WCRA: Forced blood and urine samples at work or not?

Pere v Central Queensland Hospital and Health Service [2017] QDC 2

Butler SC DCJ

The plaintiff claimed negligence and assault by his co-workers as a result of taking a blood sample without his consent and watching him provide a urine sample. As a consequence, the plaintiff claimed for psychiatric injuries.

Both liability and quantum were in issue. The resolution of which came down to the credibility of the plaintiff.

The factual matrix giving rise to this uncommon scenario at a workplace flowed from co-workers at the hospital where the plaintiff worked as a security officer, being concerned about the plaintiff conduct on arrival for work. Chris Geluk a co-worker and security guard forcibly escorted the plaintiff to the Emergency Department for treatment.

There was a dispute about whether the plaintiff admitted to having been drinking before work, which the plaintiff denied or denied to the extent claimed. The results of the tests established a blood alcohol concentration of 0.2 grams/litre or four times the legal limit.

A number of co-workers and the doctor who was present gave evidence as to the plaintiff’s denials, which his Honour preferred.

As to the onus of proof for the consent to obtain the blood sample, his Honour applied White v Johnston [14] a NSW Court of Appeal decision that found it lay with the plaintiff. His Honour was mindful of the position of power of the employer and that it may vitiate the consent, nevertheless, his Honour found “real” consent had been given by the plaintiff: Sidaway v Bethlem Royal Hospital Governors [20]. His Honour found that the plaintiff’s account was implausible and that the plaintiff’s credit should not be accepted where it was in conflict with credible accounts. His Honour found consent was given after the doctor advised what was going to happen and that the nurse then prepared the plaintiff’s arm for the needle, with consent.

Similarly, his Honour found that when the urine sample was taken the nurse did not witness the plaintiff’s genitalia. His Honour preferred the nurse’s account and that this was corroborated by the failure to report this to his union representative.

Following the above conduct, the plaintiff was stood down for two shifts on full pay; the plaintiff continued to work for a number of months following the incident. During this period the plaintiff saw his doctor about domestic violence issues and being assaulted by his Australian wife. He complained of psychological issues in this context and was referred to a psychologist who diagnosed a serious stress and anxiety condition. However, the effect of the domestic violence and that the plaintiff visited Papua New Guinea to be with his traditional wife and daughter caused absences from work, without leave. Ultimately, his employer did not impose disciplinary action for these absences or the intoxication, but his Honour found it would have caused stress. About this time the plaintiff sought legal advice and lodged a WorkCover claim and alleged psychiatric injuries.

His Honour considered sections 305B – 305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the WCRA”). Having regard to his Honour’s findings about credit and consent, together with not accepting the nurse had seen the plaintiff’s genitalia, his Honour was satisfied that foreseeability had not been established, because in requesting and taking the samples, a reasonable person would not have foreseen a “not insignificant” risk of a psychiatric injury.

As to the necessary condition to satisfy causation, not only was the plaintiff troubled by the stated factual findings, but his Honour noted that the plaintiff had failed to report his psychological troubles about his domestic violence to psychiatrists’ Drs de Leacy and Kein. The plaintiff’s lack of credibility was compounded by the excuse he gave as to ceasing work with a later employer. The plaintiff said he left the job because he didn’t like working with the other security guards, the manager gave evidence he had been sacked because he was intoxicated.

Unsurprisingly, his Honour found:

[85] The medical opinions of Dr de Leacy and Dr Kein diagnosing a psychiatric condition and finding a causal link between the subject event and that condition are, as each of them conceded, dependent upon an acceptance of the history provided by the plaintiff. Dr Chalk and Dr Flanagan had access to fuller information about the patient’s history than did Dr de Leacy and Dr Kein. Dr Chalk concluded that the plaintiff was not suffering from a psychiatric disorder and Dr Flanagan was unsure about the diagnosis, expressing doubts about the genuineness and severity of the plaintiff’s psychiatric condition. Both Dr Flanagan and Dr Chalk questioned the subject incident as being the cause of subsequent symptoms. Both commented that the plaintiff was able to continue to work as a security officer for some time after the subject incident.

[86] Assessment of the medical evidence must now occur in light of the findings of fact which I have made. I find the plaintiff knowingly consented to provision of the blood and urine samples and that his claim a nurse viewed his genitals is false, he having no memory soon after the event of having provided a urine sample. I find the sample was taken in circumstances where the plaintiff was intoxicated when he went to work. Other unrelated issues at the time were causing him stress. He had continuing concerns relating to the breakdown of his marriage with his Australian wife and divorce proceedings flowing from that and issues requiring his return to Papua New Guinea arising from concerns expressed by his traditional Papua New Guinean wife. In light of the plaintiff’s choice to take up a security position in Gladstone in March/April 2013 which was terminated not by him but by his employer due to his poor work conduct, I do not accept his claim that he was experiencing a fear of security work. In my view, feelings of anger and resentment towards Queensland Health due to ongoing disciplinary issues did not constitute a psychiatric injury. The opinion of Dr Chalk in this regard should be accepted.

[87] The medical evidence, in my view, does not establish a probable connection between the subject event and the plaintiff’s subsequent and ongoing psychological disturbance. Given the view I have formed on the facts, the concessions by Dr de Leacy and Dr Kein that in those circumstances it was less likely than likely the plaintiff’s condition was caused by the 2 August incident have application. It has not been shown to be more probable than not that, but for the taking of the samples on 2 August 2012, the psychological condition of the plaintiff would not have existed. Furthermore, this cannot be considered an exceptional case where responsibility for the plaintiff’s condition should, in accordance with established principles, be imposed on the defendant.[54]

[88] The plaintiff bears the onus of establishing causation. In my view, bearing in mind the principles in s 305D, he has failed to do so.

His Honour concluded there was no breach of duty causing damage.

David Cormack – Brisbane Barrister & Mediator

NB: appeal dismissed – Pere v Central Queensland Hospital and Health Service [2017] QCA 225

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