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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Giles v State of Queensland  QDC 332
STATE OF QUEENSLAND
District Court of Queensland
18 December 2020
26, 27, 28, 29, 30 October, and 2 and 4 November 2020
Judgment for the defendant.
Plaintiff pay defendant’s cost on standard basis since 5 March 2015.
CIVIL – NEGLIGENCE – PERSONAL INJURY – PSYCHIATRIC INJURY – LIABILITY – ASSESSMENT OF DAMAGES – where plaintiff worked as a fire fighter with QFRS for 27 years – where he alleges he suffered psychiatric injury in the course of employment with the defendant – where the plaintiff alleges he suffered this injury at Slacks Greek fire incident in 2011 where people of Samoan origin including eight children lost their lives– where the plaintiff alleges at the night of the fire he was not adequately welfare checked by the defendant – where the plaintiff alleges that he was required to work for an excessive period – where the plaintiff is seeking damages for his injury as a result of defendant’s negligence
Crown Proceedings Act 1980 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305D
Hegarty v Queensland Ambulance Service  QCA 366
Mr T Matthews QC and Mr C Newton for the plaintiff
Mr M Grant-Taylor QC and Ms J McClymont for the defendant
Hall Payne Lawyers for the plaintiff
Hall and Wilcox Lawyers for the defendant
- On 24 August 2011 11 people of Samoan origin, including eight children, lost their lives in a tragic house fire at 60 Wagensveldt St Slacks Creek. The plaintiff was a firefighter in the employ of the then Queensland Fire and Rescue Service (QFRS) and assisted in fighting that blaze. Following his attendance at the scene and because of that attendance, he has developed a significant psychiatric disorder, said to be PTSD. He sues the State of Queensland pursuant to the provisions of the Crown Proceedings Act for damages for negligence.
- I have concluded his action fails for the reasons which follow.
- It is understandable that the plaintiff’s psychiatric condition maybe adversely affected by this outcome. It is important the plaintiff understands that I do not doubt he has developed a significant psychiatric injury following his exposure to the fire and that he understands that I do not doubt that he performed his role as pump operator on the night of the fire well. The failure of his action is unrelated to either of those issues. The role of a firefighter can be a demanding one and one that can place a significant emotional burden on those that perform that role to ensure, so far is can be done, that others in the community are safe. Unfortunately that emotional burden can become overwhelming, without fault of the individual firefighter or of his employer. This is such a case.
- The plaintiff was born on 1 December 1954 so is now 66. At the date of the fire he was 56. He joined the QFRS on 30 June 1986 and was retired, medically unfit, on 6 November 2013. But for his injuries, he would have had to retire only when he turned 65, on 1 December 2019. At the time of his enforced retirement he was working as a safety assessment officer at the Southport Station as part of his attempted rehabilitation following the development of his psychiatric disorder.
- The defendant owed the plaintiff a non-delegable duty of care to take reasonable care for his safety and avoid exposing him to unnecessary risk of injury in the course of his employment. His claim is governed by the common law, as modified by the provisions of Chapter 5, Part 8, Division 1 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”).
- The issues on liability were identified by the plaintiff’s counsel as follows:
- (i)was the risk of injury:
- (a)foreseeable, that is a risk which the Defendant knew or ought reasonably to have known (s 305B(1)(a)); and
- (b)not insignificant? (s 305B(1)(b));
- (ii)would a reasonable person in the position of the Defendant have taken one or more of the precautions alleged by the plaintiff in the circumstances? (s 305B(1)(c) and s 305B(2)); and
- (iii)factual causation, namely would the precautions, if taken, probably have prevented the Plaintiff from suffering his injuries? (s 305D(1)(a)).
- Those sections provide:
305B General principles
- (1)A person does not breach a duty to take precautions against a risk of injury to a worker unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the position of the person would have taken the precautions.
- (2)In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
(a)the probability that the injury would occur if care were not taken;
(b)the likely seriousness of the injury;
(c)the burden of taking precautions to avoid the risk of injury.
305D General principles
- (1)A decision that a breach of duty caused particular injury comprises the following elements—
- (a)the breach of duty was a necessary condition of occurrence of the injury (factual causation);
- That he developed PTSD was not disputed but whether the QFRS was negligent in their management of the plaintiff at the fire, and whether any such negligence was causative of the plaintiff’s subsequent psychiatric illness was vigorously contested.
- A further significant issue at the trial concerned the plaintiff’s capacity to have continued work as a fire officer with QFRS even if he had not suffered the psychiatric decompensation he did.
- That issue related primarily to the long-term consequences of a fractured femur he suffered in a motor vehicle accident in 1974 and of the effect of a fall he had early in 2013. The defendant’s case was that from early 2013, when the plaintiff says he slipped and fell in the carpark of a shopping centre, he had severe right hip pain and consequent physical restrictions. The defendant also alleges he has significant degenerative conditions of both knees and of his lower back. It submits these various conditions would have precluded his working with the QFRS prior to his contemplated retirement on 1 December 2019.
- Moreover, the defendant alleges that examination of medical records and of statements of the plaintiff concerning his physical incapacities resulting from these conditions should cause me to have significant doubt as to his credibility and reliability. The defendant submits such concerns would cause me to doubt what the plaintiff said occurred at the fire, to doubt the history he has given of the development of his PTSD thereafter and to doubt his evidence about other related issues.
- Senior counsel for the plaintiff urged me to make significant allowance, in assessing the plaintiff’s credit, for the fact he was suffering anxiety and other symptoms of his undoubted PTSD. He also submitted that cross-examination of the plaintiff about alleged inaccuracies in his tax returns obviously unsettled him, but in circumstances where I would conclude that such cross-examination in fact did not adversely impact upon his credit, and that too should be taken into account in my assessment of his evidence.
- The credit of the plaintiff is a critical factor in the determination of the case. The private and personal nature of plaintiff’s psychiatric illness can make such assessment difficult. The plaintiff’s description of what distressed him about the circumstances of the fire, what his level of observable distress may have been and what he says he was told by those managing him on the day are all of importance to the assessment of his case.
- The defendant submits that the QFRS discharged its obligations to take reasonable care of the plaintiff by determining that the number of QFRS personnel at the fire would be limited by not rotating crews, and by then taking steps to monitor the plaintiff’s well-being, and that of other staff, by having more senior personnel question them to assess their well-being during the course of their attendance at the fire. That such a decision was made by QFRS was not disputed.
- The plaintiff says that QFRS failed in the discharge of that duty because, inter alia, they failed to undertake appropriate questioning and assessment of him. In particular he said in evidence that Peter Mountain, his immediate supervisor, spoke to him at the fire only twice about possible welfare issues and denies that another senior officer, Mr Salisbury, spoke to him at all in relation to such matters. Both Mr Mountain and Mr Salisbury gave contrary evidence to which I will later refer.
- It is necessary that I resolve that obvious conflict in the evidence and the plaintiff’s credit is of course critical to that assessment.
- Additionally his credit is critical to the assessment of the quantum of the claim.
- The cross-examination of the plaintiff exposed a number of matters which, it was submitted by the defendant, reflected adversely on his credit. It is important to consider whether conflicts in his testimony are or might be due to understandable differences in his recounting of events on different occasions, or possible inaccurate recollections or recordings of people who might have been told things by him. It is important also to understand that a person might tell different persons somewhat different versions of events, and to be conscious of the difference between a person’s credibility, or honesty, and the reliability of their evidence. It is also important to take into account the plaintiff’s PTSD when assessing his credit.
- The defendant’s senior counsel submitted that claims by the plaintiff for work related travel expenses in his tax returns were such as to adversely affect his credit. He was cross-examined about that issue and about claims relating to salary sacrificing and superannuation payments, although in the defendant’s written submissions counsel did not assert that issue ultimately adversely affected his credit.
- In my view, none of those matters are of any real importance in the assessment of the plaintiff’s credit. I accept that the claim for travel expenses may not accurately reflect the actual use of the plaintiff’s motor vehicle for work related travel, but such an issue does not affect my assessment of his credibility or reliability.
- Other issues are of far greater importance.
- I am particularly influenced by contemporaneous records, especially written records, in considering such issues. These are almost always of far greater assistance than observations as to a person’s manner of giving evidence, or what might compendiously be described as “demeanour”.
- The plaintiff said in evidence that prior to the incident of 24 August 2011 he had not previously suffered psychological symptoms, or had treatment for any psychiatric illness.
- This testimony was consistent with his self-report to Mr Riordan, his treating psychologist since January 2012, that “prior to August 2011 he had recorded no symptoms of PTSD or other mental health issues”.
- I also note Dr Estensen’s notation (see Exhibit 1, Volume 1, Medical report Tab, p27.1) that prior to the fire the plaintiff “had never received any treatment for any psychiatric illness”.
- The plaintiff’s regular general practitioner was Dr Jeyanth Kumar of Loganholme Medical Surgery. He had attended that practice from at least July 1998. From time to time he saw other doctors at that practice also.
- On 5 October 2009 (see Exhibit 14, p60/61) Dr Kumar records concerns about the plaintiff’s diet, blood sugar levels and alcohol consumption and notes:
“Seeing psychologist for work issues to do with fatalities”.
- The plaintiff, after initially denying telling Dr Kumar that, said in his evidence he had no recollection of ever seeing a psychologist at that time, or of any issue which might have caused him to do so.
- The plaintiff accepted the accuracy of Dr Kumar’s notation of a consultation of 14 January 2010 (p59 of Exhibit 14) that he was suffering “acute anxiety” in relation to a girlfriend’s son causing “grief”. Dr Kumar noted the plaintiff was “unable to concentrate and anxious (and) unable to work”. He was given a medical certificate for three days “to get away”.
- On 12 November 2010 Dr Kumar noted (p55 of Exhibit 14), the plaintiff had some “spots” burnt from his forehead and other areas and as a result of that was advised to seek office work as alternative work for some four days. He indicated to Dr Kumar that he was “anxious” about being in the confined space of an office and indicated that:
- -“stress gets to him ‘easy’ still”
- -he is drinking “just a bit less than before”, and said drinking was “relaxing” and “helps him cope with various anxieties”
There are other entries expressing concern about Mr Giles’ drinking habits.
- Counsel for the plaintiff, in written submissions, suggest I “should accept the plaintiff’s denial of the allegation that he was seeing a psychologist for work issues to do with fatalities”. It was submitted that “(w)e all know that GP’s are not perfect and … there may well have been some misunderstanding about what was being told and there is absolutely no evidence on which the Court should doubt the plaintiff’s denial that he had ever seen a psychologist prior to the fire.”
