Giles v State of Queensland[2021] QCA 206

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
2. [2]
   McMURDO JA:  On 24 August 2011, 11 people, including eight children, were killed when they were trapped in a burning house at Slacks Creek.  It was Australia’s worst house fire.
3. [3]
   Firefighters arrived at the scene just after midnight.  The first fire truck to arrive was driven by the appellant, Mr Giles.  He was then aged 56, and had been employed as a firefighter by the Queensland Fire and Rescue Service (QFRS) for nearly 25 years.  He parked the truck and set about his work as the operator of the pump which drove water from a fire hydrant.  Within an hour, the fire was under control, but Mr Giles still had to ensure that there was adequate water and pump pressure until his truck departed the scene at about 9 am on that morning.
4. [4]
   The scene which he encountered was horrific.  It was clear that many people had been trapped in the house and had perished.  None of the firefighters were able to enter the building to save them.  A large crowd had gathered, close to where Mr Giles was working, from whom he heard wailing, crying and other sounds of distress and anguish.  Many in the crowd were members of the local Samoan community, to which all of those in the house had belonged.
5. [5]
   As a result of his attendance, Mr Giles developed a significant psychiatric disorder, namely post-traumatic stress disorder.  He was retired, medically unfit at age 59 in 2013, after working as a safety assessment officer at the Southport Fire Station as part of his attempted rehabilitation.
6. [6]
   He sued the State of Queensland pursuant to the Crown Proceedings Act 1980 (Qld), claiming damages for negligence.  Indisputably the defendant owed Mr Giles a non-delegable duty to take reasonable care for his safety and avoid exposing him to an unnecessary risk of injury in the course of his employment.  Mr Giles claimed that the defendant’s duty of care was breached, by his being required to remain at the scene for such a long period of time (nearly 9 hours) and by insufficient steps being taken by his employer to check on his wellbeing while he was there.
7. [7]
   The trial judge found for the defendant because no breach of the duty of care was established.^[1]  He appeals against that judgment.  For the reasons that follow, his appeal must be dismissed.

The evidence

Mr Giles

8. [8]
   Mr Giles arrived at the scene as part of a crew which included Mr Peter Mountain, who was the station officer in charge at Woodridge Fire Station on the night, and a firefighter named Aaron Hickey.  A second crew arrived subsequently, from Loganlea Station, which included station officer Ross Bobbermien.  It was followed by another crew from Beenleigh Station and firefighting appliances from Brisbane.
9. [9]
   As soon as Mr Giles’s truck arrived, someone approached Mr Mountain, who was sitting in the front of the truck next to him, and said that there were people trapped in the house.  Mr Giles thought that he could recall someone saying that there were possibly ten persons in there.  Mr Giles said that it was then evident from the size of the fire that it had to be fought entirely from outside the house.  An incident report recorded that Mr Mountain cancelled a call for a certain vehicle because it was apparent that no one would be rescued from the house.  Even at that stage, every room in the house was affected, with the fire being “fully developed throughout the structure” and with flames extending from every visible opening.
10. [10]
    When Mr Bobbermien arrived, he took over from Mr Mountain as the “incident controller”.  It was then for Mr Bobbermien to arrange the crews and appliances which were required at the scene, whilst Mr Mountain remained the person effectively in charge.
11. [11]
    Mr Giles continued to maintain the operation of the pump on his truck, supplying water to the firefighters.  He left the truck only to go to what was called the BA station, which had been set up on a footpath, to get something to eat.
12. [12]
    Over time, the size of the crowd was increasing, and Mr Giles described the crying, wailing and yelling of some people who were “hysterical”.  He said that once the fire had been brought under control, it was only the crowd which could be heard.
13. [13]
    Records showed that Mr Giles and his truck left the scene at 9 am on that morning.  He returned to the station and underwent a debrief, before going home at about 10.30 am.
14. [14]
    Mr Giles said that he was not seen by any safety advisor throughout the time that he was at the scene.  In answer to a question of whether anyone asked him “how it was going”, he said that Mr Mountain asked him that question twice.  The first time was not long after the crew had arrived and had set up.  Mr Giles assumed that that was an enquiry about how his work in the operation was going.  He said that “at some stage later on”, Mr Mountain came past and asked him “how things were going”, to which, Mr Giles recalled, he answered “this is just not right”.  His recollection was that Mr Mountain did not respond to that statement.  Mr Giles said that apart from those two conversations with Mr Mountain, no one else asked him about his welfare when he was at the scene.  Mr Giles recalled being told by Mr Salisbury, a safety officer at the scene, that a decision had been made not to bring other crews to the fire (so as to relieve his crew).
15. [15]
    Mr Giles was asked whether there was any “form of system of rotation of crews from scenes of fires”.  He said that “it had become a normal thing that after a few hours you get rotated out of the job.”  He could not recall any attendance of longer than three hours which involved casualties.
16. [16]
    When Mr Giles returned home that morning, he had a few drinks and went to sleep.  He awoke a couple of hours later, feeling quite ill and he vomited.  He saw his GP, Dr Kumar, on the morning of 26 August 2011.  Mr Giles stopped work and moved away from the area, to get away from the proximity to the fire station and ambulance station.  He saw a psychiatrist in late October 2011 and a psychologist in January 2012.  At the trial, he was still seeing that psychologist monthly.
17. [17]
    The trial judge recorded that in his evidence, and to doctors to whom he gave descriptions of the fire, Mr Giles identified a number of factors that distressed him, which were:

