Hind v The State of Tasmania
[1999] TASSC 133
•7 December 1999
[1999] TASSC 133
CITATION: Hind v The State of Tasmania [1999] TASSC 133
PARTIES: HIND, Darrell John
v
TASMANIA, The State of
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 228/1994
DELIVERED ON: 7 December 1999
DELIVERED AT: Hobart
HEARING DATES: 8 - 10 September 1999
JUDGMENT OF: Wright J
CATCHWORDS:
Torts - Negligence - Essentials of actions for negligence - Duty of care - Employer/employee - Response of reasonable employer to foreseeable risk - Police officer suffering post traumatic stress disorder.
Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40; Maloney v Commissioner for Railways (1978) 18 ALR 147; E v Australian Red Cross Society (1991) 105 ALR 53, considered.
Aust Dig Torts [46]
REPRESENTATION:
Counsel:
Plaintiff: P W Tree
Defendant: T J Ellis
Solicitors:
Plaintiff: Bartletts
Defendant: Director of Public Prosecutions
Judgment Number: [1999] TASSC 133
Number of Paragraphs: 42
Serial No 133/1999
File No 28/1994
DARRELL JOHN HIND v THE STATE OF TASMANIA
REASONS FOR JUDGMENT WRIGHT J
7 December 1999
The plaintiff, a former policeman now aged 41 years, sues for damages allegedly suffered as a consequence of his exposure to stress and emotional trauma during his period of active service as a police officer between 12 February 1975 and 12 March 1990. He resigned from the Tasmania Police Force on or about 12 March 1990 and obtained employment as a security officer at Tioxide, but lost that job when he accepted a redundancy several months later. He applied to rejoin the Tasmania Police Force, but his application was unsuccessful. He has held no settled employment since that time and is now the recipient of a disability pension.
It is plain from the evidence that he suffers from post traumatic stress disorder, depression, obsessive compulsive neurosis and associated paranoia. He is unemployable and is likely to remain so for the rest of his life. There was some dispute during the trial as to the role which stressful police incidents played in producing these conditions, but I have no reason to doubt that they played a significant part in that process. At the same time it should be noted that there were a number of sad domestic occurrences which he experienced during his latter years in the police force from about 1988 onwards, which, in my opinion, also contributed to his condition. It appears to me to be unnecessary for present purposes to attempt to further disentangle the causative factors leading to his present state.
During the trial, considerable attention was given to a particular incident on or about 25 September 1988 when the plaintiff attended an incident (referred to during the trial as the "Roundey" incident) with a fellow police officer when they were confronted by an agitated man who threatened them with a loaded rifle. It was suggested by the defence that as this incident had not been highlighted by the plaintiff in his early consultations with medical advisers that it played little or no part in the onset of his disturbed psychiatric condition but, in light of the evidence of Dr Burges Watson on the subject, I am left in little doubt that the Roundey incident was significant in the development of the plaintiff's ultimate psychiatric illness.
I am less confident, however, that a direct temporal connection can be made between that incident and the plaintiff's claimed declining performance in his police work thereafter, and I am far from satisfied that the plaintiff made a complaint to a senior officer that he was having difficulty coping with that incident or, if he did, that such a complaint was an effective means of bringing to that senior officer's attention the need or desirability of referring the plaintiff for psychiatric attention or assessment. I find that although the stressful incidents which befell the plaintiff during his police service were beginning to have a cumulative adverse effect upon his outlook and performance by the time he left the Tasmania Police Force, they had not reached a point at which it should have been apparent to his responsible senior officers that he was suffering psychiatric distress requiring medical intervention or counselling treatment at the time he handed in his resignation.
The pleadings in the case reflect the plaintiff's concern to establish that several of the allegedly stressful incidents in which he was involved occurred within six years before the writ was issued. Proceedings were commenced by a writ filed on 29 August 1994. The plaintiff claimed against the Attorney-General as representing the Department of Police and Emergency Services. At the trial, the title of the defendant was amended to "The State of Tasmania", pursuant to the Crown Proceedings Act 1993, s5. The statement of claim makes special reference to the Roundey incident (par8(a)), a second firearm incident in 1989 (about which no evidence was given) (par8(b)), and a shooting suicide in October 1989 when the plaintiff attended a domestic situation in which the suicide victim had shot himself in the head. These matters were given some pre-eminence at the trial as the assumption seems to have been made that unless a particular traumatic incident could be shown to have occurred within the six year limitation period, the plaintiff's claim would be in some difficulty. An amendment to par16 of the defence made during the trial squarely raised the statute of limitations. No reference was made to the Full Court's recent decision in Wilson v Horne [1999] TASSC 33, but it is clear enough from that case that the critical question in all cases such as this will be "when did the plaintiff suffer damage as a consequence of the defendant's allegedly tortious conduct", not "when did the last allegedly tortious act or omission occur".
The plaintiff's statement of claim alleges not only negligence against the defendant, but also breach of contract and breach of statutory duty. The breach of statutory duty alleged was failure to comply with the Industrial Safety Health and Welfare Act 1977, s32 (now repealed). It was not claimed that this provision added in any significant way to the common law duties of an employer. No argument was addressed to any distinction which could, or should, be drawn between the claims in negligence and breach of contract.
If the plaintiff's current psychiatric condition has been caused by the Department of Police and Emergency Services' breach of a duty of care owed to the plaintiff as a police officer employed by the Department, he will be entitled to succeed. If it is established that a breach of duty by the Department has exacerbated his condition or deprived him of the opportunity to seek effective ameliorative treatment, an alternative basis for recovery of damages may arise. In this latter respect, there was much debate by counsel as to the effect of a number of High Court decisions, notably Chappel v Hart (1998) 156 ALR 157, but I find it unnecessary to consider these issues in further detail for reasons which will become apparent.
It is settled law that the existence of a duty and any alleged breach thereof must be considered in the light of circumstances existing at the time it is claimed that the relevant breach occurred.
In Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40 at 47 - 48, Mason J (as he then was) said:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
In some cases, not only will serious questions arise as to the foreseeability of the alleged risk of injury but, equally importantly, problems may emerge as to what a reasonable person should have done by way of response to a perceived risk. Both of these issues appear to me to be of paramount significance in the present proceedings.
As Barwick CJ said in Maloney v Commissioner for Railways (1978) 18 ALR 147 at 148:
"It is, in my opinion, proper to remark at the outset that the respondent's duty was to take reasonable care for the safety of his passengers. It is easy to overlook the all important emphasis upon the word 'reasonable' in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect. The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations in determining what ought reasonably to be done."
The same principle was expressed by Lockhart J in E v Australian Red Cross Society (1991) 105 ALR 53 at 75 as follows:
"So often it is easy, years after an event in the light of subsequent knowledge, to judge earlier events in the light of subsequent received wisdom. This is a human reaction but impermissible for courts in determining duties of care and their breach which must be judged by the events at the earlier relevant times."
(See also Dwan v Farquhar [1988] 1 Qd R 234, Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449; Moloney v Bryan 37/1992 at 7; Miller v Royal Derwent Hospital 38/1992 at 14 - 15; Pickford v ICI [1998] 3 All ER 462, esp at 479; Walker v Northumberland CC [1995] 1 All ER 737).