- I do not accept that submission. The notation of 5 October 2009 concerning the plaintiff seeing a psychologist is sufficiently specific that I think it highly unlikely there has been a misunderstanding or that the GP has made an entry in error or been otherwise at fault in recording it. The reference to acute anxiety and the plaintiff’s inability to concentrate some three months’ later, his anxiety in the following November and concern in Dr Kumar’s records about alcohol consumption all support the view that the plaintiff had suffered significant stress prior to the fire. The entry of 5 October 2009 supports the statement that fatalities at work were an issue for the plaintiff at that time, and that he was seeing a psychologist.
- I accept, as the defendant’s counsel submitted, that my determination about that issue, whilst reflecting on the reliability of the plaintiff’s evidence – because his lack of recall of it indicates his memory of events, and how he was emotionally prior to the fire, may be somewhat faulty – should not be seen as itself suggesting he was dishonest about such matters. That is particularly so in circumstances where he undoubtedly suffers from a significant psychiatric disorder, which may well affect his memory and ability to accurately recall historical events.
- But other attacks on his evidence more directly affect my assessment of his credit.
- After the fire the plaintiff applied for a disability support pension. In support of that application Dr Kumar completed a medical report on 29 January 2014. The report became exhibit 12 before me. The report lists the plaintiff’s primary condition (that having the most impact upon him) as his PTSD.
- However the importance of the report, for the purpose of assessing the plaintiff’s credit, lies with what was identified in the report as his secondary condition – described by Dr Kumar as right hip osteoarthritis.
- I interpose that the plaintiff’s counsel dealt with this challenge to the plaintiff’s credit in paragraph 13 of their written submissions, noting that the plaintiff was entitled to the DSP by reason of his psychiatric injury alone. Accepting that to be so, the submissions misses the point that the defendant’s purpose was to attack the plaintiff’s credit by highlighting discrepancies between what he told Dr Kumar and other statements he has made.
- On 30 January 2014, two days after seeing Dr Kumar for the purposes of the medical report, the plaintiff was seen for assessment of his PTSD by Dr Estensen, a psychiatrist. His report of 7 April 2014 discloses nothing at all about any problems of a physical nature with his hip, knees or otherwise. In describing the significant impact of his PTSD, the plaintiff told Dr Estensen of the consequent disruption of his social life, of giving up “playing golf, going boating and fishing”. He spoke of his reduced use of his motor vehicle citing, by way of example, an inability to visit family in New South Wales or to go on a fishing trip to Townsville. He told Dr Estensen of his loss of employment with QFRS and told the doctor (though I accept would not have used the language in the report) that his ability to pursue alternative employment was significantly hindered by his lack of transferable skills, diminished self-esteem and confidence, anxiety and poor energy and motivation. The report certainly suggests a significant curtailment of his life, wholly due to the consequences of the psychiatric illness.
- The plaintiff saw Dr Morgan on 2 November 2016 (Exhibit 1, Medical Reports tab p.49ff). He told Dr Morgan that he had slipped in a carpark in March 2013 and noted onset of right hip pain. He said he had x-rays and a diagnosis of osteoporosis was made but said he did not receive any particular treatment. He told Dr Morgan he had done a home exercise program.
- He also told Dr Morgan he commenced taking Mobic, an anti-inflammatory analgesic, two months prior to his seeing Dr Morgan (i.e. from about the start of September 2016) but that this related to discomfort in his left knee which had started about one month earlier. He specifically told Dr Morgan he was not taking Mobic for his right hip. He also told Dr Morgan that he had noted a twinge of discomfort laterally in his right hip on occasions but denied difficulties standing or walking and said he could walk three or four kilometres without problems. He also denied problems accessing his car or putting on his shoes.
- Dr Morgan noted that hip x-rays of 2 April 2013 demonstrated “severe medial pole osteoarthritis” with “marked chondrolysis, spur formation, sclerosis and cystic degeneration”. Similar x-rays of 2 November 2016 showed, Dr Morgan said, that the degenerative process had “now reached an end stage position”. He said the articulation “is exceedingly severely disordered”. He said the plaintiff “now has exceedingly severe degenerative disease in this joint. He has marked restrictions in range of motion, an altered ambulatory capacity and radiographs which are exceedingly impressive.” Dr Morgan says “it would be very unusual for a man to exhibit all of these features and be relatively or essentially asymptomatic. It is possible that his orthopaedic condition is more severe than he would portray.”
- Dr Morgan assessed the plaintiff as having a 28 percent whole person impairment due to his hip condition, a significant disability.
- It is to be noted that the plaintiff ultimately had a right total hip replacement on 24 January 2018, and subsequent revision surgery in March 2020.
- It is in such circumstances necessary to consider the medical report of Dr Kumar of January 2014 in support of the plaintiff’s DSP application. Dr Kumar records;
- (i)That the plaintiff was taking Mobic on a regular basis from March 2013, which was when he told Dr Kumar he believed he had injured the right hip with immediate onset of symptoms;
- (ii)He was having physiotherapy from 20 March;
- (iii)He had symptomatic pain with activity or prolonged sitting or walking and stiffness after rest. He noted limited flexibility and range of movement, despite medication;
- (iv)The condition was said to limit his interaction with his grandchildren, fishing, golf and simple walking. He had very reduced dexterity and endurance and had to live in a single level dwelling as he was unable to walk up ramps, steps, stairs or ladders.
- This description of events, in support of the claim for a disability support pension, stands in marked contrast to the plaintiff’s silence about any such problems with his hip on seeing Dr Estensen and his scant mention of them to Dr Morgan.
- The plaintiff saw PR Physiotherapy on 13, 20 and 25 October, 1 and 17 November 2016, 12, 16, 19 and 23 January and 2 February 2017. It is clear from the treatment records (Exhibit 28) that he was having treatment at those times for both his right hip and left knee, with associated pain in his lower limbs.
- There is a strong temporal connection between those physiotherapy treatments in late 2016 and early 2017 and the plaintiff’s attendance on Dr Cooke on 24 January 2017. Dr Cooke is an orthopaedic surgeon who has provided a number of reports about the plaintiff. It was he who operated on the plaintiff’s hip.
- The plaintiff on 24th January made no mention of having any physiotherapy to Dr Cooke, despite the physio records of his attendance on the previous day, the 23rd, noting that “right hip is feeling pretty sore today” and that “doing R hamstring stretch helped so both were given to do before his Dr Appt.”
- It seems therefore that plaintiff was well aware of his attendance upon Dr Cooke on 24 January at the time he saw the physiotherapist on the 23rd. It is impossible to believe that when he saw Dr Cooke the following day he had, correspondingly, forgotten those physiotherapy appointments or the problems he was having with his hip.
- It is difficult to comprehend why the plaintiff might not have told Dr Cooke of his physiotherapy appointments and of his symptoms other than to minimise the doctor’s understanding of the extent of his hip problems so as to effect Dr Cooke’s medical report. The marked contrast with Dr Kumar’s report of 29 January 2014 leads one to a similar conclusion.
- He told Dr Cooke that when his hip pain was bothersome he rated the pain as 5 out of 10 on a pain scale. He said he was able to cut his toenails and put on his shoes. He said he was “managing well from a functional point of view with hip”. He said he could mow his lawn, work on his car and van, pick up, carry and play with his grandchildren and could climb a ladder and use stairs without a handrail. He described performing fairly heavy lifting and fencing activities also. Overall, Dr Cooke said he “has very little in the way of function limitations” and “would be able to perform the role of a firefighter”.
- This stands in marked contrast to Dr Kumar’s report in support of his DSP application.
- In a supplementary report of 17 March 2017, Dr Cooke noted that whilst Mr Giles had significant radiographic findings, consistent with Dr Morgan’s view that I have referred to, “he reports minimal symptoms and … remains very functionally active”.
- This too is in marked contrast to Dr Kumar’s assessment in the DSP medical report, albeit some years earlier. It is also a marked contrast to the statements made to a Centrelink officer, Ms Durand on 12 February 2014 when interviewed about his DSP application, with the content of a Job capacity Assessment Report (Ex 20) and with the plaintiff’s own evidence about such matters.
- In any case, Dr Cooke did eventually perform hip replacement surgery, only 12 months’ after the report of January 2017.
- The contrast between the plaintiff’s description of symptoms to Dr Kumar, and Ms Durand, both for the purposes of his application for the disability support pension, and his statements to Dr Cooke and Dr Morgan and his failure to tell Dr Cooke of his physiotherapy treatments causes me to have significant doubts about the credibility of the plaintiff.
- There are further contradictions in his evidence. He had told Dr Cooke on 24 January 2017 that he “has an outboard motor which weighs 26 kg that he can lift and place on his boat”. By contrast he told Dr Estensen on 12 October 2016 that he had bought a boat, but had not used it.
- I have mentioned already his comment to Dr Cooke that he could mow his lawn. He also told Dr Cooke that mowing took 45 minutes “no slower than it was prior to his hip injury.” In evidence he said (see T1-120, l 10-11) that whilst he had told that to Dr Cooke, he had “no difficulty, using the mower as a walking frame”. This is entirely disingenuous.
- He had also told Dr Cooke he could carry a car fridge weighing 30 kilograms “10 metres from his shed to his car”. In his evidence (T1-124, l 20/25) he said, when asked about this, that he “carried it on a trolley … I wheel it down to the car and then lift it up, put it on a tailgate and put it on the fridge slide”.
- The marked contrast in these versions undermines his credit.
- Dr Cooke, when describing the “Current Treatment” in his report of 24 January 2017 says “Mr Giles takes paracetamol for his symptoms.”
- This notation, consistent with the plaintiff’s report to Dr Cooke of minimal physical symptoms, can be contrasted with his ongoing physiotherapy, including on the day before he saw Dr Cooke, and the reference to his using Mobic for his hip and knee pain by Dr Kumar. Dr Kumar refers to his use of Mobic, an anti-inflammatory in his report of January 2014.
- That must be seen alongside the evidence of Dr Morgan, whom I accept about this and other issues, that the plaintiff’s hip was likely to deteriorate over time although he might have had some relatively good and bad days. This view of likely deterioration is consistent with Dr Morgan’s subsequent notation about the worsening x-rays of his hip, and the fact that he did in fact have hip replacement surgery in 2018. It is also consistent with the plaintiff’s own evidence that his hip did not improve.
- I find the plaintiff has been less than frank about his ongoing hip problems when providing his medical history to doctors.
- The plaintiff seems to have been less than frank about problems with his lower back also. He made no mention of back pain to Dr Morgan at the time of his examinations on 2 November 2016 or 26 March 2019 or to Dr Cooke on 24 January 2017 or 3 November 2017. When he next saw Dr Morgan on 21 July 2020, Dr Morgan assessed a 5% whole person impairment related to a degenerative spondylosis of his lumbar spine. On that occasions he once again did not mention to Dr Morgan the problems he was having with his spine.
- Problems with his spine had however emerged earlier than those examinations with Dr Morgan and Dr Cooke.
