Pere v Central Queensland Hospital and Health Service
[2017] QDC 2
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- Unreported Judgment
- Appeal Determined (QCA)
- Pere v Central Queensland Hospital and Health Service[2017] QDC 2
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Pere v Central Queensland Hospital and Health Service[2017] QDC 2
Pere v Central Queensland Hospital and Health Service[2017] QDC 2
DISTRICT COURT OF QUEENSLAND
CITATION: | Pere v Central Queensland Hospital and Health Service [2017] QDC 2 |
PARTIES: | JAMES PERE (plaintiff) v CENTRAL QUEENSLAND HOSPITAL AND HEALTH SERVICE (defendant) |
FILE NO/S: | BD1402/ 2015 |
DIVISION: | District Court of Queensland |
PROCEEDING: | Civil |
ORIGINATING COURT: | District Court of Brisbane |
DELIVERED ON: | 27 January 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22–24 August 2016, 28 October 2016. |
JUDGE: | Butler SC DCJ |
ORDER: | The plaintiff’s claim is dismissed. |
CATCHWORDS: | TORTS – NEGLIGENCE – ASSAULT – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – CAUSATION – Whether taking of blood and urine samples an assault or negligent – Whether psychiatric injury caused by breach of duty. |
COUNSEL: | The plaintiff appeared on his own behalf. B. F. Charrington for the defendant. |
SOLICITORS: | The plaintiff appeared on his own behalf. McInnes Wilson Lawyers for the defendant. |
- [1]On 2 August 2012, James Pere was working as a fire safety and security officer at the Gladstone Hospital. He was asked by hospital staff, concerned he was intoxicated or ill, to attend the hospital emergency department where blood and urine samples were taken from him. The taking of these samples is alleged to have caused the plaintiff a psychiatric injury due to negligence of the defendant and/or assault by the defendant’s employees.
- [2]The defendant as the employer of the plaintiff owed his employee a duty of care. The ultimate issues are whether the defendant was negligent, whether there was a non-consensual assault, whether injury was foreseeable, whether any breach of the employer’s duty of care was the cause of injury and if so, the quantum of the plaintiff’s loss.
The claim
- [3]The plaintiff claims $405,000 plus interest for personal injury and consequential loss as a result of negligence and/or assault by the defendant.
- [4]The plaintiff’s Statement of Claim particularised the alleged assault and/or negligence as follows:
“(a) Failing to comply with its own policy and procedure in relation the taking of urine and blood from an employee, the latter of which constituted an assault;
- (b)Failing to properly explain to the plaintiff what was occurring before testing and obtaining his blood and urine, and to properly obtain his consent;
- (c)Failing to undertake the investigation and testing in a discreet and private manner;
- (d)Failing to offer the plaintiff the opportunity to be accompanied by a support person in circumstances where serious allegations were made against him;
- (e)Allowing or permitting a female nurse to visually supervise the collection of urine sample when there were male nurses available;
- (f)Failing to enforce the confidentiality obligations and prevent Geluk spreading scuttle buck (sic) and misinformation to the hospital staff in general;
- (g)Failing to develop, implement and enforce a safe system of work;
- (h)Failing to meet its obligations under the Workplace Health and Safety Act 2011 and associated risk management code of conduct.”[1]
- [5]The alleged consequential personal injury was particularised as “psychiatric injury variously described as depression and/or anxiety disorder and/or adjustment disorder with anxiety and depression”.[2]
- [6]The defendant, in its pleadings, admitted it owed a duty of care to the plaintiff and admitted “it failed to follow its own policy and procedure in relation to the taking of blood and urine samples” but the defendant denies the blood and urine samples were taken without consent. The defendant also admitted “failing to offer the plaintiff the opportunity to be accompanied by a support person”. It denied that the female nurse visually supervised the collection of a urine sample.[3]
The incident – plaintiff’s evidence
- [7]The plaintiff testified that he attended work between 10.30–11.00pm on 2 August 2012 where he met and spoke with another security officer, Christopher Geluk. That officer left for a time and on his return said in a hostile manner “Come here, I’m going to take you to the emergency room”.[4]The plaintiff‘s evidence continued:
“He said to me that I must have been drinking before I came here. He advised me to go to the emergency room. He did not instruct me or advise me. He pushed me to the emergency room.”
