he was at Doomadgee on a subsequent occasion.[75]  However, she testified it preceded the training incident of 10 November 2004.[76]  Ms Franklin was on leave from 11 to 31 October 2004,[77] that is, she did not go on leave until 11 days after the first incident.   The second incident did not occur until 16 October 2004, so her conversation with Mr James about the first incident likely did occur while Mr James was at Doomadgee during the same stint in which the first incident had occurred. 
  2. [43]
    I am fortified in so finding by Mr James statement to Workcover dated 23 December 2004 - before he made the afore-mentioned statement to an investigator - in which he mentioned Ms Franklin likely did speak with him soon after the first incident and that he told her he was okay.  Mr James tried, quite unconvincingly, to disown the reliability of what he wrote, claiming he would have signed the Treaty of Versailles at that time.[78]  It is therefore helpful to quote some context to demonstrate the statement was obviously written in his own words:

"10.… The plane eventually took off and I heard later that the Dr had pronounced death on arrival in Mount Isa.

11.I remember going back to my flat and thinking about what had happened. I recall feeling shocked beyond anything that I had ever felt before, my whole body was numb, yes that’s the word for it numb, and yet, all I could think about was the boy’s testicles. It was a bizarre thought, but that’s what I was thinking. I remember thinking that having someone as young as that die was, in itself, a tragedy. But to have your testicles chewed off at the time of your death was beyond belief, and that his personal dignity had been violated in the grossest possible sense. The rest of the day for me was a blur, shit. I don’t remember much of it at all; it was like I was in shutdown, with nothing registering. I was barely able to function. I know I completely lost interest in food from that point in time.

  1. It was about this time, if I remember rightly, that Karen Franklin, a Peer Supporter from Mount Isa rang and asked how I was going. We then talked briefly about one of the jobs I had done previously, not the one involving the dogs, an earlier one. I remember telling her that I was OK, coping, and she left it at that. I also remember at the time feeling angry about the lack of support from Mount Isa. But then again what was new.”[79] (emphasis added)
  1. [44]
    Ms Franklin testified of the telephone conversation:

“He told me that he had attended a job where a young man had gone to sleep in the back yard and the dogs tore him apart and killed him. … He was upset and stressed, talked a lot about the job. … I asked him if he wanted to be relieved from Doomadgee so he could come home to his family.  He declined.  I gave him and made sure that he had the phone numbers, which are on all the desks throughout the region for the Priority One counsellors and psychologists for him to get in touch with, and I asked him if he wanted me to arrange for him to come home and he declined. … He said he was coming up for days off.  … I offered to get in touch with the counsellors, the psychologist myself, and so that when he came home, he had the appointments made. … I made that offer to him … if he wanted me to do that for him and he declined.”[80] (emphasis added)

  1. [45]
    Ms Franklin estimated the conversation took a couple of hours.[81]  She further recalled:

“I offered everything that I could have offered him and each time he declined. … I asked him if he wanted me to arrange for management to have him relieved and brought back into town.  He declined.”[82]  (emphasis added)

  1. [46]
    She could not recall exact words but posited:

“I would have said to him, “How are you?”, you know, “How are you travelling?” … He – once again, he said that, you know, he’s okay.  He’ll be home in a few days.” … He said that he was okay. … He was going to be home in a few days.”[83]  (emphasis added)

  1. [47]
    I accept Ms Franklin’s testimony.  It is a powerful illustration of the unreliability of Mr James’ purported recollection of the evidentiary detail of the events of that era.  Indeed, his position on this topic seems to have varied as early as between his statement to Workcover of 23 December 2004 and his statement to the investigator of 14 January 2005.  I accept that unreliability might be a product of the injury and the contaminating influence of rumination and subsequent events, rather than deliberate exaggeration or dishonesty.   But that does not alter the dilemma for Mr James’ case that he was not a reliable historian about the detail of support sought or given.  

Interaction with Stephens

  1. [48]
    A QAS clinical support officer, Joanne Stephens, testified that she too telephoned Mr James to discuss the first incident.  It ought be appreciated she was not a PSO nor had she undertaken any peer support officer training or training in assessment of whether a person is undergoing psychological stress.[84]  Her role as a clinical support officer was to provide education and clinical support.  She had commenced in that role at Mt Isa in early September 2004 and set about making arrangements for local officers to complete outstanding modules the In Service Continuing Education Programme (“ISCEP”).
  2. [49]
    She was at Mount Isa Base Hospital when the unfortunate victim of the dog mauling in the first incident was transported to the emergency department.   She understood the victim had been badly mauled by a dog, had come from Doomadgee and that Mr James had been involved in the victim’s treatment.[85]  She testified that either that day, which inferentially would have been the day of the first incident, or the next day[86] she telephoned Mr James at Doomadgee.  When asked why she made that telephone call she responded:

“So I – I’d heard – I didn’t see the patient’s wounds, but I’d heard it was quite bad.  I don’t recall, but it was likely that it was about his wellbeing, but also about how the job went, as in the clinical focus of that, as well.”[87]

  1. [50]
    She expanded upon that explanation in cross-examination as follows:

“If I can put it this way, I had just spent the last two years working as an officer at Mornington Island, and the community of Mornington Island and Doomadgee are very similar.  And I worked by myself most of the time, and Paul was in that circumstance, as well.  And so I was au fait with the kinds of work and working by yourself.  And so I genuinely wanted to make sure that he was okay.  And I – I had actually never attended a dog mauling, so I was interested to find out how he went, what it was like for him, you know, if he had any questions that I could help with, that kind of thing … I wanted to know about his wellbeing ...”[88]

  1. [51]
    As to the substance of the telephone conversation, it was canvassed in the following exchanges in evidence-in-chief:

“[C]an you recall the effect of what you said to him and what he said to you? ---  So I recall the effect of what I said was, “How are you?  How did the job go?  Can you tell me about it?”  I was careful, like I am with all people, to – to listen to the tone of voice, the pitch, how people relay that information.  And I listened to him, and I was under no impression whatsoever that he was concerned about the job.

Do you recall, particularly, any specific response he gave to you to the question of, “How are you?”?--- Again, I can’t recall exactly what he said, but words to the effect of, “I’m fine.  There’s no problem.”  That kind of thing.

Thank you.  Did you offer him any particular assistance, with respect to the case that he had attended?--- Yes, I did.

And what assistance was that?--- So I would have – would have said – did say, I do recall that, that if he needed any further assistance, he could call me, or could call a peer support officer or Priority One.

Do you have any recollection of his response to that statement by you?--- He – he answered in the affirmative.  Again, I don’t recall exactly his words.

Thank you?--- But something like “Yes” or “Thank you” or “I’m fine.  That’s okay”.”[89]

  1. [52]
    Ms Stephens rejected the suggestion made in cross-examination that the phone call did not occur.[90]  Mr James asserted it did not occur and that if there was any contact around that time it is likely to have only been to arrange the ISCEP training.[91]  By this time Ms Stephens had already been engaged in communications with Mr James, identifying what training he had completed and what modules he needed to complete.  Indeed, Mr James’ wife had even been helping with that process and had been in contact with Ms Stephens about it as recently as 29 September 2004, the day before the first episode – as much is apparent from an email of 29 September of which Mr James was a cc recipient.[92]  The topics of the arrangements for training and the first incident were not mutually exclusive and it would be unsurprising that both were discussed as between Ms Stephens and Mr James at this stage. 
  2. [53]
    I do not overlook that Ms Stephens and Mr James were to later make grievances against each other in the wake of the training incident.  Even allowing for that subsequent animosity I found Ms Stephens’ testimony about the above telephone conversation credible and reliable.  Its account of Mr James’ outward indication that he was coping okay was consistent with the accounts of Ms Barr and Ms Franklin.

Interaction with Riddington

  1. [54]
    Mr James testified that because he had been unsuccessful in contacting Karen Franklin, he telephoned paramedic Helen Riddington, who provided him with details of a person to ring and talk to, which he was successful in doing.[93]  On his account the person he spoke to, apparently a counsellor,[94] was not helpful and even though he was bawling and sobbing she told him he would be alright.[95]  This is inherently unlikely to be an accurate description. 
  2. [55]
    In cross-examination Mr James at one point speculated the person Ms Riddington put him onto may actually have been Ms Franklin and that perhaps he mistakenly thought she was a counsellor.[96]  Eventually he acknowledged the person he had spoken to after speaking with Ms Riddington was a lady called Celia.[97]  His records show this occurred on 15 November, two days after the third incident.[98]  This suggests it is unlikely he spoke with Ms Riddington as early on in the progression of the incidents as he now suggests.
  3. [56]
    Helen Riddington, who is still a paramedic with QAS, testified to her recollection of a number of phone calls between Mr James and her.  Her recollection was that the first such telephone contact of her by Mr James occurred at a time after the incidents when Mr James had attended respectively upon a young male who was mauled by a dog and a young girl who was raped.[99]  On her account, Mr James had not mentioned much about the facts of the rape case but he did mention that the child had injuries and that it caused Mr James to think of his own daughter and want to be home with her.[100]  She recalled Mr James told her the rape was extremely violent, the injuries were quite significant and that had quite an impact on him because his daughter was a similar age to the victim.[101] 
  4. [57]
    Ms Riddington’s account of what Mr James said of the rape case evidently relates to the third incident, which, unlike the second incident, involved an injured victim who was about his daughter’s age.  By the time of the third incident Ms Reddington had already spoken with Mr James at least once, namely, after the training incident.  She was not asked to recount her recollection until earlier this year, over 13 years after the event, so it is unsurprising that her memory of the sequence and occasions when she spoke to Mr James is muddled.  In any event her account does not support Mr James’ claim regarding his interaction with her after the first incident.  The probability is that he too has muddled the timing of his interaction with Ms Riddington, placing it earlier on in events than actually occurred.  Indeed, he volunteered in cross-examination there had previously been times when he mixed up the sequence of the incidents.[102]

Impact on Mr James

  1. [58]
    In his statement to Workcover of 23 December 2004 Mr James wrote of the days following the first incident:

“13. Over the next few days, I did several jobs, but my mind wasn’t on the job. I just did what I had to, automatically, but I knew I was becoming increasingly affected by recent events. My nights became worse, dreams, nightmares, lack of sleep, still not eating, I withdrew, I didn’t want to see anyone, and I started to get angry and aggressive for no valid reason, and then a few minutes later, I would burst into tears and start sobbing. I had the next few days off.”[103]

  1. [59]
    Mr James agreed the above reference to him having the next few days off was a reference to him completing his rostered days and then having some days off in accordance with his roster.[104]
  2. [60]
    Mr James’ testified when he returned home to Mount Isa after the first incident, he stayed in bed a lot, though he was not getting much sleep.[105]  He was drinking a lot and becoming angry, including at one stage pushing his wife away from him, all of which was uncharacteristic for him.[106] 
  3. [61]
    Whilst home Mr James attended upon a general medical practitioner in Mount Isa on 12 October 2004 complaining of flu-like symptoms and conjunctivitis.[107]  He has no recollection of telling his general practitioner about the feelings he was experiencing subsequent to the first incident and the practitioner’s notes do not suggest that he did.[108]  Mr James accepted that he could have but chose not to tell his general practitioner about the symptoms he was experiencing in connection with the first incident.[109]  This evidence joins the evidence of Barr, Franklin and Stephens in demonstrating that despite having the opportunity to indicate the fact of his psychological distress to others, Mr James did not do so.  It is obviously a significant problem for his case.