“(1) The long duration of his continued attendance at the fire, namely eight hours and 49 minutes;

3. (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. (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.

3. (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”.

3. (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.”^[2]

Mr Mountain

18. [18]
    Mr Mountain said that he was responsible for the safety of personnel and anybody in the area, and for the actual fire extinguishment and protection of the scene.^[3]
19. [19]
    Mr Mountain, in consultation with Mr Bobbermien and Superintendent Ryan, decided that his crew would stay at the scene, rather than being relieved by another crew.  He said that one of the considerations which affected that decision was that the officers already at the site had the fire under control, and were not “working hard” in a physical sense.  His evidence also indicated that there was a consideration that other firefighters should not be “exposed”, in addition to the two crews who were there.  Mr Mountain said that he communicated his decision to his crew, by approaching each member and explaining that “we would be staying there for the duration”.  He said that he would have asked each crew member whether they had “a problem with that”, and that he did not recall any of them saying that they did.  He added that, had any of them indicated any concern about staying on, he would have discussed that with them, and if necessary, made arrangements for them to leave.
20. [20]
    He said that part of his role as the officer in charge of the crew was to observe how they were coping.  He said that he would have “touched base with all the crew members at least two or three times during the night [and that it] could have been more.”  He would have walked past Mr Giles “a couple of times” and asked “are you ok?”.  He added that this could have been more than twice, and as much as six times.  Nothing was said by Mr Giles to him to indicate he was not ok, and having worked with Mr Giles at different locations, Mr Mountain would have expected “a verbal response from him” and something more “than a look or whatever”.  Nothing struck Mr Mountain when he was talking to Mr Giles, or when he saw him, which indicated that Mr Giles wasn’t well or that “something wasn’t right”.
21. [21]
    Mr Mountain gave evidence of the debrief which occurred upon the return of the crew to the station.  He said that the debrief “wasn’t very long” and “the room was very quiet”.  He recalled saying to the meeting that it had been the worst job he had ever attended, not just because of the number of fatalities, but from the fact that “I couldn’t do anything, I couldn’t help anybody”.  None of the officers there talked about being agitated.  At this stage, Mr Mountain asked each of his crew “are you ok?  Is everything alright?”, and recalled that Mr Giles said that everything was ok.  He said that in his experience, nine hours was a long time to spend at a single incident, although in fighting bushfires, there were times when he would work a full night over many different locations.
22. [22]
    The trial judge found Mr Mountain to be a credible witness, but like Mr Giles, someone without a clear recollection of exactly what was said.^[4]  The judge said that whether Mr Giles said the words “this is just not right” was not “something either person can now be certain of and not something I am prepared to find was said.”^[5]
23. [23]
    The judge made these findings:

“[103] 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.”

There is no challenge to those findings.