- The records of Dr Kumar’s practice of the plaintiff’s attendance on 23 November 2016 (p 112 of exhibit 14) note osteoarthritic pain in his right hip and left knee which were not responding to Mobic but that “physio have helped back and helped see Dr Morgan”. He saw Dr Morgan on 2 November, some 3 weeks earlier.
- On 10 January 2017, (p 111) Dr Kumar notes the plaintiff’s “new goals” as “improve r hip pain and lower back pain”. He saw Dr Cooke 14 days later, but again did not mention his back pain.
- The problems with his back continued. On 10 April 2017, Dr Kumar (p 109) notes “night time paraesthesia bilaterally” and “right l5 nerve pain persists … for CT as per Dr Bonev”. The notes record a doubling of the dose of the medication, Lyrica, and that this “had helped”. There is in the records of Dr Kumar (at p 122 of exhibit 14) an undated report of Dr Bonev, a neurologist. Dr Bonev recommends increasing the dosage of Lyrica, (as Dr Kumar’s notes record in fact happened) and for a CT investigation. The CT is noted in Dr Kumar’s notes as having been requested on 10 April 2017.
- In the circumstances I conclude Dr Bonev’s letter, although undated, was written in about April 2017. He refers to a history of paraesthesia and a burning sensation in the lateral aspect of his left thigh for approximately 12 months and of similar symptoms in both feet for two to three months. The sensory impairment was, Dr Bonev said, in the right S 1 dermatomal distribution.
- On 25 June 2019, (p 135 of exhibit 14) Dr Kumar noted “pain right back better after physio and any lifting 10 kg triggers pain”.
- On 11 November 2019, (p 136) Dr Kumar noted the plaintiff developed “LBP from standing” and said standing and walking triggers numbness and tingling. A CT of his lumbar spine was requested on 12 November and Dr Kumar notes “severe spinal canal stenosis L3 to L5”.
- On 22 February 2020, Dr Kumar noted right sided lower back pain (exhibit 14, p 167) and on 15 April noted “back pain still” (p 171). On 15 June 2020 he notes “LBP ++” and on 23 June March records “back pain persists and wants to know what next” (both p 174).
- On the following day he again saw Dr Kumar who records: “wrt back pain. Good and bad days. Discussed surgery L2 rods screw”. He then described symptoms of paraesthesia and disturbed sleep (p 175). As I have noted, despite this persistent history he made no mention of back pain during consultations with Dr Morgan or Dr Cooke. He also mentioned no physical injuries or disabilities to Dr Estensen.
- I note these matters not because of any conclusion that I might draw about the extent of the plaintiff’s incapacity from his spinal problems, but to illustrate the concern I have with Mr Giles’ failure to mention such matters to Dr Cooke or to Dr Morgan, or to others providing medical legal reports in this matter, and the effect that has on my assessment of his credit. His omission to tell Dr Morgan or Dr Cooke of his back problems does nothing to enhance his credit.
- Before leaving consideration of the effect of medical evidence on my assessment of the plaintiff’s credit, there is one further issue I should address. Counsel for the plaintiff, in paragraph 13 of their written submissions, submit that the extent of the plaintiff’s prescriptions for Mobic does not suggest he had significant hip pain, or at least hip pain to the extent suggested by the defendant. It was said that “a careful review of Exhibit 14 (the GP records) would show that through the relevant period, the only occasions on which the Plaintiff was prescribed Mobic was 04.04.13, 24.12.13, 10.02.15, 21.06.16 and 18.08.16”.
- Two comments should be made. First, whilst the plaintiff was prescribed Mobic on those identified occasions, he was also given three repeat prescriptions for Mobic on each of those occasions, except on 21 June 2006, when one repeat was give.
- Second, he was also given a script, again with three repeats, for Mobic on at least 2 other occasions namely 07.02.17 and 10.06.17. In noting that, I should say I have not gone through the exhibit checking each consultation, but came upon these entries during my perusal of the records.
- Consequently, rather than the five prescriptions which the plaintiff’s submission suggests were given to the plaintiff, there were at least 26 prescriptions for Mobic, suggesting a significantly greater reliance on that medication, and consequently significantly greater levels of hip pain, than the more limited number of prescriptions suggested by counsel for the plaintiff might indicate.
- Counsel also submitted that all doctors who have prepared medico-legal reports were provided with “all the available medical evidence, including the GP notes.” I accept that is so. Counsel then submitted that if such doctors “chose not to read them or raise issues with the plaintiff, he should not be punished.”
- Again such a submission misses the point of the defendant’s cross-examination of the plaintiff about these issues, and the highlighting of them in the defendant’s submissions. The defendant’s submission is that Mr Giles’ had not been honest about his medical history and that this should influence my assessment of the credibility and reliability of his evidence generally. It does.
- This analysis of the evidence shows, or attempts to show, why I have come to the adverse conclusion I have about Mr Giles’ credibility and reliability. I have not sought to punish the plaintiff in any way because any doctor may, or may not, have read the whole of the material provided to the doctor. No such omission by any doctor has influenced my assessment of the plaintiff’s credibility as a witness. It is the conflict in the plaintiff’s own statements which are critical.
- In my view the failure of the plaintiff to be frank about symptoms of back and hip pain, to reveal the extent of his physiotherapy or pharmacological treatment for such matters and the marked contrast between his reporting of such matters, especially to Dr Cooke and Dr Morgan and the contemporaneous records about such matters of Dr Kumar and Dr Bonev and his statements to Ms Durand cause me to have real doubts about his honesty.
- His failure to now recall seeing a psychologist in about October 2009 for work related stress issues concerning deaths, or to recall symptoms which resulted in Dr Kumar’s notation of psychological symptoms in October 2009 and January and November 2010 also cause me concerns about the reliability of his memory about historical events, but of themselves do not cause me to think he was being dishonest in not recalling such issues.
- It is necessary to determine what occurred on the night of the fire and thereafter having regard to my determination that the plaintiff’s credibility was so adversely effected.
- Peter Mountain was Station officer (SO) at Woodridge Fire Station on the night of the fire. He was thus the Officer in charge of the plaintiff’s crew when they attended Wagensveldt Street, on fire truck (described as an “appliance”) 638A. At the fire he was the initial incident controller, before handing over that authority to another SO, Mr Bobbermien, from appliance 641A. Mr Mountain continued as operations officer for the duration of the fire. Subsequently, when more senior officers arrived, Mr Bobbermien surrendered his duties as incident controller to Inspector Bill Kennedy.
- Mr Mountain explained his responsibilities as operation officer as “the safety of personnel, anybody in the area, and the actual fire extinguishment and protection of the scene” (T5-39, l 33/34). And he was, of course, responsible for the safety of his own crew, including the plaintiff.
- He describes his growing awareness of the catastrophic consequences of the fire and of the fact that there would need to be a full fire investigation and coroner’s report. (T5-40, l 15/16).
- Mr Mountain referred to various entries in the ESCAD incident report (hereinafter ESCAD, exhibit 1, Liability and Employer records, pps 1-10), noting the following entries;
- (i)00.11.07am – 638A arrived at scene;
- (ii)1.05.06am – fire under control;
- (iii)1.26.16am – six men in breathing apparatus dampening down external; and
- (iv)2.51.46am – stop fire out. All crews standing by dampening down. Liaising with QPS.
- Mr Mountain explained that his appliance, 638A, arrived first at the fire at 12.11.07am on 24 August. The fire was under control by 01.05.06 and out by 02.51.46am. The QFRS continued to spray water onto the fire to dampen it down and to prevent the situation getting any worse for victim identification. Importantly, Mr Mountain said he was “part of discussion around whether (his) crew were going to stay on at the scene or be relieved by replacement crew” (T5-42, l 36/40).
- Exhibit 4 was a document entitled “Issues Not in Dispute”. It was tendered by the plaintiff, with the consent of the defendant. Item 9(b) to (g) of that document listed as issues not in dispute the following:
“9 At the Fire:-
(b)Peter Mountain was the initial incident controller;
(c)Ross Bobbermien was the subsequent incident controller;
- (d)Peter Mountain in consultation with the subsequent incident controller made a decision that the number of QFRS personnel at the Fire would be limited;
- (e)There was a conscious decision (‘the decision’) made by the Defendant to limit, where possible, the total number of QFRS personnel at the Fire;
(F)Peter Ryan was the superintendent present at the time of the Fire;
- (g)Ross Bobbermien was a party to the decision.”
- Consideration of ESCAD shows that Mr Bobbermien formally took over the role of incident controller at 12.24.11am. At 1.41.13am it is noted the command vehicle was now appliance 635K, that Inspector Kennedy was the incident controller and SO Bobbermien the Deputy Incident Controller. This same command structure is again noted in the ESCAD report at 2.30.23am.
- The exact circumstances of the making of the decision to have the original crews, 638A which arrived at the scene at 12.11.07, and 641A, which arrived at 12.13.26, remain at the scene and allow subsequent crews to depart is uncertain. But that is not critical to my determination of the matter. The point is that Peter Mountain, Ross Bobbermien and possibly Inspector Bill Kennedy, who became the incident controller at 1.41.13, may all have been involved in the decision to keep Mr Giles’ crew, and Mr Bobbermien’s crew from A641, at the scene. It is undisputed that this was a conscious decision on behalf of the QFRS to limit where possible the total number of employees of the service exposed to the fire. Thus, whilst Mr Giles, and others compromising the crews of 638A and 641A, were exposed to the fire for longer, a fewer number of employees of QFRS were exposed to the trauma of the fire than would have been the case if new crews were rotated into their role during the night.
- Consideration of ESCAD from about 3am through to 5am notes the departure of various other crews. It is not clear to me from ESCAD exactly what time units 641A and 638A departed but it is not disputed that the plaintiff’s crew, on appliance 638A, left the fire at 9.00.05 (see Item 8(iii) of Issues Not in Dispute).
- Even after these crews departed on the morning of 24 August, QFRS maintained a significant presence at the scene for some days. The handover of the scene to police is noted at 4.17.07pm on 27 August (see page 8 of the ESCAD).
- Mr Mountain explained why in his view it was desirable to limit the number of personnel exposed to the fire. He said (T5-44 l26 ff) that it was unnecessary, in terms of physical exertion, to bring people in to do lots of firefighting. In this respect, it was unlike a major fire at an industrial site or bush fire. He explained that after the initial time of about an hour and half “we weren’t working hard. We were just at the scene.” (T5-45 l2/4) and didn’t need rotation “from a physical point of view”. I accept that to be so. In particular, whilst the plaintiff’s job as pump operator was a very responsible one, it was not, I find, a particularly physically demanding job. By the time the fire was under control, under an hour after their arrival at the scene, and more especially after the fire was said to be “out”, some two hours and 40 minutes after their arrival, that was particularly so.
- Mr Mountain said in his evidence-in-chief that after the decision was made that his crew was to stay at the scene he communicated that to them (T5-45 l14/25). Mr Mountain said the decision to retain the original crews from unit 638A and 641A on site was a decision “made for the welfare of others” (T5-57, l 3).