The breaches of duty alleged against the defendant appear from the following allegations in the statement of claim:
"3 at all material times:
The Defendant knew or ought to have known that:-
(a)The Plaintiff was required to perform and was performing work likely to subject him to stress, anxiety and fear;
(b)Work required of the Plaintiff was intense, stressful, demanding and occasionally life threatening.
(c)The Plaintiff was exposed to highly stressful incidents including critical incidents which were capable of affecting him psychologically.
4 During the course of his work as a Trainee Police Officer and as a Police Officer for the Defendant in the Department between 1975 and approximately August, 1988 ('the first period') the Plaintiff was exposed to intense, demanding and stressful work and incidents including critical incidents which subjected him to stress and anxiety and which were capable of affecting him psychologically.
5 During the first period the Defendant knew of the need and benefits to members of the Tasmania Police Force of providing psychological counselling inter alia in respect of stress and anxiety and critical incidents arising from the work of police officers.
6 During the first period the Defendant, its' [sic] servants or agents failed to provide to the Plaintiff any counselling or psychological assistance in respect of critical and stressful incidents to which he had been exposed and which caused stress and anxiety.
7 During the course of the Plaintiffs work in the Department for the Defendant from approximately September, 1988 until approximately March, 1990 ('the second period') the Plaintiff was subjected to a number of highly stressful incidents including critical incidents ('the incidents').
8 The incidents in the second period included:-
(a)An incident in or about January, 1989 when the Plaintiff attended a domestic argument with a senior Police Officer employed by the Defendant at Ulverstone in Tasmania ('the first incident'). At the first incident the Plaintiff had a loaded semi-automatic rifle pointed at him. In the course of the first incident the senior Police Officer had drawn his Police issue gun. Subsequent to the first incident the Plaintiff and the Department were made aware that the person who had pointed the loaded semi-automatic rifle at the Plaintiff stated that he had intended to kill the Plaintiff.
(b)An incident in or about 1989 when the plaintiff attended another domestic incident ('the second incident'). He was accompanied by another Police Officer. The other Police Officer rushed the person holding the firearm and the gun discharged in the Plaintiff's presence.
(c)An incident in or about October, 1989 the Plaintiff was required to attend alone a shooting incident at Melrose ('third incident'). The Plaintiff attended. He there found a man who had shot himself in the head. The man did not die instantly and the Plaintiff had to attend to the after events of the shooting.
9The first and second incidents were life threatening and dangerous and all the incidents caused the Plaintiff to suffer stress, fear and anxiety.
10The Defendant, its' [sic] servants or agents knew or ought to have known that in respect of the first and second incidents the Plaintiff had been exposed to life threatening and dangerous conditions and that all three incidents were likely to cause fear, stress and anxiety.
11Prior to the second period the Defendant, its' [sic] servants or agents knew of the need and benefits to be provided to members of the Tasmania Police Force of counselling and psychological assistance in respect of stress and anxiety as well as critical incident.
12During the second period the Defendant failed to provide any counselling or psychological assistance to the Plaintiff.
13A(Added by amendment at the trial). Further or alternatively as a result of the defendant's failure pleaded in paragraph 12 hereof the Plaintiff lost a chance to, at that time, receive beneficial counselling psychological or psychiatric treatment.
13As a result of the incidents the Plaintiff suffered personal injury, loss and damage.
particulars of injury
Post traumatic stress disorder and depression and psychological effects.
particulars of damage
The Plaintiff was born on 10 May, 1958 and left the Police Force in or about March, 1990. Although the Plaintiff attempted to work for other employees from March, 1990 onwards he has been unable, because of his stress disorder and depression, to maintain employment and is now totally incapacitated for work. The Plaintiff has not been employed since February, 1995. A claim is made for past and future loss of earning capacity to be assessed.
(further particulars to be supplied)
14The Plaintiff's personal injuries and loss which arose during the second period were caused by the negligence [and/or breach of contract] and/or breach of statutory duty of the Defendant, its servants or agents.
particulars
The Defendant, its servants or agents were negligent [and/or committed breaches of contract] and/or committed breaches of statutory duty in that it, he or they:-
(a) Failed to make the Plaintiff aware of and familiar with the availability of counselling and psychological assistance following critical incidents, stressful and demanding and fear producing work during the first period or the second period.
(b) Failed to advertise within the Department the availability of stress and trauma counselling, counselling and psychological assistance following stressful, demanding and critical incidents.
(c) Failed to refer the Plaintiff for counselling and psychological assistance following the incidents in the second period.
(d) Failed to refer the Plaintiff for medical, psychological or psychiatric assistance during the second period.
(e) Failed to debrief and counsel the Plaintiff following the incidents.
(f) Caused or permitted the Plaintiff to continue his work and continued to expose him to life threatening and dangerous incidents as well as stress and anxiety producing incidents in the second period when they knew or ought to have known by reason of the matters set out hereunder that the failure to provide critical incident and stress debriefing to the Plaintiff and Tasmania Police Force members had a compounding effect and the Plaintiff was liable to suffer post traumatic stress disorder or depression. The Plaintiff relies on the fact that:-
(i)members of the Department had attended national conferences dealing with stress and trauma in emergency services from at least 1988 onwards; and
(ii)from 1985 onwards reports had been produced about the need for stress debriefing, in particular a report by the National Police Research Unit of South Australia which the Department had received or had access to.
(further particulars to be supplied after discovery)
(g) Failed to direct, instruct or warn the Plaintiff to attend counselling for critical incidents or stress debriefing courses after each of the incidents.
(h) Failed to control and monitor the nature and type of work the Plaintiff was required to perform.
(i) Failed to discuss and confer with the Plaintiff sufficiently or at all the nature and type of the work he was performing, his responsibilities and the events surrounding the incidents.
(j) Failed to provide any support and/or stress management and/or stress counselling to the Plaintiff when a reasonable employer would have done so.
(k) Failed to refer the Plaintiff to an occupational assistance service after the incidents.
(l) Failed to conduct debriefing sessions following the incidents.
(m) Failed to take account of the fact that at the first and second incidents the Plaintiff had had loaded fire arms pointed at him; that the Plaintiff was fearful, frightened and anxious as a result of the incidents; that the offenders had used and discharged the fire arms without regard to the health or safety of the officers involved including the Plaintiff and that all the incidents including the third incident were of a type and nature likely to cause fear, stress, alarm, anxiety and distress.
(n) Failed to take heed of and act upon reports, papers and briefing notes received or obtained by the Defendant prior to the second period and during the second period recommending the establishment of debriefing teams, the provision of critical incident stress management systems and the provision of psychological counselling following dangerous, life threatening, critical incidents likely to produce stress and trauma in the course of Departmental work.
(o) Failed to take heed of and act upon advice given to the Department prior to the first period and during the second period in respect of the management and handling of critical incidents including death and firearm discharge incidents likely to produce stress, trauma and anxiety.
(further particulars to be supplied after discovery)
(p) Failed to comply with Section 32 of the Act.
The Plaintiff repeats and relies on the particulars herein before set out."
Shorn of their inherent verbosity, these allegations can be reduced to two propositions:
(1) That the plaintiff should not have been exposed to stressful or cumulative critical incidents.
(2)That if so exposed, the plaintiff should have received compulsory debriefing or counselling following each such incident.