The second incident and its aftermath

The second incident

  1. [62]
    Of the so-called “second incident” the parties are agreed:

“14. On Saturday 16 October 2004 when the Plaintiff was relieving at Doomadgee, the Plaintiff transported an indigenous female, one DG, three (3) years of age or thereabouts to the airport.”[110]

  1. [63]
    On this occasion Mr James testified he was tasked to transport a four year old girl to the airport.  The girl travelled in the front seat, clinging to her father.  Her father told Mr James the girl had been orally raped.[111]  At the airport the father was crying on Mr James’ shoulder.[112]  Mr James conveyed the father home after the girl had been loaded on the aircraft.[113]

Aftermath

  1. [64]
    Mr James testified the second incident had the consequence that “the cut got deeper”,[114] a reference to him having been cut “in a figurative way” by the first incident and the second incident worsening that effect.[115]  He explained he continued to experience irritability and sleep problems and found it difficult to concentrate on his job.[116]

Contact with others

  1. [65]
    When asked whether he sought assistance after the second incident, Mr James unconvincingly responded that he would have rung someone, which turned into an assertion that he did try to ring Karen Franklin.[117]  This was purportedly advanced as evidence he would have embraced counselling if it was offered to him but had not been pleaded.[118]  In any event it is unreliable, being at odds with Mr James’ own account in his statement to the investigator of 14 January 2005 in which he said, after describing the second incident:

“17. There was no debrief about that incident, and no-one contacted me about it. I didn’t contact Priority One or any other type of QAS staff support service about the incident, because I felt that they should have contacted me.”[119]

The training incident and its aftermath

Prelude to the training incident

  1. [66]
    Ms Stephens, the clinical support officer, ascertained that Mr James had two of four modules remaining to complete ISCEP by 31 December 2004.[120] 
  2. [67]
    Ms Stephens had offered that the module three training could occur at Doomadgee but Mr James did not want her to have to sacrifice her time away from her family by making that special arrangement.  Conversely, he was concerned that Ms Barr, the resident Doomadgee officer, would suffer from additional workload whilst he was away from Doomadgee completing the training in Mount Isa.[121]  Mr James was later to assert in a grievance that he “reluctantly accepted” he would do the training at Mount Isa.[122] 
  3. [68]
    Mr James testified he had been told by Joanne Stephens and Jon Nolan, the Acting Officer-in-Charge at Mount Isa, that completion of the training was essential and that if it was not done his “career in the ambulance would be at an end”.[123]  It was not correct that failure to complete the training would result in termination of employment.  As Ms Stephens testified, a failure to complete the course would merely mean the relevant employee would stay at the same pay level and not get an increase in pay.[124]  It was not specifically put to Ms Stephens that she had told Mr James to the contrary[125] and Mr Nolan was not called as a witness.  In any event, while it is more likely Mr James came by his erroneous belief through misunderstanding rather than falsehood, it is apparent from his writings soon after the event that he genuinely believed failure to complete the training would result in termination of employment.  That erroneous belief invariably heightened his anxiety about the training.  It was doubtless a significant causal influence on how he behaved and reacted at and after the training incident.
  4. [69]
    A briefing memorandum of 11 November 2004 authored by Joanne Stephens noted Mr James had exhibited anger and negativity prior to the training incident in apparent connection with it:

“… Paul came to see me to voice his concern about having to swap shifts with Mandy and suggested that the QAS should either send another paramedic to Doomadgee to relieve him or to pay Mandy overtime to cover his shifts.  I discussed the options with Paul and the A/OIC Jon Nolan.  Jon showed Paul the roster that clearly evidenced that there were no staff available to assist.  Jon stated that he was not able to make the decision to pay Mandy overtime for this circumstance and that the Area Director would need to be consulted.

At this point, Paul stated that he would not continue the ISCEP program and that he would also not continue to work at Doomadgee station.  Paul appeared to be very angry and his argument escalated.  I suggested to Paul that we would go back to the original plan – to travel to Doomadgee station and to conduct the workshop there.  Paul stated that he would then not “turn up” for the workshop.  Jon and I explained to Paul that we would try to arrange another solution.  The A/Area Director – Shayne Johnson was then accessed to discuss the issue with Paul.  After the discussion between Shayne and Paul, Paul gave his commitment to undertake the ISCEP 1.3 workshop.

Issue that occurred during the ISCEP 1.3 workshop

During the first day of the workshop, Paul and Rob were participating well.  Most of the day was spent undertaking the pre-workshop examination, delivering theoretical sessions and some CME work.  My thoughts were that Bruce and I were giving supportive constructive feedback to both Rob and Paul.

On the second day of the workshop, Bruce Reid and I facilitated some scenarios outside of the classroom.  Both Bruce and I agreed that the more authentic the scenario, the more that Rob and Paul would gain out of the experience.  Paul appeared to be quite negative about this type of scenario practice and verbalised to us that he would not “get through” the assessment.  Bruce and I reassured both Rob and Paul that the more practice that they had, the more they would continue to improve.

When we returned after lunch to the training room, Paul appeared to be increasingly negative about the scenarios although he was performing well. …”[126]  (emphasis added)

  1. [70]
    Ms Stephens’ testimony was generally consistent with that account.[127]  In respect of the anger she recalls Mr James exhibiting when she was trying to arrange the holding of the ISCEP training with him she was to later advise an investigator, words to the effect of:

“The anger expressed by Paul during the time we were making the arrangements for the ISCEP training was the first indication I had that Paul was suffering from some form of stress.”[128]

  1. [71]
    That is consistent with her evidence that when she rang Mr James soon after the first incident he did not then indicate any difficulty.
  2. [72]
    Mr James explained that at the training he was not “thinking straight”, not having felt “right in the head” since the first incident.[129]  He testified he thought “a bone had been pointed” at him and “sweat had been wiped over” him – a reference to what he understood were Aboriginal cursing traditions.[130]
  3. [73]
    It was pleaded in Mr James’ Reply that on the day of the training episode Mr James informed Robert Shepherd, another ambulance officer who did the training with Mr James:

“[T]hat he was suffering from workplace stress and was not okay and not coping with the jobs he attended, in particular the dog mauling incident and the rape of the first child.”

  1. [74]
    Mr James did not come up to proof on that allegation.[131]  Mr Shepherd testified Mr James did not tell him he did not feel well in the head[132] and there was no evidence from either man that they had discussed the first or second incidents, let alone that they were a source of difficulty for Mr James.  Mr Shepherd did testify that Mr James’ mood appeared to be “a little bit fragile during the day” and he did not seem like he was coping.[133]  However, he explained it appeared Mr James was ill-prepared[134] for training which Mr Shepherd found to be challenging.[135]  Mr Shepherd elaborated:

“He did not seem to have the background knowledge that was required to achieve what we were attempting to achieve. … [I]n my opinion, … Mr James had come in ill-prepared.  He had not – it appeared that he had not done the background study and that – that I – he seemed to be floundering right from the start.  He also appeared to be – he – it was said to me on various occasions, from my recollection, that he anticipated he was not going to pass that particular component.”[136]  (emphasis added)

The training incident

  1. [75]
    The parties agreed on the following facts relating to “the training incident”:

“15. On 10 November 2004, the Plaintiff was carrying out ISCEP (In Service Continuing Education Program) training in Mount Isa.

16. On day 2 of the training, the Plaintiff verbalised to Jo Stephens, the clinical support officer, he would not get through the assessment and was negative in his approach to the training.

17. On day 2 of the training, the Plaintiff was required to auscultate a mannequin’s chest.

18. A discussion ensued about how to auscultate a patient’s chest.

19. The Plaintiff left the training area to go downstairs and then left the course without further participation.

20. The Plaintiff continued to phone his instructors and lodge a grievance procedure.”[137]

  1. [76]
    On day 2 of the training when Mr James was required to auscultate an artificial dummy he auscultated at a point closer to the abdomen than the chest.  His recollection at trial was that Joanne Stephens and Jon Nolan each commented on him auscultating in the wrong place.  He testified:

“Jo Stephens said, “You auscultated the liver, not the chest.”  I said, “Well, no, I didn’t”, then she brought out a book to say this is how you auscultate properly.  I began arguing with her.  I then stood up.  I – I believe I said – called them some names. … fucking wankers which was – and I kept calling them all sorts of names, and I went downstairs and called them a bunch of … fucking wankers up there, and I kept going on about it, because there was a group of people sitting around a table downstairs.  Whether Karen Franklin was there at that stage or not, I don’t know where she was, but I was screaming that loud that I think the whole station heard.  So I walked outside.  I rang my wife to pick me up.  Karen Franklin followed me out and asked me what – what was going on. … Well, I told her what was going on up there, what they’d done.  I was still yelling and screaming … because they all came out from the top of the building and all stuck their heads out of the building, all looking at me, which made me even worse.”

  1. [77]
    It is apparent from Mr James’ account of the incident in a grievance lodged by him three days later that it was not just the fact of the correction but also its manner, in the presence of others, which upset him.  His written account included the following:

  • Jo then questioned me how to auscultate an anterior chest.  I quickly showed her and talked her through it.  She did not reply, but began searching through the CPM again.  She then showed me the points.
  • I advised her that I had just done it quickly because of the scenario, to which she advised that if I had done that in a panel I would have failed or words to that effect.
  • She advised me that I had just auscultated the patient’s abdomen.  I felt embarrassed, as there were several other people in the room and I asked her why I would auscultate the abdomen, to which she replied she didn’t know why I would do that.
  • She then spoke across the room to Jon asking him how he auscultates a chest, allowing all officers present to hear the conversation.
  • In front of all present officers, he made a comment about me auscultating livers and laughed.
  • I then said to Jo that I had been doing this job for some years, so why would I be listening to abdomens when I was supposed to be listening to chest?  She replied that she didn’t know and that she had to work with me.
  • I felt humiliated, belittled in front of my peers and angry, and at that point left the room.
  • I went downstairs to remove myself from the embarrassing situation and made an off-the-cuff comment out loud to myself “wankers”.  I then noticed that Ross Vickers (A/OIC), Margaret Baker (ACP Mount Isa) and Darren (surname unknown SPO Mount Isa) were in the room. …
  • I then went outside to wait for my wife to pick me up.
  • Robert and Karen came downstairs to see how I was, as they noticed that I was upset. 
  • I told them that I felt humiliated and belittled and that I was going home.”[138]

It evidently did not then occur even to Mr James that his behaviour had a causal connection with anything other than what occurred at the training.

