Plaintiff is unsuccessful in proving management action was inappropriate

Pere v Central Queensland Hospital and Health Service [2017] QDC 002

Butler SC DCJ District Court

27 January 2017

Background

Mr Pere was employed as a safety and security officer at the Gladstone Hospital.

Concerned he was intoxicated whilst on duty, his employer requested he undergo blood and urine tests.

Mr Pere alleged that he sustained a psychiatric injury because the blood test was taken without his consent and the urine test was not taken in a discreet and private manner, and by a female nurse when a male nurse was available. Mr Pere also alleged he should have been provided with a support person in circumstances where serious allegations were made against him.

Judgement

The Plaintiff was unsuccessful in proving that there was an assault, or that there was any breach of duty causing compensable loss.

The Court did not accept the evidence of the Plaintiff that the samples were taken without his consent. The Court did say that in reaching that conclusion, it was necessary to bear in mind that the Plaintiff's position as an employee created a risk that what otherwise might appear to be consent may in fact not be a true consent and further the employer's admission that it had not followed its correct procedure. Nevertheless, the Plaintiff was not accepted over the evidence of the doctors and other staff. The allegation that the giving of the urine sample was conducted in view of a female nurse was not accepted either.

As to negligence, the Judge said the position was more complex. However, the Judge found that a reasonable person would not have foreseen that the requesting and taking of samples would cause the Plaintiff psychiatric injury. He was not satisfied that there was a 'not insignificant' risk of such injury.

As to medical causation, the evidence was that there were many other unrelated issues causing the Plaintiff stress. The Court held that the medical evidence did not establish a probable connection between the subject event and his ongoing issues. That is, it was not shown to be more probable than not, that but for the taking of the samples, the psychological condition of the Plaintiff would not have existed.