A major difficulty from the plaintiff's standpoint is that little or no direct evidence was led to show the state of awareness within the administrative echelons of the Tasmania Police Force of the risk factors which were likely to cause psychiatric harm to police officers or other members of emergency services prior to the last traumatic incident identified by the plaintiff as a causative factor in his mental deterioration. Nor was there any real evidence to show how and when other comparable organisations in other States or overseas became aware of similar problems and how they had responded to them with a view to preventing psychiatric breakdown by members of police or other comparable services.
During his opening address, counsel for the plaintiff tendered in evidence, a number of answers to interrogatories provided by the defendant prior to trial. These interrogatories (inter alia) annexed a document entitled "Tasmanian Emergency Services - Critical Incident Stress Management Program Background and History" and annexed, in turn, to this document were four News Bulletins numbered 1 - 4 and dated 10 November 1988, December 1988, May 1989 and February 1990. According to material contained in the answers to interrogatories and the "Background and History" document just referred to, these bulletins were circulated to all emergency services personnel (including, by inference, the plaintiff) at or about the time of their production advising them (inter alia) of the development and availability of counselling services.
The plaintiff's resignation from the police force came about a month after Newsletter No 4 was published. That newsletter was in the following terms:
"I am pleased to announce that 18 months after Emergency Services and Associations agreed to establish the CISD service, it is now fully operational. I wish to take this opportunity to thank Police, Fire, Ambulance and SES Directors along with all Service Associations for their work and support in the development phase. You may recall some media attention regarding the finance for the service. We have been assured that CISD will receive a recurring budget which will ensure the program's continuation.
what is critical incident stress?
Prof Jeff Mitchell a psychologist and former paramedic/firefighter from the States, developed the programme that is recognised by most Emergency Services world-wide for Critical Incident Stress Debriefing. Jeff has lectured in Hobart and we have based our protocols on those that he developed. He has described critical incidents as 'any situation faced by Emergency Service personnel that causes them to experience unusually strong emotional reactions which have the potential to interfere with the ability to function either at the scene or later'.
why do we need it?
Emergency Service Officers have well developed coping mechanisms and normally handle the day to day situations well. However from time to time there may be a job that we attend that causes us to think and feel quite differently from the others that we have attended. Some of the thoughts and feelings experienced may include: not being able to stop thinking about the scene, difficulty in sleeping, flashbacks or dreams of the scene, frustration, digestive problems, becoming withdrawn, headaches, and a general feeling of being pre-occupied with the job more so than others we have attended.
what jobs may cause these thoughts and or feelings?
Death or injury of children, multiple casualties or deaths, dealing with body parts, death of a fellow officer in the line of duty, a threat to your own life or safety, dealing with a person/s known to you, or dealing with someone that reminds you of them or a loved one, attending a high number of difficult situations in a short space of time, unpleasant smells, such as blood or burning flesh, or any situation that may produce strong emotions and reactions after attending the scene.
Any member/officer/supervisor may activate/consult the Duty Co-ordinator and is encouraged to do so if unsure about a particular job/scene. All Heads of Departments and Associations have agreed on the protocols and procedures and to ensure that every assistance will be given to facilitate the conduct of debriefings. This includes covering cisd Team members and officers attending debriefings when necessary.
who is the cisd team?
The Team is made up of psychologists and team members who are officers from Police, Fire and Ambulance, all of whom have undergone specific training in Critical Incident Stress and its management.
The clinical director assumes overall responsibility for the programme. The team co-ordinator's responsibility is to ensure debriefings are arranged as per protocols and procedures. area liaison officers assist in the preparation for a debrief, in education and in training. team members assist in debriefings and education for Emergency Service Officers. (See attached list of reference numbers should you require more information).
The Tasmanian cisd Team is in the debt of several persons for assisting us in our development. Prof Jeffrey Mitchell for his work and foundation protocols in cisd. Dr Robyn Robinson, Psychologist and Director of the Victorian Team, along with Ms Sue McNulty, Victorian Police Psychologist, for their assistance in providing training for our Team. We thank them for their expertise, support, guidance and time.
With the recent disasters and major incidents that have occurred around Australia, and some of the effects these may have on us as Emergency Service Officers, I am sure you will agree this programme is long overdue and it is comforting to know it is available should you need it.
cisd transcends all union/management boundaries and has only one major objective. the restoration of normal job functioning to normal people who are experiencing normal reactions and normal symptoms of distress after being exposed to a highly abnormal event."
I consider it to be more likely than not that this information came to the attention of the plaintiff before he resigned. This is a conclusion which I would reach, even without reliance upon the content of par4 of the Tasmanian Emergency Services - Critical Incident Stress Management Program Background and History document, but the material contained in that paragraph does tend to reinforce my conclusion
The plaintiff and two former police officers called to support his case, Messrs Priest and Lesley, claimed that they had never seen the newsletters. Whilst I entertain considerable doubt about this evidence, it has little, if any, bearing on the outcome of these proceedings because I am quite satisfied that whether or not the plaintiff was aware of the debriefing and counselling protocols which were being developed at this time, he would not have sought access to such help. It is plain that, consistently with what seems to have been the culture in the Tasmania Police Force at the relevant time, he would have been loath to disclose any perceived doubts as to his capacity to continue as a fully operational police officer. As already mentioned, he left the Tasmania Police Force to go to a better paid job which he had secured with Tioxide before tendering his resignation as a policeman. He anticipated that that employment would be permanent but, unfortunately for him, this was not to be. No evidence was called to show that he was unable to cope with his duties at Tioxide or to suggest that his employment with Tioxide was terminated due to perceived incompetence on his part.
It is apparent from the evidence of Dr Burges Watson that post traumatic stress disorder is a condition which has received considerable attention in recent years. He has made a particular study of it and has been involved in numerous conferences and has published several articles upon the subject.
Dr Burges Watson gave the following evidence:
"Sorry, I think I interrupted you when you were telling us about accumulated trauma … Well many people would believe that in fact in the course of their career police officers are confronted by more life threatening situations than the average foot soldier. They survive and cope with these situations very well but each time they are confronted by such a situation it probably increases the risk that at some time or other they may develop a post traumatic stress disorder. There is usually a final event or events that tip them over into a frank post traumatic stress disorder and that can sometimes be a simple organisational problem but much more commonly it is a situation that is itself one that would satisfy the criteria or the first criterion for the diagnosis.
Does the trigger need to be an event which is life threatening or can it be another event? … It can certainly be another event, and very often it's an event which relates to other previous events in some way or other, but not necessarily in terms of the extremeness in it. And it can be just that it is very similar in some respect.
Thank you. Does there need to be a trigger for the demonstration of ptsd? … Usually you can find a trigger if you look hard enough, but very often with both police and servicemen they don't develop frank post traumatic stress disorder until after they've retired. There seems to be a capacity for soldiers and police and other emergency services people to keep their symptoms hidden or under control until they lose the support of their colleagues in the service that they are in. But in fact if you ask their wives, you'll usually find that they've been demonstrating some of the symptoms for many years.