Mr Salisbury

24. [24]
    Mr Salisbury’s vehicle arrived at the scene about 20 minutes after Mr Giles’s arrival.  Within a week of the fire, Mr Salisbury completed documents which recorded the event, one of which was a “file note” which he said he made as “a memory jogger”.  The judge found that these documents were made when the events would have been fresh in Mr Salisbury’s mind.  Mr Salisbury recorded in that note that, as the safety officer throughout the incident, he had conducted a “thorough check of all QFRS staff, watching for stress, anxiety etc”.
25. [25]
    Mr Salisbury testified that he had been “watching for stress and anxiety” in the fire crews.  He said that he remembered twice checking on Mr Giles.  The first time was “early on” in the event.  The second time was once the fire had abated.  He said that there was nothing in his conversations with Mr Giles which raised any concern for him, and that if he had had a concern, he would have discussed it with the incident controller and senior officer on site.  The trial judge accepted that evidence, a finding which is unchallenged.^[6]
26. [26]
    Mr Salisbury was not party to the decision to limit the number of personnel who would be exposed to the scene.  However he said that it would have been unusual to decide otherwise.  In his 17 and a half years of experience, the strategy employed had been that the number of firefighters exposed to the scene would be limited, even “if that means that the first arriving truck stays longer”.  He explained the reason for this strategy, which was to limit the number of people who were exposed to a fatal event.
27. [27]
    Mr Salisbury recalled the debrief as lasting about 90 minutes.  He said he could not recall Mr Giles being there.  In his evidence, Mr Giles denied that Mr Salisbury had enquired as to his welfare.  The judge preferred the evidence of Mr Salisbury in that respect.^[7]

Mr Hickey

28. [28]
    Mr Hickey was a junior firefighter on the crew.  He was under the impression that, as a result, he was singled out for special treatment at the scene, by being asked whether or not he was ok.  He said that Mr Mountain asked him once and an assistant commissioner also asked him once.  He could not recall if they asked him more than once.  He also said that no stage was he told that the crew was to remain at the scene for nine hours.
29. [29]
    For Mr Giles, it is submitted that this evidence was inconsistent with that of Mr Mountain, and that the inconsistency was overlooked by the trial judge.
30. [30]
    It is said that there was no reason to reject the evidence of Mr Hickey, from which it would be inferred that Mr Mountain would have been less concerned for the welfare of the very experienced Mr Giles, so that he would not have made more than one enquiry of Mr Giles, if at all.  That argument cannot be accepted.  Mr Hickey may not have been correct in his recollection that he was approached by Mr Mountain only once.  In any case, Mr Giles said that Mr Mountain did ask him as to his welfare.  Mr Mountain was not adamant that he had asked Mr Giles about this more than twice.  Mr Hickey’s evidence provided no basis for rejecting the evidence of Mr Mountain on that point.
31. [31]
    Nor did Mr Hickey’s evidence disprove Mr Mountain’s recollection that he had communicated, to each of his crew, that they would be staying “for the duration”.  There was no reason why the judge should have preferred the evidence of Mr Hickey against that of Mr Mountain on the point.

Mr Nealon

32. [32]
    Mr Nealon was a senior firefighter.  He was also a peer support officer, whose responsibility is to “check on the crews after critical incidents” and to act as a “contact point for firefighters to come to … and [from whom] to seek assistance.”
33. [33]
    He said that it was not the practice for a peer support officer to attend the fire scene, and he did not do so on that night.
34. [34]
    At the time of the trial, Mr Nealon had become a station officer.  As such he received training as to checking on his crew at a fire scene.  The practice which he described was not apparently different from that which Mr Mountain and Mr Salisbury described.  Mr Nealon said that when checking on a crew member at a fire, he would conduct the check “away from the hot zone or back from the fire a bit”.  However Mr Giles was working at a more removed location than others in the crew, and it does not appear that his welfare should have been checked further away from the fire than where he was working.

Mr Feckner

35. [35]
    Mr Feckner worked for QFRS or its predecessors from 1986 to 2015.  Mr Feckner was not present at the scene of this fire.  He was called to give evidence, from his experience, of the amount of time which firefighters were sometimes asked to spend at the scene of the fire.  He said that in most instances, a lengthy attendance would be approximately four hours.  He then said that it was “never any more than four hours”, but that even after two hours, the crew would be rotated.
36. [36]
    He was provided with a record of all of his “call-outs” in the three years prior to 2011.  As the judge recorded, it showed that he was involved in 329 incidents, of which 11 occupied more than three hours.  The longest was an attendance of just over seven hours.  The judge said that the document did not assist in understanding whether Mr Feckner had been rotated from a critical incident, but did show that he had remained at some incidents for in excess of five hours.  The judge added that other officers gave broadly similar evidence.^[8]

Other evidence

37. [37]
    It is unnecessary to set out the evidence of other witnesses, which is not significant for the appeal.

