Hegarty v Queensland Ambulance Service
[2007] QSC 90
•1 May 2007
SUPREME COURT OF QUEENSLAND
CITATION: Hegarty v Queensland Ambulance Service [2007] QSC 90 PARTIES: ROBERT WILLIAM HEGARTY
(plaintiff)
v
QUEENSLAND AMBULANCE SERVICE
(defendant)FILE NO: S3353 of 2000 DIVISION: Trial Division PROCEEDING: Trial DELIVERED ON: Reasons given on 20 April 2007
Orders made on 1 May 2007DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 13-17, 20-24, 27, 29 November 2006 JUDGE: Wilson J ORDER:
1. That the limitation period prescribed by section 11 of the Limitation of Actions Act 1974 for the commencement of the proceeding be extended to 13 April 2000;
2. That there be judgment for the plaintiff against the
defendant for $569,635.31;3. That the question of costs of and incidental to the
proceeding be adjourned to a date to be fixed.CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS FOR ACTION FOR NEGLIGENCE – WHERE NERVOUS SHOCK OR MENTAL DISORDER – COMMON LAW – the plaintiff worked as an operational ambulance officer for fifteen years – in the course of that employment the plaintiff was exposed to numerous traumatic events – the plaintiff developed post traumatic stress disorder and obsessive compulsive disorder – the plaintiff presented with signs of dysfunction – the employer provided some training to the plaintiff directed at self-recognition of symptoms of stress disorders, and self- referral – the plaintiff did not recognise his signs of dysfunction – this lack of self-recognition was not unreasonable – the employer provided some training in recognising signs of dysfunction in others to some supervisors – the plaintiff’s supervisors did not recognise signs of dysfunction in the plaintiff – the employer had a system of counsellors and peer supporters available to its employees – whether the employer provided adequate training to supervisors – whether the employer was negligent – whether the employer’s negligence caused the plaintiff’s mental disorder
TORTS – NEGLIGENCE – ESSENTIALS FOR ACTION FOR NEGLIGENCE – WHERE NERVOUS SHOCK OR MENTAL DISORDER – COMMON LAW – the plaintiff gradually developed post traumatic stress disorder and obsessive compulsive disorder – when the plaintiff suffered from a recognisable psychiatric disorder
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – where loss suffered was the loss of the chance of a better outcome – calculation of damages on that basis – whether the plaintiff is entitled to Griffiths v Kerkemeyer damages
WorkCover Queensland Act 1996 (Qld) s 551
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s
603
Workplace Health and Safety Act 1995 (Qld) s 28Calvert v Mayne Nickless Ltd (No 1) [2006] 1 Qd R 106;
[2005] QCA 263, cited
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410,
followed
Fink v Fink (1946) 74 CLR 127, cited
Griffiths v Kerkemeyer (1977) 139 CLR 161, followed
Grincelis v House (2000) 201 CLR 321, cited
Hodges v Frost (1984) 53 ALR 373, cited
Hoyts Pty Ltd v Burns (2003) 201 ALR 470, cited
Jaensch v Coffey (1984) 155 CLR 549, cited
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, cited
Malec v J C Hutton Pty Ltd (Unreported, Supreme Court of
Queensland, Byrne J, 5 June 1992), cited
Mott v Fire and All Risks Insurance Co Ltd [2000] 2 Qd R
34; [1999] QCA 220, cited
New South Wales v Seedsman (2000) 217 ALR 583; [2000]
NSWCA 119, cited
Rosenberg v Percival (2001) 205 CLR 434, cited
Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2)
[2001] 1 Qd R 518; [2000] QCA 18, cited
Sellars v Adelaide Petroleum NL (1992-1994) 179 CLR 332,
cited
State of New South Wales v Burton [2006] NSWCA 12, cited
Tame v New South Wales (2002) 211 CLR 317, considered
Wyong Shire Council v Shirt (1980) 146 CLR 40, citedCOUNSEL: G W Diehm and A Luchich for the plaintiff
D O J North SC and M O’Sullivan for the defendantSOLICITORS: Butler McDermott & Egan for the plaintiff
Crown Solicitor for the defendant
TABLE OF CONTENTS
PRELIMINARY POINTS.................................................................................................... 4
Identity of defendant ..................................................................................................... 4
Limitation defence......................................................................................................... 4
Overview ....................................................................................................................... 4
The pleadings ................................................................................................................ 6
Dramatis personae ....................................................................................................... 20
Those who have treated the plaintiff ........................................................................... 23Independent experts..................................................................................................... 23
LIABILITY ........................................................................................................................ 24
The traumatic incidents ............................................................................................... 24
Developing conditions – Gayndah .............................................................................. 25
Conversations with Mr Borger .................................................................................... 27
The medal ceremony ................................................................................................... 28
After the transfer to Bundaberg................................................................................... 31
Training while the plaintiff was in Gayndah............................................................... 32
Training while the plaintiff was in Bundaberg............................................................ 36
The plaintiff’s appreciation of signs of dysfunction ................................................... 39
Incident in Bundaberg shortly before sick leave ......................................................... 40
Diagnosis and the beginning of treatment................................................................... 40
Since April 1999.......................................................................................................... 40
Treating doctors and psychologist............................................................................... 41
Medico-legal evidence ................................................................................................ 47
Conclusion about PTSD & OCD................................................................................. 49
Recognition and treatment of stress ............................................................................ 50
Training of supervisors................................................................................................ 54
Likely course of events in absence of employer’s default .......................................... 56
Breach of duty of care ................................................................................................. 58
Causation..................................................................................................................... 59
Conclusion on liability ................................................................................................ 61
No contributory negligence; no failure to mitigate loss .............................................. 61Breach of contract and breach of statutory duty.......................................................... 61
QUANTUM........................................................................................................................ 61
Summary ..................................................................................................................... 66 JUDGMENT ...................................................................................................................... 67
ORDERS ............................................................................................................................ 67
Annexure 1 ......................................................................................................................... 68
Annexure 2 ......................................................................................................................... 87
Annexure 3 ......................................................................................................................... 90
Annexure 4 ......................................................................................................................... 92
WILSON J: The plaintiff was an ambulance officer for 15 years from 1984 to 1999. In the performance of his duties he was exposed to multiple horrific events. He left his employment afflicted by post traumatic stress disorder (“PTSD”) and obsessive compulsive disorder (“OCD”) for which he alleges his employer is responsible. He claims damages for negligence, breach of contract and/or breach of statutory duty.
PRELIMINARY POINTS
Identity of defendant
The named defendant to the proceeding is “Queensland Ambulance Service”. At the start of the trial, counsel informed the Court that shortly after the commencement of the proceeding there had been correspondence between the solicitors about the correct identity of the defendant, but that the State of Queensland was conducting the defence as if it were the employer at all material times, and was not taking any point in this regard.[1]
[1] Transcript of the proceeding, p 3. On the structure of the ambulance service in Queensland see Ambulance Services Act 1967 (Qld); Ambulance Service Act 1991 (Qld); transcript of the proceeding, p 616.
Limitation defence
The defendant pleaded a defence under the Limitation of Actions Act 1974 (Qld),[2] but its counsel informed the Court that if it was otherwise found liable to the plaintiff, it would not oppose an extension of time under s 31 of that Act.[3]
[2] Further Further Amended Defence of the Defendant, filed by leave 13 November 2006, [16], [18].
[3] Transcript of the proceeding, p 6.
Overview
Over the 15 years he was an ambulance officer the plaintiff worked at Emerald from 1984 to 1987, at Ayr from 1987 to 1989, at Gayndah from 1989 to the end of 1996, and at Bundaberg from 1 February 1997 to 13 April 1999.[4] On his case he was required to attend many traumatic and distressing scenes.[5] He gave evidence about more than 20 of such events, describing his perceptions and recollections of them and their effects upon him.
[4] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [6]; Further Further Amended Defence of the Defendant, filed by leave 13 November 2006, [6].
[5] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7], [8].
At trial the defendant did not dispute that by the time the plaintiff left the Queensland Ambulance Service (“QAS”) he was very unwell. His psychiatric condition, PTSD and co-morbid OCD, was genuine and complex.
The Queensland Ambulance Service (like its predecessor the Queensland Ambulance Transport Brigade (“QATB”)) is responsible for the provision of ambulance services throughout Queensland. By about 1993 it had approximately 1800-2000 employees, more than 85% of whom were ambulance officers. They worked from about 190 stations spread throughout the State from Thursday Island to Coolangatta.[6]
[6] Transcript of the proceeding, pp 616-617.
The plaintiff worked in Gayndah for about eight years. It was a small country town about 140 kms from Bundaberg[7] with a population of about 2,500 in the town, and a total of 3,000 to 3,500 in the shire.[8] There was one doctor in the town, who was the medical superintendent of the town’s hospital with a right of private practice.[9] The hospital had about 16 beds plus a maternity section. It had an operating theatre, and whenever an anaesthetic was to be administered, the doctor from Mundubbera, a town of similar size less than 60 kms away, would come and assist.[10] There were two ambulance officers at the Gayndah station (the plaintiff the more junior of them), who were assisted from time to time by honorary officers.[11] Until about 1993 there was a clerical officer, but with the establishment of the Queensland Ambulance Service there ceased to be administrative staff in small centres.[12] There were two ambulance officers stationed at Mundubbera.[13]
[7] Transcript of the proceeding, p 822.
[8] Transcript of the proceeding, p 724.
[9] Transcript of the proceeding, p 723.
[10] Transcript of the proceeding, p 724.
[11] Transcript of the proceeding, p 819.
[12] Transcript of the proceeding, p 820.
[13] Transcript of the proceeding, p 725.
The two ambulance officers at Gayndah had a “rotating roster”[14] each working ten days on duty and then having four days off, rotating so that one would be off one weekend, and the other the next weekend.[15] There were days when both were rostered on;[16] on those days one of them (usually the plaintiff) would be on call in after hours as the first responding officer with the other designated as the second responding officer.[17] When one of them had his days off, the other worked alone;[18] and as well as doing his eight hour day shift he had to be on call in after hours – thus making himself available 24 hours a day for four days.[19] If one of the officers went on holidays, the other was there by himself. If the more senior officer went on holidays, the other (the plaintiff) would step up to his position, leaving his own position vacant; he had to be available 24 hours a day but for his rostered days off he would try to obtain a relieving officer from a neighbouring station.[20]
[14] Transcript of the proceeding, p 82.
[15] Transcript of the proceeding, pp 82, 821.
[16] Transcript of the proceeding, pp 82, 821.
[17] Transcript of the proceeding, pp 82-83.
[18] Transcript of the proceeding, p 82.
[19] Transcript of the proceeding, p 82.
[20] Transcript of the proceeding, pp 83-84.
Bundaberg was a much larger town with a much larger ambulance centre, which employed an eight week rotating roster, with officers rostered for day and evening shifts. Those rostered to work in the day were generally placed on call to assist those working the evening shift where necessary.[21]
[21] Transcript of the proceeding, p 84.
Recognition of occupational stress in emergency services personnel, including ambulance officers, gathered momentum in the 1980s and early 1990s.[22] In Queensland, it was discussed (inter alia) in the First Report of the Parliamentary Select Committee of Inquiry into Ambulance Services which was tabled in the Legislative Assembly in December 1990.[23] This led to the Queensland Ambulance Service developing and implementing a program known as “Priority One”, aimed at reducing the impact of stress-related problems on ambulance personnel and their families.[24] The program was developed by May 1992, and progressively rolled out over the following years.[25] It had four elements – “Critical Incident Stress Debriefing”, peer support, a telephone counselling service and face-to-face counselling with a psychologist.[26]
[22] Transcript of the proceeding, pp 615-616; Exhibit 4, [3]-[4].
[23] Exhibit 1, Tab 1, pp 170-177.
[24] Exhibit 2, Tab 2 (“Discussion Document – For the Working Party Investigating Stress and the Need for Counselling Services in the Queensland Ambulance Transport Brigade – February 1991”), [4.1]; Exhibit 4, [7]; mission statement in Exhibit 4, Attachment 4 (“Memorandum to Regional Assistant Commissioners re establishment of the Priority One Program, date 27/05/1992”).