Can you identify a trigger in Mr Hind's case? … Well I believe the, as I said the shooting incident is a particularly traumatic, or particularly common situation to undo policemen. The suicide that he described was a particularly nasty one. When I first saw him, he told me he'd been to many suicides, and in fact death was the last thing that was worrying him most at that time, and of course he'd had the death of his father, and the death of his first wife as well, both of which would have made him more vulnerable to the development of the disorder at that time.
And that time being which time, I'm sorry? … When he was confronted with the last suicide that he went to before he left the police.
Thank you. Absent the trigger, will the accumulated trauma inevitably manifest itself as ptsd or not? … I don't think that's possible to say. Some people seem to escape and never develop ptsd. Some people have ptsd but never admit to it. An enormous number of police and army people go on serving and doing a very good job, despite having ptsd. But as I've said, a lot of them break down subsequent to retirement."
There was evidence that delegates from the Tasmania Police Force attended at least some of the conferences attended by Dr Burges Watson and, no doubt, it could be inferred that, at least in a general way, it was understood and accepted, or it should have been understood and accepted in appropriate quarters, that critical incidents could cause stress and, at least in some cases, psychiatric disorders. That, however, is not an end of the matter. It is quite obvious that the very nature of police work is likely to require active police officers to come into contact with, and to be directly involved in, critical incidents from time to time.
A "critical incident" was defined in News Bulletin No 1 of 10 November 1988 in these terms:
"what is a critical incident?
A critical incident is any situation faced by Emergency Service personnel that causes them to experience unusually strong emotional reactions which have the potential to interfere with their ability to function either at the scene or later. A major disaster is one type of critical incident that comes to mind but a situation does not have to be of this magnitude to classify as a critical incident. The major stressors for Emergency Service personnel include:
1 Death or serious injury to a fellow colleague in the line of duty.
2 Suicide of a fellow officer.
3 Multiple casualty incidents.
4 Death or serious injury of children.
5 Attending scenes where a victim is known to staff or remind staff of a known loved one.
6 Situations that threaten the life or safety of staff.
7 Situations that entail prolonged rescue work.
8 Dealing with body parts.
9 Responding to a high number of difficult situations in a short space of time.
10 Any incident in which the circumstances are so unusual or the sights, sounds and smells so distressing as to produce a high level of immediate or delayed emotional reaction.
Any one, or a combination of the above, may precipitate the need for a Critical Incident Stress Debriefing (cisd). It is also recognised that individuals are different. Events which cause stress to one individual may be non-stressful to another."
The symptoms and manifestations of post traumatic stress disorder were described by Dr Burges Watson as follows:
"Thank you. Can you tell his Honour please what Post Traumatic Stress Disorder involves by way of symptomology to justify diagnosis of ptsd? … Well Your Honour to justify a diagnosis first of all there has to be circumstances that would cause significant stress in almost anybody. These days it quite specifically refers to events that involve threats to life and limb. And the experience of those events with extreme helplessness, fear or horror, not necessarily all three, but at least one of those. There's a persistent re-experiencing of the events in dreams and so-called flash backs and intrusive imagery. There's avoidance, there are avoidance symptoms which involve not liking to talk about the events, avoiding situations that remind the person of the event. And usually a constriction of feelings and ability to relate to people as well. And finally there are physiological symptoms which include sleep disturbance, irritability or short fuse, hypervigilance which is a tendency to be on one's guard all the time. Sometimes an exaggerated startle response and often poor concentration. And at least a number of symptoms in each of those groups have to be present in order to make the diagnosis. In addition more commonly than not, other psychiatric diagnoses are found including particularly depression, anxiety, alcohol abuse, obsessive compulsive neurosis and social phobia."
Dr Burges Watson also said that treatment for post traumatic stress disorder consists both of counselling and medication. He said that delay in assessment and implementation of a treatment regime diminishes the prospect of successful treatment. He said:
"There are all sorts of different schools of psychotherapy, and I think there are probably even more schools of training and background for people who offer counselling. Some of it is just reassurance and warm fuzzies, and some of it is much more organised and focused on helping people to work through their traumas, is one of the ideas that if people go over the traumas they've been through and re-evaluate what it's done to them, that helps them to adjust. There's considerable speculation as to whether this makes a hell of a lot of difference. Quite a lot of people recover from one of the extremely traumatic events without any help at all, some people never develop ptsd after such events. So whether they get better from the counselling or not is questionable. But once somebody has established chronic symptoms of ptsd and its related other problems, then some form of counselling as well as medication becomes mandatory if you're going to get any improvement at all. And most people would say that that includes what's called exposure therapy, which is getting people to face the trauma they've been through, reface it, and try and adjust to be able tolerate the memory of it better."
In approaching the question of the reasonable employer's response to the prospect of a police officer developing post traumatic stress disorder, only the flimsiest of evidence was adduced. During the course of Dr Burges Watson's evidence, a document apparently emanating from the National Police Research Unit entitled Occupational Stress: Post Shooting Trauma Incident Support ¾ Interim Report, was produced and tendered in evidence (P8). This document is not dated, although an annexed questionnaire bears the date October 1984. Within the document itself (page 5), the function of the National Police Research Unit is described as follows:
"The National Police Research Unit is an intergovernmental body established by the Australian Police Ministers' Council as the second common police service in Australia. Charged with the task of coordinating, stimulating and undertaking police research, the Unit is led by a Director responsible to the Board of Control composed of the eight Australian Commissioners of Police and a representative of the Commonwealth Government. The Unit is funded by the Commonwealth and the states, the latter in proportion to the authorised strength of the respective forces."
The author of the document, Dr G M McGrath, is identified as "Director NPRU", but his qualifications and experience are not disclosed. Dr Burges Watson was not asked about Dr McGrath's status and the status of the interim report was not discussed in his evidence. However, the main difficulty in according any weight to the report as providing guidance as to desirable protocols for identifying and then treating stress to serving police officers, is that the report is very clearly directed to discussing the method of conducting team debriefing following an incident in which a police officer has shot another person. The plaintiff has never been involved in such an incident.
It is quite obvious from reading this document that it is, as it purports to be, an interim report. Under the heading "Who copes?" (page 8) the following observation is made:
"Who copes?
Not everyone will experience a post-trauma reaction, and even where individuals do experience it there will be great variation in their reactions. A number of factors influence how well the person will handle the crisis: whether the officer or someone else was in imminent danger, whether he was physically close to the suspect when he died, their relative ages (6). Looking at these, where the officer was not in immediate danger, the reaction is likely to be more severe, as it is more difficult to justify. Their relative ages, and the physical proximity make it easier for the officer to identify with the suspect; for example, if they are of similar ages, the officer may be prompted to wonder about his family, whether they have children of similar ages, how the family would feel - how his own wife would feel. All of this will make the reaction more severe.
Other factors which will affect the severity of the response will be the individual's personality, the social support networks which are available, the media handling of the event, the availability of psychological intervention (2) and whether the incident was expected and prepared for."
At page 9, the following recommendation is made:
"Recommended services
Work with officers involved in shootings has identified a number of measures which, if implemented, could act to considerably reduce the severity of the post-traumatic response. Apart from the administrative measures which have been described above, a number of others have been identified. Firstly, some form of assistance, by way of counselling, should be made immediately available - often this type of service is mandatory, and is designed to give the officer an opportunity to talk about his concerns and feelings (3), (5). This is particularly important, if we wish to avoid a delayed stress reaction. However, equally important is the fact that the officer should not be forced to talk about the event - this would be counter-productive. Consequently, although attending a counselling session should be made mandatory (so that there is no 'loss of face' in seeking such help), what occurs at this first session should be entirely under the control of the officer.