The evidence of psychiatrists

Professor Harvey

38. [38]
    Associate Professor Harvey, a practising psychiatrist, testified in the appellant’s case.  He is an associate professor at the University of New South Wales, the Chief Psychiatrist at the Black Dog Institute and leads Australia’s largest university program of research focussed on the mental health of emergency service personnel.  He was the lead author on the recently published Mental Health and Wellbeing Strategy for First Responder Organisations in New South Wales and the National Mental Health Commission’s guidance to employers on how to create a mentally healthy work place.
39. [39]
    His evidence in chief was constituted mainly by his report, dated 12 January 2019.  He had not interviewed Mr Giles and he based his opinions on reviewing documents which he listed in the report.
40. [40]
    In discussing the facts of the case, Professor Harvey said that “Mr Giles was most distressed by feeling helpless and having to witness and hear the community and family members’ distress and grief for so many hours.”
41. [41]
    The trial judge said that he was “unpersuaded the presence of the crowd was a major issue in the development of [Mr Giles’s] PTSD.”  His Honour noted that when Mr Giles attended his GP, Dr Kumar, just days after the fire, he made no mention of the crowd, and nor did he so when he again saw Dr Kumar in September and October 2011.^[9]  His Honour noted that a psychologist, Mr Riordin, in a report dated 27 February 2012, recorded the circumstances of the death of women and children in the fire, the “considerable media attention” to the fire, the attendance of Mr Giles for “an extended period” of nine hours and his witnessing the bodies of deceased and burned women and children over the course of the day.  There was no mention in Mr Riordin’s report of Mr Giles being distressed by hearing the distress and grief from the crowd over many hours.^[10]
42. [42]
    Professor Harvey wrote that Mr Giles’s experience at the fire was “clearly sufficient to cause psychiatric decompensation, in particular post traumatic stress disorder.”  That was accepted in the respondent’s case.  Professor Harvey said that it had been “clearly established and was widely known that first responders, such as firefighters, were at increased risk of a disorder such as PTSD, and that major incidents that involved multiple loss of life were particularly high-risk scenarios”.
43. [43]
    Professor Harvey wrote that at the time of this event, “it was also known that increased duration of exposure to a potentially traumatic event increased the risk of psychological decompensation, such as PTSD”.  He offered as the “most relevant and widely known example” the published findings of studies of first responders, including firefighters, who attended the World Trade Centre site after the 9/11 terrorist attacks.  He summarised the effect of these studies as showing that the risk of future PTSD amongst first responders, including firefights, was associated with the length of time that they had been at the scene.
44. [44]
    He referred to an Incident Report,^[11] which noted that additional counselling services were arranged on the night of the fire.  He also referred to an Incident Investigation Report, which had been completed by Mr Mountain and another in September 2011, in which it was noted that part of the reason that Mr Giles’s crew was not rotated away from the incident, was in order to “keep personnel exposure to this incident to a minimum”.  That report was consistent with Mr Mountain’s evidence to which I have referred earlier.^[12]  To Professor Harvey, this confirmed his view that “those making decisions on the day of this incident were aware of the risks associated with the trauma and distress [to which] they were exposing Mr Giles and his crew.”
45. [45]
    The critical opinion of Professor Harvey was set out in these paragraphs of his report:

“As noted above, at the time of the 2011 Wagensveldt Street fire it was known that Mr Giles’ attendance at this type of incident and him being exposed to the distress and grief of the scene for a prolonged period was placing him at high risk of a psychological injury.  Given this, QFRS and those managing the critical incident should have taken steps to reduce this risk as much as possible.  Clearly there are operational limits about how much of this type of risk can be alleviated, but as outlined in the written statements from retired fire fighters … a commonly used method to manage the risk to individuals is to rotate them away from the critical incident when this can be achieved safely.  Had Mr Giles been rotated away from the distressing scenes earlier, then his risk of developing a psychological injury would have been reduced and his change at recovering would have been enhanced.

If those managing the operational response to 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 … does not constitute an adequate check of Mr Giles’ level of distress.  He needed to be spoken to, ideally away from his duties and co-workers, with detailed enquiries 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.”