[25] Exhibit 4, [6]-[16]; transcript of the proceeding, pp 616-620.
[26] Transcript of the proceeding, pp 18-20.
“Critical Incident Stress Debriefing”, a particular model of debriefing involving a probing intervention into a person’s response to a traumatic experience, was, to some degree at least, discredited by studies in the late 1990s.[27] Suffice it to say, the plaintiff was not subjected to it, and it was not part of his case at trial that he ought to have been.[28]
[27] Transcript of the proceeding, pp 11-12, 364, 380 (Prof Bryant), 436 (Prof Raphael).
[28] Transcript of the proceeding, p 18.
The efficacy of the other aspects of “Priority One” and the extent and way in which they were actually implemented vis a vis the plaintiff were at the core of the litigation.
The pleadings
The plaintiff alleged –
“7.
During the course of the Plaintiff’s employment he was required to attend at many traumatic and distressing scenes, including
(a)
in 1984 at Emerald an attendance at a scene at a domestic residence where a young male had been killed by being trapped under a motor vehicle upon which he had been working, when the jacks supporting it had collapsed;
(b)
in 1985 at Emerald an attendance at a suicide in a caravan;
(c)
in 1985 at Emerald an attendance at an attempted suicide in a house nearby the station;
(d)
in 1985 an attendance at a motor vehicle accident involving nine patients, including one young child, who had died, but had lost, in the course of the accident, some half of its head;
(e)
in 1986, at Emerald, an attendance at a motor vehicle accident involving four injured patients;
(f)
in 1986, at Emerald, an incident where the Plaintiff’s ambulance vehicle was shot at while at attendance at the Willows Gem Fields;
(g)
in 1986, at Emerald, an attendance at a motor vehicle accident involving a collision between a vehicle and a train, in which a female patient was killed;
(h)
in 1988, at Ayr, when the Plaintiff’s personal belongings were lost due to flooding which occurred whilst the Plaintiff was working, and was therefore unable to attend to saving his belongings;
(i)
in 1989 at Gayndah when the Plaintiff attended at a motor vehicle accident involving a logging truck which had rolled over and in which the driver was trapped inside his vehicle, and was having difficulty breathing. Conflict emerged between the Plaintiff and another officer in attendance as to the best course for treatment and/or extrication from the vehicle for the driver, with the course proposed by the other officer being followed. The patient died of affixiation [sic];
(j) attendance at a suicide at Gayndah in 1989; (k)
attendance at a murder / attempted suicide at Christmas 1990 at Gayndah;
(l)
attendance with a male patient from a motor vehicle accident at a doctor’s surgery at Gayndah in 1990 during which time the patient died;
(m) attendance at a suicide by hanging at Gayndah in 1991; (n)
attendance at a child drowning at Gayndah in 1993, in circumstances where the child was a child of neighbours and family friends;
(o)
attendance at a motor vehicle accident at Bundaberg in 1997 in which two male passengers were incinerated;
(p)
involvement in a controversial attendance upon a cardiac arrest / stroke victim, (who subsequently died) in which there was conflict between the Plaintiff and other staff members regarding what went wrong in treatment, and who was responsible;
(q)
involvement in 1998 in two incidents involving aircraft engine failure when on board the air ambulance;
(r)
attendance in Bundaberg in 1998 upon a young teenage mother who had hung herself;
(s)
attendance in Bundaberg in 1998 upon a female with a young family who had hung herself;
(t)
attendance in Bundaberg in early 1999 involving a motor vehicle accident in which a baby had been trapped under an overturned vehicle, but which was not found until the vehicle was lifted;
(u)
an incident in which the Plaintiff was involved in the transfer of a young child from the Gayndah hospital to the airport for transfer by air ambulance, in which the child subsequently died during the flight.
8.
The attendance of the Plaintiff at the aforementioned events, as well as other events typically experienced in the course of his employment, was the source of much distress and angst for the Plaintiff.
8A.
As a result of the Plaintiff’s repeated exposure to traumatic events such as those described in paragraph 7 above, he was exposed to a risk of developing psychiatric injuries, a risk the Defendant knew or ought to have known about.
8B.
That risk of developing psychiatric injuries was a more than trivial risk of injury created by the Plaintiff’s workplace and/or work activities.
8C.
Between in or about 1992 and 1996 the Plaintiff discussed with the Defendant’s Officer-in-Charge at Gayndah, Sam Borger, that he needed to get out of Gayndah because he was not coping or managing well with his duties as an ambulance officer in that his skill levels were deteriorating, he was having problems disassociating personal matters from professional issues and he felt he needed the security of working with someone who was at least as experienced as the Plaintiff.
8D.
Between in or about 1994 and 1996, the Plaintiff had discussions to similar effect to those set out in paragraph 8C above, with the Defendant’s Sector Coordinator Gary Pratt.
8E. In or about 1996 at a ceremony at which the Plaintiff was
presented with a National Service Medal:-
(a)
the Plaintiff informed Assistance [sic] Commissioner John Jacobsen [sic] and Deputy Commissioner Gerard Lawler of the same matters of which he had informed Sam Borger as set out in paragraph 8C above;
(b)
further the Plaintiff requested of the said persons a transfer and indicated that he would resign if he was not transferred.
8F.
At the same medal presentation ceremony, the Plaintiff’s wife, Paula Hegarty informed Jacobsen [sic] Lawler and Pratt that the Plaintiff needed to leave Gayndah, that he was working too many hours and the family unit was not coping.
8G.
In addition, on two occasions in or about 1996 the Plaintiff’s wife told Borger words to the affect [sic] that the Plaintiff was not well and needed time out.
8H.
Following the Plaintiff’s transfer to Bundaberg in 1997, on two occasions, and to the knowledge of the Defendant, the Plaintiff failed to respond to code 1 emergency calls whilst on call at his residence.
9.
As a consequence of the Plaintiff’s experiences at the aforementioned events, the Plaintiff has developed:-
(a) post traumatic stress disorder; (b) an obsessive compulsive disorder.
Particulars
(i) from in or about 1984 the Plaintiff had features of post traumatic stress disorder which developed into clinically significant distress from in or about 1988/1989;
(ii) thereafter as a result of the Plaintiff’s developing post traumatic stress disorder, the Plaintiff developed an obsessive compulsive disorder;
(iii) the Plaintiff subsequently developed a full blown post traumatic stress disorder from in or about the mid 1990’s.
10. The Plaintiff did not receive any counselling or psychological support, treatment or intervention with respect to the distress and angst experienced as a consequence of the aforementioned events.
11. The Defendant did not at any time material to this action have in place any system of counselling and/or psychological support or treatment which would have resulted in the Plaintiff receiving the benefit of such support following involvement in such incidents.
11A.
In the alternative, the system which the Defendant had in place was inadequate and/or not a sufficient response to the more than trivial risk to which the Plaintiff was exposed, because:-
(a)
the Defendant did not have in place a system by which the Plaintiff received cognitive behaviour therapy following incidents which caused him distress or angst;
(b)
the Defendant did not have in place a system whereby the Plaintiff’s supervisors were trained to identify signs of dysfunction in personnel regularly exposed to distressing and traumatic experiences, so that referral could be made for clinical psychological assessment and treatment such as cognitive behaviour therapy;[29]
(c)
the Defendant did not have in place a system whereby the Plaintiff received training/education through which the Plaintiff would have come to know and recognise the signs of the possible effects of distress and angst following traumatic experiences;
(d)
the system did not take into account the fact that ambulance personnel such as the Plaintiff, at times worked primarily by themselves in small isolated rural ambulance stations.
[29] At the commencement of the trial senior counsel for the defendant sought particulars of the “reasonable grounds upon which it is said the particular supervisors ought to have been aware that [the plaintiff] was suffering any illness.” Counsel for the defendant responded that he relied on the matters pleaded in [8C]-[8G] of the Further Amended Statement of Claim: see transcript of the proceeding, pp 21-22. Note that the Further Further Amended Statement of Claim, filed by leave on the second day of the trial, does not alter these paragraphs. I shall discuss these matters, and the evidence called in relation to them, in due course.
11B.
In the further alternative, despite the matters pleaded in paragraphs 8A to 8H inclusive above, at no stage prior to 1999 did the Defendant:-
(a)
recommend to the Plaintiff that he seek counselling or psychological assessment through Priority One or otherwise;
(b)
refer the Plaintiff for counselling or psychological assessment through Priority One or otherwise;
(c)
arrange for the Plaintiff to have access to counselling or psychological assessment through Priority One or otherwise.
12.
If such a system of support, or alternatively a sufficiently adequate system of support as set out in paragraph 11A above, had been in place, the Plaintiff would not have developed the aforementioned psychiatric injuries or alternatively, he would have completely recovered from them, or the extent of the Plaintiff’s psychiatric injuries would have been significantly limited compared with his current psychiatric condition.
12A.
Alternatively, had the Defendant counselled, recommended, referred or arranged for the Plaintiff to have counselling or psychological assessment prior to 1999, due to the matters pleaded in paragraphs 8A to 8H inclusive above, the Plaintiff would not have developed the aforementioned psychiatric injuries or alternatively, he would have completely recovered from them, or the extent of the Plaintiff’s psychiatric injuries would have been significantly limited compared with his current psychiatric condition.
13.
In the premises, by virtue of the matters set out in paragraphs 10, 11, 11A, 12 and 12A above, the Plaintiff’s injuries were caused by the employer’s negligence, and/or breach of the aforesaid implied term of contract of employment, and/or breach of the aforesaid statutory duties.”[30]
[30] Further Further Amended Statement of Claim, filed by leave 14 November 2006.
In response to these allegations the defendant pleaded –
“7. As to the allegations contained in paragraph 7 of the Further
Amended Statement of Claim, the Defendant:
(f)
admits the Plaintiff worked for the Defendant between 1984 and 1998;
(g)
admits the allegations in subparagraph (a) but does not admit the Plaintiff attended the scenes listed in paragraph 7 of the Further Amended Statement of Claim, and says the reason for such non-admission is that by reason of the lack of particularisation of the allegations, the Defendant is unsure of the truth or otherwise of the allegations and the Defendant is unable to admit or deny the allegations;
(h)
does not admit the scenes listed in paragraph 7 of the Further Amended Statement of Claim were traumatic or distressing and the defendant repeats and relies upon the matters pleaded in subparagraph (b) hereof. Further the defendant states that whether such scenes were traumatic or distressing is a matter solely within the means of knowledge of the Plaintiff and the Defendant is unable to admit or deny the allegations.[31]
[31] There were only three sub-paragraphs (labelled (f)-(h)) in paragraph 7.
8.
As to the allegations contained in paragraph 8 of the Further Amended Statement of Claim, the Defendant:-
(a) repeats and relies upon paragraph 7 herein; (b)
does not admit the Plaintiff attended the ‘other events typically experienced in the course of his employment’, and says the reason for such non-admission is that by reason of the lack of particularisation of the allegations, the Defendant is unsure of the truth or otherwise of the allegations and the Defendant is unable to admit or deny the allegations;
(c)
As to the allegation of ‘distress and angst’, the Defendant repeats the matters pleaded in paragraph 7 above and further says that the Plaintiff did not give the employer any indication he was suffering from any unhealthy distress or anxiety and consequently denies that the Plaintiff suffered from any unhealthy excessive ‘distress’ or ‘angst’ and otherwise does not admit this allegation.
9.
As to the allegations contained in paragraph 9 of the Further Amended Statement of Claim, the Defendant:-
(a)
(i)
admits the Plaintiff displayed some symptoms of Post Traumatic Stress Disorder;
(ii) denies the Plaintiff developed post traumatic stress disorder as a consequence of exposure to the events contained in paragraph 7 of the Further Amended Statement of Claim and says the reason for such denial is the medical reports do not support the allegation;
(b)
(i)
admits the Plaintiff had developed an obsessive compulsive disorder;
(ii)
denies the obsessive compulsive disorder developed as a consequence of exposure to the events contained in paragraph 7 of the Further Amended Statement of Claim and says the reason for such denial is that the medical reports and other documents do not support the allegations.
9A.