  1. [78]
    That account suggests that Mr James did not engage in a rude outburst until he had gone downstairs.  Indeed in a recorded telephone call to Mr Shepherd a few days later Mr James described his conduct upstairs in uncontroversial terms:

“…I don’t think I acted inappropriately.  I walked out of the room and I walked out quietly and I went downstairs and walked out of it …”[139]

  1. [79]
    Ms Stephens’ account of the event was that when called upon to auscultate the mannequin Mr James was not using the points that had been earlier taught and “seemed not to know where to listen to the chest sounds”.[140]  She explained he went quite low to the abdominal area and when she asked a fellow trainer, Jon Nolan, for his opinion as part of what she asserted was a routine clinical critique, he observed it appeared Mr James was auscultating the liver.[141]  She was looking at her CPM book and, when she looked up, realised Mr James had left the room.[142]  She was later told by the acting officer in charge, Ross Vickers, that downstairs when leaving Mr James had been very angry and shouting words to the effect that they were “a bunch of wankers” and referring to her as “the effing C upstart from the coast”.[143]  When encouraged in cross-examination to concede that Mr James’ attitude in the aftermath of this event had involved an extreme response, Ms Stephens testified it was unexpected and unprofessional.[144]
  2. [80]
    Mr Shepherd considered Mr James auscultation error would have been from a lack of care in demonstration rather than lack of skill and knowledge.[145]  He testified Mr James’ reaction to correction by Mr Nolan was to say, “I’ve been in this service for 15 years; don’t you tell me this; I’m not an idiot”.[146]  He followed Mr James downstairs where Mr James said in a loud voice, yelling out these expletives so that everyone would hear him:

“What sort of fucking idiot do they think that I am … I don’t need some fucking upstart from the coast to tell me how to do my job … nothing but a pack of fucking cunts … I hope that the fucking cunts hear me … they can all get fucked.  I’ve called my wife.  I don’t have to put up with this.  They’ve been trying to humiliate me all day. … Who asked fucking Jon Nolan to comment anyway.”[147]

  1. [81]
    Mr Shepherd testified he tried to talk to Mr James to calm him down, to discourage him from giving in and to try and persuade him that no-one was trying to humiliate him.[148]  Mr Shepherd testified Mr James’ response was to say:

“No.  They can all get fucked.  I’m going home and I don’t have to put up with this shit.”[149]

  1. [82]
    Ms Franklin testified she had been at the training session.  On Mr James’ account he had earlier asked her where she had been and she explained she had been on holidays.[150]  Ms Franklin testified that when she saw Mr James leave she followed him downstairs and tried to ask him to come back up to finish.  On her account he became abusive and told her “where to go”, accusing everyone of trying to sabotage him and telling her to “get fucked”.[151] 

Aftermath of the training incident

  1. [83]
    The training incident and its aftermath generated a variety of documents tendered at trial, including:
    1. (a)
      a transcript of Mr James’ audio recording of a telephone call of 11 November 2004 between Mr James and Joanne Stephens, who had arranged for Shayne Johnson to participate in the call,[152] after Mr James had, according to Ms Stephens, telephoned her in an angry state and was accusing her of being intimidating;[153]
    2. (b)
      a transcript of Mr James audio recording of a tape-recorded telephone conversation of 12 or 13 November 2004 between Mr James and Rob Shepherd;[154]
    3. (c)
      a grievance dated 13 November 2004 by Mr James to Shayne Johnson – in which Mr James complained about the assertion of Jon Nolan that his career would effectively be over if he did not complete ISCEP before the end of the year, the impost placed upon he and Mandy Barr to handle his attendance at training amidst their existing workload, the lack of respect and dignity afforded him when being corrected about his chest auscultation technique in front of his peers and the lack of confidentiality attending follow-up discussions of his behaviour;[155]
    4. (d)
      a grievance dated 24 November 2004 by Mr James to an unnamed “investigator” – itemising the reasons why Shayne Johnson should not be used in the investigation;[156]
    5. (e)
      a similarly but not identically worded grievance also dated 24 November 2004 by Mr James to Shayne Johnson;[157]
    6. (f)
      a grievance relating to Mr James dated 26 November 2004 by Joanne Stephens to Shayne Johnson – in which she complained of the fact that downstairs after the training incident Mr James had used the language “fucking cunt”, “they are fucking idiots”, “bunch of wankers” and “fucking little upstart from the coast”, that such language about her and classified officers was foul and derogatory and heard in the presence of “impressionable officers”, that such language denigrated her gender and breached the QAS code of conduct, and that Mr James’ “anger has been to such a degree that I have felt threatened and concerned for my personal safety”;[158]
    7. (g)
      a briefing memorandum dated 11 November 2004 by Joanne Stephens to Shayne Johnson – in which she recommended, inter alia, Mr James provide a written apology, his alleged breaches of QAS code of conduct be addressed and that he undertake an annual skills validation;[159]
    8. (h)
      a grievance dated 17 December 2004 by Mr James to the investigator – complaining of the issues complained of in the earlier grievances and of the nit-picking conduct of Joanne Stephens and Shayne Johnson in the telephone call of 11 November 2014, Shayne’s Johnson’s failure to have acted properly on the initial grievance and of the fact of other incidents of bullying of unnamed persons in Mount Isa in the past.[160]
  2. [84]
    None of the above materials, including those generated by Mr James, contained any reference to the first or second incidents at Doomadgee, let alone identified their potential connection with Mr James psychological state or his conduct in and after the training incident.  Nor did they allude to him not feeling right in the head at training.  Mr James claimed that was because they were about the training not how he felt,[161] however some of the documents did touch upon Mr James’ feelings regarding what occurred at the training episode and its aftermath.  These are significant matters.  If Mr James was not making any link between the training episode and the first and second incidents it is hardly surprising his employer made no such link.
  3. [85]
    Mr James testified that in the wake of the training episode Karen Franklin told him to start making diary entries every day about how he felt.[162]  The diary entries, which commenced on 10 November 2004, were exhibited.[163]  Those entries made prior to the third incident focussed upon the aftermath of the training incident and made no reference to the first and second incidents. 
  4. [86]
    Helen Riddington testified her second telephone conversation with Mr James was in the evening on the same day that the training incident occurred.  She testified he told her he had “just had a complete meltdown” and had “used some colourful language to … clinical support officers and officer-in-charge”.[164]  Ms Riddington’s recollection was that during that phone call Mr James “actually stated that he felt like he was having a breakdown during that ISCEP training”.[165]
  5. [87]
    Ms Riddington recalled that in some unspecified further conversations subsequent to the training incident Mr James told her he was “not in a very good place at all”.[166]  She had a particular recollection of him having said, following the ISCEP training incident, “I’m really fucked up”.[167]  When being asked about these subsequent conversations, the following exchange occurred:

“Did he relay to you what his concerns were – over the ISCEP incident – what was troubling him?--- He was concerned that they were trying to get rid of him because of what had happened out at Doomadgee and that he didn’t get any support from being out at Doomadgee.  So he was concerned that, if he failed the ISCEP training – that he would no longer have a job and that they were trying to get rid of him.

And did he discuss with you or expand upon that he didn’t get any support at Doomadgee?--- Yes, because he said he requested to go home but that they just wouldn’t let him, that he was told, basically – “too bad; suck it up” was what he told me was told to him.”[168]

  1. [88]
    Ms Riddington testified that at a time after the phone call on the evening of the ISCEP training incident but before Mr James had returned to Doomadgee again, he told her he “did not want to go and wanted to stay in Mount Isa for support but was being made to go back out again”.[169]
  2. [89]
    Mr James testified in connection with the training incident and the aftermath pursuit of grievances that he feared he would “be sacked”.[170]  It is obvious from his diary entry of 11 November 2004 that he regarded Joanne Stephens’ act of enlisting Shayne Johnson in joining in the telephone call of that date to be an “escalation of events”, in response to which he recorded he was “extremely worried stressed”.  A subsequent diary entry of 11 November 2004 records:

“Rang Karen Franklin as peer support to advise her as to what went on.  I felt stressed extremely stressed.  I felt that I was been further bullied humiliated by what Shayne had said to me as he put it he didn’t know what was going on but was making decisions without knowing … thought about situation all night no sleep.”

  1. [90]
    Mr James testified that in the course of his conversation with Karen Franklin on 11 November 2004 he spoke with her about the second incident, but not the first incident, but there is no mention of this in his diary note of that contact.[171]  When pressed about this, Mr James’ responses seemed to indicate it was only supposition on his part that he had spoken about the second incident to Karen Franklin in his contact with her on 11 November 2004.[172]
  2. [91]
    His diary entry of 12 November 2004 notes of his conversation with Mr Shepherd that it left him “even more worried stressed”.  The diary note went on to record:

“I am now not sleeping well and still no word/support from R Vickers?  Has taken sides only JS story opinion.  Rang wife.  Wife upset crying worried about me losing job.  Afraid we’ll be ganged up on from past events to other people.  It seems that my situation has been discussed amongst numerous people.”[173] (emphasis added)

  1. [92]
    Mr James claimed to have told Mr Vickers “around about the time all this problem was going on” he did not want to return to Doomadgee anymore.[174]  Given the above diary entry’s reference to “no word” from Mr Vickers, it is unlikely he made such a request as between the training incident and his return to Doomadgee prior to the third incident.  Mr James conceded he could not remember “the exact time” when he had made the request of Mr Vickers.  The probability is that even if there was any such conversation, it occurred subsequent to the third incident, perhaps in the context of discussions referred to in Mr James’ diary entries of 17 and 20 November 2004 about work at Julia Creek and Mount Isa.
  2. [93]
    Ms Barr testified that when Mr James returned to Doomadgee subsequent to the training incident he spoke to her about his experience.  He explained he had auscultated in the wrong place and that the educator had pulled him up on that and “he felt that she had been picking on him, directly, or being too harsh”.[175]  In her account of this exchange in her statement of 12 January 2005 Ms Barr also recorded that Mr James had been embarrassed by the enlisting of commentary from Jon Nolan about the right place to auscultate and the fact that it had been done in front of other people.[176]  Ms Barr testified such assessments “are always a nerve wracking experience and quite often difficult putting yourself in a real life situation, to actually act those out”.[177]  She endeavoured to reassure Mr James by explaining that such assessments were challenging for everybody[178] and were always very stringent.[179]  She testified that she suggested to Mr James he should contact the educator directly to talk about the situation and request a reassessment.[180]

The third incident and its aftermath

The third incident

  1. [94]
    The parties agreed in relation to the facts of the third incident that:

“21. On Saturday, 13 November 2004 when the Plaintiff was relieving at Doomadgee, the Plaintiff responded to a request that he attend to treat another case of sexual assault on an indigenous female, one AD, six (6) years of age or thereabouts.

22. Upon his arrival at the scene that morning, the Plaintiff observed a small amount of blood where the patient was sitting and that the genitalia appeared to the Plaintiff to be normal from where he was standing behind a police officer.

23. The Plaintiff then transported AD by ambulance to the Doomadgee Hospital where she received some preliminary treatment before the Plaintiff transported her to the airstrip at Doomadgee from where AD was then transported by air to Mount Isa.”[181]

  1. [95]
    Mr James testified that on arrival at the scene he was told by a policewoman that the patient had been raped and he followed the policewoman into the residence in question, being cautioned not to step on the dots of blood in a trail.  It was highlighted in cross-examination of Mr James that his summary of the third incident in the ambulance report form made no reference to any trail of blood and merely noted that he observed a “small amount of blood” where the patient “was sitting”.[182]  Mr James maintained there was also blood on the floor.[183]
  2. [96]
    Mr James testified he observed the child was about five or six years of age.  The child looked at him and her eye shed a tear.[184]  On Mr James’ account, the child was bleeding extensively from her vaginal region and he enlisted the policewoman to place a pad there.[185]  He thought it best if a woman carried the child and told the child a policewoman would carry her, however at the outset of that manoeuvre the child grabbed him by the neck.[186]  Mr James testified repeatedly, “She wasn’t supposed to grab me”.[187]  He testified:

“She’s supposed to grab the – the policewoman to make her feel better, and she grabbed me.  And I – I didn’t know what to do then, and there’s – there was blood all over me, I remember, when I got her in the back of the car.  And I looked out the side of the window, and I thought I’m – I’m gone.  I’m – I’m gone.  I’m gone.  I’m gone.  I – I’m gone … I knew it was at an end, because I remember looking out the ambulance window thinking – it’s gone.  I – I can’t do this.  I can’t – I can’t do this.  I can’t do this.”[188]

  1. [97]
    Mr James’ testimony that it was no part of the arrangement that the child would grab him was directly contradicted by his account of the event in his statement for Workcover of 23 December 2004, wherein he wrote:

“I then remember going back out to the ambulance, getting a sheet, and bringing it back inside.  I then asked the child if I could wrap the sheet around the lower half of her body.  She nodded signifying agreement.  I then asked her if I could pick her up and take her out to the ambulance and put her on a stretcher.  Again she nodded.  As I took her out to the ambulance, the thing I can recall so clearly is a solitary tear rolling down her face …”[189]  (emphasis added)

Remarkably Mr James would not concede the inconsistency between the two accounts in cross-examination.[190]  It appeared, again, that hindsight exaggeration was at work, consciously or unconsciously, in his testimony.