- [8]A work colleague of the plaintiff, Anthony King, gave evidence that Geluk had expressed strong views adverse to the plaintiff due to the plaintiff having been appointed to a permanent position rather than him. In response to a question from the plaintiff, King testified that:
“Chris Geluk made allegations of arresting yourself, removing you from the front entry of the Gladstone Base hospital. Taking you by the hand, under arrest, to the emergency department.”[5]
- [9]The plaintiff described in his evidence what happened next:
“When I was in the emergency room, a nurse was asking me whether I’d been drinking, that I– I came to work drunk and I said I didn’t. I said to them that during the day I had some wine, I had two bottles of wine.”[6]
This evidence of the plaintiff was given through an interpreter. Immediately following this passage the plaintiff corrected the quantity of alcohol consumed to two glasses of wine.
- [10]The plaintiff said he was questioned by a doctor in public. He went on:
“And as I was talking to the doctor, another nurse came and approached me from the other side and with a– with a syringe– a needle syringe in their hand and I realised she poked me. They took some blood out of my– after they poked me with a needle, they took some blood off me and then she was off to the room again. They told me that was the normal procedure that we were doing. The same lady came back to the room again. It would have been around 11.30 or around midnight by that time.”[7]
- [11]He said this happened in a storage room where doctors “hang out” but also where they leave their medication and medicines.
- [12]The plaintiff then described giving a urine sample:
“After– after it– after she came back, she started saying that– she started forcing me to go to the toilet. She said ‘Okay, come, come this way, go to the toilet.’ When I opened– the toilet door was open, I was– I pushed– I was directed inside and I said ‘What am I doing here?’ I was given a small bottle and I was told to provide some of my pee sample. As I was doing that– as I was trying to provide the– the pee sample, I was– she– the lady– the nurse was directly looking at my private parts while I was doing that business.”[8]
The plaintiff testified he felt ashamed and humiliated that he was treated in this way.
The incident – defendant’s witnesses
- [13]Theresa Gardner was a clinical nurse on duty at the emergency department on 2 August 2013. Her account of that night was aided by reference to notes taken at the time. She recorded that she received a phone call from Christopher Geluk of security at 22.45 hours. She was told of concern about the plaintiff’s welfare because he was acting strangely. She asked they send the plaintiff up to the emergency department where they “could assess him, make sure he’s okay”.[9]
- [14]When the plaintiff arrived Nurse Gardner triaged him. Her notes record:
“James Pere – under influence alcohol – acting out of character – talking loudly – interrupting conversation & invading personal space.”[10]
- [15]The plaintiff was asked by her if he had been drinking and he denied drinking alcohol that night.
- [16]The witness then took a blood sample, recording in her notes that “as per MO [medical officer] & pt [patient] consent” the sample was taken from the right cubital fossa. That is, from the front of the arm. Gardner explained that if asked by a doctor to take blood, she gets the patient’s permission, his consent, before taking the blood. Her notes record the plaintiff sitting quietly at the time. Her evidence was that he was “alert and oriented and co-operative”.
- [17]Dr Marc Droulers was the locummedical officer at the emergency department on that night. He testified he was asked to see the plaintiff and formed the belief he was intoxicated with alcohol or another drug. His notes, written at 1.00am, state:
“Acting inappropriately, slurred speech, smelling of alcohol. Pt denies physical illness or symptoms, denies ingestion of alcohol, illicit substances.”[11]
- [18]The doctor recorded the plaintiff was “co-operative, bloodshot eyes, slurred speech, ataxic gait”.
- [19]He ordered a test for blood alcohol and a urine test to screen for illicit substances to confirm his initial assessments. He agreed if the condition wasn’t explicable by intoxication a number of possible medical conditions would need urgent consideration.