Further to the matters alleged in paragraph 9 of the Further Amended Statement of Claim and paragraph 9 above, the Defendant says:
(a)
unknown to the Defendant, the Plaintiff had vulnerable personality that was unusually susceptible to suffering from psychiatric illness;
(b)
this vulnerability existed because the Plaintiff had an obsessive personality;
(c)
on or about Friday 26 March 1999 the Plaintiff was involved in the medical transfer by air of a woman from Mundubbera to Bundaberg;
(d)
as a result of the transfer, issues arose as to the Plaintiff’s conduct or competency and the Plaintiff was told by his superior, Patrick John Denham, that a ‘mandatory audit’ was to be conducted into the matter and that the Plaintiff was to be suspended from duties as a ‘mentor’ of other ambulance officers and as an ‘air attendant’ until the audit was completed;
(e)
the Plaintiff’s subsequent decompensation and illness, which occurred within days of these events in early April 1999 and the Plaintiff’s subsequent loss and damage as claimed in this action, was a consequence of his idiosyncratic and unforeseeable reaction to the events referred to herein rather than the matters alleged in the Further Amended Statement of Claim;
(f)
in the premises of (c) and (d) above, the conduct of the Plaintiff’s supervisor, Patrick John Denham, was a reasonable management action taken in a reasonable way in connection with the Plaintiff’s employment within the meaning of s.34(5) of the WorkCover Queensland Act 1996 and that in the premises whereby the ‘injuries’ for which the Plaintiffs claims arose out of this action, the Plaintiff is not entitled to sue or recover damages therefor.
(g)
the defendant joins issue with the particulars alleged in paragraph 9 of the Further Further Amended Statement of Claim and relies upon the matters pleaded in paragraphs 8, 9, 9A herein, 13A and 13B hereof.
9B. As to the matters alleged in paragraphs 8A to 8H of the
Further Amended Statement of Claim:-
(a)
the Defendant admits knowledge of the risk pleaded in paragraph 8A but otherwise does not admit the further allegations made and repeats and relies upon the matters pleaded in paragraphs 7 and 8 hereof;
(b)
the Defendant admits the allegations in paragraph 8B and it is for this reason that the Defendant established the ‘Priority One’ program referred to herein;
(c)
the Defendant denies the allegations in paragraphs 8C to 8H on the grounds that it believes them to be untrue save that the Defendant admits that the Plaintiff was keen to transfer from Gayndah to a larger centre as he was ambitious and wished to gain experience in a larger centre.
10.
The Defendant denies the allegations contained in paragraph 10 of the Further Amended Statement of Claim, that the Plaintiff did not receive any counselling or psychological support, treatment or intervention regarding the distress and angst experienced as a consequence of the events listed in paragraph 7 of the Further Amended Statement of Claim, and says the reasons for such denial are:-
(a)
the Plaintiff was an active participant in the informal system of debriefing;
(b)
the Plaintiff was an active participant in the ‘Priority One’ program;
(c)
the Plaintiff received counselling and psychological support from the Priority One program;
(d)
further, the plaintiff attended stress management workshops and a suicide intervention workshop at Gayndah Hospital and had been trained in debriefing techniques and affective [sic] listening skills and a mentor course through the QAS.
11.
The Defendant denies the allegations contained in paragraphs 11 and 11A of the Further Amended Statement of Claim that it did not have in place any system of counselling and/or psychological support or treatment and says the reasons for the denial are:-
(a)
(i)
from 1990 onwards, the Defendant had in place an adequate system of counselling and peer support, called ‘Priority One’ by which employees who encountered, in the course of their employment, trauma or other stressful events would receive counselling, debriefing or other psychological intervention to assist them with their ability to cope with the traumatic experiences, or by which it might be identified that they had suffered or were at risk of suffering from some illnesses as a consequence of the experiences, and for which medical intervention was necessary;
(ii) under the ‘Priority One’ program, the Defendant had in place Peer Support Officers whose role it was to provide counselling and referrals for any Queensland Ambulance Service staff member;
(iii) the Defendant advised all of its employees of the existence of the Peer Support Officers and ‘Priority One’ program;
(iv) the Plaintiff was an active participant in the ‘Priority One’ program;
(b)
(i)
prior to 1990, the Defendant had in place an informal system which provided employees with informal debriefing and counselling following traumatic or other stressful events;
(ii)
the Plaintiff was an active participant in the informal system of debriefing;
(c) ambulance officers receive advice and guidance on how to cope with the stress associated with ambulance work during their training. 12. The Defendant denies the allegations contained in paragraphs 12 and 12A of the Further Amended Statement of Claim and says the reasons for such denial are -
(a) the Defendant had in place a system of support for its employees; (b) the Plaintiff did not develop the psychiatric injuries in the course of his employment; (c) the Plaintiff developed the psychiatric injuries despite the existence of the support system which was in place; (d) the Defendant denies the allegations that had an alternative system been adopted the Plaintiff would have recovered from any illness or that such illness would not have been as severe as alleged on the grounds that the allegations are untrue and are speculative. 13. The Defendant denies the allegations contained in paragraph 13 of the Further Amended Statement of Claim that the Plaintiff’s injuries were caused by the employer’s negligence and/or breach of implied term of contract, and/or breach of statutory duties and says the reasons for such denial are those set out in paragraphs 10, 11 and 12 herein.
13A.
Further as to paragraphs 10 to 13 of the Further Amended Statement of Claim the Defendant says that by reason of the matters in paragraphs 10 and 11 above:
(a)
the Defendant chose an appropriate way to discharge its workplace health and safety obligation by taking the measures specified in paragraphs 10 and 11 above, which were reasonable precautions within s.27 and s.37 of the Workplace Health and Safety Act 1995;
(b)
further in the circumstances that the Plaintiff told no one at his work he was suffering from workplace stress and at all times presented as a healthy, normal functioning officer and only sought treatment for his illness in or about April 1999, and further in the circumstances that the Plaintiff knew of the services offered through Priority One, but did not use these services until he was ill in or about April 1999, the Defendant says that it exercised proper diligence within s.27 and s.37 of the Workplace Health and Safety Act 1995;
(c)
further the Defendant says that it took all practicable measures to ensure the health and safety of the Plaintiff within s.9 of the Workplace Health and Safety Act 1989.
13B.
The Defendant says that in the circumstances where the Plaintiff told no one at his work that he was suffering from workplace stress and that at all times knew of the services that were available through Priority One, but failed to use those services until in or about April 1999 when he was already ill, the worker did not do everything reasonably possible to avoid sustaining the illness from which he has suffered and for which he claims pursuant to s.312(1)(e) of the WorkCover Queensland Act 1996 and that by reason thereof, the Plaintiff’s claim should be dismissed or alternatively his damages reduced on the grounds that he substantially contributed to his claimed injury.
13C.
Further to paragraph 13A above and in respect of the matters alleged by the Plaintiff in paragraphs 11A and 11B of the Further Amended Statement of Claim and his further and better particulars dated 26 May 2005, the defendant says:
(a)
the Defendant, through Priority One, did have a system whereby employees could be referred, or could self refer, to qualified psychologists or counsellors for help;
(b)
it is not the duty or obligation of an employer to provide medical treatment to an employee;
(c)
it is not the duty or obligation of an employer to require an employee to submit to medical treatment;
(d)
it is not the duty of an employer nor is it reasonable for an employer to require employees to submit to psychiatric medical treatment;
(e)
at the times material to this action, it was not the duty of an employer nor was it reasonable for an employer to be required to refer employees for cognitive behavioural therapy.”[32]
[32] Further Further Amended Defence of the Defendant, filed by leave 13 November 2006.
The plaintiff pleaded (inter alia) by his reply –
“4. As to paragraph 9A of the Further Further Amended
Defence, the Plaintiff:-
(a) denies that the Plaintiff had a vulnerable personality which was unusually susceptible to suffering from psychiatric illness as a result of an obsessive personality, because the allegation is untrue; (b) admits the allegations in sub-paragraph (c); (c) denies the allegations in sub-paragraph (d) because:- (i) the Plaintiff was not told by his superior, Patrick John Denham that a ‘mandatory audit’ was to be conducted into the air transfer of the woman from Mundubbera to Bundaberg;
(ii) the Plaintiff was not suspended from duties as either a ‘mentor’ of other ambulance officers or as an ‘air attendant’ as a result of the conduct of the air transfer of the woman from Mundubbera to Bundaberg;
(d)
denies that the Plaintiff’s decompensation and subsequent loss and damage was caused by any idiosyncratic or unforeseeable reaction to the events contained in paragraph 9A of the Further Further Amended Defence, because the allegations are untrue and because of the reasons set out in this paragraph of the Further Amended Reply;
(e)
in the premises, denies the allegations in sub- paragraph (f) for the reasons set out in this paragraph of the Further Amended Reply;
(f)
further, if the event did contribute to the Plaintiff suffering psychiatric injury, the Plaintiff says that it was only one contributing factor, and the matters relied on by the Plaintiff in the Further Amended Statement of Claim remain as a cause or causes of his injury.
4A. As to paragraph 9B of the Further Further Amended
Defence, the Plaintiff:-
(a)
does not plead to the admissions contained in paragraphs 9B(a) and 9B(b);
(b)
otherwise repeats and relies on paragraphs 8A and 8C to 8H inclusive of the Further Amended Statement of Claim.
5.
As to paragraph 10 of the Further Further Amended Defence, the Plaintiff:-
(a)
denies the allegations in sub-paragraphs (a), (b) and (c) because they are untrue – the Plaintiff was neither an ‘active’ participant in any informal debriefing system, nor an ‘active’ participant in Priority One and did not receive any counselling or psychological support from Priority One;
(b)
admits the Plaintiff attended a number of informal lectures and seminars during his posting to Gayndah in respect of domestic violence and suicide intervention (for patients), but says the courses were informal sessions for which no formal accreditation or recognition existed;
(c)
admits the Plaintiff completed a subject entitled ‘developing communication skills’ in 1995 through the Department of Employment, Vocational Education, Training and Industrial Relations;
(d)
admits that the Plaintiff completed a mentor course through the Defendant;
(e)
denies that the Plaintiff was trained in debriefing techniques because the allegation is untrue.
6.
As to paragraph 11 and 12 of the Further Further Amended Defence, the Plaintiff:-
(a)
denies that from 1990 onwards the Defendant had in place a system called Priority One because the Priority One system was not operational until sometime in 1993/1994;
(b)
admits that prior to 1990 the Defendant had no formal system in place and relied solely on an informal system of debriefing;
(c)
otherwise denies the allegations contained in those paragraphs because:-
(i) the Priority One system was not adequate for the reasons set out in paragraph 11A of the Further Amended Statement of Claim on which the Plaintiff repeats and relies;
(ii) the Plaintiff did not receive any counselling nor was he an ‘active’ participant in the Priority One system or an ‘active’ participant in the informal system of debriefing;
(iii) the Plaintiff was not given any training/education through which he would have come to know and recognise the signs of the possible effects of distress and angst following traumatic experiences in his employment;
(iv) the Plaintiff did develop the psychiatric injuries referred to in paragraph 9 of the Further Amended Statement of Claim in the course of his employment and despite the existence of Priority One;
(v) of the matters set out in paragraph 4 of this Further Amended Reply which the Plaintiff repeats and relies upon.
7. As to paragraphs 13A, 13B and 13C of the Further Further Amended Defence, the Plaintiff:-
(a)
denies the allegations that he told no one at his work he was suffering from workplace stress and at all times presented as a healthy, normal functioning officer and repeats and relies on the matters contained in paragraphs 8A to 8H inclusive of the Further Amended Statement of Claim;
(b)
repeats and relies on paragraphs 11A and 11B of the Further Amended Statement of Claim;
(c)
admits that the Plaintiff knew of the services offered through Priority One;
(d)
says that the Plaintiff was not aware he required counselling or needed assistance until he was finally permitted to attend a Priority One program shortly before he ceased work for the Defendant because of his psychiatric injuries;
(e)
otherwise denies the allegations because by reason of the matters set out in paragraphs 10 to 12A inclusive of the Further Amended Statement of Claim, the defences under ss. 27 and 37 of the Workplace Health & Safety Act 1995 (Qld) and s. 9 of the Workplace Health & Safety Act 1989 (Qld) are not available and the Defendant did not exercise proper diligence or take all practicable measures to ensure the health and safety of the Plaintiff;
(f)
says that the Plaintiff did everything reasonably possible in the circumstances to avoid sustaining the illness and as such, the relief sought pursuant to s. 312(1)(e) of the WorkCover Queensland Act 1996 (Qld) is not available.”[33]
[33] Further Amended Reply to the Defence of the Defendant, filed by leave 13 November 2006.