- Whilst Mr Mountain has no clear recollection of the actual conversation with Mr Giles, he was certain he would have told the plaintiff of the decision to remain on site. He said at T5-57, l 44 ff: “There’s no way I would not tell one of my crew members, who’s a senior guy in my team, that we’d be stay… we’re not (sic) staying there … not tell him that information. That’s critical for him to know. And I definitely did tell him and other crew members.”
- Mr Mountain later said he did remember telling Mr Giles about the decision but could not recall the actual words used (T5-58, l 1/5). He said when he went home that night he did not understand any of his crew was unhappy with had had happened at the scene that night (T5-59, l 10/12).
- Whilst I make no finding as to the words used, I accept Mr Mountian’s evidence that Mr Giles was told of the decision to keep the crews of 638A and 641A on site, and to withdraw other crews.
- I find Mr Giles has only a poor recollection of the details of events on the night. I do not accept his evidence for reasons significantly related to earlier discussion of his credibility and reliability. I remain uncertain as to exactly what conversations in fact took place between Mr Mountain and Mr Giles but do find they spoke, on more than one occasion during the night of the fire, and that during such conversations Mr Mountain asked in some way about Mr Giles’ situation and wellbeing.
- At trial some time was spent questioning both Mr Giles and Mr Mountain about exactly what was said, and how often. I cannot be certain of the precise detail of their conversations or of what either person said. That is not surprising and is not of itself a criticism of either witness. The event was a tragic and no doubt emotional one. Everybody was pre-occupied with the important tasks they were performing. Whether a question was “how are you going?” or “how are things going?” is not something either man could be expected to subsequently recall. So too whether Mr Giles said the words “this is just not right”, as he suggested, is not something either person can now be certain of and not something I am prepared to find was said. I do not however have any concerns about Mr Mountain honesty and credibility.
- I find that on at least two occasions Mr Mountain made an enquiry of Mr Giles, giving Mr Giles an obvious opportunity to enunciate any distress he was feeling. Furthermore, I find he did not do so. I am satisfied that if he had told Mr Mountain that he was distressed, Mr Mountain would have done something about it. The fact that he did not do anything to address any concern Mr Giles had, indicates to me that Mr Giles did not indicate or exhibit distress. This is unsurprising. Many might not be inclined to tell their supervisors that they are having difficulty coping with a stressful fire. Mr Giles might have, at the time, been having no real difficulty. And in any case, in the highly charged circumstances of the fire a firefighter might not even recognise his own signs of distress or emotional fatigue.
- That an officer might not enunciate such feelings is entirely unsurprising. Similar issues were discussed by Keane JA (as His Honour then was) in Hegarty v QAS. It is in my view common in human nature for people not to readily admit what might be perceived by some as a weakness or inability to see things through to the end.
- This finding that Mr Giles’ did not tell Mr Mountain of any distress he was feeling, accords in my view with common sense and experience. So too does my finding that if he had been told anything of concern, Mr Mountain would have acted to address that issue.
- It also accords with Mr Mountain’s evidence (T5-45 l32/35). He said if any crew member had indicated “any concern about staying on” he would have discussed it with them and “we would have made arrangements for them to leave”. I accept that he would have done so. It is what descent people, such as Mr Mountain, would do.
- I accept Mr Mountain’s evidence that he “touched base with all the crew members at least two or three times during the night” (T5-46, l 32/33). It is generally consistent with Mr Giles’ own evidence of having two conversations with Mr Mountain. I also accept Mr Mountain’s evidence that “(n)othing struck me when I was talking to him or when I saw him that he wasn’t well or something wasn’t right” (T5-47, l 2/10) and that if he had any concerns, he would have had a more intense conversation and brought it to the attention of the Incident Controller (T5-47, l 19/23). He said he might in fact have spoken to Mr Giles up to six times on that night (see for example T5-53, l 1/3 and T5-55, l 25). I accept he may have done so. It is likely, particularly as work demands on the firefighters subsided, that work colleagues would have so interacted. That too is human nature.
- In his evidence in chief Mr Mountain also spoke briefly of a debrief held at Woodridge. It was attended by, amongst others, Chris Nealon of Fire Care. He gave evidence and I shall refer to his evidence shortly. Members of the 638A and 641A crews also attended as did one Brisbane crew. Mr Mountain said he couldn’t recall anyone talking at that meeting of being agitated. It is however likely, in my view, there was a significant degree of distress. Mr Mountain in fact said he told the group it was the worst job he’d ever been to, not just because of the number of fatalities, but because they were unable to do anything to help those trapped (see T5-49, l 17/25).
- In cross-examination, Mr Mountain denied Mr Giles was teary and upset at the debrief (T5-51, l 31/33).
- Some little time after the incident the QFRS completed an incident investigation (see pps 55/58 of the Liability and Employer tab of exhibit 1). It references the plaintiff’s psychological injury, said to have been reported at 4.02 pm on 26 August 2011. He in fact first saw Dr Kumar after the fire, at 8.39am on that day, and reported symptoms of psychological injury.
- It seems an HR employee of the QFRS, Danielle Yorke, completed the form but the “person with ownership of the investigation” who produced much of the information in it, was Mr Mountain. I assume he made relevant inquiries and reported matters to Ms Yorke. She may also have inquired of others. In any case, the document records relevant matters.
- It is recorded “Peter (Giles) did ask ASO Salisbury why we had not done crew changes during the incident and it was explained that we were attempting to keep personnel exposure to this incident to a minimum. My crew and I including Peter Giles were on scene from 0011 until 0900 when we departed back to Woodridge fire station and attended a CISD conducted by Fire Care coordinator Chris Nealon. Peter did not report any problems at this time. I recall Peter leaving Woodridge fire station at approximately 1030.”
- The document does not record the circumstances in which, or occasion when, Mr Giles asked Mr Salisbury why crew changes had not been made. The note does not assist me in my consideration of whether or not Mr Giles had been told by Mr Salisbury during the course of the night that the crew would not be rotated. It is simply silent about such matters.
- The report describes the process used to conduct the investigation as follows;
“Phone calls and conversation with other officers who attended the incident to identify if Peter had reported his anxiety. As far as I can ascertain, Peter did not report any problem to anyone”.
- The contemporaneous nature of the document and the fact that I see no reason to doubt the credibility of Mr Mountain or Mr Salisbury means the content of the report is likely to be true.
- In cross-examination concerning his talking to Mr Giles on the night of the fire, Mr Mountain said the first occasion he specifically recalls speaking to him was “early on as we were getting control after I’d finished dealing with the fire, I would have come back to the truck to speak to him. And then after that would have been as … just as the incident progressed.” (T5-53)
- It was suggested to Mr Mountain that he did speak to Mr Giles but simply asked “‘how’s it going”. It was suggested this question was directed to the issue of how the operation was proceeding “from an operational point of view only.”
- Mr Mountain immediately denied that suggestion. I interrupted, pointing out to counsel that all that Mr Mountain could say was what he was asked, and not how it was to be interpreted or what the questioner meant.
- Senior counsel for the plaintiff then suggested there was no further conversation at that time, but that Mr Mountain approached Mr Giles a second time “at a stage the fire was under control” and then asked “are you OK… how are things going?’ Mr Mountain said he could not recall the actual words he used. He said he could not recall being told by Mr Giles “(t)his is just not right” but agreed his response could have been along the lines suggested.
- My findings in relation to this are set out earlier. Put simply, I do not think either Mr Giles or Mr Mountain has a clear recollection of exactly what was said.
- Mr Mountain said no representative of Fire Care was present at the fire. He said that the first time he saw anyone from Fire Care on that day was at the Woodridge Fire Station where the debrief occurred.
- Mr Mountain when cross examined initially denied that whilst working for QFRS he was ever rotated out of a job during a shift (T5-61, l 36) but ultimately accepted he simply could not remember ever being rotated out, but could not say it had never happened (T5-64, l 29/30). He accepted that over a three year period before the subject incident he had attended only 10 incidents where his attendance was for three hours or longer. The extended duration of this attendance was clearly because of the catastrophic nature of the fire itself.
- There was nothing in Mr Mountain’s evidence to cause me to doubt the credibility of his testimony.
- Steven Salisbury joined the QFRS in 2003. In August 2011 he was a leading firefighter at Beenleigh Fire Station. He knew Mr Giles since they were both in Logan command which compromised only four stations. He was officer in charge of appliance 635K. The ESCAD report shows this unit arriving at the fire at 12.27.24am. His vehicle was not a fire fighting truck but a specialised vehicle which ultimately became the command control vehicle. It remained at the scene for some days. Mr Salisbury was tasked with the role of being safety officer.
- This role involved, inter alia, a supervisory role to ensure everyone on site wore the appropriate equipment including breathing apparatus. The safety officer also ensured people were properly and appropriately located, ensured they are properly hydrated and not overheated or otherwise incapacitated (see T6-53 l17/38).
- Exhibit 26 was introduced into evidence through Mr Salisbury. This document comprised two separate documents. The first two pages are a document prepared at the request of acting Chief Superintendent Peter Ryan concerning issues that arose at the fire. On its face it was prepared by Mr Salisbury “on behalf of” Mr Mountain and Mr Bobbermien. It addresses a number of specific questions about the fire raised by Mr Ryan. It contains little of import to my determination although one of the questions related to “media early footage”. The report indicates “no media seen at site till fire out” and says that one early photo of the fire – “prior to any QRFS attendance on site” – had been found in google images but that no record of the fire had been located on YouTube or Twitter. I noted earlier that the fire was said to be under control at 1.05.06am and out at 2.51.46am. This is of some interest because of Mr Giles’ report to Dr Kumar of his irritation at the “hoopla” about, inter alia, the media.
- The first document casts no light on any role Mr Salisbury, Mr Mountain or Mr Bobbermien played in supporting Mr Giles.
- The second document comprising exhibit 26 is headed “file note”. It was a document Mr Salisbury said he prepared for his own use. He said he “created (it) of my own volition (because) it was a … unique incident … I basically wrote down what I recalled doing and when I did it … as a bit of a memory jogger.” (T6-54 l10/15)
- Mr Salisbury said that both documents were completed within a week of the fire. They were certainly completed at a time when events would have been fresh in his mind.
- In his own document he identifies;
- (1)That one of the male occupants of the house came up to him crying, saying his family was inside. He was referred to police and Mr Bobbermien was told about him.
- (2)There was no early media attendance. I interpose that this is consistent with the first documents notation that no media were seen on site till the fire was out.
- (3)That at 2.05, two officers were tasked with a dynamic risk assessment of the house, using a thermal imaging camera. Mr Salisbury noted “the main fire was out at this stage but multiple hotspots were being extinguished for the next three or so hours”.