Interaction with locals

  1. [98]
    Nurse Mari Nourse recalled seeing that Mr James was visibly shaken after the third incident.[191]  Mr James’ diary records that on 13 November after the third incident:

“Nurse Marie (sic – Mari) invited me for breakfast @ 1200 hrs advised me I wasn’t myself I looked down.  Offered debrief by Marie.  Didn’t help.”[192]

  1. [99]
    It will be recalled Nurse Nourse gave evidence of she and some other nurses getting together with Mr James to talk about one of the episodes.  Her evidence in that regard is summarised above in dealing with the first incident, but in light of her uncertainty about the timing of this meeting and Mr James’ diary entry of 13 November 2004 it may be the interaction she was recalling was interaction which occurred after the third incident.
  2. [100]
    Ms Barr testified to having spoken to Mr James about the third incident.  However, it was in the context of him having been trying to contact her and eventually seeing her at the hospital to tell her of the episode, because she knew the patient’s parents well; that is, Mr James was concerned to ensure Ms Barr had heard about the event.[193]  Ms Barr had little recollection of this aspect when testifying.  In a statement to the investigator dated 12 January 2005 she did note that Mr James “was a little solemn” when she saw him during their conversation which was only “in passing”.  Her statement continued:

“20. About a week later, I caught up with Paul near his front door at Doomadgee, and asked him whether he was OK about the 13 November job. He said he wasn’t OK with the job, but he indicated that he was either talking to somebody about it, or had some other sort of support network with whom he was working through it.”[194]

  1. [101]
    Mr James could not remember talking to Ms Barr about the third incident[195] but I accept he did as described by Ms Barr’s statement. 

Interaction with others

  1. [102]
    It will be recalled Mr James spoke by telephone with Helen Riddington in respect of the third incident.   His diary records that he “rang Helen to talk” on 13 November, “Rang Helen R someone to listen” on 14 November and “spoke HR about rape and other matters” on 15 November.  In addition to telling Ms Riddington what had occurred and how the victim was his daughter’s age he allegedly told her he was very traumatised and wanted to go back to Mount Isa to be with his family, but had been told by their officer-in-charge that he could not go back to Mount Isa.[196]  She recalled he was crying during the phone call.[197]  On her account, he repeatedly told her he wanted to give his daughter a hug and wanted to be with his family and he could not understand why he was not being allowed to go home.[198]  She testified she suggested that Mr James contact the peer support officer Karen Franklin, but he told her “he didn’t feel comfortable to do so at that time”.[199]
  2. [103]
    Karen Franklin testified she spoke to Mr James by telephone at Doomadgee after the third incident had occurred.[200]  Mr James’ diary records the conversation with Ms Franklin occurred on 15 November 2004 in these terms:

“Spoke to KF about rape.  She listened.  Told me again to write down feelings why?  Began nearly crying on phone about rape.  Also extremely afraid that management could make matters worse.  Angry that they made me feel humiliated/bullied rumours of losing job at end of year not doing ISCEP.”[201]

  1. [104]
    On Ms Franklin’s account, he told her that he “wasn’t in a very good way”.[202]  Her impression was that he “wasn’t travelling very well at all”.[203]  She testified that she asked him to seek assistance with Priority One and the counsellors and offered again to make appointments for him, but he declined,[204] explaining he would be home in a few days.  She testified she also asked him if he wanted her to arrange with the managers to have him relieved to come home, but he declined.[205]  Mr James could not recall speaking to her about the possibility of arranging relief to come home.[206]
  2. [105]
    It can be seen that on the one hand Ms Riddington referred to Mr James wanting to go home but not being allowed to, whereas Ms Franklin recalled asking him if he wanted to be relieved to come home but him declining such an offer.  According to Mr James’ diary he travelled from Mt Isa to Doomadgee on 11 November and returned from Doomadgee to Mt Isa on 17 November.[207]  The third incident occurred on 13 November so evidently he did not return before the end of his stint.  On balance, the probability is that if Mr James did want to go home he perceived a request to do so may be poorly received in the atmosphere of his unfolding industrial dispute about the training episode and he did not in fact make such a request of his supervisors.

Diary entries

  1. [106]
    Mr James’ diary entries from their commencement on 10 November 2004 were dominated by his expressions of escalating concern about the aftermath of the training incident and the potential consequences for his continuing employment with QAS.  Mr James’ above quoted diary entry of 12 November 2004 is an example of that.
  2. [107]
    Subsequent to the third incident on 13 November 2004, which Mr James referred to in a diary entry of that date, his diary entry on 14 November 2004 included:

“Can’t sleep, ?  becoming worse  I am writing this down because I was told to by KF Pickering  skin off fingers.  red bleeding.  Will I have a job at the end of the year.  Will I be ganged up on bullied?  It seems that I have destroyed my career.  I keep picturing the little girl sitting on the steps ½ naked   I don’t want these.”[208]  (emphasis added)

  1. [108]
    In a similar vein, in his diary entry of 15 November 2004 Mr James’ entries included:

“Spoke to KF about Rape she listened told me again to write down feelings why?  began nearly crying on phone about rape.  Also extremely afraid that management could making matters worse.  Angry that they made me feel humiliated/bullied rumours of losing job at end of year not doing ISCEP.”[209] (emphasis added)

  1. [109]
    Mr James’ diary entry for 16 November 2004 was predominated by his concerns about the grievance process and his anticipation that he would not be treated fairly.  It also included:

“No word about ISCEP 3, ISCEP 4 on tomorrow looks like I’m not doing ISCEP.  No job?!”[210] (emphasis added)

  1. [110]
    The first of Mr James’ diary entries to refer to the first or second incidents at Doomadgee was on 17 November 2004, the day he returned to Mount Isa.  At the end of the entry for that day, written in different pen than the earlier part of it, appears:

“Didn’t want to speak to anyone outside how could they understand 2 x rape mauling and people bullying.”[211]

Mr James conceded in cross-examination that the passage written in a different pen had probably come to him a bit later on and been written at a different time.[212]

  1. [111]
    Mr James’ diary entry of 17 November 2004 contains reference to a conversation with Mr Vickers and the alteration of some apparently contemplated arrangement whereby Mr James was going to do some work at Julia Creek.[213]
  2. [112]
    Mr James’ diary entry of 20 November 2004 records he had been informed by R Vickers of shift changes whereby Mr James was next to be working for three days at Mount Isa.  The entry also noted:

“No ISCEP  No job[214]  (emphasis added)

  1. [113]
    Mr James’ diary entry of 22 November 2004 recorded:

“Becoming more worried about working at Mount Isa  trying to do right thing.  Unable to sleep had 1 hr sleep at 0500 hrs  Up at 0600 hrs  Told wife I couldn’t work  had a panic attack  felt like little child  afraid to work at Mount Isa.”[215]

  1. [114]
    Mr James’ diary entry for 23 November 2004 commenced:

“Rang up sick at 0615 hrs couldn’t go to work  afraid.”[216]

Mr James’ account of the impact upon him

  1. [115]
    Mr James has no recollection of returning to work after the third incident.  He accepted he saw his general practitioner on 23 November and commenced leave because of his mental health issues that day.[217]
  2. [116]
    Mr James’ statement to Workcover of 23 December 2004 described the three incidents at Doomadgee, as well as the training incident at Mount Isa.  The statement recorded of the aftermath:

“2. At this very moment, I feel physically sick and want to vomit whenever I think about what has happened to me over the last three months. I keep having these reoccurring and intrusive thoughts of what I witnessed in Doomadgee. I dream about it at night, I’m often awake till 4 am in the morning and even when I’m exhausted, I can’t get to sleep. I keep getting flashbacks of seeing this young man with his genitals chewed off as well as the horrible sight of what the dogs did to the rest of his body when they fed on it. When I get these thoughts, I get so terribly distressed. My whole being reacts i.e. my heart races, my blood pressure rises quickly and I start to sob uncontrollably. I think I’m becoming paranoid. I try to avoid thinking about things but I can’t. My wife says I’ve gone cold affection wise; I avoid people whenever and wherever possible leaving me isolated, and I get irritable and angry for no apparent reason. Over recent weeks, I’ve also felt myself becoming clumsy, a real clutz, and I’m also watching my back, like hypervigilant. I also have difficulty driving safely which makes me a bad risk on the road. I know I’m a mess at the moment and could never go back to work in my present state. …

25. After this last incident, I completed my roster and then came back down to my home and family in Mount Isa. I saw Dr Muniza Ashraf at the Yapatjarra Medical Centre, and she gave me some time off because I was simply not coping. Soon after, my wife and I went on a cruise, which she had won, and I can remember my wife telling me that she had never seen me drink so much alcohol in such a short time. … I remember at the time that alcohol was the only way I could cope with what was going on in my mind. On return home to Mount Isa, I went to see Dr Ashraf again and told her that I was getting worse. She put me on different antidepressants and gave me another month off.

26. At this point in time, I don’t feel at all confident about my future.  The thought of going back to work is distressing.  When I think about the bullying, I say to myself, I’m not going to put up with the injustice of it.  I am not going to be raped against my will just like that little girl was.  My cup is full; my tears are still running over.”[218]

  1. [117]
    In his statement to the investigator of 14 January 2005 Mr James alluded to the three incidents at Doomadgee as well as the training incident and his various complaints about the aftermath handling of it.  It is noteworthy he chose to emphasise the significant contribution to his condition of bullying, writing:

“7.  I have experienced a lot in the 14 years I have worked in the Ambulance Service, but nothing has affected me as much as the bullying, against me and other people, during the time I’ve worked at Mount Isa.

  1. A few QAS members have complained to Priority One about the bullying, but I think I’m the first to stand up and say something about it.
  1. I think I have been affected by jobs which would not normally affect me, because of the bullying.”[219]
  1. [118]
    Mr James’ union representative, Damien Jardine, testified he had received a telephone call late in 2004 from Mr James.[220]  Mr Jardine testified that in that telephone call Mr James described the issue he had with his treatment in connection with the training episode and he also mentioned his concerns in relation to the three incidents at Doomadgee, explaining “that he wasn’t really coping”.[221]  Mr Jardine had previously found Mr James to be cheerful and easy-going, but found Mr James related the incidents in a stuttering type of manner[222] and seemed agitated and anxious.[223] 
  2. [119]
    Mr James’ family eventually moved from Mount Isa to Melbourne in about 2005, 2006.[224]  Mr James testified his condition did not improve.[225]  Mr James testified he did not make any attempts to return to work until obtaining work in 2015.[226]  He explained in the meantime he could not read or do much and to keep his “mind ticking over” he would look at the pages of Carter’s Antiques Guides, antiques being an interest of his.[227]
  3. [120]
    Mr James explained he underwent a material change after his wife left him, telling him to get out of their house, which was in her name.[228]  He was destitute but friends took him in.[229]  He stopped drinking, started running a lot and met a new partner[230] who helped him a lot.[231]
  4. [121]
    He sought and obtained a job transporting geriatric patients in hospitals.[232]  He subsequently obtained his present job with Serco in which he assists persons from different countries.[233]  He testified he thought he would eventually move on from his job at Serco to some other job, but was vague as to what it might be and speculated it might perhaps be driving a bus.[234]
  5. [122]
    Despite his significant progress he testified to still experiencing bad reactions to stress at work.  He gave the example of having overreacted, telling someone to shut up at work a few weeks prior to giving evidence.[235]  He alluded to having recently held some suicidal ideation issues but could not recall any detail of it.[236]

The expert opinion of the impact upon Mr James

  1. [123]
    No expert gave oral evidence.  Mr James’ expert was consultant psychiatrist Dr Michael Likely, who was not required for cross-examination.  His various reports and an early report by a psychologist are briefly discussed hereunder.  As will be seen, the opinions are ultimately irrelevant to the determinative conclusions reached below as to breach.