Dramatis personae
| [16] | (i) | The plaintiff |
The plaintiff was born in Hughenden in 1961 and raised in Charters Towers.[34] He left school after year 10,[35] and worked as a fitter’s assistant in an engineering works and subsequently as a wardsman, a male dresser and finally an enrolled nurse at the Charters Towers Hospital before becoming an ambulance officer at Emerald in 1984. By then he had completed various first aid courses and 1,000 hours of voluntary work as an honorary ambulance officer.[36]
[34] Transcript of the proceeding, pp 73-74.
[35] Transcript of the proceeding, p 75.
[36] Transcript of the proceeding, pp 76-78.
He and his wife met when they were at school and married when they were 18 years old. They had two children, a daughter born in 1983 and a son born in 1986.[37] The plaintiff enjoyed good physical and mental health through the 1980s as he assumed the responsibilities associated with his growing family and his developing career.[38] His relationship with the children was very good.[39] Trevor Tighe, a work colleague who knew him in Emerald (and later in Gayndah), described him as a friendly, jovial person with a light hearted approach to work.[40]
[37] Transcript of the proceeding, pp 79, 456, 519-520.
[38] Transcript of the proceeding, pp 85, 520-521.
[39] Transcript of the proceeding, p 525.
[40] Transcript of the proceeding, p 722.
Paula Hegarty before the children were born, and later she worked from home as a child-carer. Since about 1992 she has worked as a teacher aid, first in Gayndah and then in Bundaberg. She now works 15 hours per week.[41]
[41] Transcript of the proceeding, pp 520-521.
(ii)
Mrs Hegarty is a sincere, compassionate and intelligent woman, who has demonstrated admirable loyalty to her husband and commitment to family values throughout her marriage. She gave her evidence candidly and without guile, and I have no hesitation in accepting her as an honest witness.
Trevor Tighe 17 year old volunteer in about 1969-1970, and since about 1975 on the paid staff. He was the Deputy Superintendent in Emerald for about 22 months from 1984 to 1986, where he first met the plaintiff, and in Gayndah for four years from 1986 until 1990 where he again worked with the plaintiff.[42] From early 1990 he has held a range of administrative positions in Brisbane; at the time of the trial he was the executive officer to the Queensland Emergency Medical System Advisory Committee within the Queensland Ambulance Service.[43]
[42] The plaintiff was in Gayndah from 1989 to 1996.
[43] Transcript of the proceeding, p 714.
(iii)
(iv) Samuel Borger
Samuel Henry Borger was a full-time ambulance officer for 31 years and an honorary officer for three years.[44] He retired when he was 65 years old, and by the time of the trial was aged 72. He first met the plaintiff when he was posted to Gayndah in a relieving position in 1991.[45] He returned there in a permanent position later that year, and remained there until his retirement in July 1999.[46] He and the plaintiff were the only full-time officers in Gayndah until the plaintiff transferred to Bundaberg on 1 February 1997.
[44] Transcript of the proceeding, p 840.
[45] Transcript of the proceeding, p 819.
[46] Transcript of the proceeding, pp 820-821, 825.
(v) John Robert Jacobson
John Robert Jacobson was an ambulance officer for almost 28 years, living and working in small centres and country towns[47] and rising to the position of Assistant Commissioner for the North Coast Region (from Caloundra north to Bundaberg and west to Kingaroy, Gayndah and Monto). As Assistant Commissioner he participated in a medal presentation ceremony in Gayndah in July 1996. By the time of the trial, he had left the Queensland Ambulance Service and was working as a stock and station agent in Wollongong.[48]
[47] Transcript of the proceeding, p 814.
[48] Transcript of the proceeding, p 806.
Gerard Anthony Lawler Deputy Commissioner for the State of Queensland (Operations) – ie Mr Jacobson’s superior. In that role he visited towns such as Gayndah. By the time of the trial he was the Assistant Commissioner, Brisbane Region of the Queensland Ambulance Service.[49]
[49] Transcript of the proceeding, p 709.
(vi)
(vii) Patrick John Denham
Patrick John Denham was the officer in charge of the Bundaberg ambulance station for
nine years until early 2001. In that capacity he met the plaintiff in Gayndah and was his
commanding officer after he transferred to Bundaberg. Because of ill health Mr
Denham did not give evidence at the trial,[50] but a statement made by him in August[50] Exhibit 58.
2001 was admitted pursuant to s 92 of the Evidence Act 1977 (Qld).[51]
[51] Exhibit 46.
Margaret Anne Charteris
(viii) plaintiff worked there.[52]
[52] Transcript of the proceeding, p 856.
Graham Peatey
(ix) ambulance station in 1999.[53]
[53] Transcript of the proceeding, p 848.
(x) Paul Joseph Scully
Paul Joseph Scully joined the QATB in 1971, and worked as an ambulance officer until 1978, and then for a short period as a communications centre operator. He became a training officer in 1980, rising to the positions of senior training officer and acting chief training officer between 1986 and 1992. Since 1992 he has been the Coordinator of Staff Support Services within the Queensland Ambulance Service.[54] His qualifications include Bachelor of Social Science (Psychology) (1992), and a Graduate Diploma in Social Science (Counselling) (1997). He is undertaking a Master’s degree in Social Science (Counselling). As Coordinator of Staff Services he developed the program known as “Priority One”[55] and he has had a continuing role in its implementation and review. He has been seconded as a consultant to various organisations in the development and installation of peer support and trauma counselling programs, including ambulance services in Edinburgh, Northumbria and London in the United Kingdom.[56]
[54] Exhibit 4, Attachment 1 (“Curriculum Vitae of Paul Joseph Scully”); Transcript of the proceeding, p 614.
[55] Exhibit 4, [5]-[6].
[56] Exhibit 4, Attachment 1.
(xi) Willy Clarke
Willy Clarke was a counsellor engaged by Priority One to provide counselling services to ambulance personnel in the Bundaberg region.[57] He was based in Coolum and worked on a contractual basis.[58] He also ran information and training sessions,[59] and was involved in the vetting process for potential Peer Support Officers.[60] The solicitors for the defendant made quite considerable efforts to locate him,[61] but he proved elusive and so did not give evidence at trial.
[57] Transcript of the proceeding, p 644.
[58] Transcript of the proceeding, p 649.
[59] Transcript of the proceeding, p 649.
[60] Transcript of the proceeding, p 655.
[61] Exhibit 60.
Those who have treated the plaintiff
| [17] | (i) | Dr Richard Board, general practitioner; |
(ii) Dr Tom Bell, psychiatrist;
(iii) Dr Frank Walsh, clinical psychologist.
Independent experts
| [18] | Richard Allan Bryant |
(i) University of New South Wales. He is a clinical psychologist with an extensive and distinguished record of research and consultancy work, especially in relation to stress reactions to trauma. He examined the plaintiff in March 2003.[62]
[62] Exhibit 25; Exhibit 3, Tab 8 (“Reports of Professor Bryant”).
Peter John Mulholland (ii) practises in Brisbane, and he examined the plaintiff in July 2006.[63]
[63] Exhibit 23; Exhibit 3, Tab 7 (“Reports of Dr P Mulholland”).
(iii) Beverley Raphael Professor Beverley Raphael is Professor of Population Mental Health and Disasters in the Medical School at the University of Western Sydney and Professor of Psychological Medicine at the Australian National University. She has had a long and distinguished career in public health, academia and consultancy. She has been a consultant to the Queensland Ambulance Service in relation to the Priority One program, and wrote two critical appraisals of it, dated 8 January 2003 and 10 December 2003.[64]
[64] Exhibit 6.
Joan Margaret Lawrence the plaintiff.[65] She addressed a number of issues of principle in relation to Priority One and the treatment of trauma affected persons.[66]
[65] Transcript of the proceeding, p 581.
[66] Exhibit 5.
(iv)
(v) Martin Melville Nothling Dr Martin Nothling has been a specialist psychiatrist since 1973. He examined the plaintiff on 30 October 2002 and 13 September 2005.[67]
[67] Exhibit 45.
(vi) Gary Embelton Professor Gary Embelton is a consultant psychologist and psychotherapist presently in private practice. He was previously a professor in Psychology at the Queensland University of Technology.[68] He chaired a committee which reported to the Queensland Ambulance Service on the application of psychological debriefing (November 2002) and another which performed a multi-method evaluation and review of Priority One (2003).[69]
[68] Exhibit 54.
[69] Exhibit 4, Attachments 24 (“A Report Examining the Application of Psychological Debriefing within the Queensland Ambulance Service”) and 25 (“A Multi-Method Evaluation and Review of the QAS Staff Support Service ‘Priority One Program’”).
(vii) Jane Elizabeth Shakespeare-Finch
Dr Jane Shakespeare-Finch is a lecturer in the School of Psychology at the University
of Tasmania. She conducted research for the multi-method evaluation and review of
Priority One. She did not give oral evidence, but a written report was admitted.[70][70] Exhibit 44.
LIABILITY
The traumatic incidents
The plaintiff alleged that “he was required to attend at many traumatic and distressing scenes”, and set out a non-exhaustive list of 21 incidents between 1984 and 1999.[71] He alleged that attendance at such incidents was the source of much distress and angst for him.[72]
[71] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7].
[72] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [8].
In his oral evidence the plaintiff described each of these incidents and the effect it had on him. A summary of his evidence in relation to each incident is contained in Annexure 1 to these reasons for judgment. In some cases he was critical of the performance of other persons involved. Those other persons did not give evidence. His counsel made it plain that the Court was not being asked to make any findings about the conduct of other ambulance officers, because the case was about the plaintiff’s perception of what occurred.[73] Counsel for the defendant did not demur from that approach. Accordingly I have accepted the plaintiff’s evidence of the incidents on that basis, not intending to be judgmental about the conduct of others.
[73] Transcript of the proceeding, p 32.
The plaintiff identified four incidents as particularly significant in terms of their effects on him.[74] They were –
[74] Transcript of the proceeding, pp 207-208, 458-460.
(i) Statement of claim [7(d)] – the motor vehicle accident at Emerald in about 1985 in which the top half of the head of a child aged about two was ground away;
(ii) Statement of claim [7(i)] – the logging truck incident at Gayndah in about 1989 in which the vehicle overturned and the driver was trapped upside down;
(iii) Statement of claim [7(j)] – the suicide at Gayndah in about 1989 in which the female victim’s head above the lower jaw was blown away by a rifle shot;
(iv) Statement of claim [7(n)] – the drowning of a neighbour’s ten year old son at Gayndah in about 1993.
He said –
“They’re the ones that I continually have the nightmares about, the more intrusive thoughts. They’re the ones that I have been unable to deal with emotionally.”[75]
[75] Transcript of the proceeding, p 208.
Developing conditions – Gayndah
Both the plaintiff and his wife gave evidence of the emergence and progression of behaviours and physical and emotional difficulties which experts have since recognised as signs that the plaintiff was at risk of developing and was later developing PTSD and OCD. The evaluation of that evidence is relevant to whether the defendant knew or ought to have known of his dysfunction, and if so, when.
The plaintiff experienced intrusive thoughts and recollections of almost all of the 21 traumatic incidents on which he relied.[76] Those sequelae continued for years; in some cases they were relieved by the treatment he ultimately received from Dr Bell and Dr Walsh but those incidents he described as particularly significant[77] still troubled him most at trial.[78]
[76] The plaintiff did not experience intrusive thoughts of the eighth or fifteenth incident: see Annexure 1.
[77] See [21] above.