46. [46]
    The article, entitled “Differences in PTSD Prevalence and Associated Risk Factors among World Trade Centre Disaster Rescue and Recovery Workers”, was tendered.  The trial judge considered that it did not provide any significant support for Professor Harvey’s view that limiting Mr Giles’s “exposure to the trauma of the fire to less than, say, four hours, rather than nine hours as actually occurred, would [have limited] the risk of his developing PTSD in any significant way.”^[13]  The judge explained that the article compared the duration of exposure to those traumatic events, not in hours but in terms of many days of exposure.  It showed that firefighters at the World Trade Centre site on 11 and 12 September had a certain risk, which doubled with an increase in the duration of the exposure, but only after 200 days of exposure.  For that reason, the judge was of the view that the article was not strongly supportive of the opinion of Professor Harvey.^[14]
47. [47]
    In a further statement of Professor Harvey, which was also tendered, he acknowledged that the World Trade Centre study measured exposure time in days, not in hours.  However, he added, the same pattern had been shown when the time of exposure was measured in hours, for which he instanced studies of victims of sexual assault.
48. [48]
    He said that there was “clear evidence of the importance of level of trauma exposure within a single acute incident” by the time of this fire, and that the “level of exposure could be measured according to the severity of the trauma, proximity to the trauma and time of exposure to the trauma.”  He said that in an incident like a house fire, “measuring the level of exposure in terms of hours was appropriate and clear evidence was available that Mr Giles’s risk of PTSD increased with each hour he remained in close proximity to the trauma.”
49. [49]
    Professor Harvey referred to an article entitled “Duration of Exposure and the Dose-Response Model of PTSD”, published in 2009.  The trial judge noted that this study was directed to the question of whether duration of exposure to sexual abuse in a single incident contributed to the risk of PTSD amongst female victims, and found that increased duration of exposure was found to be associated with increased PTSD symptoms in the immediate aftermath of trauma, but did not affect the ‘longer term adjustment’.^[15]  The judge noted, the authors had warned of a number of concerns about their study:  the participants’ perception of the duration of the assault could be imprecise and was “confounded by subjective and objective considerations”.  The judge said that this was consistent with his Honour’s own observation of witnesses of abuse giving evidence in many criminal trials.^[16]  The judge also pointed to the warning by the authors of the “complexities of examining whether relationships obtained in the present study can be replicated across types of trauma”.  Further, the authors warned that the sample in the study overrepresented persons who were economically disadvantaged and belonged to groups suffering daily stressors who may have elevated rates of PTSD.^[17]  In his Honour’s view, those matters “cause circumspection in relying on this paper in support of Professor Harvey’s opinion”.^[18]  In his view, the paper lent little support to Professor Harvey’s opinion that the risk would have been avoided or sufficiently minimised by limiting Mr Giles’s exposure to the fire to a number of hours, such as three or four hours.  At that point, his Honour said that he did not find that had Mr Giles been so rotated, he would avoided suffering from PTSD.^[19]
50. [50]
    In cross-examination, Professor Harvey was asked whether there was a particular point in time when Mr Giles should have been removed from the scene.  He answered as follows:

“I believe that the longer he was at the scene, the higher his risk of PTSD was.  The responsibility, in my view, of the senior officers managing the scene was to be checking in with Mr Giles and the other officers in terms of working out when was the right time to move away from the scene.  And it – the exact duration of that will depend on the incident and the individual officers.  But the burden of needing to check in detail and to move people out got even higher as each hour passed, in my opinion.”

He was then asked effectively the same question again, and answered:

“I think that the two pieces of information that I consider when I try and come up with a – what is the number of hours whereby he should have been removed is two things:  firstly, what was considered normal within the culture of the organisation that he was working for, and … secondly, the point at which Mr Giles began – when those check-ins were occurring when he made that statement of ‘this is just not right’, I think that, in my mind, was a clear call than even it hadn’t been completed prior to that point – but that was when the consideration should have been made to move him out.”

He continued by saying that that point in time was “about the three to four hour mark.”  In general, he said, “it should be the case that it would be very rare for anyone to be at an incident for longer than three or four hours, and that should only occur if there had been a proper assessment of how somebody is coping.”

51. [51]
    Professor Harvey disagreed with the suggestion that it was prudent not to rotate the crews when there was the possibility that a larger number of operational personnel would be affected by being exposed to the event.  In his view, a fire brigade has staff that are able to tolerate exposure to trauma “up to a level” and has support systems in place to support people after those incidents.  Therefore, in his view, it should have been possible to support two crews who had been exposed to three or four hours of this incident.
52. [52]
    He was then asked about that part of his report in which he said that an acceptable alternative might have been to keep Mr Giles in place but to take reasonable steps to monitor his distress.  He was asked whether he thought that that was “an acceptable alternative”.  He answered:

“It is an acceptable alternative, but I think it becomes less acceptable as each hour ticks by. … I think the level of reassurance that you would need that an individual is coping and isn’t becoming overwhelmed by the situation increases the longer the events last for. … .  [If someone was to be exposed] for longer than four hours, it needs more of an inquiry than [‘are you ok’ and a response of ‘yep’]...”