Report of Graham Jacob of 23 December 2004 to Workcover

  1. [124]
    Psychologist Graham Jacob conducted a clinical interview and psychological testing with Mr James in Mount Isa on 20 December 2004.  It is clear that by that time Mr James was reporting that he had ceased work on 23 November 2004 due to “stress and traumatisation” he experienced as a consequence of the three incidents at Doomadgee and was alleging that “his condition was exacerbated by inappropriate behaviour from colleagues” in the training incident.[237]  Mr Jacob, purported to opine Mr James’ symptoms were consistent with a diagnosis of post-traumatic stress disorder.

Reports of Dr Michael Likely

  1. [125]
    The report of Dr Michael Likely, Consultant Psychiatrist, dated 20 January 2005 opined Mr James’ condition was one of adjustment disorder with mixed anxiety and depressed mood.  Dr Likely’s ensuing reports through 2005, 2006 and 2007 described variability in Mr James’ progress and his opinion firmed  into a diagnosis post-traumatic stress disorder and major depressive disorder.
  2. [126]
    In his report of 27 February 2007 to Hall Payne Lawyers[238] Dr Likely opined Mr James would have the need for indefinite psychiatric treatment and would never return to any type of remunerative employment.
  3. [127]
    That report included the following questions by Mr James’ lawyers and answers by Dr Likely:

8.  We make specific reference to three quite horrific incidents that our client was required to attend between September and November 2004.  Can you say that on the balance of probabilities, had our client received appropriate debriefing and/or counselling (a) following the “first incident,” that he would not have suffered the injuries you have identified in response to question 1 or at the very least, suffered to a much lesser extent, (b) following the “second incident,” that his condition as described by you in response to question 1 would be of a lesser degree, and if yes, to what extent?

I do not believe that even with debriefing following the horrific events described in my report and in the preamble to your letter of 25 January 2007, Mr James would have had no adverse mental reaction to these events.  Nonetheless, it has been shown that in patients who require support, early intervention is of benefit in enabling them to come to terms with the traumatic events that they have experienced.  My answer to questions both (a) and (b) therefore would be that Mr James would have likely suffered the injuries that I identified, albeit to a lesser extent.

9.  In light of the fact that our client received professional psychiatric treatment following the “third incident” by the Workcover Queensland statutory claim, in your opinion, had our client not attended the subsequent “second and/or third incidents” at all, to what extent would he personally be incapacitated?

Subsequent events tend to have a cumulative effect on individuals and with early response and appropriate treatment, the damage that they cause individuals can be minimised.  Had, hypothetically, Mr James not attended the second and/or third incidents at all, I would be of the opinion that he would be considerably less incapacitated than he is at present, perhaps even to the stage of being able to entertain a return to work, albeit not in the ambulance service.”[239]

  1. [128]
    Regrettably, for such an important causation point, it is not apparent what Dr Likely actually meant by “appropriate debriefing and/or counselling”. Presumably it was a reference to professional counselling.  Dr Likely was evidently not asked to address the contribution of the training incident in these specific questions put to him by the lawyers (at that time his lawyers were yet to seek leave to amend the pleadings to include it as part of his case).
  2. [129]
    After a gap in his reports of over a decade Dr Likely’s report of 10 November 2017 to the Supreme Court via Hall Payne Lawyers noted a marked improvement consequent on Mr James’ separation and engagement in a new relationship and in employment.  He opined that during the period from November 2004 to August 2014, when Mr James re-engaged in remunerative employment, he had been totally incapacitated as a result of the severity of his symptoms for post-traumatic stress disorder and major depressive disorder.  He opined Mr James’ condition was clearly improved, stable and stationary and that with ongoing treatment and assuming his relationship remained strong and supportive “it is unlikely that his symptoms will regress to their previous level”.  
  3. [130]
    This was Dr Likely’s first report for a decade.  It is not apparent that he saw Mr James at all in the interim.  His report is largely silent, as is Mr James’ evidence, regarding the course which Mr James’ symptoms and Mr James efforts to deal with them took in the intervening decade.

PART C: THE ADEQUACY OF PRIORITY ONE

Priority One

  1. [131]
    It is inherent in the paramedic’s role of providing emergency medical assistance to the public that the paramedic will encounter traumatic and stressful events with consequent risk of psychiatric injury.  The QAS unsurprisingly developed a system of counselling and peer support, Priority One, to manage that risk. 
  2. [132]
    The development of Priority One was explained by one of its founders, Paul Scully.  Mr Scully holds a Bachelor of Social Science and a Graduate Diploma in Social Science majoring in counselling and a Masters in Social Science Counselling.  He was first employed as an on-road ambulance officer in 1971 before becoming a training officer and later the Coordinator Manager of Staff Support Services for QAS.  He had been a member of a working party investigating occupational stress issues for ambulance officers from 1989.  That working party contributed to a report concerning reforms to the ambulance service in December 1990, recommending the establishment of the Priority One programme.  The programme’s elements of individual counselling, critical incident stress debriefing and telephone counselling were established by early 1993 and a peer support training programme implemented.  In due course station resource manuals were made available and brochures about the programme were circulated to staff annually.[240]
  3. [133]
    The four Priority One services were summarised, inter alia, in the Priority One Station Resource Manual, as follows:

Priority One Services

  1. Peer Support Program

Peer Supporters are your work colleagues who have volunteered to undertake special training to assist other employees in coping with personal and job related difficulties.  They do this unique task as part of their normal work, and it is this which makes them more accessible and provides a first line of contact when you need them.

Peer Supporters are not professional counsellors.  They are individuals who care about their colleagues and have the knowledge and skills to help you obtain the best assistance when it is needed.  They can put you in touch with the right people.

  1. Self-Referral Counselling

The QAS has made a commitment to the well-being of you and your family by providing a personal counselling service.  This service is provided by professional counsellors in or near your area who are in no way connected with the Ambulance Service.  You or a member of your immediate family may discuss any matter with a counsellor.  This is not limited to work matters only.  Anything can be discussed.

The service offers:

*  Complete confidentiality.  No reports or records will be forwarded to the QAS.

* Three (3) Free Consultations.  You may choose to have further visits if you wish.  However, the first three visits are paid for by the QAS.

* Self-Referral.  You do not need to obtain permission to use the service – simply make an appointment by phone.

All counsellors are professionals who have indicated their willingness to provide this service to you.  They understand the problems faced by Ambulance Personnel.  The counsellors names and phone numbers can be found on page, 1.4.

  1. Telephone Counselling Service

A Phone Counselling service is available to Ambulance Personnel and their families.  It is confidential and you may choose not to identify yourself.  You are free to discuss any matter – this is not restricted to work issues.  The service is exclusively for you and your family in the interests of health and well-being and is especially useful for people in remote areas.

  Simply dial 1800 805 980

The receptionist will answer your call and take your name and callback number

The On-Duty Professional Counsellor will return your call as quickly as possible.

  1. Critical Incident Stress Debriefing (CISD)

In the event of a major incident of a traumatic nature you may be invited to attend a debriefing.  This is simply an opportunity for you and your colleagues to discuss the effects of the event.  You can and should request a CISD if you think the case you attended warrants it.  All CISDs are conducted by specially trained staff.”[241]

A similar summary appeared in a pamphlet about Priority One issued to staff.[242]

  1. [134]
    The station resource manual contained the names and telephone numbers of peer support officers (“PSO”s) and counsellors and the 24 hour telephone counselling service number.[243]  The pamphlet also contained the counsellors’ names and telephone numbers and the 24 hour telephone counselling service number, as well as the name and telephone number of the co-ordinator of the Priority One staff support service.[244]

Mr James well knew about Priority One access

  1. [135]
    It was admitted on Mr James behalf at trial that:  

“(c)  the Plaintiff knew that he had available to him the support services of Priority One;

  1. (d)
    under the Priority One program, the Defendant trained other Ambulance Officers as Peer Support Officers whose role it was to provide assistance, support and referrals for any Queensland Ambulance Service staff member;
  1. (e)
    under Priority One there was available to the Plaintiff the services of qualified Psychologists from whom the Plaintiff could receive psychological assistance at no cost to him;
  1. (f)
    under Priority One the Plaintiff could contact a Psychologist using a 1800 hotline 24 hours per day or in person;
  1. (g)
    the Defendant advised all of its employees of the existence of the Peer Support Officers and the Priority One services;
  1. (h)
    the Plaintiff, like other Ambulance Officers, received advice and guidance on how to cope with stress associated with ambulance work during the course of his training; …”[245]
  1. [136]
    These admissions dispense with allegations of lack of training and education of staff in identifying signs of critical incident stress, including Mr James and those providing and overseeing the provision of Priority One services. 
  2. [137]
    Mr James completed orientation in Priority One on 20 May 2002.[246]  He acknowledged he may have repeated some training regarding Priority One in September 2004,[247] though nothing turns on the point given his understanding of Priority One at the time of the incidents is admitted. 
  3. [138]
    The orientation workbook required Mr James to address what critical incident stress is.[248] Mr James acknowledged in cross-examination that he understood mutilating or violent death and death or injury of children were critical incidents.[249]  It was also admitted on Mr James behalf that he knew symptoms consistent with a critical incident stress reaction were lack of sleep, lack of appetite, anger, difficulty in concentrating on jobs, intrusive thoughts about incidents and nightmares about incidents.
  4. [139]
    Mr James agreed that under Priority One an ambulance officer experiencing extremes of symptoms as a result of attendance upon a traumatic event should seek assistance.[250]  The orientation workbook required him to list the names of regional peer support officers and counsellors and list the phone number of the phone counselling service available to ambulance personnel and their families.[251]  Further, as with other ambulance stations, at the Doomadgee station there was information on display inside the station regarding the Priority One programme, including contact names and numbers for seeking such assistance in the form of peer support officers, counsellors and psychologists.  Mr James agreed there were available station resource manuals concerning Priority One[252] to which he could refer if uncertain about what to do.[253] 
  5. [140]
    Mr Scully explained the counsellors engaged for the Priority One service either had to be registered psychologists or appropriately registered counsellors, although the majority were registered psychologists.[254]  He confirmed there were three registered psychologists available under the Priority One programme at Mount Isa in 2004.[255]  They could be contacted directly and there was also a 1800 State-wide free call line to access telephone counselling.[256]

An adequate system

  1. [141]
    This overview dispenses with the allegation there were no systems and policies for provision of peer support and professional counselling to paramedics in isolated stations. Further, the fact of the development and the above explained nature of Priority One demonstrates there is no substance to the allegation QAS was not adequately informed about the dangers of injury or illness to which staff such as Mr James were exposed.  While it is in the nature of a paramedic’s work that the risk of psychiatric injury cannot be entirely avoided, there is also no substance to the general allegation Priority One was not an adequate and sufficient response to the risk of psychiatric injury.
  2. [142]
    As to the allegation QAS failed to “ensure” Mr James received counselling or psychological support, treatment or intervention for his anxiety and distress occasioned by the incidents, Mr James knew how to recognise signs of critical incident stress, having received the advice and guidance necessary to do so.  The provision of such advice and guidance was an important part of the Priority One programme because in the main it was a self-help support service rather than a system of mandatorily imposed support intervention.  Mr James also well knew of and how to access the support services of Priority One, so as to receive assistance.  Indeed his evidence made out he had tried to contact Ms Franklin because he knew he needed assistance.  The problem for his case is that in fact Ms Franklin offered assistance and he rejected it. 
  3. [143]
    This leaves lingering the question whether QAS was obliged to “ensure” Mr James received assistance, rather than allowing him to choose whether to seek it.