[78] The plaintiff remains troubled most by the four incidents I have described at [21] above. However, at trial he explained that he was also still troubled by the second, third, fourth, fifth, sixth, seventh, twelfth, sixteenth, seventeenth, eighteenth, nineteenth and twenty-first incidents: see Annexure 1. His intrusive thoughts of these incidents have diminished but not ceased since he began receiving treatment.
From early in his service at Gayndah[79] the plaintiff began to experience deterioration in his ability to cope and in his ability to retain information; insomnia, nightmares and persistent dreams; changing appetite and fluctuating body weight; mood swings with bouts of withdrawal, depression and anxiety; hyperactivity, hyperalertness and hypervigilance; intolerance of others; increasing verbal aggression; fatigue and lethargy; profuse sweating; tension in his stomach and lower back leading to his spending long periods in the bathroom trying to relieve his bowels; and unspecific back and neck pains. Later he also started grinding his teeth. Over the years his suffering increased in degree. He told the Court that he did not appreciate that what he was experiencing were symptoms of stress.[80]
[79] Transcript of the proceeding, p 191.
[80] Transcript of the proceeding, p 244, 246-248, 250-251, 275-276, 306, 316-318, 455, 457, 461, 463, 465-466.
The plaintiff underwent surgery to remove his appendix on 1 November 1996,[81] but his abdominal symptoms did not abate.[82] On 21 January 1999 he had a colonoscopy when the “likely possibility” of early diverticulitis was identified.[83] It remains unclear whether his abdominal symptoms related to a physical problem or whether they were psychosomatic.[84]
[81] Transcript of the proceeding, pp 191, 312, 553.
[82] Transcript of the proceeding, p 191.
[83] Transcript of the proceeding, pp 124-242, 568.
[84] Exhibit 3, Tab 6 (“Letter from Dr R Broad to Dr T Bell”); Exhibit 3, Tab 7, Exhibit 3, Tab 7, Report to the Court 25 July 2006, pp 4-5 (pp 6-7 of tab); Exhibit 3, Tab 9, Exhibit 3, Tab 9, Report to Dr P Byrnes (p 1 of tab); Exhibit 3, Tab 10 Exhibit 3, Tab 10, Report to WorkCover 14 August 2000, p 2 (p 2 of tab); transcript of the proceeding, pp 506 (Dr Mulholland), 731-732 (Dr Nothling).
The plaintiff progressively exhibited behaviours consistent with OCD – washing his hands excessively, checking doors, light switches and ambulance vehicles compulsively and repeatedly.[85] According to his wife, towards the end of his time in Gayndah, he started spending between 30 and 45 minutes in the shower, after a traumatic incident involving the air transport of a boy he suspected of having meningitis.[86]
[85] Transcript of the proceeding, p 210.
[86] The fifteenth incident (see Annexure 1); transcript of the proceeding, pp 523-524.
Counsel sought to construct a chronology of when the various symptoms were experienced or outwardly manifest from the evidence of the plaintiff and his wife. There was some understandable imprecision in their responses to questions, and some variances from what they had told the doctors who examined the plaintiff. I accept that they did their best to respond truthfully, but given the length of the plaintiff’s tenure at Gayndah (eight years), the progressive emergence and intensification of his symptoms, and that he was still unwell at trial, absolute precision could not have been expected. As Dr Mulholland said of the information the plaintiff gave him –
“He had what I thought was the normal difficulty of recounting a chronology of symptoms because we were going back a long time. I wouldn’t really say he was vague. He had what I’d regard as ... a fairly normal difficulty, given the whole situation.
… In a general sense I was confident that I had the general picture.
Some details, as always, might have been not … correct.”[87][87] Transcript of the proceeding, p 509.
And of course Mrs Hegarty’s evidence was necessarily restricted to what the plaintiff told her he was thinking and feeling at different times and her observations of his behaviour.[88]
[88] Transcript of the proceeding, pp 505-506.
Subject to these qualifications, I accept the following chronology which emerged from the plaintiff’s cross-examination –
1993 The plaintiff was aware of suffering lack of sleep, abdominal pains, back and neck pains, and intrusive dreams or recollections. He was not aware of hypervigilance, hyperactivity, hyperalertness, teeth-grinding, toileting problems, intolerance or social withdrawal.[89]
[89] Transcript of the proceeding, pp 307-308.
1994 The plaintiff was aware of suffering lack of sleep, unspecific abdominal pains, unspecific back and neck pains, intrusive dreams or recollections and toileting problems. He was not aware of hypervigilance, hyperactivity, hyperalertness, teeth- grinding, intolerance or social withdrawal.[90]
[90] Transcript of the proceeding, p 310.
1995 The plaintiff was aware of suffering lack of sleep, toileting problems, and intolerance. He could not recall hypervigilance, hyperactivity, hyperalertness or teeth-grinding. He was not aware of social withdrawal, and he could not answer whether he suffered unspecific abdominal pains, or unspecific back and neck pains.[91]
[91] Transcript of the proceeding, p 311.
1996 The plaintiff was aware of suffering lack of sleep, intrusive dreams or recollections, hyperactivity, toileting problems, abdominal pains, intolerance and social withdrawal. He could not recall hypervigilance, hyperalertness or teeth- grinding, and he could not answer whether he suffered back and neck pains.[92]
[92] Transcript of the proceeding, pp 312-313.
1997 The plaintiff was aware of suffering lack of sleep (but not to the same extent), intrusive dreams or recollections, toileting problems, abdominal pains, unspecific back and neck pains, intolerance and social withdrawal. He was not aware of hyperactivity, hyperalertness or teeth-grinding, and he could not answer with respect to hypervigilance.[93]
[93] Transcript of the proceeding, pp 314-315.
The plaintiff said that he did not appreciate the true significance of what he was experiencing.
Mrs Hegarty said that the plaintiff became “increasingly stressed” at Gayndah –
“Because he was always on call it was a huge burden on our life and
I could tell that was wearing away at him in the end.”[94][94] Transcript of the proceeding, p 522.
She said his health suffered: he had severe stomach pains and migraines, and his weight fluctuated.[95] He was a light sleeper, and because he was concerned about missing a phone call when he was on call, he was hypervigilant.[96] She did not recall his having toileting problems in Gayndah, although she recalled that in Bundaberg, “just before he was diagnosed”, he was spending three to four hours a day in the toilet.[97] As I have already noted, she remembered him spending 30 to 45 minutes in the shower towards the end of their time in Gayndah.
[95] Transcript of the proceeding, p 522.
[96] Transcript of the proceeding, p 524.
[97] Transcript of the proceeding, p 523.
The plaintiff’s relationship with his wife and children gradually deteriorated.[98]
[98] Transcript of the proceeding, pp 221-222.
Conversations with Mr Borger
The plaintiff and his wife gave evidence of several conversations with Mr Borger in Gayndah in which they voiced their concerns.[99] Mr Borger did not deny that these conversations occurred, but he could not remember them.[100] I am satisfied that the conversations did occur, and the fact that they did so is consistent with the plaintiff and Mrs Hegarty’s accounts of the emergence and progression of his behavioural, physical and emotional problems. I am satisfied, too, that Mr Borger was an honest witness, who simply could not remember these conversations.
[99] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [8C], [8G].
[100] Transcript of the proceeding, pp 832, 844-846.
(a)
The plaintiff said that on more than one occasion he talked to Mr Borger “regarding how [he] felt [he was] going in [his] employment at Gayndah”.[101] The first of these was “a couple of years” into Mr Borger’s permanent service there. He told Mr Borger that he was concerned his skill levels were dropping; that he was becoming impatient with other officers, particularly honorary officers; that he was becoming too close to the people in Gayndah which was preventing him being objective and performing his duties as well as he would have liked; and that he needed to “get out of Gayndah”. He said Mr Borger made no reply.[102]
(b)
Mrs Hegarty recounted a conversation she had with Mr Borger at the ambulance station on the day of an ambulance competition in June 1996. She said she told him that she was “fed up” with the long hours the plaintiff was working, and with the fact that he could not get a transfer.[103]
(c)
She gave evidence of another conversation she had with Mr Borger at a fete on the Gayndah Hospital grounds in October 1996. In the time leading up to this conversation, the plaintiff had been working largely by himself, doing relieving work in smaller, nearby centres and Mr Borger had also been away. She told Mr Borger –
[101] Transcript of the proceeding, p 201.
[102] Transcript of the proceeding, p 201.
[103] Transcript of the proceeding, pp 540, 551.
“that [the plaintiff] had been very ill while Sam [Borger] had been wherever he had been. That he had been having terrible stomach aches and headaches and nausea, and that the local doctor had thought it was appendicitis”.[104]
[104] Transcript of the proceeding, p 540.
She also said that the plaintiff “was very tired and … hadn’t had a day off in a long time.”[105] She could not recall Mr Borger’s response.
[105] Transcript of the proceeding, p 541. See also pp 552-554 as to the actual time worked.
As I have said, Mr Borger had no recollection of specific conversations along these lines; he could recall only that the plaintiff wanted a transfer from Gayndah to Bundaberg to improve his skills and to provide better educational opportunities for his children.[106] It was a recurring theme in the trial that those were the real reasons why the plaintiff wanted a transfer to Bundaberg. By all accounts he was an able and ambitious ambulance officer whose career was not going to advance if he stayed in Gayndah. Further, there would be much better educational opportunities available to his children in a larger centre[107] and one of his children who suffered from asthma would benefit from the milder climate of Bundaberg.[108] I accept that they were among the reasons why he wanted a transfer, and I observe that they were the reasons he gave when he applied for a transfer in about May 1996.[109] But I am satisfied, too, that the plaintiff was experiencing the difficulties he described to the Court and to Mr Borger, and that they were another reason why he wanted to transfer to Bundaberg.
[106] Transcript of the proceeding, pp 822, 845.
[107] I note that the plaintiff’s daughter ultimately became a teacher, and that his son was a university student at the time of trial: transcript of the proceeding, p 79.
[108] Transcript of the proceeding, p 807.
[109] Ex 28
The medal ceremony
The plaintiff was awarded a Queensland Ambulance Service national service medal while he was at Gayndah. It was presented to him at a ceremony there on 17 July 1996, attended by Deputy Commissioner Gerard Lawler, Assistant Commissioner John Jacobson, Sector Co-ordinator Gary Pratt, Mrs Hegarty and others.[110] The plaintiff alleged that there were conversations between him and Mrs Hegarty and these officers.[111] Understandably, he and his wife had more distinct recollections of the particular ceremony than did the visiting officers, who would have attended various similar ceremonies in other centres in the course of their duties. Mr Lawler had no specific recollection of the ceremony or of any conversations he had that day.[112] As I shall describe, Mr Jacobson’s evidence differed somewhat from that of the plaintiff and his wife, and Mr Pratt did not give evidence.
[110] Transcript of the proceeding, pp 202, 536-537; Exhibit 12.
[111] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [8E], [8F].
[112] Transcript of the proceeding, pp 710-713.
| [35] |
|
According to the plaintiff he told Mr Lawler that he “wasn’t coping” in Gayndah, that he was too attached to the people there and unable to “detach” when treating them, that his skill levels were dropping, and that he was having trouble communicating with other officers, including honorary officers.[113] He said –
“I indicated [to Mr Lawler] quite strongly that I needed to get out of
Gayndah. I’d been there too long.”[114]He said Mr Lawler said he would discuss the matter with Mr Jacobson and see what could be done.
[113] Transcript of the proceeding, p 204.
[114] Transcript of the proceeding, p 204.
Mr Lawler impressed me as an honest witness, and responsible and professional in his approach to his work. That he had no recollection of the ceremony or of such a conversation is consistent with his usual practice of distancing himself from local issues and leaving them to be dealt with at local level.[115]
[115] Transcript of the proceeding, pp 710-713.
The plaintiff gave evidence of repeating the same concerns in his conversation with Mr Jacobson and making the same request for a transfer, and Mr Jacobson saying he would see what could be done.[116] He said that he raised the same issues in the third conversation (with Mr Lawler and Mr Jacobson) and nominated two stations to which he would like to be transferred, Bundaberg being his first choice. He said they promised to discuss it and see what could be done; he said his wife joined the conversation and similar topics were traversed.[117] Although the precise sequence is not clear, their wish to send their children to a high school in Bundaberg was also raised. He said that in one of the conversations he said he would resign if not transferred out of Gayndah by Christmas.[118]
[116] Transcript of the proceeding, p 204.