53. [53]
    Professor Harvey was asked to identify the evidence for his conclusion that had proper inquiries been made of Mr Giles at the scene, they would have disclosed an increasing level of distress.  He identified three pieces of evidence.  The first was the recollection by Mr Giles that his stress was increasing the longer the incident went on.  The second was the (out of Court) statement of a chaplain recalling that Mr Giles looked visibly distressed immediately after the incident, which caused Professor Harvey to think that there was a high chance that late in the incident Mr Giles’s level of visible distress would have been increasing.  The third point was that when asked how things were going, Mr Giles had said words to the effect of “this isn’t right”.  To Professor Harvey, that indicated that he was increasingly uncomfortable with the incident as a whole.  He said that in training managers within emergency services and fire brigades, it is explained that emergency personnel will rarely volunteer that they feel overwhelmed and distressed by the incident; they will often say something like “this just isn’t right”, which is a clue to their appraisal of the overall scene and how they are coping.

Professor Whiteford

54. [54]
    Professor Whiteford is a practising psychiatrist, and a professor at the University of Queensland and at the University of Washington, Seattle.  He has held the positions of Queensland Director of Mental Health, Commonwealth Director of Mental Health and Mental Health Specialist at the World Bank in Washington DC.
55. [55]
    Like Professor Harvey, he had not examined Mr Giles, and based his opinion on various medical reports and records.
56. [56]
    In his report, dated 22 July 2019, he said, amongst other things, the following:

• This event could be seen as “threshold event”, sufficient to cause a PTSD, depending on how many stressors and the nature of the stressors suffered in the past that could have caused a PTSD.
• The knowledge of death and exposure to wailing could meet the criteria of ‘witnessing or experiencing’ a traumatic event (as under the DSM-5).  Most people do not develop a PTSD in response to such an exposure.
• The severity and duration of trauma does make a significant difference; the greater the severity and the longer the duration, the higher the risk of developing PTSD.
• Certain types of stressors can build upon each other; the exposure to a stressor takes an individual to a point where the next stressor brings the person closer to the onset of the PTSD.
• However, it would be “extremely rare” for any individual to develop a PTSD from nine hours of exposure to “demonstrous grief”.
• It is impossible to know whether, assuming Mr Giles’s removal from the scene at any earlier point in time after arrival, he would nevertheless have developed a PTSD and if so, of what severity.
• Whilst it depends upon the vulnerability of the individual concerned, as a general proposition – an individual who was removed from the actual fighting of a fire would be less likely, and not more likely, to be at risk of developing a PTSD.
• 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 an emergency scene within some immutably fixed interval could never be recommended.

57. [57]
    A file note of a telephone conference with Professor Whiteford was also tendered.  Professor Whiteford there said:

• It was an acceptable alternative to keep Mr Giles and the other crew members at the incident and to monitor their level of distress.
• He was not aware of research that quantified an increased risk of developing PTSD with the duration of the exposure to stressful situations, measured in terms of hours of exposure.
• The individual response to potentially traumatic events varies greatly: some individuals experience an adaptive response following an initial shock (here, he gave the example of emergency service personnel, who receive a shock and then get ‘stuck in’ to the job they have to perform), whilst others experience an increase in their stress level over the time that they are dealing with a traumatic event, with their stress level rising in a cumulative way and their emotional response failing to attenuate.
• 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 requiring them to be replaced, exposing a new group of firefighters to the traumatic event who would have to assimilate the stress of the exposures from scratch.
• Understanding that Mr Giles was asked on two occasions by Mr Mountain how things were going, that low-key inquiry was a reasonable way to monitor the psychological wellbeing of firefighting personnel at the scene.
• If Mr Giles had said “this is not right” to Mr Mountain’s second inquiry, and was commenting about the fatalities that had occurred in this fire, the response would not have been an indication that he was not coping with his exposure to the trauma.
• If he was asked whether he was “ok”, answered in the affirmative and gave no signs of distress, there would not have been psychological grounds for him to be pulled away from the job.  Professor Whiteford noted that, amongst firefighters there could be the perception that being replaced is an unwarranted or humiliating experience.