- (4)That he was safety officer throughout the incident and conducted a “thorough check of all QFRS staff, watching for stress, anxiety etc.” I again interpose that to have done so was unsurprising, according with might be expected of a safety officer at a traumatic fire.
- (5)That in discussion with Mr Bobbermien and Mr Mountain a critical incident stress debrief was found to be required and was arranged for 8.30 at Woodridge Fire Station, to be facilitated by Chris Nealon.
- Mr Salisbury gave oral evidence about his checking of QFRS staff. He said he was “watching for stress and anxiety” (T6-55 l14/15) particularly with those wearing breathing apparatus. He said he remembered twice checking on Mr Giles. The first he said was “early on” in the event. He described Mr Giles work at the time as a “very busy first part of the job” and said the check was “when he was external”. He explained that this meant he checked on him when Mr Giles was outside of the vehicle, 638A.
- He explained that once the fire had abated and the firefighting was about putting out hotspots he again spoke to Mr Giles when Mr Giles was “in the back of the appliance.” (see T6-56 l1/2) He said he remembered checking on Mr Giles when he was there, which he said was when the food arrived.
- Consideration of the ESCAD report shows, consistent with Mr Bobbermien’s evidence, that Mr Bobbermien had rung McDonalds at Wembley Road at 2.13.23am. Consistently with that timeframe, I surmise Mr Salisbury’s second conversation with Mr Giles would have been at approximately 3am, allowing time for the order to have been prepared, collected and returned by Mr Bobbermien to Wagensveldt Street. Mr Salisbury said “I definitely checked on Mr Giles at least twice.”
- Understandably, Mr Salisbury said he didn’t recall the actual words he used when speaking to Mr Giles but said that a safety officer’s role was to make sure everybody was okay. He explained that he recollected Mr Giles being in the rear seat compartment of the fire truck and explained this was quite normal as it was more spacious than the front driver’s or front station officers seated area.
- He said there was nothing in his conversation with the plaintiff that raised any concern about Mr Giles emotional wellbeing. He said there was nothing out of the ordinary.
- If he had any such concerns he said he would have discussed those concerns with the incident controller and senior officer on site. I accept his evidence about such matters. There was nothing to cause me to doubt it. That he could not recall exact words used is unsurprising. His evidence of observing no sign of Mr Giles being distressed is consistent with his not raising that issue with more senior officers, with his own document (compromising part of exhibit 26) that records he had conducted a thorough check of all QFRS staff, and with the notation in the QFRS incident investigation that Mr Giles did not report any problems (at pps 58/58 of exhibit 1, liability and employer tab). It would be very surprising if Mr Giles was showing signs of distress that the safety officer would have not addressed that issue.
- Mr Salisbury explained the circumstances of his subsequently leaving the fire which he said was about 8.00 am. The vehicle he came in, 635K, was to remain on site as the command vehicle for some days. He says he left by car. He said he could not remember if it was the senior officer’s car or if he got a taxi. In any case he says he and his driver went to Woodridge Fire Station where the debrief occurred.
- Mr Salisbury’s lack of memory about the particular circumstances of him leaving the fire causes me no concern. In fact, his frankness in saying he could not now remember how he did leave in my view enhanced his credibility. He was quite prepared to admit a faulty memory about that matter, something which a witness who lacked credibility might well not have been prepared to do.
- So too Mr Salisbury readily acknowledged that, on occasions, fire fighters have said to him at fires “(w)hy are we still here” or similar, but said he had no recollection of such a conversation with Mr Giles on this occasion.
- Mr Salisbury said that if a fire fighter was “unsettled and concerned” about being or remaining at the fire he, as safety officer, would have spoken to senior personnel. He said “we have the ability within the organisation to either rotate them through… to give them another role or if they are requiring to leave their shift”. I accept he did not do so here because, having spoken to Mr Giles, he had no such concern.
- He also said it was not unusual to limit the number of employees exposed to a fire, fatality or other emergency scenario (10.60/61).
- Mr Salisbury said the decision to debrief at Woodridge station was because of the presence of many family members at the fire and because Mr Nealon, a peer support officer with Fire Care, could be present at the debrief if anyone required a one on one conversation. He said the debrief lasted about 20 minutes. He said he could not recall Mr Giles being there, though he undoubtedly was. Such a concession is again entirely consistent with his being an honest and reliable witness.
- In cross-examination Mr Salisbury said he was “quite sure” Mr Giles was in the back seat of 638A when he spoke to him and specifically disagreed with the suggestion put to his that he was in the driver’s seat. He said “I saw him in the back of the appliance”, when it was still night time, consistent with his earlier evidence about it being about the time of the arrival of food from McDonald’s. Because of my concerns about the credibility and reliability of Mr Giles evidence, and my acceptance of Mr Salisbury’s evidence, I accept Mr Giles was in the rear seat, but in my view nothing terms on that finding.
- Chris Nealon was in August 2011 a senior fire fighter. He was also a peer support officer. He explained that role as checking on crews after critical incidents and being a contact point for fire fighters to come and seek assistance (T5-25, L42-45). He said he knew the plaintiff.
- On the night of the fire he received a text advising him of it. Subsequently he was asked to attend the debrief at Woodridge Fire Station which he did. There he met Rob Strong, the QFRS Chaplain. He says he spoke to the group in attendance about the importance of caring for one’s self and of what could happen to them. He said he told the group he would be “hanging around for a cup of coffee if someone should want to chat”. It was not suggested that the plaintiff had spoken to him.
- He said he received training “recognising signs and symptoms of critical incidents and stress and active listening”. Asked if he saw such signs in any of those who attended the debrief at Woodridge he said, “I can’t really recall but there was a lot of agitation”. (T5-32, L4-5). I accept that would be so – and have earlier noted that Mr Mountain said he told those at the meeting it was the worst fire that he had ever been to.
- He said that as a station officer - which he is now – he did received training to welfare check his crew. He described this involved asking “if they’re ok, if they’re doing well, ensure that they’re performing their duties and then if something goes amiss ask them … (if) they’re having trouble”. He said they are trained to do this “away from the hot zone or back from the fire a bit”. (T5-32, L27-30)
- He accepted the suggestion put to him by Junior Counsel for the plaintiff that how long a crew was to remain at the fire “could be something (he’d) raised with a crew member” (T5-32, L43-45). But in this regard I note my finding that I accept Mr Mountain’s evidence that he had told his crew including Mr Giles that they were to remain at the fire.
- In my view little turns on the evidence of other QFRS officers who gave evidence. Daniel Fetchner had been with QFRS or its predecessors from 1986-2015. He had not been through another critical incident of the magnitude of this fire.
- He said it was his experience that in most instances if it appeared that an incident was likely to go for around four hours, or even two, that the crew would be rotated. He was referred to a summary of his attendances at incidents from January 2008 to August 2011 (Exhibit 2, p4). That document shows that of 329 incidents, only 11 were for attendances of greater than three hours. The longest, a grass fire, involves an attendance of just over seven hours. The longest structural fire he attended in that time was for some five hours and 17 minutes.
- The document does not assist in understanding whether he had ever been rotated from a critical incident but does show that he remained at some incidents for in excess of five, and even seven, hours. Other officers gave broadly similar evidence.
- The plaintiff said he drove appliance 638A to the fire. The truck was the first appliance to arrive, at 12.11am. Mr Giles described parking the appliance on the side of Wagensveldt Street opposite number 58, facing away from number 60, and towards the intersection of Wagensveldt Street with Veldt Street. I accept his evidence that the appliance was only about 12m from the corner of Veldt Street. The appliance was parked at an angle so that the left hand rear of the vehicle was nearest to the gutter and the right hand front of the appliance furthest from the gutter.
- When he arrived a crowd of onlookers had already gathered in Veldt Street but could not move forward onto Wagensveldt Street as police had cordoned off the top of Veldt Street. I accept that a crowd remained in that position until the appliance left at about 9am.
- This description of the scene is consistent with a plan drawn by the plaintiff (Exhibit 6) which I accept as generally depicting the scene.
- Subsequently, other appliances arrived but their exact location is not important.
- Appliance 638A was fitted with capacity for at least two fire hoses. These were during the morning operated by various officers, including those from 638A, namely Mr Leach and Mr Hickey with assistance from Mr Mountain, but nothing turns on that precise issue. Mr Giles’ job throughout the whole period of eight hours and 49 minutes that 638A was at the scene was to be the pump operator. He located a fire hydrant on the footpath opposite number 60, connected a hose to the hydrant and to the truck and ensured the water pressure and volume was maintained throughout the whole of the period he remained at the scene. Even though fire officers got the fire under control by 1.05.06 am, after less than an hour, the plaintiff still had to ensure there was adequate water and pump pressure until the appliance departed at about 9 am. Whilst his job was a responsible one, it was, at least after the initial set up, not a physically demanding one.
- The plaintiff identified in his evidence, and to doctors to whom he gave descriptions of the event, a number of factors that, he said, distressed him about his involvement with the fire. He nominated these:
- (1)The long duration of his continued attendance at the fire, namely eight hours and 49 minutes;
- (2)The large crowd, which was very close to him and from which he could clearly hear wailing, crying and other sounds of obvious distress and anguish. Many were Samoans. Over time he said his perception of this crowd noise increased, perhaps due to some abatement of other noises as the fire subsided and other appliances and officers left the scene.
- (3)The fact that 11 people, including eight children, died and he and the fire service could do nothing to stop that from that happening.
- (4)Media treatment of the event, both on the night in question and subsequently. He described the media as being “in your face” and “overhyping”.
- (5)His distress at being told both that a person had escaped from the fire by jumping from a window, but that other family members had not followed that lead and also of his hearing that one fire officer had looked in through a window of the residence and seen “arms and legs” everywhere.
- Whilst at the scene the plaintiff also said he had access to water but that the only food he was provided with was “a cold McDonald’s cheeseburger and chips”. Nothing appears to turn on that issue.
- He said that despite the presence at the scene of a number of station officers, including Mr Mountain, representatives of Firecare, Mr Ryan (the Senior Area Commander), Mr Peter Beauchamp (the Assistant South East Commissioner) Mr Ian McKenzie (Assistant Chief Officer) and Stephen Salisbury (Safety Officer and Relieving Station Officer at Beenleigh) no-one, other than Mr Mountain (and it would seem Mr Salisbury) spoke to him about his wellbeing. I accept Mr Salisbury’s evidence that he spoke to Mr Giles. Mr Giles says during the whole of the period Mr Mountain possibly spoke to him twice about such issues. I have found that Mr Mountain did so at least twice and perhaps more than that. He said on the first occasion, Mr Mountain had asked him “how are things going” but Mr Giles said he thought Mr Mountain was enquiring as to the operation of the appliance and not his own welfare.
- On the second occasion, he said he was again asked by Mr Mountain how things were going and says he replied “this is just not right”. He said during cross-examination, that by this comment he meant to indicate “that it was not right” that so many people were trapped and the fire service could do nothing to save them.