- [20]The doctor said he had discussed the blood and urine test with the plaintiff saying “we need to do this”. In response “he seemed to be in agreeance”. He was calm and did not object or resist, rather “he didn’t care. He just seemed ambivalent”.[12]
- [21]Dr Droulers recorded the blood test result as being a blood ethanol level of 0.2 grams/litre – the equivalent of four times over the legal limit to drive a motor vehicle. He said this level was consistent with his observation of the plaintiff’s behaviour. Upon receipt of the blood test result, Dr Droulers told the plaintiff to go home. The doctor explained that he did this as a safety issue.
- [22]Ms Gardner documented the collection of a urine sample from the plaintiff. The plaintiff put to her in cross-examination that she was the person who took him to the toilet. She said she couldn’t recall if she did but agreed that she could have given him the specimen jar and may have walked him to the outside of the toilet but said she certainly would not have walked into the toilet with him or stayed there. She denied viewing his genitals.
Consideration - assault
- [23]The plaintiff alleges assault, or more correctly, battery. The injection to obtain a blood sample was a direct application of force capable of constituting battery. It is well established in law that a medical practitioner must obtain the consent of the patient to any medical procedure performed on that person. At issue here is whether that application of force occurred with the consent of the plaintiff.
- [24]There has been confusion in Australia as to whether the plaintiff or defendant bears the onus on the issue of consent. The opinion of McHugh J in his dissenting judgment in Secretary, Department of Health and Community Services v JWB and SMB[13]that the onus is on the defendant to prove consent has been considered persuasive by a number of legal writers. However, the recent decision of the New South Wales Court of Appeal in White v Johnston[14]carefully reviewed the authorities and concluded that the onus remains with the plaintiff to prove an absence of consent on his or her part. That decision of an intermediate Court of Appeal is binding on me and should be followed.
- [25]In order to determine if the plaintiff has satisfied that onus a number of issues of fact must be resolved. The plaintiff says he was “pushed” to the Emergency Department by Gallic.[15]Neither Nurse Gardner nor Dr Droulers recalled observing such conduct. Dr Droulers said the plaintiff came alone to where he was working.[16]
- [26]The plaintiff’s account obtains support from the evidence of Anthony King that Christopher Gallic boasted he took the plaintiff “by the hand, under arrest, to the Emergency Department”.[17]
- [27]In the absence of contrary evidence the plaintiff’s account that he was accompanied to the Emergency Department and that involved a degree of physical contact, should be accepted.
- [28]At issue is what implication this has for the question of whether the plaintiff consented to providing the samples. The approach to be adopted when considering whether consent has been given to medical injections was considered in Freeman v Home Office (No. 2).[18]In that case the plaintiff prisoner brought an action in battery against a prison doctor for administering drugs by injection. It was argued that as the doctor in the prison situation had power to influence the prisoner’s situation, real consent had not been given. In other words that it was induced by duress. The court held that whether consent had been given was a question of fact. The court concluded that the trial judge correctly stated the position in the following passage:
“The right approach, in my judgment, is to say that where, in a prison setting, a doctor has the power to influence a prisoner’s situation and prospects a court must be alive to the risk that what may appear, on the face of it, to be a real consent is not in fact so. I have borne that in mind throughout the case.”[19]
The judgments in Freeman also made reference to the decision of Sidaway v Bethlem Royal Hospital Governors[20]which held:
“Consent would not be real if procured by fraud or misrepresentation but, subject to this and subject to the patient being informed in broad terms of the nature of the treatment, consent in fact amounts to consent in law.”[21]
- [29]In my view this approach applies similarly to an employer/employee situation such as existed here.
- [30]A further consideration is that the defendant’s pleadings admitted it failed to follow its own policy and procedure in relation to the taking of blood and urine samples. The meaning of that concession was clarified in the evidence of Rodney Brennan, the Hospital Operations Manager. He said there was “no policy in place at the time that could allow the employer to take a sample from an alleged allegation”.[22]
- [31]The plaintiff sought to amend the pleadings to change the admission to a denial. I reserved my decision on that application. I now refuse the application. The admission was that the samples were taken contrary to the defendant’s “protocols and policy”. That there was no policy on whether the employer may take a sample from an employee does not exclude that it would be an industrially incorrect procedure for the employer to do so. Amendment should be disallowed.