The findings of the trial judge

58. [58]
    At the trial, there was a substantial attack upon the credibility of Mr Giles, by reference to events preceding the fire and, in particular, his medical history and whether he had always been frank with doctors in relating his spinal problems.  The judge detailed the evidence upon which the defendant relied in this respect, before concluding that this history did nothing to enhance his credit.^[20]  The judge also said that he held “real doubts about [Mr Giles’s] honesty”.^[21]  Those findings are not challenged.  However they are of little importance for this appeal, because there was no important factual controversy as to what happened at the scene, and there was no doubt that Mr Giles had suffered a career ending PTSD as a result of this event.
59. [59]
    There was something of factual question as to what inquiries were made of Mr Giles about his welfare.  Mr Giles said that he was asked by Mr Mountain “how it was going” on two occasions, and on the second time he answered “this is just not right”.  He said that no one else asked him about his welfare at the scene.  Mr Mountain’s evidence was that possibly he asked Mr Giles more than twice whether he was ok, but that it may have been on two occasions only.  The trial judge had no concerns about Mr Mountain’s honesty and credibility.^[22]  The judge remained uncertain as to exactly what conversations took place between the two men.  Realistically in my view, the judge observed that neither man could be expected to subsequently recall the precise words that passed between them.^[23]  If Mr Giles did say “this is just not right”, it was not something which must have indicated to Mr Mountain that Mr Giles was distressed, such that he should be relieved of his duties at the site.
60. [60]
    The judge found that if Mr Giles had said something to Mr Mountain to the effect that he was distressed, Mr Mountain would have done something about it.  There is no challenge to that finding.  Nor is there a challenge to the finding that Mr Giles did not indicate or exhibit distress.  I have set out the judge’s reasoning on this point earlier at [22].  That analysis, which is not challenged, also indicates the limitations upon the utility of inquiring as to a person’s mental state in these circumstances.  I agree with the trial judge that the fact that an officer might not enunciate feelings of distress is unsurprising.  As the judge observed, similar issues were discussed by Keane JA in Hegarty v Queensland Ambulance Service.^[24]
61. [61]
    To the extent that there was any difference between the evidence of Mr Giles and that of Mr Salisbury, it was not significant.  Mr Giles had no recollection of Mr Salisbury enquiring about his welfare.  Assuming that Mr Giles was correct in his recollection, the fact remained that Mr Mountain did make inquiries.
62. [62]
    It was also established that Mr Giles was told, at some point, that his crew would not be relieved by another crew.  It matters not whether he was told this by Mr Mountain or Mr Salisbury.
63. [63]
    The substantial contest in the evidence was between the opinions of the two psychiatrists, Professor Harvey and Professor Whiteford.  The trial judge preferred the evidence of Professor Whiteford.
64. [64]
    The judge noted that Professor Whiteford accepted that the greater is the severity of trauma and the longer the duration of exposure to trauma, the higher will be the risk of developing PTSD.  However the judge accepted Professor Whiteford’s opinion that the increase in the risk of developing PTSD, with the duration of exposure to stressful situations, could not be measured in terms of hours of exposure.
65. [65]
    The judge said that in any case, Professor Harvey’s opinion was that an acceptable alternative was to monitor a staff member’s distress levels and that this was done in Mr Giles’s case.^[25]  His Honour accepted Professor Whiteford’s evidence that it was impossible to know whether Mr Giles’s removal from the scene at an earlier point in time would have avoided the development of a PTSD.^[26]  He also accepted the opinion that there would be competing considerations, in a decision whether to remove a firefighter from a scene which might expose them to stressors.^[27]  The judge accepted Professor Whiteford’s evidence that so long as a firefighter had not communicated or displayed indicia of distress, there was a lower risk of psychological injury associated with leaving them in place to finish the job rather than in requiring them to be replaced, exposing a new group to the traumatic event.^[28]
66. [66]
    Ultimately, the judge held that in the circumstances, there was “no basis for concluding that the QFRS was negligent in its management of the plaintiff on the night of the fire” and that therefore the action should be dismissed.

