On 18 December 2020, Judge Reid of the District Court of Queensland at Brisbane delivered judgment in favour of the State of Queensland and against firefighter, Peter Giles.
Mr Giles suffered a psychiatric injury during the course of his employment as a firefighter with the Queensland Fire & Rescue Service (QFRS) as a result of attending a highly traumatic fire at Slacks Creek, Brisbane on 24 August 2011 which involved a family of 11 including 8 children who tragically died as a result of the house fire.
Mr Giles attended the fire and due to his exposure to the trauma at the scene of the fire, he suffered a work-related psychiatric injury diagnosed as Post Traumatic Stress Disorder (PTSD).
Mr Giles submitted an application for compensation to WorkCover Queensland (WorkCover) which was accepted and he received statutory benefits including replacement wages, medical treatment and rehabilitation in the amount of $79,084.73.
Because Mr Giles’ statutory claim with WorkCover or WorkCover claim was accepted, he was then entitled to commence a common law claim for damages against his employer.
While the WorkCover claim was accepted and Mr Giles received statutory benefits, this does not involve an admission of liability or negligence by the employer or WorkCover. This is because the acceptance of the WorkCover claim is in a ‘no fault’ environment.
To succeed with his common law claim against his employer, Mr Giles needed to prove, on the balance of probabilities (or 51% or better) that his employer was negligent. This involves proving that his employer owed him a duty of care, the duty of care was breached and due to the breach of duty, Mr Giles has suffered injury, loss and damage.
The trial judge accepted that the employer owed Mr Giles a duty of care and he suffered injury loss and damage but did not find that the employer was guilty of any breach of duty.
Mr Giles made several allegations of negligence against his employer. Mr Giles argued that the QFRS failed to manage or monitor him at the scene of the fire, failed to rotate him, failed to do a welfare check on him and a failure to remove the crowd further from the fire. Mr Giles argued that there was also a failure by the QFRS to instruct or train him and a failure to provide immediate and supportive counselling and support.
Mr Giles did not actually observe or witness any of the dead bodies of the 11 persons who died as a result of the house fire.
Judge Reid found that the QFRS did check on Mr Giles’ welfare following the fire tragedy on at least two occasions and Mr Giles informed his employer that he was ‘fine’ or ‘OK’.
Judge Reid also found that due to Mr Giles’ responses to the inquiries made of him by his employer that the QFRS that he was ‘fine’ or ‘OK’ on at least two occasions, the QFRS had no reason to do more or remove him from the fire scene and if the QFRS had pulled Mr Giles off the job despite his responses that he was fine or OK that this might be perceived as a unwarranted or humiliating experience and would have been replaced by someone else who would have had their own risk of psychological injury due to exposure to the trauma of the incident scene.
Ultimately, Judge Reid made the finding that there was no basis for concluding that the QFRS was negligent of Mr Giles on the night of the fire and his action was dismissed and Mr Giles was ordered to pay the legal costs of his employer.
Unfortunately for Mr Giles, following an unsuccessful 7 day trial, the amount of the adverse costs order Mr Giles will have to pay will be a very significant sum.
If Mr Giles had been successful, Judge Reid assessed his damages at $368,035.87.
A copy of the decision can be found here: https://archive.sclqld.org.au/qjudgment/2020/QDC20-332.pdf
The writer suggests that the main takeaways from this decision are:-
- This decision echoes and reinforces the similar outcome in Hegarty v. Queensland Ambulance Service [2007] QCA 366 involving a member of the Queensland Ambulance Service who also suffered PTSD from workplace traumas and exposure which was also unsuccessful;
- Many but not all emergency service workers such as police, ambulance and fire officers are exposed to trauma during the course of their employment and are at risk of developing work-related psychiatric injuries such as and including PTSD. If the employer provides support services including but not limited to counselling and therapy to help manage the risk of psychiatric injury, these claims will continue to be very difficult to succeed in terms of establishing breach of duty but as always, each case must be evaluated on its own merits and all of these cases will succeed or fail on the facts of each matter. It does not mean that this type of claim is impossible to win but they are challenging and difficult to win;
- While Mr Giles’ WorkCover claim was accepted this occurred in a no-fault environment and although he had the entitlement or right to pursue a common law claim for damages due to the acceptance of the WorkCover claim, this decision serves to reinforce that the acceptance of the statutory claim or WorkCover claim does not always translate into success in the court room