- [32]That the taking of a sample was inconsistent with the employer’s own agreed position in respect of its employees, is only relevant insofar as it impinges on resolution of whether as a matter of fact there was true consent.
- [33]For a number of reasons which I will recount later, I find the plaintiff’s credibility so poor that his evidence should not be acted upon where it is in conflict with other credible accounts. With particular reference to the issue of consent, I find the plaintiff’s account that he was penetrated by a needle while he was talking to the doctor and before he realised it was to happen, to be implausible. I reject that account and accept the testimony of Gardner and Dr Droulers. Their accounts are consistent and their explanations as to what occurred are credible. I find, as a matter of fact, that blood was taken in the usual way after the plaintiff was advised by the doctor what was to happen, his verbal consent obtained by the nurse and his arm prepared for the injection. I find the plaintiff co-operated in all this happening.
- [34]The plaintiff is also in conflict with the two witnesses as to whether he told them about his drinking. He claims he told them he had consumed two glasses of wine. They both say he denied drinking alcohol that night. Their notes taken at the time accord with this testimony. This denial prevented a certain diagnosis being made of the plaintiff’s unusual behaviour and provided justification for further inquiry on medical grounds.
- [35]I place no significance on the initial mention in the plaintiff’s evidence, given through an interpreter, to two bottles of wine rather than two glasses. It should be accepted, as contended by the complainant, that this resulted from a mistake in the interpretation. I note that the plaintiff’s advice to his union representative, Mr Beers on a very early occasion was that he had consumed two glasses of wine at dinner before walking to work.
- [36]Gardner’s evidence that the plaintiff initially told her that he had not consumed alcohol gains credence from a note made later on by her at 23.15 hours stating the plaintiff admitted to the Manager, Rita that he had consumed wine that night. The plaintiff in cross-examination of Gardner put to her that he admitted to her and the doctor he had two glasses of wine. She denied this saying, “you informed Rita, the Nurse Manager, afterwards that you had two glasses of wine before coming to work.”
- [37]The witness’ denials are consistent with their medical notes made at the time. I prefer their evidence to that of the plaintiff on this issue. This conclusion also affects his credibility on the issue of consent.
- [38]In arriving at a conclusion that the blood and urine testing occurred with consent I bear in mind that the plaintiff’s position as an employee creates a risk that what otherwise might appear to be consent may in fact not be true consent. I have kept in mind the employment context, that the taking of a sample was contrary to the employer’s policy and procedures and that the plaintiff had been accompanied to the Emergency Department by a security officer who physically touched or held him as part of that process. Nevertheless, I am satisfied the plaintiff did give true consent to the provision of the samples. The process was explained to him and his consent sought and given. The process of taking blood required his cooperation which was provided. He has on a number of occasions displayed an ability to speak up on his own behalf and to assert his rights. I find he was capable of appreciating what was occurring and of communicating his refusal to participate if he so chose.
- [39]On the issue of the urine testing, the plaintiff’s allegations that the female nurse observed his genitals as he supplied a sample should be rejected. Nurse Gardner denied she did so. Both Dr Droulers and Gardner denied there was any instruction or reason why observation of provision of the sample was required.
- [40]The reliability of the plaintiff’s account of this event, which he has advanced to his medical witnesses as a significant reason for his psychological distress, is undermined by what he told his union representative soon after the event. Mr Beers testified:
“… James outlined to me he was very distraught about the blood sample, but in relation to the urine test, from my memory I think his exact words were that he wasn’t sure, or couldn’t remember, but when I probed a bit further, the discussion essentially evolved to the point where the impression I got, bearing in mind the imperfect communication, was that he didn’t give a sample.”[23]
- [41]Beers impressed as a capable witness with a good recollection of detail. In my view this conversation, which occurred prior to an email sent by Beers on 13 August 2012, is inconsistent with the plaintiff’s subsequent claim he not only recollects being taken to the toilet and being observed giving a sample, but was deeply disturbed by that happening.