Secondly, a peer group support network, made up of individuals who have been involved in shooting and who have successfully coped with this should also be available. This will provide the officer with a group who understand what is happening to him, and may make it easier for him to express his concerns. Such groups usually include a psychologist. If nothing else, such a group will provide some much needed support for the officer.
A third suggestion (5) is that a crises assistance team be formed. Often, the problems are compounded and stress is increased because the officer does not know what his legal position is, is faced with an unfamiliar and possibly confusing procedure and has little information about what to expect both in terms of his own and departmental reactions. Under such circumstances, it has been suggested that a team comprised of a legal advisor, a mental health professional and a police officer could serve to remove much of the apprehension associated with events.
Finally, it has been suggested that officers be allowed to work back into the service at their own speed (3). Part of the advantage of this is to allow the officer to feel that he is in control of some aspect of his life at a time when most of the events around him are out of his control. Also, he is probably best able to judge whether a return to work, as well as the type of work returned to, or extended leave will be most successful in helping him to deal with the stress."
I find it impossible to conclude from the contents of this document that any form of standard debriefing or counselling response should have been implemented and in operation within the Tasmania Police Force during the period when the plaintiff was employed as a police officer.
Though different in kind from the police events described by the plaintiff, it may be suggested that an incident in which a police officer has shot another person in the line of duty is of the same quality as a "critical incident" described in the Tasmanian Emergency Services - Critical Incident Stress Management Program Background and History document previously referred to. It is noteworthy, however, that the Background and History document was only prepared in January 1996. The introduction, background and history and advertising of services and accountability detailed in that document are of critical importance. Those sections are set out hereunder:
"1 Introduction
1.1 The information contained in this report has been obtained through research conducted into the Tasmanian Emergency Services Critical Incident Stress Debriefing Team.
1.2 The information was obtained from minutes of meetings, correspondence, annual reports and consultations with existing Team members and members of the Management Co-ordinating Committee.
1.3 It has been prepared to provide a background to the establishment of a critical incident stress debriefing service for Tasmanian emergency service personnel and also gives an insight into the history and development of the Team.
1.4 It should be noted that the emphasis in the report is towards the establishment of the service within the Tasmania Police Force.
Matthew Richman
Team Co-ordinator
January 1996.Reprinted August 1996 (Reprint excludes the 94/95 Annual Report which was included in the initial printing).
2 Background
2.1 In 1984 a conference was held at the Repatriation Hospital, Hobart. The conference was run by Dr Robyn Robinson (Victoria) and dealt with stress related issues. The conference was attended by approximately thirty persons including two or three police officers.
2.2 As a result of the conference a (then) Tasmanian Ambulance Service Officer, Mr Gerard Lawler, developed an interest in the area of critical incident stress and how to manage it within the Tasmanian emergency services.
2.3 In 1985 (or early 1986), Professor Jeffrey Mitchell (usa) visited Tasmania and delivered a lecture on critical incident stress debriefing. As a direct result of the interest that was generated out of this lecture, Gerard Lawler arranged for Dr Robyn Robinson (Victoria) to visit Tasmania and present a two day seminar which was to focus on the nature of stress and coping strategies in the emergency services. This seminar was held in November 1987 and was attended by approximately twenty emergency service personnel from the Tasmanian Ambulance Service, Tasmania Fire Service, and Tasmania Police.
2.4 A specific proposal for the establishment of a critical incident stress debriefing service was later formulated by Ambulance Officers Gerard Lawler and Geoff Mulvaney. The proposal attracted considerable interest from the administrative heads of the Tasmanian Ambulance Service, the Tasmania Fire Service and Tasmania Police.
2.5. Tasmania's then Commissioner of Police, Mr Bill Horman, (who was head of the Department of Police and Emergency Services encompassing the Tasmanian Ambulance Service, the Tasmania Fire Service, the State Emergency Service and Tasmania Police) was instrumental in the establishment of the critical incident stress debriefing program. He had been involved with a similar service in Victoria prior to his appointment to Tasmania Police.
3 History
3.1 At 3.00 pm on Tuesday the 26th of July 1988, a meeting of officials was held to discuss the setting up of a critical incident stress debriefing process in Tasmania. This was the first meeting of what is now the Management Co-ordinating Committee although it was previously known as the Co-ordinating Committee or Steering Committee.
3.2 In 1988, Tasmanian emergency service personnel attended a conference in Melbourne, Victoria, from the 26th - 28th of August. The conference was titled 'Dealing with Stress and Trauma in Emergency Services: an international conference'. Members of the Tasmanian Ambulance Service, the Tasmania Fire Service, and Tasmania Police attended.
3.3 On the 4th of October 1988, approximately fifty - sixty persons attended a briefing session which was conducted at the Teachers Federation Building in Patrick Street, Hobart. The briefing was conducted by Gerard Lawler, Dr Robyn Robinson, a Psychologist with the Social Biology Resources Centre, Victoria, and Sue McNulty, a psychologist with Victoria Police. It was aimed at assessing the feasibility of establishing a Team and at gaining the support of emergency service personnel.
3.4 Further to this, a two day information seminar was held at the Tasmania Police Academy on the 5th and 6th of October 1988. The seminar provided detailed information on the nature of stress suffered by emergency service personnel, the system that existed in Victoria to deal with this type of stress, and the processes involved in setting up such a system. The seminar was conducted by Dr Robyn Robinson and Sue McNulty. The seminar was attended by selected emergency service personnel, mental health professionals and clergy.
3.5 The seminar generated great interest and two groups were formed from the attendees. The first group, the Executive, were involved with the establishment and delivery of the program and the second group, the resource group, were interested in offering their support in establishing the service and in disseminating information about the program to their colleagues. These groups were in addition to the Management Coordinating Committee.
3.6 Administrative support for the program was provided by the State Emergency Service whose then Deputy Director (now Director) Mr Joe Paul had been appointed as Chairman of the Co-ordinating Committee.
3.7 Psychologists from the Vietnam Veterans Counselling Service, Dr Graham Perkin and Joan Montgomery, were appointed to the positions of Clinical Director and Deputy Clinical Director. Gerard Lawler was appointed to the position of Team Co-ordinator. All positions were voluntary, unpaid, and over and above core role functions.
3.8 Applications for membership of the Team were called for and, following an assessment of suitability, a total of twenty three persons including approximately eighteen peers (emergency service personnel from the Tasmanian Ambulance Service, the Tasmania Fire Service and Tasmania Police) were selected as Team Members and underwent initial training in critical incident stress debriefing at the Tasmania Police Academy on the 20th and 21st of June 1989. The training was conducted by Dr Robinson and was based on Professor Mitchell's internationally accepted model.