A system respectful of individual autonomy

  1. [144]
    A copy of the station resource manual to which Mr James was taken in evidence explained the Priority One staff support service aims to inform and empower ambulance officers “so that they will understand and be able to gain access to the necessary resources that will sustain them and their families in the important work that they do in the community”.[257]  The manual went on to explain:

“The staff support service seeks to encourage and enhance the individual’s personal resources and to introduce appropriate support mechanisms when sought.  In this way personnel will have control over their destiny with a sense of vocational equity.”[258] (emphasis added)

  1. [145]
    The afore-mentioned pamphlet, under a heading “When to ask for help”, stated:

You should seek help:

  • If you can find no relief from tension, confusion, a sense of emptiness or exhaustion.
  • If your work performance is affected.
  • If you have to keep active to avoid feeling upset.
  • If you have nightmares or cannot sleep.
  • If you find yourself getting uncontrollably angry.
  • If you have no person or group with whom to openly share your feelings.
  • If your relationships are suffering or people comment on how you have changed.
  • If you find your smoking, eating and drinking habits change.
  • If you find yourself relying more on medication.
  • If you feel “burnt out”.”[259]
  1. [146]
    The recommendation that staff should “seek help” if experiencing such feelings is consistent with the underpinning philosophy of Priority One that to preserve staff control over their own destiny, it informs and empowers staff about when and how to seek assistance so that staff control the seeking of assistance rather than assistance being imposed upon them.[260]  In a similar vein, the code of conduct for PSOs stipulates in its code of ethics that PSOs should “respect an individual’s autonomy and ability to make decisions for themselves”.[261]
  2. [147]
    So it was that, rather than mandatorily imposing psychological assistance upon its individual employees, QAS educated its employees in understanding and recognising signs of critical incident stress, equipping them with the knowledge necessary to be aware of its potential effects upon them and the means of seeking assistance to cope with those effects. 
  3. [148]
    The notion inherent in Mr James’ case, that the QAS should not have left it to him to make the choice to request assistance and was instead obliged to “ensure” he received assistance, fails to give due deference to the autonomy of the individual.  The employer’s obligation is to take reasonable care, not invasive or dictatorial care. 
  4. [149]
    The importance of individual dignity and privacy in this context was explained by Keane JA as he then was in Hegarty v QAS, a case also involving Priority One.[262]  His Honour observed:

“The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health.  The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations.  The dignity of employees and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. …

In cases of apprehended psychiatric injury, unlike cases concerned with amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention and the making of a decision to intervene.  An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought… .

Employees may well regard such an intrusion as an invasion of privacy.  Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position.”

  1. [150]
    Those considerations are borne out by evidence in the present case that intervention without request by the individual had already been tested and rejected as positively unhelpful. 

Mandatory intervention trialled and found wanting

  1. [151]
    Mr Scully testified that in the late 1990s a trial intervention strategy was undertaken in the Toowoomba and Rockhampton QAS districts.[263]  It trialled the theory that there should be mandatory follow-up of paramedics by peer support officers following designated categories of critical incidents.  The strategy’s purpose was documented as:

“The purpose of the trial is to determine (1) the feasibility of, (2) the benefits which might flow from and (3) the difficulties associated with the mandatory follow-up of certain specific types of traumatic incidents in ambulance service work.

Ambulance service work is known to have the potential to be distressing and emotionally confronting to those individuals who work in this occupational setting.  (Clohessy & Ehlers 1999, James & Wright 1991, Miller 1995.)  Whilst the benefits of counselling and peer support are well known, this trial endeavours to gather information to inform the larger study as to the benefits, if any, which may accrue as a result of early proactive follow-up by a trained PSO of personnel after their attendance at certain designated events.”[264]

  1. [152]
    The trial provided for and recorded the automatic activation of a peer support officer’s pager by the relevant QAS Communications Centre in respect of nine categories of traumatic incidents.[265]
  2. [153]
    Mr Scully explained the trial was discontinued after a few months because there were more problems than benefits, those problems included the demands on PSOs and, more significantly staff resentment at attention from PSOs.[266]  The QAS document which examined the trial strategy recorded:

“It soon became evident …, from feedback from PSOs, Communications Centre staff, and especially from operational ambulance personnel themselves that the process of “such frequent follow-up” was becoming unnecessary and somewhat unappreciated by operational personnel.  Ultimately, within the space of less than three months it became evident that much more damage was being done to the already well established level of goodwill built up by PSOs by persisting with what was perceived to be, and was variously described as the “unnecessary and intrusive” pursuit of ambulance personnel following attendance at cases.”[267]

  1. [154]
    The report document explained:

“The frequency of follow-up and the perceived if not implied message embedded in the frequency of follow-up was beginning to have a reverse effect.  Rather than projecting a “caring and supportive” message the implication was “personnel may not or would not cope with the event”. 

This goes to the core of key features of contemporary understanding of coping mechanisms within emergency services personnel.  In particular individuals intuitively select into this occupational setting and have a robustness or resilience about their perceived capacity to cope.  Research by Shakespeare-Finch (2002) found that paramedics recognised that whilst an event may be objectively distressing and unpleasant they are able to simultaneously articulate positive benefits to them; positive benefits of their involvement with the event which offset the distress.  Also of importance in this matter are findings by Orner (2000) suggesting that ambulance personnel “know” when assistance is required and are able to identify and access assistance when appropriate for them.

There are some instances in which proactive support can and should be offered and which is greatly appreciated by ambulance personnel, specifically in the event of the death or injury of a work colleague.  However the assumption that follow-up should occur on a case by case basis when it is “thought to be” distressing is unnecessary and often unacceptable, and indeed appears to diminish the benefits of having a sensitive responsive support program which promotes resilience.

There have also been consequences for PSOs in their provision of this follow-up service.  In particular, comments such as “walls were developing between my colleagues and I” and “I started to resent the peer support role” typify the negative impact of this relentless and unnecessary “pursuit” on PSOs.”[268]

  1. [155]
    Mr Scully testified that in the aftermath of the trial it was concluded mandated follow-up was not required or appropriate,[269] although informal follow-up by PSOs of paramedics after potentially distressing incidents remained permissible.[270]  The trial effectively confirmed the merit of Priority One’s systemic respect for individual autonomy and the right of individuals to decide for themselves whether to use the assistance made available by Priority One.  It is especially difficult to discern any want of reasonable care in not mandating the follow up of individual staff after traumatic incidents when such an option was thought of, trialled and found to be unhelpful.

PART D: THE ALLEGED FAILURE TO ACTIVATE CISD

Why the plaintiff’s case had to conflate CISD with one-on-one consultations

  1. [156]
    A difficulty confronting Mr James’ case is that at an initial stage, following the first incident when he claims he should have received assistance, he told the peer support officer and others that he was okay and did not seek assistance. This left him little choice but to mould a case contending that support should in effect have been imposed upon him automatically.  The problem with that approach is that the only component of Priority One which goes close to being automatically implemented, unprompted by the requests of affected staff, is the Critical Incident Stress Debriefing.  It is doubtful whether a CISD could be imposed upon an employee against the employee’s will, but in any event a CISD is not a system of individual consultation.  It is a form of group therapy designed for instances where a group of staff has had involvement or connection with an incident.
  2. [157]
    As Mr Scully explained, CISD is a group intervention, not an individual officer intervention.[271]   He acknowledged the general concept of “debriefing or the unpacking of thoughts and feelings and talking it through” is not unique to groups of people and is a process that can “occur in any event with a counsellor”.[272]  However, “debriefing” in the sense of talking through one’s thoughts and feelings after an event is not what is meant by CISD in Priority One.   The difference between the two concepts is particularly important given that the conduct of the plaintiff’s case repeatedly conflated them.
  3. [158]
    It is as well to further explain some facets of the Critical Incident Stress Debriefing component of Priority One.

Critical Incident Stress Debriefing

  1. [159]
    Mr Scully explained the CISD component of Priority One had its genesis in publications by Mitchell and Bray.[273]  He described the Mitchell model as:

“…a model…where individuals impacted by an event would get together, and a mental health professional would facilitate a process consistent with the seven-step model that Mitchell had developed, providing the personnel the opportunity to describe and articulate their experience, and what the response was to it.”[274]

  1. [160]
    The seven phases of CISD are:
  1. The introduction phase in which the purpose and rules of the session are discussed.
  2. The fact phase in which participants describe the facts of what occurred.
  3. The thought phase in which participants ventilate their own thoughts and perceptions about what occurred.
  4. Their reaction phase in which participants discuss their emotional reactions.
  5. The symptom phase in which signs and symptoms of distress associated with the event are reviewed.
  6. The teaching phase in which stress reactions and symptoms and techniques to reduce them are discussed.
  7. The re-entry phase in which further questions and issues are dispensed with and summary statements are made.[275]
  1. [161]
    Mr Scully testified that by December 2002 it was apparent CISD was the least frequently used component of the Priority One programme.[276]  Mr Scully explained there was a QAS report examining the application of psychological debriefing published in November 2002.[277]  Its conclusions were that while employees value CISD, there existed informed doubt as to its usefulness.[278]  For example, an article by van Emmerik and Ors “Single session debriefing after psychological trauma: a meta-analysis” published in The Lancet in 2002[279] reported:

“Despite the intuitive appeal of the technique, our results show that CISD had no efficacy in reducing symptoms of post-traumatic stress disorder and other trauma-related symptoms, and in fact suggests that it has a detrimental effect. …  There are several explanations for the lack of efficacy of CISD.  CISD might interfere with the alternation of intrusion and avoidance that characterises the natural processing of a traumatic event.  It might also interfere with natural processing in a broader sense … CISD probably increases awareness of normal manifestations of distress after trauma.  Although normalisation of these reactions is the aim of CISD, the suggestion that such reactions warrant professional care and must therefore be maladaptive might be an unintended result.”[280]

  1. [162]
    That article concluded:

“Reports of satisfaction or perceived helpfulness by participants might be sufficient reasons to continue to offer debriefing.  However, claims that single session psychological debriefing can prevent development of chronic negative psychological sequelae are empirically unwarranted.”[281]

  1. [163]
    An article by Regehr & Hill “Evaluating the efficacy of crisis debriefing groups” published in Social Work with Groups in 2000 reached a similar result.[282]
  2. [164]
    Despite their doubtful value, Mr Scully explained, CISDs were retained as part of the Priority One programme.[283]  Their dubious worth may have heralded a difficulty with proof of causation in the event Priority One had required the holding of a CISD in the present case.  However, the incidents here did not involve a group so there was no basis to activate a CISD, automatically or otherwise.