- [42]The credibility of the complainant’s testimony must be doubted. On the other hand Gardner was definite and credible in her denial, stating there was never an occasion when she had observed the genitals of a male providing a urine sample. I prefer her testimony to that of the plaintiff.
- [43]I am satisfied the plaintiff consented to the provision of his blood and urine samples. It follows that the actions of the hospital staff did not constitute assault or battery.
Events after 2 August 2012
- [44]The plaintiff was sent home on the night of 2–3 August 2012. His manager, Donna Coleman, testified that he was stood down on full pay for two shifts. After scheduled days off he returned to his role a security officer.[24]He continued working in that role until May 2013. Coleman says he raised no concerns about returning to security work or problems doing that work because of the events of 2 August 2012.[25]
- [45]Soon after the subject event, the plaintiff sought the assistance of an Australian Workers’ Union official, Zac Beers. At that time a disciplinary process had commenced in relation to the allegation of being intoxicated at work. The plaintiff told Beers he was upset and concerned about the blood sample having been taken from him.[26]
- [46]Email communication to Queensland Health from Beers commenced on 13 August 2012. The disciplinary process resolved with Queensland Health acknowledging that the taking of the blood was contrary to their policy and protocols[27]and the plaintiff being given a warning in respect of his intoxication at work.[28]
- [47]On 24 September 2012, the plaintiff saw a general practitioner, Dr Anwar, at the Harbour City Family Medical Practice. He complained of psychological symptoms he attributed to a physical assault by his wife in 2010. He was referred to a psychologist, Ms George.[29]
- [48]On 28 September 2012, the psychologist provided a report describing symptoms diagnosed as a serious stress/anxiety condition. This condition was solely attributed to domestic violence experienced by the plaintiff in his relationship with his Australian wife.[30]
- [49]Between August 2012 and May 2013 while the plaintiff was continuing in his role as a security officer, he took two unapproved absences from work, giving rise to further processes with potential for disciplinary action. The first occasion involved an absence without seeking authorisation.[31]On the second occasion he sought leave only on the day he left. That leave was refused, but he departed anyway and travelled to Papua New Guinea to be with his traditional wife and his daughter. He was absent from 6 November 2012. On 11 December 2012, a process with a view to disciplinary action was commenced.[32]He returned at the beginning of 2013 and continued his work role.
- [50]The plaintiff had advised his supervisor the reason he required leave was his wife had threatened to leave him for another man and he needed to travel to Papua New Guinea to resolve that situation. His wife, in giving evidence, confirmed that was the position. Representations were made on the plaintiff’s behalf in response to the disciplinary process by his union representative, Zac Beers. The union representative, writing on behalf of the plaintiff, explained that he returned to Papua New Guinea to ensure his young daughter was being cared for.[33]No suggestion was made at this time by the plaintiff or on his behalf that the events of 2 August 2012 gave rise to his need for leave.
- [51]Queensland Health ultimately elected not to impose a disciplinary penalty because of the unapproved absences[34], but it is apparent that up until mid-April the plaintiff would have been under stress due to the threat of disciplinary action with a view to possible termination. About this time he saw a lawyer and soon after lodged a claim for workers’ compensation.[35]It was only at this point that for the first time the plaintiff advised a medical practitioner that his psychological issues were due to the events of 2 August 2012. The plaintiff’s claim for workers’ compensation was brought to the attention of Queensland Health on or about 6 May 2013.[36]
Legal framework of liability
- [52]The plaintiff contends that the defendant is liable for damages suffered due to its negligence and/or for assault. Earlier in this judgment I concluded on the facts that that the plaintiff consented to giving his blood and urine. In this circumstance, true consent having been given, the actions of the hospital staff did not constitute assault or battery.
- [53]The position in relation to negligence is more complex. It is fundamental that an employer owes a duty of care to its employee. An employer must take reasonable care for the safety of the employee.
- [54]At common law, the question of negligent breach of duty is approached in accordance with the principles stated by Mason J in Wyong Shire Council v Shirt:
“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.”[37]
- [55]In Queensland, a statutory framework under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the WCRA”) also applies. Sections 305B – 305E of the WCRA provide:
“305B General principles
- (1)A person does not breach a duty to take precautions against a risk of injury to a worker unless—
- (a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
- (b)the risk was not insignificant; and
- (c)in the circumstances, a reasonable person in the position of the person would have taken the precautions.
