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Date: 21 February 2017

Intoxicated worker unsuccessfully sues for employer’s request for alcohol screening

Olga Sashko, Senior Associate, Kaden Boriss Brisbane

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 [2017] 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 limit.

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.

For more information on this case please contact Olga Sashko on (07) 3013 2747.

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