A CISD was not the relevant response

  1. [165]
    Mr James contends that Priority One required the activation of a Critical Incident Stress Debrief subsequent to the first incident.  The contention is misconceived. As already explained, the CISD component of Priority One is a group intervention.  It is not deployed for or designed for individuals. 
  2. [166]
    The cross-examination of Ms Franklin conflated one-on-one consultations and CISD.  For instance, within two questions early cross-examination went from Ms Franklin’s understanding of what would trigger automatic activation of a critical incident stress debrief to asking:

“And a debrief can occur one-on-one.  It doesn’t need to be a group debrief?”[284]

Ms Franklin’s answer in the affirmative was not an acceptance that CISDs occur one-on-one.  However the conflation undermines the value of what was later attempted by the cross-examiner when, continuing the conflation, Ms Franklin was invited to concede as she did that the “as bad as it gets”[285] character of the first episode was of a kind which would attract the activation of a CISD,[286] without any discernment as to the fact CISD is not apt to episodes involving only one officer. 

  1. [167]
    The cross-examiner was evidently referring to the Peer Supporter Resource Manual,[287] in which the chapter about CISD, which clearly indicates they relate to groups, includes the following:

“Automatic activation of the CISD team should occur under the following circumstances:

* line of duty death

* unusual traumatic circumstances

* major circumstances in which psychological support is relevant (actual or potential)”[288]

Similar descriptions of the three circumstances prompting automatic activation of CISD appear elsewhere in the exhibited Priority One material.[289]

  1. [168]
    It may readily be accepted that the first episode was an unusual traumatic circumstance but neither that, nor valueless concessions of a witness extracted by conflating one-on-one consultation and CISD, alters the fact that because multiple officers were not involved the case was not apt to trigger a CISD.
  2. [169]
    The way in which the cross-examination of Ms Franklin extracted an acknowledgement that the first incident was of a kind which would attract the activation of a CISD papered over the fact that CISDs are not apt to episodes involving only one officer.  Something similar occurred in the cross-examination of Mr Scully.[290]  Both lines of cross-examination focussed upon a category of incident listed as one of the categories prompting automatic activation of a CISD but conveniently ignored the co-existing need for such an incident to have impacted a group of officers for it to prompt a CISD activation.
  3. [170]
    In closing submissions a reference in the Priority One manual chapter on CISDs, to one-on-one consultations, was relied upon as supporting the need for an automatic activation of a CISD to have occurred in this case.[291]  The relevant passage reads:

How many participants will there be in a debriefing?

A formal debriefing should not be held for less than three persons.  When there are less than three, one-on-one consultations or a mini group discussion should be used.  The ideal debriefing group size is between 3 and 30 participants.”[292]

The context of that passage, and the chapter within which it is contained, reveals the passage’s reference to a formal debriefing is to a CISD.  It does not follow from that passage that a one on one consultation is a CISD.  The Chapter abounds with references indicating a CISD is for a group of affected officers. 

  1. [171]
    To reason that an unusual traumatic event which would trigger the automatic activation of a CISD must also trigger the automatic activation of a one-on-one consultation is to wrongly categorise a one-on-one consultation as a CISD.  A CISD has a clearly defined and structured set of phases to go through with the group.  Its process is not apt for use one-on-one. 
  2. [172]
    To the extent Mr James case contended Ms Franklin ought have consulted Mr James using the methodology of a CISD or of a professional counsellor, such a contention was misconceived at two levels.  Firstly, she was a peer supporter not a professional counsellor. It is the latter who is qualified to perform a one-on-one consultation.  Secondly, the conduct of a CISD is not designed for one-on-one consultations.  As much is well illustrated by the way the CISD chapter, having progressed through the seven phases of a CISD, proceeds to a section on “Post Debriefing Activities”, the first of which is:

One-on-One

It is a mistake to feel that all of the work has been done at a debriefing.  Immediately after a debriefing, CISD team members circulate among the group, particularly among participants who showed signs of distress during a session and those who were extremely quiet.  The objective is to reach out to those who seem to need more.  They may only need a few words from peers.  For some that will be enough.  For others, however, they will need a referral for individual therapy.  Referrals are rare – approximately 1% to 3% need individual therapy.  This activity has been known to go on for around 1 hour, frequently, peer supporters can manage a distressed person by a brief supportive visit or phone call.”[293] (emphasis added)

  1. [173]
    It is prudent for completeness sake to mention that the QAS Peer Supporter Resource Manual for Priority One in discussing the peer support component of the programme includes in the list of roles and responsibilities of a peer support officer:

  • Assess and when appropriate recommend the need for individual or group debriefing
  • Maintain a knowledge of the current procedure for CISD activation …”[294]
  1. [174]
    Read in context the above quoted reference to the need for “group debriefing” is obviously a reference to the need for a CISD.  On the other hand the reference to assessing and when appropriate recommending the need for individual debriefing is a reference to a peer support officer engaging in contact with an individual employee to ascertain whether the individual employee needs a one-on-one consultation with a professional counsellor or whether such a consultation should be recommended to the individual employee.  As much is obvious from the system proscribed by the Priority One literature exhibited in the case.  The difficulty for Mr James’ case is that Peer Support Officer Ms Franklin engaged in such contact for such a purpose and no need for such assistance was indicated by Mr James.
  2. [175]
    Mr James’ counsel also placed reliance upon the QAS document titled “SOP 47 – Notification/Activation of Priority One/Peer Support”.[295]  The document’s scope was described as:

“The procedure applies when it becomes evident that personnel, either operational or Communications Centre staff are under stress.  It should be brought to the Team Leader’s attention immediately.”[296]

The procedure is obviously calculated at ensuring QAS’s operational call takers and dispatchers assist “in identifying personnel experiencing difficulties” and notifying team leaders “immediately of behaviour that may put at risk the person or other personnel around them”.  It in turn requires team leaders to, “Action Peer Support/Priority One when necessary”.[297]  The procedure’s initial short form reference to actioning “Peer Support/Priority One” is obviously intended to be a reference to the potential actioning of any of the four components of Priority One, each of which components are outlined in the procedure.  The procedure also goes on to list “situations for activating a critical incident stress debrief”, which list includes the death of children and exposure to gruesome sights.

  1. [176]
    The procedure does not involve any material change to the effect of the Priority One systems explained in the other documents exhibited about it in the trial.  Its focus is on promoting action by QAS’s operational call takers and dispatchers.  The facts do not demonstrate any apparent failure to follow the procedure.  For instance Mr James did not testify to having conducted himself with call takers in such a way as to suggest he was experiencing difficulties or was at risk.  The procedure no more suggests that the activation of CISD was called for in this case than any of the other Priority One materials exhibited do.
  2. [177]
    The reality of this case is that it was not the CISD component but the other three components of Priority One - Peer Support, Self-Referral Counselling and the Telephone Counselling Service - which were apt to deliver individualised or one-on-one support to Mr James after the first incident. 
  3. [178]
    The QAS did not breach its duty of care by failing to activate a CISD after the first incident.  There was no such failure because a CISD was not apt because the incident involved an individual officer, not a group of officers. 
  4. [179]
    In any event, there was an activation of one-on-one contact, by peer support officer Ms Franklin.  Ms Franklin did speak one-on-one about what had occurred with Mr James and he was outwardly disinterested in further assistance.
  5. [180]
    Ms Franklin acknowledged in cross-examination that, had she asked management for permission to travel to Doomadgee, approval would have been given and it could have been arranged for her to travel with a psychologist.[298]  However, the problem for Mr James’ case remains that he rejected Ms Franklin’s offers to enlist psychological support for him.  Ms Franklin testified, quite compellingly, that she was obliged to respect his choice:

“I can’t force you to go and see somebody because I suspect that you’re not travelling well.  If you tell me that you’re okay, then I have to believe that.  I can’t break my confidentiality between myself and you as a PSO and a paramedic and go to management and say that “I don’t think this person’s doing well”.  Because all that does then is just say this Priority One officer can’t be trusted because she likes to gabble.”[299]

  1. [181]
    It is clear from Ms Franklin’s evidence, which I accept, that despite her consulting Mr James at length after the first incident he indicated he did not want to pursue the provision of support.  In truth, for Mr James’ case to have succeeded, it would have to be that QAS was required to ignore Mr James’ wishes and compel him to receive personal counselling.  I have already explained the reasons why the taking of reasonable care would not require such disregard for the individual autonomy of an employee.

PART E: THE ALLEGED FAILURE TO RESPOND TO THE TRAINING INCIDENT AS SIGNALLING A NEED FOR INTERVENTION

  1. [182]
    Mr James’ alternate case of breach is that QAS was on notice at the training incident that Mr James’ behaviour was so aberrant or unusual that it should have been realised he needed to be provided with psychological support and not sent back to Doomadgee.
  2. [183]
    The unstated premise of the alternate case is that what occurred was not explicable in the normal course of events.  However, it was explicable in the normal course.
  3. [184]
    The evidence surrounding the episode has already been analysed at length.  It shows Mr James was not keen to participate in the training, raising issues about venue and the inconvenience caused to Ms Barr.  More significantly Mr James was ill-prepared for the training.  Mr Shepherd noticed Mr James did not seem to have done the background study.  Mr James told persons at the training he feared he was not going to pass.  Then, not only did he make an elementary auscultation error, he was also corrected indelicately about it in front of others.
  4. [185]
    These were all considerations which readily explained why Mr James suddenly left the training, using abusive language once downstairs and departing.[300]  They were all considerations connected directly to the training. 
  5. [186]
    Further, there is no evidence suggesting that in the aftermath of the training episode Mr James made any link between his behaviour at the training incident and the first and second incidents.  He clearly regarded it as an industrial issue relating to how he had been treated in respect of the training.
  6. [187]
    When there existed such obvious collective and connected reasons for Mr James’ outburst of bad behaviour at the training episode why would the employer have looked beyond them for some other less obvious explanation for his conduct?  Mr James’ behaviour was explicable in the normal course.  It may have been bad behaviour but it appeared to have arisen as an obvious result of his issues regarding the training.  His behaviour was not such as to, as Mr James contends, “raise a red flag” indicating to QAS that he needed some form of debriefing or other psychological support.  The supposed failure to respond to it as a sign there was a need to intervene and provide such support was not a breach of QAS’s duty of care.

PART F: CAUSATION

  1. [188]
    In light of the failure to prove a breach of the duty of care it is inevitable that Mr James’ claim must fail.
  2. [189]
    It is not practicable in the circumstances of this case to proceed to determine what my findings as to causation (or for that matter quantum) would be in the event I was wrong as to the failure to prove breach. 
  3. [190]
    It is prudent to say no more than that certain concerns I hold as to matters of proper proof of causation in this case would have caused me to require further submissions even if I had found for Mr James on breach.  

PART G: ORDERS

  1. [191]
    Costs should follow the event however it may be there is an additional costs aspect a party needs to raise with the court.  My orders will accommodate that possibility.
  2. [192]
    My orders are:
  1. Claim dismissed.
  2. I will hear the parties as to costs if costs are not earlier agreed at 9.15 am 30 January 2019.

Footnotes

[1]  The claim was not filed until 19 August 2008, nearly four years after the key events and the plaintiff did not press for the trial to be heard until recently, well over a decade after the events.

[2]  In fact his claim is against the State of Queensland but the relevant operating entity of the State of Queensland was QAS.  References herein to the QAS should be taken to also be references to the defendant.

[3]  T1-29.

[4] Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 53.

[5]  Ibid.

[6]  ASOC [37(a)(b)], [38(a)].

[7]  ASOC [389b)(d)].

[8]  ASOC [38(f)].

[9]  ASOC [37(c)].

[10]  ASOC [37(e)].

[11]  ASOC [36], [38(e)].