3.9 Briefing sessions of executive and senior officers (from sergeant and comparable ranks upwards) were held regionally. These sessions were conducted by Gerard Lawler, Dr Graham Perkin, and Dr Robyn Robinson and were held at:
Hobart
SES Headquarters
Thursday
22 June 1989
9.30am. - 11.30am Launceston
SES Headquarters
Thursday
22 June 1989
2.30pm - 4.30pm Burnie
SES Headquarters
Friday
23 June 1989
8.45am - 10.45am
3.10 The briefing sessions were well attended and well received.
3.11 The first twelve months were essentially a planning and development period and the Team did not commence formal operations until November 1989. During this formative stage, there was considerable emphasis on the establishment of protocols and procedures. A copy of the original protocols and procedures is attached at Annexure 'A'.
4 Advertising of Service
4.1 Aside from the briefing sessions outlined above, the existence of the service was advertised across the State in several different ways.
4.1.1 Newsletters:
41.1a On the 10th of November 1988, a newsletter was produced and distributed to all emergency service personnel. The newsletter was included with the pay sheets of all permanent employees and distributed to all stations. The newsletter defined what a critical incident is, outlined the purpose of critical incident stress debriefing, commented on the confidentiality aspect, and outlined 'where are we now and where are we heading'. Additionally it described the Critical Incident Stress Debriefing Team outlined the establishment of the Tasmanian Team and listed the recommendations of the workshop that was held at the Police Academy on the 5th and 6th of October 1988. Names of personnel attending the workshop were also listed and those considered suitable were nominated as potential contact points should the recipient require any further information. A copy of the newsletter is attached (Annexure 'B').
4.1.lb The second newsletter was distributed in December 1988. It outlined 'Where are we now?' and provided an introduction to the Clinical Director, Deputy Clinical Director, and Team Co-ordinator. It also reiterated the basis for the Teams existence and gave a further assurance of confidentiality. A copy of this newsletter is also attached (Annexure 'C').
4.1.lc A third newsletter was distributed in May 1989. The newsletter indicated that debriefings had commenced and also looked at 'Where to now?'. The contact number for the service was also included in this newsletter along with advice that personnel would be contacted in the hour following their call. A copy of the newsletter is attached (Annexure 'D').
4.1.ld A fourth newsletter was distributed in February 1990. This newsletter outlined critical incident stress, why debriefing is required and the sorts of incidents which may be considered to be 'critical'. It also described what happens at a debriefing and had a separate section entitled 'cisd Call Out'. This section outlined the call-out procedure and again listed the call out telephone number (002) 343135. It also discussed who the cisd Team was and its reason for existing. This newsletter is also attached (Annexure 'E').
4.1.2 Posters and Pamphlets
4.1.2a Posters advertising the existence of the cisd Team and the call-out number were produced and distributed to all Police Stations around April 1990. Distribution of the posters was co-ordinated by the regional liaison officers.
4.1.2b The original posters were light blue and featured photographs arranged symmetrically. A pamphlet was also distributed at this time. The second run of posters were again light blue but the photos were randomly placed. The next issue posters were blue, red and white. Pamphlets were also produced to compliment these posters and were distributed widely in education sessions, individually, and occasionally following some debriefs. One of these pamphlets is attached.
4.1.3 Police Gazette Notices
4.1.3a The existence of the CISD Team was advertised in the Police Gazette on two occasions. Other references as to the existence of the Team were also made with the publication of training dates, the duties of the Occupational Health and Safety Co-ordinator etc.
4.1.3b22 August 1991, Notice No 145 (page 67)
'Policy Regarding Involvement in Critical Incident Stress
Debriefings for the Tasmania Police Force'.
A copy of the Gazette notice is attached at Annexure 'G'.
4.1.3c 27 May 1993, Notice No 107 (page 45)
'Tasmania Police Policy Document No 06/93
Critical Incident Stress Debriefing Policy for TasmanianEmergency Response Organisations'.
The Notice advised members that the policy was being distributed to District Superintendents. A copy of the Gazette notice is attached at Annexure 'H'.
4.1.4 Policy Document
At the twenty-second meeting of the Management Co-ordinating Committee on the 15th of March 1993, the four agencies signed a common policy document. The document was subsequently distributed amongst the agencies. A copy of the policy document is attached at Annexure 'I'.
5 Accessibility
5.1 Access to the service was readily obtainable through the 24 hour contact number mentioned previously. The provision of a 24 hour contact number was initially discussed at the seventh Management Coordinating Committee meeting which was held on Friday the 2nd of September 1988. This service was well and truly in place by the eleventh meeting of the Management Co-ordinating Committee which was held on Monday the 30th of April 1990.
5.2 With the first run of posters, contact numbers of individual peers were distributed for display on station notice boards. This was not repeated as the contact list dated very quickly with transfers etc. Peers became well known within their agencies and regions and were often a first point of contact for individuals, supervisors and managers.
6 Education
6.1 Education of emergency service personnel was identified early on as an important issue. To this end, an education package was developed in April 1990 by officers from the Tasmania Fire Service - predominantly Graham Newbury. The education package was being utilised from (approximately) the middle of the same year.
6.2 Education sessions involving police officers, occurred from 1990. Team members regularly attended the Police Academy and delivered education sessions to development courses, recruit courses and many in-service courses. Education sessions also occurred in the workplace although these were on an ad hoc basis. Within Tasmania Police education sessions occurred, at a station level, from 1992 as part of the Occupational Health and Safety Officers presentations on infectious disease controls."
I have set this material out in detail as it provides a comprehensive résumé of the development of stress management protocols within the Tasmanian Emergency Services. Counsel for the plaintiff, Mr Tree, submits that it is apparent that there was unacceptable delay in designing and implementing responses to stress within the Tasmania Police Force, but I am quite unable to agree with this. The plain fact is that there are now apparently well structured procedures designed to forestall and treat stress problems for Tasmanian emergency service personnel. There is no evidence before me from which I could or should conclude that there has been inordinate delay in implementing these procedures No witness expressed such an opinion. No witness criticised the Tasmanian response as dilatory or inadequate when compared with mainland or international responses.
It cannot be emphasised too strongly that post traumatic stress disorder is impossible to diagnose until there has been some obvious deterioration in an individual's capacity to function.. As stated by Dr McGrath in his paper and as confirmed by Dr Burges Watson, people react and try to cope in a variety of ways. They frequently conceal their symptoms so that they are able to perform their duties without apparent difficulty. I have already mentioned part of Dr Burges Watson's evidence bearing on this, but he also says:
"There are a large number of servicemen, both military and civil servicemen, who continue working for many, many years with symptoms of Post Traumatic Stress Disorder. Some of them without seeing anybody and having any counselling or medical help. But certainly I know of many people who continue to serve with the assistance of counselling and medication."
When this feature is combined with the acknowledged facts, (a) that policemen, in general, and the plaintiff in particular, actively avoided disclosing emotional discomfort to colleagues or superiors; and (b) that in some cases post traumatic stress disorder is the end product of numerous stressful incidents, rather than one identifiable cataclysmic disaster (such as the Port Arthur Massacre); and (c) that unless in personal attendance, the officer in charge of a police station or district would only be able to assess the critical incident status of a traumatic event if he were to receive a report from an officer involved in such an incident which gave a description of relevant events compelling such an inference, it is impossible to say that a particular kind of pre-emptive review procedure should have been in place during the plaintiff's time in the Tasmania Police Force which would or should have alerted his superiors to the fact that he was in need of stress management of some kind.