- (2)In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
- (a)the probability that the injury would occur if care were not taken;
- (b)the likely seriousness of the injury;
- (c)the burden of taking precautions to avoid the risk of injury.
305C Other principles
In a proceeding relating to liability for a breach of duty—
- (a)the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
- (b)the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
- (c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
305D General principles
- (1)A decision that a breach of duty caused particular injury comprises the following elements—
- (a)the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
- (b)it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
- (2)In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
- (3)If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach—
- (a)the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
- (b)any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
- (4)For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.
305E Onus of proof
In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
Breach of duty
- [56]Section 305B applies when considering whether the defendant has breached its duty to take precautions against a risk of injury. The risk must be foreseeable and not insignificant.
- [57]I have made findings of fact that when blood and urine samples were taken from the plaintiff, although he was intoxicated, he had been informed and was aware of what was intended and consented to the process. I have also found that the urine sample was supplied by the plaintiff in the privacy of the toilet cubicle without a female watching. In my view, the sampling of blood and urine is a commonplace medical procedure. Given the indicia being displayed by the complainant there was a rational reason for seeking the samples. The plaintiff was not afforded the opportunity for a support person to be present but the evidence is that he was calm and compliant at the time. There is no suggestion the reason Queensland Health policy and procedures did not provide for such samples to be taken from an employee related to any perceived risk of psychological injury.
- [58]In my view, a reasonable person would not have foreseen that the requesting and taking of the samples would cause the plaintiff psychiatric injury. I am not satisfied there was a “not insignificant” risk of such injury.
Causation
- [59]Under s 305D, in order to prove that a breach of duty was the cause of an injury, the breach must be a necessary condition of the injury.
- [60]The plaintiff bears the onus of proving causation and relies upon medical evidence to do so. Dr de Leacy, a psychiatrist, saw the plaintiff on 22 October 2014 and provided a report that same day. He described the plaintiff as a vague historian. The account given to him was that blood was taken without explanation and without informed consent. The plaintiff told the doctor a nurse watched his urinating through an open door. The plaintiff did not report any past psychiatric history apart from mild distress when he was previously divorced.
- [61]Dr de Leacy considered the plaintiff to be still symptomatic and diagnosed him as having an Adjustment Disorder with Anxiety and Depressed Mood. He excluded Post-Traumatic Stress Disorder and Major Depression. He assessed a permanent disability with a PRIS of 6 per cent.[38]
- [62]Under cross-examination, Dr de Leacy said he was unaware the plaintiff had advised a doctor in September 2012 and a psychologist in October 2012 of psychological issues arising from domestic violence in his marriage.[39]He said that the plaintiff’s concern regarding his genitals being viewed seemed to be a “quite significant” issue in his thinking.[40]
- [63]When the defence case was put to Dr de Leacy, he maintained if that were accepted there would still be a causal connection between the incident and the plaintiff’s condition, but agreed that connection was weaker. He agreed that if the matters put were correct, there was less likely than likely to be a causal connection.[41]
- [64]In response to a question in re-examination, the doctor said that if the plaintiff still had a fear of seeing security and working at the hospital, this would be more likely to be caused by the incident of August 2012.[42]
- [65]The plaintiff also called the psychiatrist Dr John Kein, who first saw him on 16 February 2015. A report dated 14 September 2015 was tendered. The plaintiff continues to see Dr Kein on a monthly basis.
- [66]The plaintiff’s account to Dr Kein was that he had feelings of depression, hopelessness and social avoidance due to his having been “arrested” and samples of his blood and urine taken. He said that a female was able to observe his genitals when giving the urine and that the blood was taken without consent. Dr Kein diagnosed a Mild Adjustment Disorder. Giving evidence, he altered this diagnosis to Depressive Disorder (not otherwise specified). The plaintiff is being treated with anti-depressants and supportive psychotherapy.