[12]  ASOC [27], [31], [40(a)(b)]

[13]  ASOC [38(c)].

[14]  ASOC [40(a)]

[15]  Plaintiff’s written submissions [121]

[16]  Plaintiff’s written submissions [123-125].

[17]  Plaintiff’s written submissions [144].

[18]  T2-10 L45 – T2-11 L7.

[19]  T2-11 L39.

[20]  Ex 25.

[21]  Ex 26.

[22]  Ex 26.

[23]  T3-15 L22.

[24]  T3-20 LL20-37.

[25]  Ex 29.1 p114

[26]  Ex 31 Statement of Agreed Facts.

[27]  Ex 2.

[28]  T1-32 L40 – T1-33 L1, T1-36 LL17-40.

[29]  T1-33 L10, T1-36 L25.

[30]  T1-37 LL1-14.

[31]  T1-33 LL27-42.

[32]  T1-35 L7.

[33]  T3-86 L14, T3-91 L21.

[34]  T1-36 L7.

[35]  T1-37 L29, T1-38 L10.

[36]  Ex 2.

[37]  T2-87 L35.

[38]  Ex 21 p 2 [2].

[39]  T1-37 LL34-40.

[40]  T1-37 L39.

[41]  T1-38 LL20-25.

[42]  T1-40 L28.

[43]  Ex 31 Statement of Agreed Facts [13].

[44]  T1-39 L31, T1-43 L35, T2-92 L7.

[45]  T5-30 L41, T5-37 L33.

[46]  Ex 47.

[47]  T5-30 LL34.

[48]  T5-37 L30, T5-38 L39.

[49]  T2-90 L32.

[50]  T2-90 LL5-19.

[51]  T2-90 L25.

[52]  T5-36, 37.

[53]  T1-45 L8 – T1-46 L10.

[54]  T1-44 L30.

[55]  T2-60 L30.

[56]  T2-61 L25.

[57]  T2-70 L30, T2-73 L 16, T2-77 L48.

[58]  T2-3 L22.

[59]  T2-3 L20.

[60]  T3-86 L45, T3-88 L18.

[61]  T3-87 L2.

[62]  T3-87 L19.

[63]  T3-90 L19.

[64]  T2-6 L24.

[65]  T3-87 L37.

[66]  T2-8 L2.

[67]  T2-8 L18.

[68]  T2-8 L25.

[69]  T2-94 LL9-34; T2-96 L25.

[70]  Ex 22.

[71]  T5-5 LL34-42.

[72]  T5-5 L4.

[73]  T5-5 L27.

[74]  T5-5 L36.

[75]  T5-6 L27.

[76]  T5-21 L22.

[77]  Ex 20; T5-19 L14.

[78]  T2-97 L36.

[79]  Ex 21.

[80]  T5-6 LL1-38.

[81]  T5-6 L9.

[82]  T5-16 LL7-11.

[83]  T5-17 LL21-28; T5-19 L5.

[84]  T4-42 LL20-26.

[85]  T4-23 L10.

[86]  T4-24.

[87]  T4-23 L37.

[88]  T4-41 L35 – T4-42 L5.

[89]  T4-24 LL6-26.

[90]  T4-43 L42.

[91]  T2-93 LL12-33.

[92]  Ex 15.

[93]  T2-3 LL37-48.

[94]  T2-77 L18.

[95]  T2-70 L44.

[96]  T2-97 L42

[97]  T3-4 L40 – T3-5 L38.

[98]  Ex 5 (where his entry for 15 November names her as Selia), Ex 22 attachment AB.

[99]  T3-66 L26.

[100]  T3-61 L11, T3-61 L30, T3-67 L35.

[101]  T3-61 L12.

[102]  T3-6 L28.

[103]  Ex 21.

[104]  T3-12 L8.

[105]  T2-45 L27.

[106]  T2-5 L45.

[107]  Ex 24.

[108]  T3-13 L13.

[109]  T3-14 LL1-5.

[110]  Ex 31 Statement of Agreed Facts.

[111]  T2-8 L34.

[112]  T2-8 L42.

[113]  T2-8 L44.

[114]  T2-9 L2.

[115]  T2-10 L18.

[116]  T2-46 L25 – T2-47 L21.

[117]  T2-12 L47; T3-45 LL29-32.

[118]  T2-16 L 24.

[119]  Ex 22.

[120]  T4-25 LL35-45.

[121]  Ex 6.

[122]  Ex 6.

[123]  T2-19 L7.

[124]  T4-34 L41.

[125]  See for example T4-35 L1.

[126]  Ex 10.

[127]  T4-28 LL9-14, T4-44 LL29-47.

[128]  T4-36 LL15-30.

[129]  T2-19 LL10-16.

[130]  T2-19 LL33-46.

[131]  T3-30 LL5-16.

[132]  T5-40 L42.

[133]  T5-41 L28.

[134]  T5-42 L23.

[135]  T5-41 L47.

[136]  T5-44 L35 – T5-45 L5.

[137]  Ex 31 Statement of Agreed Facts.

[138]  Ex 6.

[139]  Ex 1.2 p 6.

[140]  T4-29 L10.

[141]  T4-29 L35.

[142]  T4-29 L40.

[143]  T4-30 L20.

[144]  T4-41 LL8-16.

[145]  T5-45 L25.

[146]  T5-41 L30.

[147]  T5-42 L41 – T5-43 L30.

[148]  T5-43 L42.

[149]  T5-43 L43.

[150]  T2-20 L22.

[151]  T5-7 LL7-36.

[152]  Ex 1.1.

[153]  T4-30 L32, T4-35 L18.

[154]  Ex 1.2.

[155]  Ex 6.

[156]  Ex 7.

[157]  Ex 8.

[158]  Ex 11.

[159]  Ex 10.

[160]  Ex 9.

[161]  T3-25 L26.

[162]  T2-22 LL15-22.

[163]  Ex 5.

[164]  T3-64 L12.

[165]  T3-66 L40.

[166]  T3-64 L45.

[167]  T3-65 L4.

[168]  T3-65 LL13-22.

[169]  T3-67 LL1-7.

[170]  T2-27 L1.

[171]  T3-45 LL40-45.

[172]  T3-46 L10.

[173]  Ex 5.

[174]  T3-53 LL23-27.

[175]  T5-31 L42.

[176]  Ex 47 [28-29].

[177]  T5-32 L7.

[178]  T5-34 L8.

[179]  Ex 47 [31].

[180]  T5-31 L46 – T5-32 L2.

[181]  Ex 31 Statement of Agreed Facts.

[182]  Ex 12.

[183]  T3-40 L21.

[184]  T2-32 L27.

[185]  T2-32 LL30-38.

[186]  T2-32 L45.

[187]  T2-32 L45.

[188]  T2-33 LL7-25.

[189]  Ex 21 [19].

[190]  T3-42 L3.

[191]  T3-91 L21.

[192]  Ex 5.

[193]  T5-34 L29; Ex 47 [17].

[194]  Ex 47.

[195]  T3-43 L12; T3-44 L42.

[196]  T3-61 L30, T3-62 L16.

[197]  T3-64 L4.

[198]  T3-63 L17.

[199]  T3-63 L44.

[200] T5-9 L30.

[201]  Ex 5.

[202]  T5-9 L38.

[203]  T5-10 L3.

[204]  T5-10 L5.

[205]  T5-10 L30.

[206]  T3-51 L8.

[207]  Ex 5.

[208]  Ex 5.

[209]  Ex 5.

[210]  Ex 5.

[211]  Ex 5.

[212]  T3-52 LL12-15.

[213]  Ex 5.

[214]  Ex 5.

[215]  Ex 5.

[216]  Ex 5.

[217]  T3-37 L12.

[218]  Ex 21 p 10.

[219]  Ex 22.

[220]  T3-70 L32.

[221]  T3-70 L42.

[222]  T3-74 L18.

[223]  T3-74 L13.

[224]  T2-40 L40.

[225]  T2-41 L21.

[226]  T2-41 L5.

[227]  T2-41 L7.

[228]  T2-41 L14.

[229]  T2-41 L16.

[230]  T2-41 L26.

[231]  T2-41 LL25-30.

[232]  T2-41 L30.

[233]  T2-41 L39.

[234]  T2-43 LL17-34.

[235]  T2-41 L45 – T2-42 L5.

[236]  T2-42 L27.

[237]  Ex 28 p 142.

[238]  Ex 29.8.

[239]  Ex 29.7 p 139.

[240]  T4-49 L43.

[241]  Ex17 pp 472, 473.

[242]  Ex 18; T2-75 L38, T2-76 L12.

[243]  Ex17 pp 472, 474-482.

[244]  Ex 18 pp 575, 578.

[245]  Ex 31.

[246]  Ex 13, T2-50 L15.

[247]  T2-52 L7.

[248]  T2-64 L38; Ex 16 p 462.

[249]  T2-55 L2; Ex 14 p 382.

[250]  T2-55 LL21-46.

[251]  Ex 16 pp 465, 466.

[252]  T 2-66 L22; Ex 17.

[253]  T2-67 L10.

[254]  T4-61 L44.

[255]  T4-62 LL40-47.

[256]  T4-62 LL3-8.

[257]  Ex 17 p 471; T2-69 L9.

[258]  Ex 17 p 471.

[259]  Ex 18 p 578.

[260]  See, e.g. Ex 17 p 471.

[261]  Ex 41 p 5.

[262]  [2007] QSC 90.

[263]  T4-50 L10.

[264]  Ex 37.

[265]  Ex 36.

[266]  T4-53 LL28-42.

[267]  Ex 37 p 3.

[268]  Ex 37 pp 4, 5.

[269]  T4-56 L45.

[270]  T4-57 LL13-24.

[271]  T4-65 L15.

[272]  T4-67 LL5-7.

[273]  T4-63 L25.

[274]  T4-63 L36; the seven phases of the debriefing process are described in Ex 14 p 433.

[275]  Ex 14 p 433, Ex 46 pp 6.7-6.12.

[276]  T4-64 LL32-42.

[277]  T4-68 L30; Ex 38.

[278]  Ex 38 p 31.

[279]  Ex 39.

[280]  Ex 39 p 769.

[281]  Ex 39 p 770.

[282]  Ex 40.

[283]  T4-65 L10, T4-69 L47.

[284]  T5-14 L21.

[285]  T5-20 L46.

[286]  T5-20 L43, T5-22 L25.

[287]  Ex 46.

[288] Ex 46 p6.3.

[289] Ex 14 p408/6.15 [1409]; Ex 17 p533/5.3.

[290]  T4-82 LL1-21.

[291]  T6-42 L40 – T6-43 L10.

[292]  Ex 14 p398/6.5; Ex 17 p535/5.5; Ex 46 p6.6.

[293]  Ex 17 p 541/5.11; Ex 46 pp 6.12, 6.13.

[294]  Ex 46 p 2.11.

[295]  Ex 44.

[296]  Ex 44 p 580.

[297]  Ex 44 p 581.

[298]  T5-22 L46, T5-23 L3.

[299]  T5-23 L45 – T5-24 L3.

[300] I record for completeness that another reason for Mr James’ conduct was his belief he would lose his job if he did not pass the training module.  I have no regard to it in this context because it was evidently an erroneous belief his employer cannot be taken to have been aware of.

Close

Editorial Notes

  • Published Case Name:

    James v State of Queensland

  • Shortened Case Name:

    James v State of Queensland

  • MNC:

    [2018] QSC 188

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    10 Dec 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 188 10 Dec 2018 Plaintiff's claim in negligence for damages for a psychiatric injury dismissed: Henry J.

Appeal Status

No Status