The Queensland District Court has dismissed claims of negligence
and assault after Hospital workers took blood and urine samples
from an intoxicated employee.
In Pere v Central Queensland Hospital and Health
Service  QDC 2, Mr Pere, a Fire Safety and Security
Officer at the Gladstone Hospital, presented to work on 2 August
2012 in what appeared to be an intoxicated state. He was requested
to attend the emergency department of the Hospital to undertake
blood and urine tests. The results of the tests established a blood
alcohol concentration of 0.2 grams/litre, or four times the legal
Following this incident, Mr Pere alleged that he had sustained a
psychiatric injury due to the Hospital's conduct when taking
the tests. In particular, Mr Pere alleged that the blood sample was
taken without his consent and reported that a female nurse had
observed his genitals as he supplied the urine sample.
At trial, his Honour, Judge Butler, dismissed the
Plaintiff's claims of negligence and assault against the
Hospital. Significantly, in reaching this decision, his Honour
preferred the testimony of other Hospital workers and generally
found the Plaintiff to be an unreliable witness.
As to the claim of assault by taking the blood samples without
consent, his Honour was mindful that the Hospital was in a position
of power and that this may have influenced the giving of consent.
Nonetheless, the Plaintiff's account of not giving consent was
considered implausible and inconsistent with the more credible
accounts of the doctor and nurse on duty at the time. The Plaintiff
had demonstrated an ability to speak on his own behalf at the time
the sample was taken and was not so intoxicated that he did not
appreciate the process that was explained to him. Accordingly, his
Honour determined the blood was taken with consent and therefore
there was no assault.
As to the Plaintiff's claim of negligence, his Honour noted
that the Hospital owed a duty of care to take reasonable care for
the safety of Mr Pere by virtue of his position as an employee.
Nonetheless, his Honour did not consider that the Hospital had
breached its duty of care. Having regard to his Honour's
findings about the Plaintiff's credit and consent, he also
accepted the nurse's account that the Plaintiff would have been
given his own private toilet stall to provide the urine sample. His
Honour considered that, having regard to his previous findings, a
reasonable person would not have foreseen a not insignificant risk
of psychiatric injury when requiring an employee to provide blood
and urine samples.
This case serves as a cautionary tale for employers taking any
action against an employee, whether it is disciplinary or in
relation to an investigation. In taking such action, employers must
have regard to how their representatives' conduct may cause a
worker psychological distress. This may require the consideration
of factors unique to each worker, such as cultural background,
gender differences, general disposition, and any other indicators
that the request would cause them psychological distress. In such
instances, employers are also reminded to ensure the details of the
action taken are written down, to avoid the risks associated with a
"he-said she-said" situation.
The Plaintiff is appealing this matter further. Interestingly,
it appears that he will do so while self-represented, as was the
case in the District Court. We shall keep abreast of any
developments of this matter and keep you updated accordingly.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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