[117] Transcript of the proceeding, p 205.
[118] Transcript of the proceeding, p 206.
Mr Jacobson made a speech at the ceremony.[119] Mrs Hegarty said he spoke with her before the ceremony, to check details such as the plaintiff’s work history,[120] but Mr Jacobson could not remember doing so.[121] She was upset and cried during the ceremony – something both she and Mr Jacobson remembered.[122] She said that after the ceremony she went into the superintendent’s office in the ambulance station to fix her makeup and Mr Jacobson followed her. She said she told him that the family was “at breaking point”: that the plaintiff was working very long hours, and that they had been trying to transfer out of Gayndah for quite a while. She said that Mr Jacobson said he understood because he had lost a marriage through overworking. She said she told him that their asthmatic son suffered every winter in the dry climate, and that she wanted her children to attend a Catholic high school, but there was none in Gayndah.[123] She said she thought she had said something like –
“Everybody in Gayndah thinks Robert is so wonderful in the job that he does and is so caring and giving … I don’t see any of that when he gets home. There’s nothing left for us.”[124]
[119] Transcript of the proceeding, p 810.
[120] Transcript of the proceeding, p 537.
[121] Transcript of the proceeding, p 811.
[122] Transcript of the proceeding, pp 538, 811.
[123] Transcript of the proceeding, pp 510-511.
[124] Transcript of the proceeding, pp 538-539.
I am satisfied that Mr Jacobson did check the plaintiff’s career details with Mrs Hegarty before the ceremony, despite his having no recollection of having done so. It was the sort of step someone in his position could be expected to take, and from his perspective there would have been nothing noteworthy in his doing so.
The resolution of the conflicting accounts of a subsequent conversation with Mrs Hegarty is more difficult. By the time of trial Mr Jacobson had put his ambulance service behind him and moved interstate where he was working in another field altogether. He recalled the plaintiff saying only that he wanted to be transferred to Bundaberg to improve his skills and gain wider experience, to allow his children to attend a Catholic secondary school and to allow his asthmatic son access to proper medical treatment.[125] It is significant that those were the reasons given by the plaintiff in his written request for a transfer made about two months before the medal ceremony, which Mr Jacobson had seen and directed another officer to discuss with him.[126] He remembered that Mrs Hegarty was visibly upset during the ceremony. He agreed that his former marriage had broken down, but denied that he had told Mrs Hegarty that this was caused by overwork or that that had been the case, and declined to elaborate.[127] He said that after the ceremony he “took extra steps” to ensure that the plaintiff was transferred to Bundaberg, but only because he thought the reasons outlined in the plaintiff’s earlier written request were fair and reasonable.[128] In all the circumstances, I have concluded that Mr Jacobson had only scant recollection of what happened that day, and that he had little independent recollection of why the plaintiff and his wife wanted to be transferred to Bundaberg.
[125] Transcript of the proceeding, p 807.
[126] Exhibit 28 (initialled by Mr Jacobson on 8 May 1996); Transcript of the proceeding, p 807.
[127] Transcript of the proceeding, p 812.
[128] Transcript of the proceeding, pp 813-814.
I am satisfied that Mrs Hegarty did tell Mr Lawler and Mr Jacobson that the plaintiff needed to leave Gayndah, that he was working too many hours and that the family unit was not coping.[129]
[129] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [8F].
I accept, too, the plaintiff’s evidence of what he told Mr Lawler and Mr Jacobson.[130]
[130] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [8E].
After the transfer to Bundaberg
According to Mrs Hegarty by late 1998 and early 1999 the plaintiff had become very aggressive, verbally abusive and short-tempered, and seemed to want nothing to do with her or their children. He was spending longer in the toilet (three to four hours a day) and up to 45 minutes in the shower. A shift worker, he had trouble sleeping.[131]
[131] Transcript of the proceeding, pp 523-524.
Both Mr Denham – the plaintiff’s direct supervisor – and Ms Charteris – an officer who worked with the plaintiff from time to time – regarded the plaintiff as a dedicated and competent officer who largely kept to himself and did not join in staff social activities; neither noticed anything ‘unusual’ about him.[132]
[132] Exhibit 46; transcript of the proceeding, pp 856-857, 862-863.
It was part of the plaintiff’s duty to respond promptly to “code 1 emergency calls”. His wife recalled that when they were in Gayndah –
“If Robert was at home and we received a code one, he was usually out the door within two minutes. He had his shoes laid out and his socks, and usually a pair of overalls for night-time that he would just pull on and go. And he responded within usually one to two minutes. He would be out the door and in the car, and then I would take the phones and the radio if needed.”[133]
In Bundaberg there was a Communications Centre which took such calls and then telephoned officers to attend.[134] Mrs Hegarty recalled receiving one of these calls in Bundaberg at a time when the plaintiff was at home on call. It was not long before he ceased work.[135] She took the call; the plaintiff was on the toilet on one of his prolonged visits there;[136] she went and told him “You’ve got a code one”; he did not respond; she repeated the message to him and he responded to the effect that he would not and could not come; she called the Communications Centre back and told them that she did not think her husband could attend.[137]
[133] Transcript of the proceeding, p 541.
[134] Transcript of the proceeding, p 541.
[135] Transcript of the proceeding, pp 542, 566.
[136] Transcript of the proceeding, p 564.
[137] Transcript of the proceeding, pp 543, 565.
Given the speed and efficiency with which Communications Centre staff handled such emergencies, the call would have been redirected to another officer without the Communications Centre staff learning the circumstances of the plaintiff’s non- response.[138] This event is therefore not relevant to the defendant’s liability.[139]
Training while the plaintiff was in Gayndah The bridging course – 1993[138] Transcript of the proceeding, p 850.
[139] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [8H].
When the Queensland Ambulance Service was established in 1991[140] ambulance officers like the plaintiff, until then employed by local ambulance committees, became employees of the Queensland Ambulance Service.[141] In order to bring every officer’s qualifications up to the same basic level, the Queensland Ambulance Service, in conjunction with the Kangaroo Point College of TAFE, ran a “bridging course”. Some officers were exempt from certain parts of the course, according to their expertise and experience.[142] Upon successful completion of the course, officers received an Associate Diploma in Applied Science (Ambulance).
[140]
[141] Ambulance Service Act 1991 (Qld) (No 36 of 1991) s 2.4, came into operation 1 July 1991.
[142] Ambulance Service Act 1991 (Qld) (No 36 of 1991) s 8.2.
Both the plaintiff[143] and Mr Borger[144] completed the course. The plaintiff attended classes at the Oxley Police Academy between 12 April 1993 and 7 May 1993[145] and also undertook external learning packages.[146] He completed the course by August 1993.[147] Mr Borger completed the course in early 1994.[148]
[143] Transcript of the proceeding, pp 253-254.
[144] Transcript of the proceeding, pp 192, 255.
[145] Transcript of the proceeding, p 835. Transcript of the proceeding, p 255.
[146] Transcript of the proceeding, p 192.
[147] Transcript of the proceeding, p 192.
[148] Transcript of the proceeding, p 835.
The bridging course was taught in several modules. As part of the Human Relations module, there was a Self Needs and Self Help component taught by Mr Scully. The rest of the module was taught by a psychologist, Mr Brian O’Hanlan.[149] Course materials relevant to the module, consisting of learning specifications, resource/reading material, lecture presentation material (such as hard copies of overhead projector slides), teaching handouts and a competency record book, were made available to both students and teachers:[150] they were distributed as part of a large bundle of materials covering all aspects of the course.[151] The course was taught on a number of occasions between 1991 and 1996.[152] The course materials were apparently reviewed from time to time, and while I cannot be satisfied that the bundles put into evidence[153] are a precise replication of those distributed at the course the plaintiff attended,[154] I accept they give a reasonably accurate picture of what was taught.
[149] Transcript of the proceeding, p 628.
[150] Exhibit 49; transcript of the proceeding, p 628.
[151] Transcript of the proceeding, p 629.
[152] Transcript of the proceeding, p 627.
[153] Exhibit 49 (which was in two parts).
[154] Transcript of the proceeding, pp 677-681.
| [67] | a description of events and the patient’s family.[208] |
Mr Borger recalls a discussion about the incident with the plaintiff, but it was limited to The plaintiff’s description of events
Early in his time at Bundaberg the plaintiff was required to attend a motor vehicle accident.[210] He and another officer proceeded to scene and found the vehicle and surrounding vegetation on fire. At that time they were the only emergency service personnel at the scene, though the police arrived soon after.[211] The plaintiff was able to get close to the vehicle, and observed that its occupants had been incinerated. By counting leg bones, he surmised that three people had been in the car. A search was conducted of the nearby area because of the possibility that a passenger had been thrown from the vehicle; it was later determined that only two people had been in the car. When the fire service eventually arrived the plaintiff and his partner returned to the station as they were no longer required.[212]
The effect it had on him
The plaintiff found the sight and smell of the incident very disturbing.[213] He vividly described the sight of the partially incinerated bodies, and the smell of burning flesh and hair. He began having intrusive thoughts and nightmares about the incident, both when he was asleep and awake. The frequency and intrusiveness of these recollections diminished after he began receiving treatment.[214]
Any informal debrief/discussion?
No.[215]
The Seventeenth Incident[216]
The plaintiff’s description of events
While stationed at Bundaberg, the plaintiff attended to a stroke victim[217] with a student ambulance officer, a Mr Geddes. He was Mr Geddes’ mentor, a position for which he had successfully completed a course. The adult male patient was located on a waterbed in his residence. After a brief examination, the plaintiff instructed the student officer to apply the Oxy-Viva machine. The machine produced an unusual hissing sound that indicated to the plaintiff that a seal was loose. The student officer was unable to repair the machine, so the plaintiff did it himself.[218]
The plaintiff attached a monitor to the patient. It revealed that the patient required defibrillation to correct a fluttering heart rhythm. He had difficulty moving the patient from the waterbed, where it would have been unsafe to administer the electric shock. Twice he had to abort the shock procedure because the student officer was too close.[219] It had to be aborted a third time because of the proximity of the patient’s wife – the plaintiff threw her across the room. When the shock was administered the patient’s heart stopped beating; the plaintiff began cardiopulmonary resuscitation. A back-up unit arrived and the patient was transported to Bundaberg hospital, where he died.[220]
When the plaintiff began his shift the next evening, he was met by the officer in charge and other officers. He was taken to the staff room where, in his words, “an inquisition took place”.[221] He was asked various questions about his handling of the incident without being afforded proper opportunity to answer.[222] The outcome of the meeting was that he was not to act as a mentor for one month, and all of his case sheets for that period were subject to mandatory review.[223] The effect of this was that he was not able to work with any student or honorary officers: he worked “unsupervised, unaided”.[224]
The effect it had on him
The plaintiff was disturbed by the fact that the patient was a young man with a new baby: the patient’s circumstances “sit[] quite heavily with [him]”.[225] He was affected by the fact that so much went wrong in the course of treating the patient, and by the fact that he was not afforded the chance to fully explain his actions.[226] The plaintiff had dreams and nightmares about the incident while he was asleep and awake. The frequency and intensity of these thoughts diminished when he began treatment.[227]
Any informal debrief/discussion?