- [67]Dr Kein agreed in cross-examination he had not been told by the plaintiff of the earlier consultations with Dr Anwar and Ms George or that he had described psychological symptoms associated with domestic violence. The doctor agreed that if a female nurse had not been able to observe the plaintiff’s genitals and that the blood sample was taken with consent, that would substantially weaken any causal connection between the event of 2 August 2012 and the plaintiff’s condition.[43]Dr Kein agreed that if events were as put in the defence case, it is more unlikely than likely that the plaintiff’s condition is attributable to the 2 August incident.[44]
- [68]An independent psychiatric report was provided by Dr Flanagan for WorkCover purposes on 18 September 2013. He saw the plaintiff once on 13 September 2013. The plaintiff recounted to him being arrested and taken to the emergency department where a nurse did not ask any questions but “came at him” with a needle and pushed the needle into his body to obtain blood. He said a doctor was watching, did not say anything, and took off. The nurse watched through a half-open toilet door while he gave a urine sample.[45]
- [69]The plaintiff described experiencing phobic anxiety from the time of his return to work immediately after the incident. He did advise Dr Flanagan of earlier stress due to domestic violence from his wife and her brother. Dr Flanagan expressed doubts about the genuineness and severity of the plaintiff’s psychiatric condition.[46]The doctor was unsure about the extent to which any incapacity was related to the indexed events.[47]
- [70]Dr John Chalk, physiatrist, was called by the defence. He assessed the plaintiff on 15 January 2015 and provided a report dated 19 January 2015.
- [71]Dr Chalk described the plaintiff as having feelings of injustice and anger. He said the plaintiff complained of ongoing anxiety and depression in response to the events of August 2015.[48]Dr Chalk’s diagnosis excluded the presence of a significant axis 1 disorder. He opined:
“It would appear as though he developed some mild anxious and depressive symptoms in the aftermath of this event, though they would not appear to have been sufficient to prevent him from continuing to undertake gainful employment.”[49]
- [72]Dr Chalk considered the plaintiff able to undertake full time employment.
Consideration
- [73]The defendant’s pleadings submit the plaintiff sustained a psychiatric injury, but deny that it had a profound impact on his work or social life. It is also denied that the injury is ongoing as alleged.[50]Dr Kein’s evidence, as the psychiatrist presently treating the plaintiff, supports that he has a continuing depressive disorder. All the psychiatrists, including Dr Chalk, accept that he had some anxious and depressive symptoms following the events of 2 August 2012.
- [74]The reports of Dr de Leacy and Kein attribute an existing psychiatric condition, at least in part, to the subject event. However, both accepted that their opinion was based upon the history provided by the plaintiff and any causal connection would be significantly weakened if a view of the facts as put by the defence applied.
- [75]In my view, the plaintiff’s account of his condition lacks credibility for a number of reasons. He did not impress as a witness. In this regard, it must be taken into account that much of his evidence was given through an interpreter; although as the trial progressed he demonstrated an ability to communicate directly and confidently in English. Even taking into account language and cultural difficulties, the plaintiff’s account in a number of regards was implausible and at times he presented as being evasive under questioning.
- [76]As outlined earlier in this judgment, I find his account to be in conflict with the evidence of Dr Droulers and Nurse Gardner, who I accept as truthful and accurate witnesses. The plaintiff consistently denied being intoxicated on the night in question, though I am satisfied on the basis of the indicia described by Dr Droulers and the result of the blood test that he was intoxicated.
- [77]The plaintiff failed to advise a medical practitioner of psychological symptoms arising from the events of 12 August 2012 for a period of 8 months. While apprehension or embarrassment in the workplace may provide some explanation for delay, it does not explain his failure to refer to the subject event when complaining of psychological symptoms to Dr Anwar and Ms George in September/October 2012. He gave as a reason for not doing so that at the time he was only seeking a report for the purposes of his divorce. If that were accepted, it would have been dishonest to not disclose what he now says was his primary psychological concern. This explanation should not be accepted.