The appellant’s arguments

67. [67]
    It is submitted for Mr Giles that the trial judge misinterpreted Professor Harvey’s evidence in an important respect.  His Honour said that Professor Harvey had concluded that to monitor a firefighter’s distress levels was an acceptable alternative to removal.  That criticism has some force.  Professor Harvey’s oral evidence was that, as each hour passed, the utility of a check upon officers diminished, and there was a point in time at which Mr Giles should not have been allowed to remain at the scene, which was at around the three to four hour mark.  Professor Harvey said that it was an acceptable alternative, but a less acceptable alternative as each hour ticked by.  Further, he said that if a person was to be exposed for longer than four hours, the extent of the inquiry had to be greater than asking simply “are you ok?”.  Professor Harvey’s written evidence contained the opinion that the contact between Mr Mountain and Mr Giles was not an adequate check of Mr Giles’s level of distress, because he needed to be spoken to, ideally away from his duties and co-workers, with detailed enquiries about how he was coping and his level of fatigue and distress.
68. [68]
    It is submitted that the judge was wrong to have seen the employer’s task as balancing the risk of injury to the crew, which was at the scene with the risk to another crew which might be brought in to relieve them.  It is submitted that the judge wrongly accepted the proposition that it is acceptable to permit harm to employee A for the benefit of employee B.
69. [69]
    That submission is unpersuasive.  The duty of care which was owed to Mr Giles was defined by the standard of reasonableness.  The question for the trial judge, in the terms of s 305B(1)(c) and s 305B(2) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”) was whether the rotation of Mr Giles’s crew was a precaution which a reasonable person in the position of his employer would have taken.  The relevant duty of care, in this case, was that owed to Mr Giles.  But it was a duty for which the limiting consideration was reasonableness.^[29]  In the well known passage from the judgment of Mason J in Wyong Shire Council v Shirt,^[30] his Honour said:

“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”^[31]

It is obvious to say that the employer had responsibilities to others, apart from Mr Giles.  On the evidence which the judge accepted, there was at least the same magnitude of risk of harm to a new crew arriving at the scene as there was to Mr Giles in remaining there.  There was no error in principle in the trial judge balancing those risks.  And on Professor Whiteford’s evidence, the decision which was taken, not to rotate the crews, was a reasonable one.

70. [70]
    It is submitted for the appellant that the judge ought to have preferred Professor Harvey’s evidence.  It is said that if one accepts that there is some linear relationship between exposure to trauma and PTSD, then there must be some limit on the length of time to which a worker should be exposed.  Put in those simplistic terms, the point has some appeal.  However, there were other considerations, as Professor Whiteford identified.  Not only was the risk to other employees to be considered, but also the potential for the person at the scene to be distressed and resentful at the idea of being removed from the scene.
71. [71]
    In my view, no error is demonstrated in the trial judge’s preference for the evidence of Professor Whiteford.  The opinion of Professor Harvey was not supported by research of analogous circumstances, in which there was a demonstrated correlation between the duration of the exposure to stressors, measured in hours, and the likelihood of PTSD occurring.  The absence of that research did not mean that the opinion of someone of the eminence of Professor Harvey was to be immediately rejected.  But it did make his evidence less persuasive, and the judge was not bound to accept it.
72. [72]
    Professor Harvey’s estimate of three to four hours as the safe limit of exposure was also unsupported by evidence of any practice in similar agencies in Australia or elsewhere.
73. [73]
    On the evidence of Professor Whiteford, and the findings about the actions of Mr Mountain and Mr Salisbury, it was not proved that there was negligence in the monitoring of Mr Giles.
74. [74]
    Ultimately, therefore, it is not demonstrated that the trial judge erred in finding that there was no breach of the employer’s duty.  I would add, however, that had the employer done either of the things which it was alleged should have been done, it was not demonstrated that these counter-measures would have prevented the injury.^[32]
75. [75]
    If a reasonable person would have taken the precaution to relieve Mr Giles after three or four hours, the evidence did not prove that such a breach of duty was a necessary condition of the occurrence of the injury.^[33]  In other words, it did not prove that but for the failure to take that precaution, the appellant would not have suffered the PTSD, or even that the PTSD would have been minimised.^[34]
76. [76]
    Similarly, had the enquiries made by Mr Mountain and Mr Salisbury, as to the welfare of Mr Giles, been less than those which would have been undertaken by a reasonable person, the evidence did not demonstrate that, more probably than not, a more extensive examination of Mr Giles at the scene would have revealed that he was so distressed that there then existed an unacceptable but avoidable risk of his developing PTSD.  In that respect, I would adopt the analysis by the trial judge at [103] of the Judgment, as set out earlier.

Order

77. [77]
    I would order that the appeal be dismissed with costs.
78. [78]
    WILSON J:  I agree with the reasons of McMurdo JA and the order his Honour proposes.