The evidence of his two colleagues suggests that his performance fell off after the Roundey incident, but there was no evidence that anyone within the Tasmania Police Force was aware of his obsessive compulsive hand washing or any other bizarre conduct which he may have exhibited in a domestic setting. Mr Priest described him before the Roundey incident as "fairly easy going". Afterwards, he said, he withdrew himself substantially. "He became very short tempered and gave me the appearance that he had lost interest in his work". Mr Lesley said that the plaintiff was "knocked around" by the Roundey incident but, significantly perhaps, that when questioned, the plaintiff insisted that he was "OK". Mr Lesley said the plaintiff's work started to deteriorate after about three months. This confirms the difficulty that a senior officer would have had in making a connection between the Roundey incident and the plaintiff's declining performance.
Accepting this evidence at face value for current purposes (although, as previously noted, I do have reservations about its reliability), I am unable to see that it provides a clear picture of a stress traumatised individual. I am equally unable to conclude that, if the plaintiff reached the point of suffering an identifiable stress disorder while serving in the Tasmania Police Force (and I have considerable doubt as to this also), there was a breach of his employer's duty in making counselling services or medication available to him, particularly in the absence of any evidence that he actively sought such assistance and was refused. His reluctance to disclose his true condition, even after leaving the force, is manifested in the letters which he wrote to the Commissioner of Police, dated 31 October 1991 (Exhibit D3) and to Dr F Madill, dated 17 February 1992 (Exhibit D4). He said in evidence that he wanted to rejoin the Tasmania Police Force to obtain access to the counselling services which had then been put in place for critical incident participants, but his letters give no hint of this. On the contrary, he represents himself to be ready, willing and able to rejoin the Tasmania Police Force as a serving officer.
Counsel for the plaintiff suggested in his closing address that once officers had been involved in a critical incident, they should be relieved from participation in further such incidents because otherwise there would be a risk of an accumulation process commencing which would lead to post traumatic stress disorder. In my opinion, merely to state this proposition is to demonstrate its absurdity. A police force could simply not operate if its senior officers were precluded from involvement in confrontational episodes in which wisdom and experience will often play such a crucial part in achieving a successful resolution.
In my opinion, the plaintiff's case falls short of establishing a failure on the part of those in charge of the Tasmania Police Force to respond reasonably to the risk of serving police officers developing post traumatic stress disorder or to the risk of such officers being incapacitated by such a disorder, once developed. The response required must take account, not only of the state of knowledge between cause and effect, but also the practicalities of implementing a structured response to critical incidents, the type of incident which requires such a response, the nature of such a response and, above all, the efficacy of such a response in preventing or alleviating the effects of the relevant disorder, together with those factors mentioned by Mason J in Wyong Shire Council v Shirt (supra), such as the magnitude of the risk, the degree of probability of its occurrence, the expense and inconvenience of providing mandatory counselling after any violent incident and the conflicting responsibility of providing an action ready, resolute and responsive police force.
The following evidence of Dr Burges Watson is of particular relevance to many of these questions. It illustrates not only the problems associated with identifying individuals who are experiencing or likely to experience post traumatic stress, but also the debatable benefits which screening and treating procedures are likely to confer on a patient. These considerations are directly relevant to the procedures which, it is submitted, should have been in place in March 1990 and the expense and effectiveness of them:
"So you would expect wouldn't you, were he to be satisfying the criteria of post traumatic stress disorder in 1993 as a result of having a gun in his direction that his treating psychiatrist would have learnt about it? … I would have expected it but wouldn't see it as necessarily happening.
You would expect though wouldn't you not? … No, not necessarily.
But you said you'd expect it. On what basis do you make a diagnosis then of post traumatic stress disorder? … The diagnosis of post traumatic stress disorder is still frequently missed. In those days it was commonly missed, I've seen patients myself who I saw in the 70's who had glaring post traumatic stress disorder but I didn't know enough about it at the time to make the diagnosis.
… one of the elements in the diagnosis which I left out perhaps is, that there is significant impairment in occupational or social functioning, and that's the thing that finally tips people into ill health. As I said I think in my evidence-in-chief, there are a lot of people who work with the symptoms of ptsd for a great many years without it coming to anybody's attention. There are probably dozens of policemen who are working very effectively with ptsd, there are dozens of soldiers who continue to perform very effectively with ptsd and some of them don't break down, and don't cease to function until after they've retired.
his honour: So the cessation of function isn't the culminating fact in a diagnosis of ptsd? You can have it, and still function?
witness: But it's highly unlikely that the diagnosis is going to be made, or they're going to go, seek …
his honour: Oh yes, I can understand that. But merely because you can hide the symptoms effectively, doesn't mean that you don't have the disorder?
witness: It doesn't mean that you don't have most of the disorder, but a qualifying statement attached to the diagnosis is it's only made, the diagnosis is only made where there is significant occupational or personal function, significant impairment.
his honour: So it's not until that occurs that you can …
witness: It's not until this impairment, the mere fact of having intrusive imagery by itself, wouldn't warrant a diagnosis unless there is some functional impairment with it.
his honour: Yes, but you said a moment ago, service personnel can function with ptsd?
witness: Well they can function with those elements of ptsd, they don't, the word that is used is decompensate, they don't fall to bits, they don't cease to function effectively or at least in their work. Although as I think I've also said at home, if you speak to a wife of such a serviceman, you will find that she has seen him been unbalance if you like, for a very long period of time.
his honour: Right.
witness: But he's continued to be able to function in his occupation effectively.
his honour: Right, well now if you saw that situation, would you not diagnose ptsd as being in existence during the home period, rather than when he started to manifest it only at work?
witness: You certainly could do, but the patient themselves will deny its - unless something leads to them having to see somebody.
his honour: Oh I can understand the diagnostic problems when you've got a patient who's in denial, deliberately or subconsciously.
witness: But he won't even come to the attention of a doctor unless his work refers him, or his wife pressures him into seeing somebody because very frequently such people totally deny that there is anything wrong with them.
…And in 1988 would it be fair to say, that there was no empirical evidence that it [critical incidents stress debriefing] had any effect at all in terms of the thwarting the progression of post traumatic stress disorder? … It was popularly believed that it did have, I personally agree with you, that there was no evidence that it did. But it was popularly believed that it did help. And as I argued at that time, and I think it's in one of the reports, at the very least it had the benefit of identifying when somebody was on the point of reaching the end of their tether.
Did it? Well can I ask you this. I asked you about 1988. But subsequent to 1988 indeed, such random controlled studies as has been possible, for instance after the Newcastle earthquake, have failed to prove any link at all, between critical incident stress debriefing and the avoidance of post traumatic stress disorder? … I totally agree with you.
And so the benefit that you see is that it only, that it provides an intervention whereby a diagnosis might be made, which might in turn lead to other measures? … There are a large number of studies which suggest some people find it very helpful and very comforting. There is as you say no evidence at all that it prevents PTSD, but there is a lot of evidence that it helps to identify people who are on the verge of ceasing to function effectively.
And what happens to those people then? … Well they can be referred for appropriate treatment.
If they agree? … If they agree.
…Therefore, even if there is critical incident stress de-briefing, or even if there had been in this man's case. After either of the incidents in 1988 that is the pointing of the gun in his direction and the attending of the suicide. Even if there'd been that then, it required him to admit that there was a problem in the first place did it not? … Yes.