Aside from the discussion in the staff room, the plaintiff discussed the incident with another officer, a Mr Babb. They discussed the incident and the meeting in the staff room. Mr Babb asked why he had not simply walked out of the meeting. There were no further discussions.[228]
The Eighteenth Incident[229]
The plaintiff’s description of events
While at Bundaberg, the plaintiff attained qualifications to act as an air attendant for the QAS.[230] On two occasions the plane on which he was serving had engine trouble.[231] The first incident occurred on a flight from Hervey Bay to Bundaberg.[232] An engine failed soon after take-off, and the pilot managed to return to Hervey Bay and land safely.[233] The second incident occurred about three weeks later when he was transferring patients from Cunnamulla to Toowoomba, then to Brisbane before returning to Bundaberg.[234] The plane’s crew was the same as during the first incident.[235] At Cunnamulla the plaintiff observed oil sprayed on the outer skin of the aircraft, which he brought to the attention of the pilot. He observed more oil on the aircraft at Toowoomba; when the pilot removed the lower cover of the engine, some two litres of oil escaped. The patient they were to transport to Brisbane was taken back to the Toowoomba hospital.[236] The plaintiff and the pilot were directed to return to Bundaberg, but they refused to comply: they stayed in a motel at Toowoomba that night. Early the next morning, the plaintiff met the QAS’s chief pilot and an engineer at the airport. He understood that, following an inspection, the aircraft was declared not to be airworthy.[237]
The effect it had on him
After the first incident the plaintiff began having daily distressing thoughts about the event. These diminished when he began receiving treatment.[238] He found having the two incidents so close together to be “greatly disturbing”.[239] Although he subsequently was very reluctant to fly, he still performed his duties as an air attendant. He was distressed by thoughts that another incident might occur.[240]
Any informal debrief/discussion?
The plaintiff discussed the first incident with Mr Pat Denham, the officer in charge at Bundaberg. The plaintiff did not initiate the discussion; he recalled being told to say nothing about the incident, because “the public don’t need to hear about this”.[241] Following the second incident he had another discussion with Mr Denham, who told him –
“Don’t speak to anyone about this. You’re to keep your mouth shut. … I don’t think I’m going to let you work with Davey Harlow [the pilot on both occasions] anymore because you keep breaking aircraft.”[242]
The Nineteenth Incident[243]
The plaintiff’s description of eventsThe plaintiff attended on two suicides by hanging while at Bundaberg.[244] He was called to the first incident to be the backup unit. He arrived at the scene at the same time as the primary unit. An elderly man directed them to the backyard of the house, where the young female patient’s father had found her hanging by a rope. The patient’s father had cut her down before the ambulances arrived.[245] The plaintiff examined the patient, but found no signs of life. He observed rope marks around the patient’s neck, and marks on two of her fingers. He concluded that the patient had changed her mind about committing suicide and had attempted to free herself by slipping her fingers between the rope and her neck. The patient had an eight month old child.[246]
The effect it had on him
The plaintiff was disturbed by the fact that the patient, a young mother, had committed suicide. He found the way the she died distressing – it would have been a slow process, in which she had been unsuccessful in her attempts to free herself. The plaintiff started having dreams and nightmares about the incident, which came when he was asleep and awake.[247] At trial he still had disturbing thoughts about the incident, but they were not as intrusive compared to his thoughts about other incidents. They had become more manageable after he had begun treatment.[248]
Any informal debrief/discussion?
No evidence was led as to any informal discussion of this incident.
The Twentieth Incident[249]
The plaintiff’s description of events
The plaintiff was just coming off a night shift when he was directed to attend the scene of another suicide by hanging. He and another officer proceeded to a residence on the outskirts of Bundaberg. They found an adult female patient lying in the backyard; her husband had found her hanging by rope and had cut her down.[250] The patient had tied a rope around a beam protruding from a chook pen. The beam was low to the ground and the patient could have aborted the suicide attempt at any time by kneeling or standing up. The plaintiff and the other officer began resuscitation procedures. Another ambulance arrived with a paramedic, who employed advanced patient care techniques.[251] After “extensive and exhaustive resuscitation attempts”[252] the patient was declared deceased.
The effect it had on him
The plaintiff was disturbed by the method the patient had used to commit suicide, and by the fact that she left behind a young family. He began having dreams and nightmares about it. He thought about the incident, “trying to put it in perspective as to what had happened and why”.[253] He was no longer affected by the incident, since beginning treatment.
Any informal debrief/discussion?
No evidence was led as to any informal discussion of this incident.
The Twenty-First Incident[254]
The plaintiff’s description of events
In early 1999, while he was in service at Bundaberg, the plaintiff attended the scene of a motor vehicle accident. He was on duty that evening, and proceeded to the scene with a paramedic, Mr Charteris. They found a car upside down among the trees, and an adult female walking around outside the vehicle. The woman said that she was not injured, and that she had been the only person in the car. The plaintiff could smell alcohol, and the woman was slurred and unsteady on her feet. She did not seem confident that she had been alone in the vehicle.[255] The plaintiff crawled into the car and found children’s toys and clothing. He thoroughly checked the interior but could not locate a child. However the roof did not respond naturally to his weight, and he suspected that there was someone trapped underneath the vehicle. He shared his concern with Mr Charteris.[256]
The plaintiff explored the surrounding bush, but maintained his theory that someone was trapped beneath the car.[257] The female driver claimed that she had left the child with her partner, which he denied when contacted by the police. She eventually conceded that the child may have been in the car. The fire service arrived and lifted the car with air jacks (inflatable mattresses) – Mr Charteris and some fire officers determined that there was no one underneath. However, some time later when the vehicle was rolled on its side, they found that the child had indeed been trapped. The plaintiff and Mr Charteris attempted unsuccessfully to resuscitate the child.[258]
The effect it had on him
The plaintiff was very frustrated that he had pointed out where he thought the child was but that his suggestion was dismissed. He wondered whether, if they had found the child sooner, the result would have been different. He had dreams and nightmares about it, in which he saw the child. His thoughts about the case came when he was asleep and awake, but they “subsided slightly”[259] in frequency and intensity after he began receiving treatment.
Any informal debrief/discussion?
The plaintiff tried to discuss the incident with Mr Charteris on a number of occasions. He asked why Mr Charteris had not listened to his theory about the location of the child; Mr Charteris “didn’t want to talk about it”.[260] He did not discuss the incident with any other officer. [261]
Annexure 2
Annexure 3
The Twenty-Second Incident[1]
The plaintiff’s description of events
In early 1999 the plaintiff was involved in the air transport of a patient with a retained placenta. The patient was being transferred from Mundubbera to Bundaberg. The plaintiff was the air attendant on duty, and flew to Mundubbera to collect the patient.[2] The enrolled nurse who escorted the patient to the airport was unable to answer his detailed questions.[3] After some discussion the patient, her husband, the infant and some belongings were flown to Bundaberg. On the plaintiff’s instructions, the pilot flew at the lowest safe altitude.[4] He denied that he became concerned with the patient’s condition during the flight and requested an ambulance be at the airport.[5] A single transport officer met the plane at Bundaberg. A transport officer generally deals with non-critical patients; the plaintiff thought that this officer ought to request backup to deal with this patient.[6] The plaintiff was required to accompany a different patient to Brisbane.[7]
When the plaintiff returned to Bundaberg he was confronted by Ms Margaret Charteris, who told him that the patient with a retained placenta had almost died on the way to the hospital. She quizzed him about his treatment of the patient and the information he had received in Mundubbera;[8] she was concerned that the patient had not been sufficiently stabilised in Mundubbera to render the air transport procedure safe.[9] According to the plaintiff, Ms Charteris showed him a draft “letter of concern” she had written to the officer in charge of Bundaberg station on 26 March 1999, some five days before she submitted the final version.[10]
Ms Charteris’s description of events
Ms Charteris met the patient and transport officer en route to the hospital, and began treating the patient in the transport officer’s vehicle.[11]
Ms Charteris spoke to the plaintiff and Mr Denham about the incident, as she was concerned about the treatment the patient received prior to her involvement. The plaintiff did not know there had been a problem with the patient,[12] but expressed concern about the way treatment was administered in Mundubbera, and about the lack of information he had received at the Mundubbera airport.[13] Ms Charteris prepared a written report,[14] dated 1 April 1999. She said the date on the document was the date it was prepared,[15] but accepted that she might have prepared it earlier than 1 April and made minor changes before handing it in.[16] Ms Charteris recalled showing the report to the plaintiff, and accepted that it may have been on 26 March.[17]
Any informal debrief/discussion?
Soon after his discussion with Ms Charteris, the plaintiff was approached by Mr Denham, the officer in charge. Mr Denham asked him to write a report detailing the information he received from the enrolled nurse at Mundubbera. Referring to the Fifteenth Incident, Mr Denham commented –
“We do not need another incident like the one that happened out of
Gayndah.”[18]The plaintiff’s evidence was that he was not told that his subsequent cases would be subject to a mandatory audit, nor was he suspended from air attendant duties.[19] He performed work for the QAS, including work as an air attendant, following this incident,[20] but stopped work shortly after.[21]
Annexure 4
Scholarly articles cited in these reasons
Davidson, J.R.T., Book, S.W., Colket, J.T., Tupler, L.A., Roth, S., David, D., Hertzberg, M., Mellman, T., Beckham, J.C., Smith, R D, Davison, R.M., Katz R., & Feldman, M.E. (1997). Assessment of a new self-rating scale for post-traumatic stress disorder. Psychological Medicine, 27, 153-160.
Foa, E.B., Cashman, L., Jaycos, L., & Perry, K.I. (1995). The validation of a self-report measure of posttraumatic stress disorder: the Posttraumatic Diagnostic Scale. Psychological Assessment, 9, 445-451.
Horowitz, M.J., Wilner, N., & Alvarez, W. (1979). The impact of event scale: A measure of subjective stress. Psychosomatic Medicine, 41, 209-218.
Keane, T.M., Caddell, J.M., & Taylor, K.L. (1988). Mississippi Scale for Combat- Related Posttraumatic Stress Disorder: Three studies in reliability and validity. Journal of Consulting and Clinical Psychology, 56, 85-90.
Watson, C.G., Juba, M.P., Manifold, V., Kucala, T., & Anderson, P.E.D. (1991). The PTSD interview: Rationale, description, reliability, and concurrent validity of a DSM- III-based technique. Journal of Clinical Psychology, 47, 179-188.
Weathers, F.W., Blake, D.D., Krinsley, K.E., Haddad, W., Huska, JA. & Keane, T.M. (1992). The Clinician Administered PTSD scale: Reliability and construct validity. 26th Annual Meeting of Association for Advancement of Behavior Therapy. Boston, MA.
[1] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(a)]; transcript of the proceeding, pp 92-95, 721-722, 783.
[2] The Statement of Claim places this event in 1985.
[3] Transcript of the proceeding, p 86.
[4] Transcript of the proceeding, p 86.
[5] Transcript of the proceeding, p 86.
[6] Transcript of the proceeding, p 87.
[7] Transcript of the proceeding, p 90.
[8] Transcript of the proceeding, p 90.
[9] Transcript of the proceeding, p 90.
[10] Transcript of the proceeding, p 90
[11] Transcript of the proceeding, p 90.
[12] Transcript of the proceeding, p 90.
[13] Transcript of the proceeding, p 90.
[14] Transcript of the proceeding, p 463
[15] Transcript of the proceeding, p 91. See also p 463.
[16] Transcript of the proceeding, p 464.
[17] Transcript of the proceeding, p 91.
[18] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(a)]; transcript of the proceeding, pp 92-95, 721-722, 783.
[19] Transcript of the proceeding, p 93.
[20] The Statement of Claim places this event in 1984.
[21] Transcript of the proceeding, p 93.
[22] Transcript of the proceeding, p 93.
[23] Transcript of the proceeding, p 93.
[24] Transcript of the proceeding, p 94.
[25] Transcript of the proceeding, p 94.
[26] Transcript of the proceeding, p 95.
[27] Transcript of the proceeding, p 95.
[28] Transcript of the proceeding, p 332.
[29] Transcript of the proceeding, p 721-722, 783.
[30] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(b)]; transcript of the proceeding, pp 95-97, 99.
[31] The Statement of Claim places this event in 1985.
[32] Transcript of the proceeding, p 95.
[33] Transcript of the proceeding, p 96.
[34] Transcript of the proceeding, p 95.
[35] Transcript of the proceeding, pp 95-96.
[36] Transcript of the proceeding, p 96.
[37] Transcript of the proceeding, p 96.
[38] Transcript of the proceeding, p 96.
[39] Transcript of the proceeding, p 97.
[40] Transcript of the proceeding, p 97.
[41] Transcript of the proceeding, p 97.
[42] Transcript of the proceeding, p 99.
[43] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(c)]; transcript of the proceeding, pp 97-99.
[44] The Statement of Claim places this event in 1985.