- He denied any other welfare checks by Mr Mountain and specifically denied that Mr Salisbury had also twice enquired how he was going, and of his saying that he was “fine”. Mr Giles did say that at one stage he asked Mr Salisbury why they were still at the fire. It was suggested to him in cross-examination that he had in fact not asked Mr Salisbury that question. In response he said that he “believed” it did happen. It seems clear that was such a discussion because it is mentioned in the QFRS incident investigation but I am unable to determine when or the detail of that conversation.
- He also said that “late in the job” he “may have” been told by Mr Mountain that the crew and appliance were “staying” but denied that he was told by Mr Mountain that they would be at the scene “for the duration” because they were the first crew at the scene and so it was their responsibility to “see it out”.
- I do not accept his denial of Mr Salisbury inquiring as to his welfare preferring the evidence of both Mr Salisbury and Mr Mountain about the events at the fire.
Breach of Duty and Causation
- Paragraph 6 of the Statement of Claim particularises negligence against the State in the following respects:
- (a)failure to manage or monitor the Plaintiff at the fire including a failure to rotate him, a failure to welfare check him, and a failure to remove the crowd further from the fire;
- (b)failure to relieve and/or rotate the Plaintiff further particulars of which are that it is unusual to be at a traumatic accident scene for any more than three hours, that requiring a worker to remain in this traumatic environment for eight hours and 50 minutes is not reasonable management action, and allowing such prolonged exposure to the traumatic scene heightened the risk of injury to the Plaintiff;
- (c)failure to properly instruct or train the Plaintiff, further particulars of which are that if the QFRS protocols spelled out the requirement to rotate firefighters at the traumatic accident scenes and/or fires, the Plaintiff would not have been exposed for a prolonged period as he was;
- (d)making a conscious management decision not to rotate the Plaintiff (and his crew) because it would limit the exposure of other firefighters to the traumatic scene of the fire;
- (e)failing to identify and/or educate its senior staff in the critical stress impact of prolonged exposure to traumatic events;
- (f)failing, despite a warning from part of its debrief team, to appreciate the Plaintiff’s propensity to decompensate and provide immediate and supportive counselling and support.
- The defendant’s submission notes that in a Reply to the Defence, the plaintiff expressly refers to what he describes as “the normal protocol of rotating officers from traumatic incident sites after three hours”. Particulars of this allegation were sought. In Amended Further and Better Particulars dated 16 November 2017, the plaintiff –
- (a)concedes that there is no known title of the protocol;
- (b)asserts that, during his employment with the Department prior to the Slacks Creek fire, neither he nor any other operational staff were required to remain at a traumatic incident site for more than approximately three hours depending on the nature and severity of the event, it having become “a standard work practice over the years to relieve operational staff accordingly”;
- (c)concedes that he is unaware of whether the protocol was ever reduced to written form;
- (d)concedes that he does not know whether the protocol was issued or by whom, “but it was invariably followed save for the incident, the subject of this claim”.
- Of the six particulars of negligence identified above, I accept the defendant’s submission that at least three can be immediately discarded for the reasons defendant identifies as follows:
- (a)failure to properly instruct or train the Plaintiff, further particulars of which are that if the QFRS protocols spelled out the requirement to rotate firefighters at the traumatic accident scenes and/or fires, the Plaintiff would not have been exposed for a prolonged period as he was;
No evidence was given about the proper instruction or training which it is said ought to have been imparted to the plaintiff.
- (b)failing to identify and/or educate its senior staff in the critical stress impact of prolonged exposure to traumatic events;
No evidence was given as to manner and form of the education of senior staff which ought to have been implemented. This particular fails.
- (c)failing, despite a warning from part of its debrief team, to appreciate the Plaintiff’s propensity to decompensate and provide immediate and supportive counselling and support.
There is no evidence I accept that during the debrief at Woodridge Station, the plaintiff was particularly agitated and/or teary. Further no evidence has been given that “immediate and supportive counselling and support” would have obviated the diagnosed psychiatric disorder. The plaintiff saw his GP, Dr Kumar, the next day (26 August 2011) and had his first consultation with a psychologist (Eleanor Barlow) the same day, with another two consultations taking place before 8 September 2011. There is no evidence other counselling should have been given or would have yielded any different result.
This particular fails.
- The only particulars of negligence which need to be addressed in any depth are those in sub-paragraphs (a), (b) and (d) of paragraph 6 of the Statement of Claim, relating in broad terms to the following:
- (a)A failure to rotate the plaintiff away from the scene at an earlier point in time than occurred in fact;
- (b)The adequacy or otherwise of the welfare checking undertaken with respect to the plaintiff.
- Assistant Professor Samuel Harvey is a specialist psychiatrist and a Professor at UNSW. He is chief psychiatrist of the Black Dog Institute and has a PhD in psychiatric epidemiology. He leads a large research program focused on the mental health of emergency service personnel. He has an impressive CV set out in his report of 12 January 2020. (see exhibit 1, medical reports tab, pps 153-164).
- I should note that whilst that report, obtained by the plaintiff’s solicitors in support of their client’s claim that the QFRS was negligent in their management of the plaintiff on the day of the fire, identifies some 48 sources of information which informed Professor Harvey’s report, not all of those documents were in evidence before me. (Documents 1.23, 1.31, 1.37, 1.39, 1.41-1.43 and 1.47 were not). It was not suggested however that information in those documents was critical to Professor Harvey’s opinions expressed in the report.
- In addition to the report, six further documents concerning Professor Harvey’s evidence were tendered. They were:
Exhibit 29 – a statement prepared by Professor Harvey of 22 October concerning a conference on 3 August 2020 between he and the defendant’s lawyers;
Exhibit 30 – a file note of that conference prepared by the defendant’s lawyers;
Exhibit 31- emails between the defendant’s lawyers and Professor Harvey on 14 April and 3, 12 and 28 August 2020;
Exhibit 32 – article by M Perrin et all (see footnote 3 at p 9 of Professor Harvey’s report of 12.1.20 at p161 of exhibit 1 Medical Reports tab);
Exhibit 34 – article by D Kaysen et all (footnote (3) at p 2 of exhibit 9);
Exhibit 33 – article by Dr Harvey et al;
- In his report, Professor Harvey said the plaintiff had attended numerous, potentially traumatic incidents prior to 2011, being the year of the fire, including many fatal motor vehicle accidents but “did not feel he had any psychological difficulties following these incidents”.
- I have referred already to notations in Dr Kumar’s medical records of 5 October 2009 and 14 January and 12 November 2010 concerning prior psychological distress. When asked in cross-examination about the October 2009 notation Professor Harvey said he did not think his attending a psychologist for work issues to do with fatalities on 5 October 2009 would alter his opinions expressed in his reports. In the absence of evidence about the extent of such consultation in 2009 and the extent of his then symptoms, I accept that to be so. It is however somewhat perplexing to me that Professor Harvey expressed that view without making any inquiries about such issues. I would thought the detail of plaintiff’s complaints in 2009 and the extent of his treatment by a psychologist might be important to Professor Harvey’s assessment of that issue.
- Professor Harvey described the plaintiff’s distress at the circumstance of the fire noting he was “most distressed by feeling helpless and having to witness and hear the community and family members’ distress and grief for so many hours”.
- I am unpersuaded the presence of the crowd was a major issue in the development of his PTSD. When he attended Dr Kumar on 26 August, just days after the fire, he made no mention of the crowd. Instead he mentioned the presence of bodies, (though unseen by him) and irritation at the “hoopla about ministers and authorities and media”. Nor did he mention the stress of the crowd when he again saw Dr Kumar on 8 September, 22 September or 6 October 2011.
- I also note the report of Mr Riordan of the 27 February 2012, his first report that I have about the plaintiff’s condition refers to;
- (a)the death of women and children;
- (b)media attention;
- (c)Mr Giles attendance for 9 hours;
- (d)Witnessing the bodies of burnt women and children (which, incidentally he agreed he did not in fact witness, but was told off).
- These were said by Mr Riordan to be “the initiating event”. There is again no mention of the crowd, which Professor Harvey describes as a matter which “most distressed” the plaintiff, alongside feeling helpless to assist.
- At paragraph 4.2 of his report, Professor Harvey says:
“If those managing the operational response to the Wagensveldt Street fire opted to not rotate Mr Giles’ crew automatically, then an acceptable alternative might have been to keep Mr Giles in place at the incident, but to take reasonable steps to monitor his level of distress. The contact between Mr Mountain and Mr Giles (as outlined in s 1.18) does not constitute and adequate check of Mr Giles’ level of distress. He needed to be spoken to, ideally way from his duties and co-workers, with detailed inquiries about how he was coping and his level of fatigue and distress. The option of taking a break from the distressing scene should have been normalised and encouraged.”
- At p 1.18 of his report Professor Harvey sets out what the plaintiff says of his contact with Mr Mountain at the fire. I have set out the plaintiff’s evidence in that regard earlier. It is generally consistent with what is said in Professor Harvey’s report: namely that he was not welfare checked but spoken to on only two occasions, by Mr Mountain, who spoke to him only when walking past, and asked how things are going.
- My findings are that both Mr Mountain and Mr Salisbury spoke to the plaintiff to ascertain his welfare as they described in their evidence.
- Dr Kumar notes of his consultation with the plaintiff on 26 August indicate that the plaintiff disclosed to Dr Kumar that he had been “teary since, can’t focus, not slept as well.” He said he had cut down his drink as he was “not interested” and “feels upset”. The plaintiff also told Dr Kumar he did not think he could work “for two weeks”. He was to see a counsellor that morning.
- He again saw Dr Kumar on 8 and 22 September describing similar symptoms and concern about his returning to work and irritation at media reporting of the event.
- He was referred to a psychiatrist, Dr Arthur, in October 2011 and saw him a number of times. No records of Dr Arthur or of the counsellor he initially on 26 August are before me. The plaintiff then first saw Mr Riordan, in February 2012 and continued to see him thereafter. In March 2012 Mr Riordan felt the plaintiff was “80%” recovered and a work trial began, though in a non-operational role at Southport fire station. The plaintiff at that time moved to live at Southport. He continued in that non-operational role until his retirement on medical grounds on 6 November 2013.
- In such circumstances, it is necessary to consider whether the extent of QFRS contact with the plaintiff to check his welfare met the standard set by Professor Harvey in relation to the “acceptable alternative” of opting not to rotate Mr Giles’ crew, but taking reasonable steps to monitor his level of distress.
- This is to be assessed of course having regard to my findings about Mr Mountain’s and Mr Salisbury’s contact based on an acceptance of their evidence, rather than Mr Giles’ assertions about those issues.