It required him to seek treatment, did it not? … Yes.
…OK. And even if this intervention had happened, even if it had, you're unable aren't you to quantify the extent to which if at all, Mr Hind's condition may not have progressed to that which it did? … Ah, well it's very difficult to quantify that sort of thing, ah, all I can really do is to say that with, with appropriate treatment at that time and still in the police it is on the cards that he might still be working.
Well that's two - I'm sorry to interrupt, that that's two separate concepts. On the cards means probable and might means possible … It's possible, possible."
It is not claimed that a special duty of care was owed to the plaintiff because he had a known psychiatric weakness or a predisposition to severe emotional reaction to stress and consequently the obligation upon the Tasmania Police Force must be considered from an objective and systemic standpoint.
The only evidence I have as to present requirements within the Tasmania Police Force is contained in Notice No 145 in the Police Gazette No 145/1991 which reads, in part, as follows:
"Attendance Policy
The Tasmania Police Force, with other emergency services, has agreed on standard criteria for mandatory attendance. Officers who attended the following types of incidents should attend the Critical Incident Stress Debriefing:
· death or serious injury of a colleague in the line of duty;
· suicide of a fellow officer;
· situations that threaten the life or safety of staff;
· any incident involving firearms;
· situations involving injury or death of children;
· any other situation that may produce a high level of immediate or delayed emotional reaction in one or more officers."
This notice is dated 19 August 1991.
The constitution of the Team is described in the Background and History document, previously referred to in pars3.7 - 3.11. Paragraphs 14 and 15 are also relevant:
"14 Services Provided
14.1 The Team provides a wide range of services and these are listed below.
Contacting Emergency Service Personnel who have been involved in a critical incident
On scene support
·a Team member can be present to provide immediate assistance.
Defuses
·are less structured than a debrief and occur immediately after the conclusion of an incident
·allows for an initial ventilation of feelings
Debriefs
·are undertaken within one - seven days after the conclusion of an incident
·is a structured group process which is not counselling or therapy
Follow-up
·the Team provides members with one follow-up session with a mental health professional. Peers offer unlimited follow-ups.
One on one assistance
·as required by the emergency service worker
15 Conclusion
15.1 Since inception, the Team has promoted itself as being accessible to all members of the Tasmanian Emergency Services. For example, newsletter number four (page 2) stated 'All emergency service personnel have the responsibility for identifying/recognising significant events that may qualify for a debriefing'. Education sessions stress that the responsibility for activating the Team lies with managers, supervisors, colleagues and individuals themselves. The 24 hour contact number and the availability of peers in each region provide clear evidence of the accessibility of assistance.
15.2 Over the years the Tasmanian Emergency Services Critical Incident Stress Debriefing Team has undergone significant changes. It has evolved into what is considered to be '… one of the most successful and widely respected cism programs in Australia'. (Robinson 1994)"
Annexure A to the Background and History document contains protocols and procedures. Some relevant parts of Annexure A are as follows:
"4 initiating a cisd
All critical incidents with the potential to affect staff or having affected staff should first be bought [sic] to the attention of the officer in charge who will liaise/consult with a peer debriefer within that agency or in their absence, contact the Team Co-ordinator.
If after consultation and assessment, the peer support member considers a cisd should occur or wishes to further consult, the Team Co-ordinator will be contacted. This initial contact should be made as early as is practical during (if applicable) eg prolonged difficult situation, or soon after such incidents occur.
When a peer support member had been involved in the incident requiring a cisd, the peer debriefer may be replaced by another peer debriefer from another Service/region.
A cisd is seen by all Emergency Services as a positive, preventative action which assists staff and the Service. Any requests for, and any actual debriefings, should be encouraged and supported by staff at all levels.
5 how a cisd is activated
All Emergency Services personnel have the responsibility for identifying/recognising significant events that may qualify for a debriefing.
When an incident is identified as a 'critical incident' in the absence of 'peer support members' within your region/Service, any officer may contact the Team Co-ordinator for a request.
1To request a debriefing phone Tasmanian Ambulance Service, Southern Region (002) 343135 [sic]. Ask for the cisd service. This service operates 24 hours a day.
2Leave your name and a phone number where you can be reached in the upcoming one (1) hour to provide any further information.
3The Ambulance Service control room will contact and notify the Team Co-ordinator/Clinical Director.
4The Clinical Director/Team Co-ordinator contacts the person/agency requesting the debriefing so as to:
a Determine details of the nature of the incident;
b Assess the best course of action eg formal debriefing, assistance with peer support members or referral.
5If a formal debriefing is indicated, the Team Co-ordinator will arrange the time and place for the debriefing session and notify relevant parties.
…
7types of psychological debriefing
A critical incident stress debriefing provides a safe environment in which personnel can discuss their feelings and reactions and thus reduce any stress resulting from exposure to critical incidents. It is not a critique of Emergency Services operations at [sic] the incident and performance issues will not be discussed. All debriefings will be strictly confidential.
Several types of debriefings may be conducted, depending upon the circumstances of a particular incident. The following five types of debriefings, singularly and in combination, are most commonly utilised:
* On Scene or Near Scene
Only initiated for prolonged incidents with a potential to affect staff. The cisd Team is available for consultation.
* Initial Informal Debriefing
This is held within a few hours of the incident. The leader is a peer debriefer. Participants talk abut their own feelings and reactions to the incident. The atmosphere should be positive, supporting and caring. No one should be criticised. Time period, usually one hour.
* Formal Debriefing
Occurs between 24 to 72 hours after the incident. The leader must be a mental health professional with knowledge of Emergency Service operations and critical incident stress.
Entails non-evaluative discussion of involvement, thoughts and feelings resulting from the incident, discussion of possible stress related symptoms, education about stress, critical incidents and coping skills. This debriefing has a specific format.
* Follow Up Debriefing
This may occur weeks or months after the incident. The main purpose is to resolve issues or problems that are still present. It may be performed with the entire group or a portion of it. Major critical incident situations (eg disaster) may usually involve one or more follow up debriefing sessions.
…9the debriefing team
The team will consist of one or two mental health professionals (who will function as team leader and team co-leader) and one or two peer support staff. The number of team members will depend upon the number of participants expected at the debriefing. Team members will carry identification.
Team members undergo a rigorous selection and training process. Selection of applicants follows an initial 2 day training program. Team members must thereafter attend regular educational update meetings. Contracts are renewed on an annual basis. A high standard of training and maintenance of standards is held to be central to the program.
10 non-sanctioned debriefings
It is understood by all team members that, at no time, will any team member attempt to provide a debriefing without adhering to all sections of this protocol. When a debriefing. is requested, the Clinical Director will be notified and all requirements set forth in this protocol will be met Any requests for a debriefing outside of these regulations will not be honoured."
It will be noted that, even now, the formally structured protocols do not provide for a compulsory review or debriefing of personnel unless a particular incident has been recognised as a critical incident and has been reported as such to the Co-ordinator or Director. A structured process is then undertaken and non-sanctioned debriefings are strictly forbidden. Just how these procedures could or should operate to assist someone like the plaintiff is difficult to understand
I am of the opinion that the plaintiff's action for damages fails. There will be judgment for the defendant.
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