[45] Transcript of the proceeding, p 98.
[46] Transcript of the proceeding, p 98.
[47] Transcript of the proceeding, p 99.
[48] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(e)]; transcript of the proceeding, pp 99-105.
[49] The Statement of Claim places this event in 1986.
[50] Transcript of the proceeding, pp 99-100.
[51] Transcript of the proceeding, p 100.
[52] Transcript of the proceeding, p 100.
[53] Transcript of the proceeding, p 101.
[54] Transcript of the proceeding, p 101.
[55] Transcript of the proceeding, p 101.
[56] Transcript of the proceeding, p 102.
[57] Transcript of the proceeding, p 102.
[58] Transcript of the proceeding, p 103.
[59] Transcript of the proceeding, p 103.
[60] Transcript of the proceeding, p 103.
[61] Transcript of the proceeding, p 103.
Transcript of the proceeding, p 103.
[63] Transcript of the proceeding, pp 105-106.
[64] Transcript of the proceeding, p 103.
[65] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(f)]; transcript of the proceeding, pp 106-108.
[66] The Statement of Claim places this event in 1986.
[67] Transcript of the proceeding, p 107.
[68] Transcript of the proceeding, p 107.
[69] Transcript of the proceeding, p 107.
[70] Transcript of the proceeding, p 108.
[71] Transcript of the proceeding, p 108.
Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(g)]; transcript of the proceeding, pp 109-111.
[73] The Statement of Claim places this event in 1986.
[74] Transcript of the proceeding, p 109.
[75] Transcript of the proceeding, p 110.
[76] Transcript of the proceeding, p 110.
[77] Transcript of the proceeding, pp 110-111.
[78] Transcript of the proceeding, p 111.
[79] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(h)]; transcript of the proceeding, pp 112-115.
[80] The Statement of Claim places this event in 1988.
[81] Transcript of the proceeding, p 113.
[82] Transcript of the proceeding, p 114.
[83] Transcript of the proceeding, pp 114-115.
[84] Transcript of the proceeding, p 114.
[85] Transcript of the proceeding, p 114.
[86] Transcript of the proceeding, p 115.
[87] Transcript of the proceeding, p 114.
[88] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(i)]; transcript of the proceeding, pp 115-120, 332-333, 464, 485-486, 722-723, 779-783, 787-791.
[89] Transcript of the proceeding, p 115. The Statement of Claim places this event in 1989.
[90] Transcript of the proceeding, p 115.
[91] Transcript of the proceeding, p 780, 781
[92] Transcript of the proceeding, p 781.
[93] Transcript of the proceeding, p 115.
[94] Transcript of the proceeding, p 116.
[95] Transcript of the proceeding, p 116.
[96] Transcript of the proceeding, p 116.
[97] Transcript of the proceeding, p 116, 781.
[98] Transcript of the proceeding, p 781.
[99] Transcript of the proceeding, p 116.
[100] Transcript of the proceeding, p 117.
[101] Transcript of the proceeding, pp 117-119, 781.
[102] Transcript of the proceeding, p 117.
[103] Transcript of the proceeding, p 117, 781.
[104] Transcript of the proceeding, p 118.
[105] Transcript of the proceeding, p 118.
[106] Transcript of the proceeding, p 118.
[107] Transcript of the proceeding, p 782.
[108] Transcript of the proceeding, p 333.
[109] Transcript of the proceeding, p 333.
[110] Transcript of the proceeding, p 207.
[111] Transcript of the proceeding, p 119.
[112] Transcript of the proceeding, p 119.
[113] Transcript of the proceeding, p 119.
[114] Transcript of the proceeding, pp 120, 464.
[115] Transcript of the proceeding, p 464.
[116] Transcript of the proceeding, p 120.
[117] Transcript of the proceeding, pp 120, 485.
[118] Transcript of the proceeding, p 120.
[119] Transcript of the proceeding, p 790.
[120] Transcript of the proceeding, p 119.
[121] Transcript of the proceeding, p 333.
[122] Transcript of the proceeding, p 723, 779, 777.
[123] Transcript of the proceeding, p 788.
[124] Transcript of the proceeding, p 789.
[125] Transcript of the proceeding, p 790.
[126] Transcript of the proceeding, p 782.
[127] Transcript of the proceeding, p 781, 789.
[128] Transcript of the proceeding, p 783.
[129] Transcript of the proceeding, p 790.
[130] Transcript of the proceeding, p 790.
[131] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(j)]; transcript of the proceeding, pp 120-122, 464-465.
[132] The Statement of Claim places this event in 1989.
[133] Transcript of the proceeding, p 120.
[134] Transcript of the proceeding, p 121.
[135] Transcript of the proceeding, p 121.
[136] Transcript of the proceeding, p 121.
[137] Transcript of the proceeding, p 121.
[138] Transcript of the proceeding, p 121.
[139] Transcript of the proceeding, pp 122, 465.
[140] Transcript of the proceeding, p 122.
[141] Transcript of the proceeding, p 464.
[142] Transcript of the proceeding, p 122.
[143] Transcript of the proceeding, p 464.
[144] Transcript of the proceeding, p 122.
[145] Transcript of the proceeding, p 122.
[146] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(k)]; transcript of the proceeding, pp 122-125, 335.
[147] The Statement of Claim places this event at Christmas 1990.
[148] Transcript of the proceeding, p 122.
[149] Transcript of the proceeding, p 123.
[150] Transcript of the proceeding, p 123.
[151] Transcript of the proceeding, p 123.
[152] Transcript of the proceeding, p 124.
[153] Transcript of the proceeding, p 335.
[154] Transcript of the proceeding, p 335.
[155] Transcript of the proceeding, p 124.
[156] Transcript of the proceeding, p 125.
[157] Transcript of the proceeding, p 125.
[158] Transcript of the proceeding, p 125.
[159] Transcript of the proceeding, p 125.
[160] Transcript of the proceeding, p 335.
[161] Transcript of the proceeding, p 335.
[162] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(l)]; transcript of the proceeding, pp 125-128.
[163] The Statement of Claim places this event in 1990.
[164] Transcript of the proceeding, p 125.
[165] Transcript of the proceeding, p 126.
[166] Transcript of the proceeding, p 127.
[167] Transcript of the proceeding, p 126.
[168] Transcript of the proceeding, p 125.
[169] Transcript of the proceeding, p 126.
[170] Transcript of the proceeding, p 127.
[171] Transcript of the proceeding, p 127.
[172] Transcript of the proceeding, p 128.
[173] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(m)]; transcript of the proceeding, pp 128-129.
[174] The Statement of Claim places this event in 1991.
[175] Transcript of the proceeding, p 128.
[176] Transcript of the proceeding, p 129.
[177] Transcript of the proceeding, p 129.
[178] Transcript of the proceeding, p 129.
[179] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(n)]; transcript of the proceeding, pp 129-135, 207, 465.
[180] The Statement of Claim places this event in 1993.
[181] Transcript of the proceeding, p 129.
[182] Transcript of the proceeding, p 130.
[183] Transcript of the proceeding, p 131.
[184] Transcript of the proceeding, pp 130-131.
[185] Transcript of the proceeding, p 131.
[186] Transcript of the proceeding, pp 131-132.
[187] Transcript of the proceeding, p 132.
[188] Transcript of the proceeding, p 465.
[189] Transcript of the proceeding, pp 132, 134-135.
[190] Transcript of the proceeding, p 135.
[191] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(u)]; transcript of the proceeding, pp 135-139, 337-338.
[192] Transcript of the proceeding, p 135.
[193] Transcript of the proceeding, p 136.
[194] Transcript of the proceeding, p 136.
[195] Transcript of the proceeding, p 137.
[196] Transcript of the proceeding, p 138.
[197] Transcript of the proceeding, p 137.
[198] Transcript of the proceeding, p 138.
[199] Transcript of the proceeding, p 139.
[200] Transcript of the proceeding, p 138.
[201] Transcript of the proceeding, p 139.
[202] Transcript of the proceeding, p 338. cf p 725 where the date is given as 19 July 1996.
[203] Transcript of the proceeding, p 338.
[204] Transcript of the proceeding, p 339.
[205] Transcript of the proceeding, p 725. See also 783-784.
[206] Transcript of the proceeding, p 725.
[207] Transcript of the proceeding, p 725.
[208] Transcript of the proceeding, p 825.
Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(o)]; transcript of the proceeding, pp 140-142.
[210] The Statement of Claim places this event in 1997.
[211] Transcript of the proceeding, p 140.
[212] Transcript of the proceeding, p 141.
[213] Transcript of the proceeding, pp 141-142.
[214] Transcript of the proceeding, p 142.
[215] Transcript of the proceeding, p 142.
[216] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(p)]; transcript of the proceeding, pp 142-148.
[217] Transcript of the proceeding, p 142.
[218] Transcript of the proceeding, p 143.
[219] Transcript of the proceeding, p 144.
[220] Transcript of the proceeding, p 145.
[221] Transcript of the proceeding, p 146.
[222] Transcript of the proceeding, pp 146, 147.
[223] Transcript of the proceeding, p 146.
[224] Transcript of the proceeding, p 147.
[225] Transcript of the proceeding, p 148.
[226] Transcript of the proceeding, p 147.
[227] Transcript of the proceeding, p 148.
[228] Transcript of the proceeding, p 147.
[229] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(q)]; transcript of the proceeding, pp 148-156.
[230] Transcript of the proceeding, p 148.
[231] The Statement of Claim places these events in 1998.
[232] Transcript of the proceeding, p 148.
[233] Transcript of the proceeding, pp 150-151.
[234] Transcript of the proceeding, p 153.
[235] Transcript of the proceeding, p 155.
[236] Transcript of the proceeding, p 154.
[237] Transcript of the proceeding, p 155.
[238] Transcript of the proceeding, p 152.
[239] Transcript of the proceeding, p 155.
[240] Transcript of the proceeding, p 155.
[241] Transcript of the proceeding, p 152.
[242] Transcript of the proceeding, p 156.
[243] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(r)]; transcript of the proceeding, pp 156-158.
[244] The Statement of Claim places this event in 1998.
[245] Transcript of the proceeding, p 156.
[246] Transcript of the proceeding, p 157.
[247] Transcript of the proceeding, p 157.
[248] Transcript of the proceeding, p 158.
[249] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(s)]; transcript of the proceeding, pp 158-159.
[250] Transcript of the proceeding, p 158.
[251] Transcript of the proceeding, p 159. Paramedics have greater qualifications and experience than ‘qualified ambulance officers’: see transcript of the proceedings, p 158.
[252] Transcript of the proceeding, p 159.
[253] Transcript of the proceeding, p 159.
[254] Further Further Amended Statement of Claim, filed by leave 14 November 2006, [7(t)]; transcript of the proceeding, pp 160-163.
[255] Transcript of the proceeding, p 160.
[256] Transcript of the proceeding, p 161.
[257] Transcript of the proceeding, p 161.
[258] Transcript of the proceeding, p 162.
[259] Transcript of the proceeding, p 163.
[260] Transcript of the proceeding, p 163. See also p 474.
[261] Transcript of the proceeding, p 163.
[1] Transcript of the proceeding, pp 176-180, 471-472, 858-860, 863-865.
[2] Transcript of the proceeding, p 176, 471.
[3] Transcript of the proceeding, pp 177, 471.
[4] Transcript of the proceeding, p 177.
[5] Transcript of the proceeding, p 471.
[6] Transcript of the proceeding, p 177, 471.
[7] Transcript of the proceeding, p 178.
[8] Transcript of the proceeding, p 178.
[9] Transcript of the proceeding, p 472.
[10] Transcript of the proceeding, p 179, 472.
[11] Transcript of the proceeding, pp 858-859.
[12] Transcript of the proceeding, p 863.
[13] Transcript of the proceeding, p 860.
[14] Exhibit 59.
[15] Transcript of the proceeding, p 860.
[16] Transcript of the proceeding, p 864.
[17] Transcript of the proceeding, p 864.
[18] Transcript of the proceeding, p 180.
[19] Transcript of the proceeding, p 180, 472.
[20] Transcript of the proceeding, p 180.
[21] Transcript of the proceeding, p 472.
6
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