- Whilst Professor Harvey says these checks should take place “ideally away from his duties and co-workers” I find the particular circumstances of Mr Giles’ duties – largely working on his own, beside his vehicle and, on the occasion of Mr Salisbury’s second visit, sitting inside that vehicle, and in circumstances where his job was not, after the initial set up, physically demanding or particularly busy, though undoubtedly important – did not require that he be removed from that work area in order that they might have a suitable conversation.
- I find the plaintiff, at the various times he was spoken to by Mr Mountain and Mr Salisbury, did not express, or demonstrate any particular distress so as to indicate he was not coping with the trauma of the fire and that the enquiries by those officers were sufficient to adequately monitor any distress. I am assisted in that conclusion by the evidence of Professor Whiteford to which I shall shortly refer.
- I consequently find the actions of QFRS met the standard of the “acceptable alternative” suggested by Professor Harvey.
- Professor Harvey’s expressed opinion was also that there was a clear link between the time of exposure to trauma and the risk of PTSD – namely, being exposed for longer increases the risk of PTSD.
- In his report of 12 January 2020 he says (exhibit 1, medical tab, p 153ff at page 9 of his report) that:
“By 2011 it was well known that increased duration of exposure to a potentially traumatic event increased the risk of psychological decompensation, such as PTSD.”
- He said the best known example of that phenomena was a study of those who attended the World Trade Centre site after 9/11. He referenced that paper (at footnote 3 on that page) as I have earlier mentioned.
- Perusal of the paper however does not in my view provide significant support for Professor Harvey’s view that to limit the plaintiff’s time exposed to the trauma of the fire to less than, say, four hours, rather than nine hours as actually occurred, would limit the risk of his developing PTSD in any significant way. Further, it does not provide any significant support for the view that those making decisions on the day “were aware of the risks associated with the trauma and distress” they were exposing the plaintiff by leaving him on site for 9 hours, as Professor Harvey opines.
- In relation to this issue of duration of exposure, the paper talks not in hours but in terms of many days exposure. Figure 1, (at p 1391 of the journal in which the paper was published) shows that firefighters who were exposed to the World Trade Centre site on 11 and 12 September had a risk of developing PTSD, from only one day’s exposure, of about 0.1-0.11. The risk of PTSD then increased to a figure of about 0.2-0.22 (i.e. a doubling of risk), but only after 200 days of exposure. In other words, the risk of exposure from only one day was equivalent to the risk of exposure from the whole of the next 199 days.
- That in my view is not strongly supportive of the opinion of Professor Harvey that to limit the plaintiff’s exposure as suggested would or might have avoided his suffering PTSD as he did.
- In his statement (exhibit 29) Professor Harvey says that the same sort of pattern has been shown “when the time of exposure is measured in hours”. To support that view, he refers to a study of victims of sexual assault which, he said, shows “a clear pattern of increasing PTSD symptoms depending on the length of trauma exposure measured in minutes and hours.”
- That study by Kaysen et al, footnoted at page 2 of exhibit 29 became exhibit 33. There are I think significant difficulties in relying on that paper to support Professor Harvey’s opinion.
- The study was directed to the question of whether duration of exposure to sexual abuse contributed to the risk of PTSD amongst female victims of such abuse. Increased duration of exposure was found to be associated with increased PTSD symptoms. The authors I note describe duration as making “a small significant contribution to clinical status in the immediate aftermath of trauma among women who had experienced violent sexual assault. Longer term adjustment, however, was not influenced by the subjective index of stressor magnitude.”
- The authors also warn of a number of concerns about the study. Among those concerns were said to be that participants’ perception of the duration of assault can be confounded by subjective and objective considerations. They warn that estimates of duration of an assault can be influenced by a number of factors and note that an objective measure of duration would be preferred. That observation of the authors is consistent with my own observation of witnesses of abuse giving evidence in many criminal trials. In my assessment, a victim’s assessment of the duration of duration of such an assault is likely to be quite inaccurate.
- The authors also warn:
- (i)of the “complexities of examining whether relationships obtained in the present study can be replicated across types of trauma”;
- (ii)that the sample in the study over represented African American respondents, and women who were economically disadvantaged, in circumstances where studies have shown African Americans and those suffering daily stressors, such as economic disadvantage, may have elevated rates of PTSD.
- In my view, both those matters cause circumspection in relying on this paper in support of Professor Harvey’s opinion.
- In my view the paper lends little support for the view that to have limited the plaintiff’s exposure to the fire to a particular number of hours, such as three or four as suggested, would have avoided or sufficiently minimised the risk. I conclude the paper does not support the view that the QFRS has breached its duty to the plaintiff in not rotating him from his work earlier than it did. I do not find that if he had been so rotated he would have avoided suffering from PTSD.
- Professor Harvey Whiteford is also a psychiatrist with an impressive CV. He accepts that both the greater the severity of trauma and the longer the duration of exposure to trauma, the higher the risk of developing PTSD. That is unsurprising. It is also unsurprising that he accepts that the fire was an event sufficient to cause PTSD. It clearly was. I do not doubt the plaintiff developed PTSD after exposure to this event.
- I accept the opinion of Professor Harvey Whiteford, that he is unaware of any research that quantifies an increased risk of developing PTSD with the duration of exposure to stressful situations, measured in terms of hours of exposure (see exhibit 38, para 4).
- And in any case, as I have already said, Professor Harvey said not to have rotated staff, but to have undertaken reasonable steps to monitor a staff member’s distress levels, was “an acceptable alternative”. I find the QFRS did just that by regularly contacting the plaintiff and enquiring about his personal and physical wellbeing as I have already set out.
- I accept Professor Whiteford’s opinion that “it is impossible to know whether, in the hypothetical situation, assuming this man’s removal from the scene at an earlier point in time after arrival, he would nonetheless develop a PTSD and if so of what severity”. I also accept that his opinion that in:
“Deciding whether to remove emergency services personnel from a scene which will or may expose them to stressors, there are competing considerations. For example, many personnel would be distressed and resentful at the idea of being removed from the scene before the fire they were fighting was adequately contained.
Having a hard and fast rule about removing emergency services personnel from the emergency scene within some immutably fixed interval could never be recommended.”
- Professor Whiteford said that “it was not necessary for QFRS personnel to have a mandatory rotation of staff away from the scene of the fire… to manage the risk of psychiatric injury. I believe it was an acceptable alternative to keep Mr Giles and (others) at the incident and to monitor their level of distress.” (See exhibit 38, p 1, second paragraph.)
- In that same exhibit (at the first paragraph on page 2) Professor Whiteford opines the critical issue would be to determine if they were coping with the prolonged exposure or if they were becoming increasingly distressed over time. He said that so long as the firefighters had not communicated or displayed indicia of distress, there was a lower risk of psychological injury associated with leaving those firefighters in place to finish the job rather than to requiring them to be replaced, exposing a new group of firefighters to the traumatic event and who would have to assimilate the stress of the exposure from scratch.
- I accept that opinion. I also accept Professor Whiteford’s opinion (expressed in the third paragraph of that same page of exhibit 38) that a “low key enquiry” was a reasonable way of monitoring the plaintiff’s wellbeing. Consistent with my earlier finding that the plaintiff had the opportunity to express any concerns he had as to his own wellbeing, Professor Harvey says:
“Being asked if he was ‘OK’ provided Mr Giles the opportunity to voice any distress or concerns he might (or) was experiencing”.
- I accept the enquiries made of Mr Giles in that regard at least twice by Mr Mountain and twice by Mr Salisbury were adequate. Professor Whiteford says that “if there was evidence those enquiries were made more than twice, that would be an even better level of oversight of Mr Giles’ wellbeing”.
- I also accept Professor Whiteford’s opinion that:
“An answer by Mr Giles said he was “fine” or “OK” would not in my opinion, necessitate further enquiry by the person asking the question. It is generally undesirable to repeatedly probe in respect of the psychological wellbeing of an officer such as a firefighter during an active incident where they are performing their duties. A balance has to be struck, because asking too often may be interpreted by the officer as the supervisor implying that he is not capable of doing his job, or not capable of judging his own wellbeing. It (sic) my opinion, it is reasonable for the officer to be asked the question in a low key way, giving the officer the opportunity to evaluate their own wellbeing, respect the response and validate it by an observation of how the officer is performing their duties.
If Mr Giles was asked if he was ‘OK’, answered in the affirmative and gave no signs of distress I do not consider there are psychological grounds for him to be pulled away from the job. That could be perceived as an unwarranted and even humiliating experience… additionally, he would then have to be replaced with someone else who will have their own risk of psychological injury due to exposure to the trauma of the incident scene.”
- In the circumstances there is in my view no basis for concluding that the QFRS was negligent in its management of the plaintiff on the night of the fire. The plaintiff’s action should therefore be dismissed.
- Although I have found that the plaintiff’s action against the defendant fails, it is necessary that I assess the plaintiff’s damages.
- The parties in written submissions summarised their respective assessment of the plaintiff’s claim for damages as follows: (I have placed an *beside those claims not disputed):
Out of pocket expenses*
Past economic loss
Fox v Wood
Interest on past economic loss
Long service leave
Less WorkCover Refund
Final Assessment for plaintiff
- Before dealing with these disputed items I shall first consider the critical issue of the plaintiff’s pre-existing health and its possible effect on the plaintiff’s work capacity, even if he had not developed PTSD.
- The plaintiff said in evidence it was his intention to work with QFRS until compulsory retirement when he turned 65 – on 1 December 2019. A claim is also made for impairment of his earning capacity after this period, on the basis that he would have earned some income thereafter utilising his underlying skills developed over his lifetime.
- In fact, after returning to work as a safety officer at the Southport Station, he was retired on the basis of medical incapacity in November 2013, six years prior to his compulsory retirement.
- The plaintiff claims economic loss for the whole of the period since then. The defendant’s submission is that he would have been unable to continue work as a firefighter beyond about two years after the fire due to the physical problems with his hip and also with his keens and back earlier referred to in my consideration of his credit.
- In particular the defendant submits:
- (i)the contents of Dr Kumar’s report concerning the plaintiff’s hip injury in support of the claim by the plaintiff for a disability support pension; and
- (ii)the reports of Dr Morgan; and
- (iii)the fact the plaintiff ultimately had a total hip replacement in 2018; and
- (iv)the plaintiff’s statements to the Centrelink officer, Ms Durand on 12 February 2014 (see T1-105 l 15 to T1-110, l 13); and
- (v)Dr Morgan’s, and ultimately Dr Cooke’s, agreement that in such circumstances the plaintiff would not have able to have been an operational firefighter (T3-28, l 43 – T3-29, l 5).
- (vi)The plaintiff’s own evidence (T1-114, l 43) that his hip did not improve between his fall in January 2013 and seeing Dr Morgan on 2 November 2016.
Together would have precluded the plaintiff from working as a firefighter beyond the end of December 2013.
- There was a real conflict between Dr Morgan and Dr Cooke.
- Dr Cooke first saw the plaintiff on 24 January 2017. This was, as I have said, the day after seeing PR Physio who (in exhibit 28) noted his hip was “pretty sore” with burning in the right side of his leg. To Dr Cooke, the plaintiff described his right hip only as giving him “start-up pain”. He said when it was bothersome it rated 5 out of 10 on a pain scale. Overall he said he was managing well from a functional point of view, being able to mow his lawn and having unlimited walking distance.
- I do not accept that this history provided to Dr Cooke was accurate. It is inconsistent with that described by Dr Kumar in the medical report in support of his DSP, or with the oral history given by the plaintiff to Ms Durant. In circumstances where he said, when giving evidence, there had no improvement, at least up to when he saw Dr Morgan in November 2016 the contrast is stark.
- It would also be surprising if he had little functional limitation in January 2017, as he reported, yet had a total hip replacement on 24 January 2018.
- In such circumstances and having regard to the reports of Dr Morgan to which I shall shortly refer, I do not accept Dr Cooke’s opinion that in January 2017 the plaintiff was then capable of working as a firefighter.
- When Dr Morgan first saw the plaintiff on 2 November 2016 he noted severe osteoarthritis in his right hip, with less marked but similar disease in both knees. He assessed the plaintiff as having 28 percent whole person impairment due to these problems and said he was unsuited to work as an operational firefighter.
- The history the plaintiff gave Dr Morgan – of stumbling in a carpark in March 2013, of having a home exercise program but not requiring medication for his hip, of having only a “twinge of discomfort” in his hip “on occasions” and of having no problems standing or walking – is grossly inconsistent with the matters I have earlier set out, and which I accept.
- Dr Morgan clearly did not accept what Mr Giles said, noting he had “exceedingly severe degenerative disease” in his hip with markedly reduced range of motion and altered walk.
- I accept the view of Dr Morgan and determine that well prior to his consultation in November 2016, the plaintiff was effectively disabled from work as a firefighter, though capable of “purely sedentary work… if … available”.
- As I have said, the plaintiff had surgery in his hip in November 2018. He travelled to Malaysia shortly afterwards suggesting that at least initially he had a very good outcome. Dr Cooke noted on 23 March 2018 that he had a normal gait and good range of movement.
- On review in November 2018 by Dr Cooke the plaintiff reported doing all activities with no discomfort. Dr Cooke opined that he should have no restriction for at least 10 to 15 years. He was similarly pleased with the outcome of the surgery in September 2019.
- Dr Morgan was more circumspect. He noted on examination as early as March 2019 that whilst there was an apparent clinically successful hip replacement, at radiographic level there was some concern about survivorship in the articulation of the acetabular component of the replacement hip.
- Dr Morgan’s circumspection was vindicated. In a report of 20 February 2020, Dr Cooke notes that Mr Giles had bone scans which showed increased activity around the acetabular component, consistent with a lack of bone on growth. He discussed the possibility of revision surgery. He saw the plaintiff again only five days later and suggested revising his probable loose acetabular component. That surgery was performed on 18 March 2020.
- In my view, the fact that, despite the plaintiff reporting few symptoms to Dr Morgan when he first saw him in November 2016, Dr Morgan nevertheless opined that the plaintiff had a severe problem with his hip (consistent with Dr Kumar’s report and the plaintiff’s self-report to Ms Durant) and Dr Morgan’s earlier identification of the problem with the acetabular articulation of his hip replacement, causes me to conclude that Dr Morgan’s assessment of the plaintiff’s problems should be preferred to that of Dr Cooke. I accept the opinion of Dr Morgan that having regard to the severity of Mr Giles’ hip condition when he saw him in 2016, and the severity of the radiographic changes in 2013, the average person would have stopped working as an operational firefighter approximately two years earlier, that is, before November 2014. (see exhibit 37, para 4). I also accept Dr Morgan’s opinion that there is a relatively strong correlation between the extent of degenerative changes seen on x-ray and how a patient reports their problems in carrying out daily activities. (exhibit 37, page 2 para 1).
- There are of course other issues in determining when the plaintiff might in any case have ceased work as a firefighter. But for his PTSD, if the plaintiff had suffered problems with his hip which were effectively precluding him from work as an operational firefighter, he might well have undergone surgery much earlier than he in fact did. If the symptoms in his hip were such as to preclude him from working as a firefighter by late 2014 or even earlier he might well have taken sick leave or long-service and/or holidays at that time, and had the surgery then. It is also possible if he had then had the surgery that he would not have had the problem with the articulation which ultimately required revision surgery in 2020. Accordingly, the fact that the plaintiff could not, without hip surgery, have undertaken the work of a firefighter does not necessarily mean he would then have retired. That matter is something that involves speculation on my part.
- The defendant also submits that the plaintiff’s case is limited to consideration of whether he would have worked as a firefighter or not, and submits he did not advance an alternative case that he might have secured other employment up to his compulsory retirement.
- In my view it is not clear from the Statement of Loss and Damage that the claim is limited to work as an active firefighter. Other roles within the QFRS might well have been available to him. The fact that he performed such a role as a safety assessment officer at Southport after his return to work following the fire, an up to his retirement in December 2013, support this view.
- The defendant also submits (see  of the written submission) that the plaintiff gave no evidence of any intention to seek out less demanding work, either in the time up to his turning 65, or after compulsory retirement.
- It is apparent the plaintiff has not been frank to the court, or to doctors who have provided reports in this matter, about the level of his problems due to his hip, knees and spine. I accept the hip in particular would have caused significant problems with his work and might, as Dr Morgan suggests, have precluded him from working as a firefighter. I think this was highly likely if he had not had an earlier hip replacement.
- Whether that surgery would have been undertaken, and when, is unknown as I have said. The fact that he ultimately had surgery only in 2018 does not mean that if he was in employment with QFRS that he might have not had it at an earlier time. The medical evidence supports the view that some officers have returned to work as operational firefighters after hip replacement surgery.
- But it is also possible the plaintiff may, when faced with the reality of his declining physical health, have opted to retire earlier, at some time before turning 65.
- It is not possible to be certain about such matters. It is appropriate in such circumstances to allow the plaintiff’s loss at a figure between the defendant’s assessment, based on an inability to work after December 2013, and the plaintiff’s, based on the view he would have worked with QFRS to age 65 and then worked in some unknown capacity for some further two years thereafter.
- Whilst not determinative of whether the plaintiff would have worked for some period after retiring, it is relevant that he did not give evidence before me of any intention to do so. In such circumstances it is, in my view, not appropriate to award more than a small sum to compensate him for that possible loss.
- In all, I would allow $240,000.00 by way of economic loss including impairment of his capacity beyond age 65.
- I would allow interest on $190,410.00 thereof, being $240,000.00 less $49,590.00, (the net compensation payments as calculated by the defendant’s counsel) at 0.36 per cent, as permitted by s 306(2) and (3) of the WCRA, 2003. Part of that loss relates to the period up to December 2013. The defendant submitted such loss amounted to $67,282.00 and that interest, after allowing for net Worker’s Compensation payments, amounted to only $511.00. In addition, interest at 0.36 per cent per annum for seven years on a further sum of about $170,000.00 allowed by me amounts to $4,284.00. In all therefore I would allow interest in the sum of $4,795.00.
- I calculate past superannuation at 9.5 per cent of the sum of $170,000.00 because the plaintiff said he received superannuation contributions from his employer when in receipt of Workers’ Compensation. This amounts to a figure of $16,150.00.
- The plaintiff’s claim for loss of long service entitlement in the sum of $7,000.00 is premised on his having worked to December 2019. The plaintiff submits he should recover nothing, since he would have been forced to retire due to osteoarthritic issues at about the time he did in December 2013.
- My assessment of economic loss is such that it is appropriate to allow something less than half of the claim’s sum. I assess his loss in the sum of $3,000.00.
- The allowance for future expenses also involves balancing numerous unknown factors – how the plaintiff’s condition might have changed in the future, how often he would accessed a psychologist, psychiatrist or GP especially in light of his reluctance to take medication prescribed or recommended for treatment of his PTSD. In the period of over two years from May 2018 to May 2020 he was seen by his psychologist, Mr Riordan on 18 occasions. This amounted to a cost of almost $40.00 per week.
- He has, however, a history of regular consultations with his GP for a myriad range of issues. The defendant submits that he saw his GP 250 times, or at least had the benefit of 250 “services” from September 2011 to June 2020. Of these, only 21 related to his psychiatric condition and only two of these were in the last three and a half years.
- Such matters support a moderate allowance for future expenses. I would allow them in the sum of $10,000.00.
- I accept the defendant’s calculation of interest on out-of-pocket expenses and Fox v Wood damages as set out in  to  of the defendant’s written submission.
- The assessment of plaintiff’s general damages must be undertaken in circumstances where there is no dispute with the view of Dr Estensen concerning the extent of the plaintiff’s psychiatric impairment. I accept his opinion that the plaintiff has a PIRS assessment of 19 %. Schedule 11 of the Workers’ Compensation and Rehabilitation Regulation provides in item 11 for a serious mental disorder having a PIRS rating between 11% and 30% and provides an ISV range of 11 to 40.
- The plaintiff’s counsel submit that mathematically, the plaintiff’s injury is about the midpoint of the range, justifying an ISV of 25 but contends that:
- (i)the extended duration of the plaintiff’s disability; and
- (ii)the permanent nature of his injury
together justifies some increase in that assessment.
- The defendant’s counsel submit that Dr Estensen’s opinion is based on his review of October 2016 and that since then, for example, the plaintiff has travelled on a number of occasions to Asia suggesting Dr Estenen’s assessment in relation to the interference with the plaintiff’s capacity to travel is over estimated. This of course is a factor in the assessment of his PIRS rating.
- It was submitted that whilst it was accepted the plaintiff’s injury falls within item 11, some amelioration of the assessment should be made to reflect such improvement over time and to reflect the fact that the plaintiff is 66 and has a number of unrelated physical injuries that have been considered in the course of this judgement.
- Dr Estensen himself said such travel would “probably change my view of his ability to travel” and said that the travel, identified to him in cross-examination, was “a higher level of activity and what he was (sic) described in 2016.”
- In circumstances where no subsequent PIRS assessment has been done, I think such matters probably balance out those issues relied on by the plaintiff.
- I assess ISV of 25 and so assess the plaintiff’s general damages in the sum of $42,350.00.
- In all therefore I would assess the plaintiff’s damages as follows:
Past economic loss
Long service leave
Fox v Wood damages
- I give judgment for the defendant.
- Pursuant to s 316 of the WCRA, I order the plaintiff pay the defendant’s cost of the action assessed on the standard basis since 5 March 2015.
  QCA 366, especially at ,  and .
- Published Case Name:
Giles v State of Queensland
- Shortened Case Name:
Giles v State of Queensland
 QDC 332
18 Dec 2020