- [78]An alternative suggested explanation was that he was required to maintain confidentiality about the subject event. It is true he had been urged in correspondence to maintain confidentiality “as far as possible”. In my view, it pushes the bounds of credibility to accept that he deliberately failed to mention what he later indicated was the primary cause of his stress and concern when consulting with private medical practitioners who he would have been aware were ethically bound by confidentiality.
- [79]The plaintiff’s credibility is further questioned by his failure to disclose to Dr de Leacy and Dr Kein the history of stress due to domestic violence that he had earlier described to Ms George.
- [80]A further matter to be considered is the explanation he gave in cross-examination for why he left a position as a security officer, which he had obtained in Gladstone in March/April 2013. He was employed there for four or five weeks of casual part-time work. When it was suggested to him in cross-examination that he was terminated because he was caught drinking alcohol on the job, he denied it. The plaintiff said:
“The reason why I left the job is the reason is within myself and I left the job and they didn’t sack me…. I left the job, because I didn’t like to work with security guards.”[51]
- [81]The area manager who supervised the plaintiff for the security firm, Jason McKay, testified he found the plaintiff “quite intoxicated” watching a game of football on his phone when he was supposed to be working as a security guard at a local hotel. Mr McKay challenged him about it, and the plaintiff denied it. McKay made the immediate decision the plaintiff would finish up that night. His employment was then terminated. I accept the testimony of McKay, and find it to be inconsistent with the explanation given by the plaintiff. In my view, the plaintiff’s response in cross-examination was dishonest.
- [82]Given the view that I have reached as to the plaintiff’s lack of credibility across these various issues, his claim that the primary cause of his stress and concern was the events of 2 August 2012 should not be accepted.
- [83]As highlighted by Dr Flanagan and Dr Chalk, other factors were operative at the time including pre-existing stress due to marriage breakdown and divorce, concerns about work disciplinary processes and likely alcohol abuse. Dr Chalk opined that motivation for compensation and redress would appear to be significant factors.
- [84]
“…the risk of exposure to stress and potential sources of conflict in the workplace should not be equated with a risk of psychiatric injury, as distinct from psychological disturbance. The liability of an employer is not engaged unless there is a reasonably foreseeable risk of the plaintiff sustaining a recognisable psychiatric illness.”[53]
- [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.
Late application
- [89]After completion of the trial, judgment having been reserved, the plaintiff sought to advance additional documentary evidence. First, he sought to tender two witness statements by Anthony King, a witness called and examined by the plaintiff. The statements would not have been admissible at trial and, in any event, do not contain information providing any significant detail further to that provided by the witness in his trial testimony.
- [90]Secondly, the plaintiff seeks to tender a letter from Maree Geraghty to Zac Beers replying to an email of 4 September 2012. That letter was tendered at trial as part of Exhibit 1 and therefore is evidence already before the court. The plaintiff’s application to introduce these two items of additional material is therefore refused.
Conclusion on liability
- [91]The plaintiff bears the onus of proof in all respects. He has failed to establish assault or to prove there was any breach of duty causing compensable loss.
Damages
- [92]The plaintiff, having failed to establish liability, has no entitlement to damages. However, it is usual to make some assessment of potential damages in case the matter were to proceed further. The plaintiff provided limited written submissions in support of his damages claim. The defendant did not address the plaintiffs claim in respect to the quantum of damages should the plaintiff succeed. As the assessment of damages is dependent upon the view taken as to the facts, I will only briefly address the matter.
- [93]The plaintiff claims the amount of $464,488.81 from the defendant for his personal injuries calculated as:
General damages: $10,940
Special damages: $14,664.39
Interest on special damages: $1,000
Past economic loss: $124,325.60
Past superannuation: $11,810.93
Interest: $12,991.65
Future economic loss: $250,000
Loss of future superannuation: $23,750
Future out of pocket: $12,650
Fox v Wood: $2,752.24
Total: $464,884.81
- [94]The defendant submits there should be no award of damages.
- [95]I will endeavour to assess damages as best I can in the absence of detailed submissions, assuming findings of fact favourable to the plaintiff.
General damages
- [96]Based on Dr de Leacy’s assessment of a PIRS of 6%, the psychological injury falls in Item 12, Moderate Mental Disorder in in Part 2 of Schedule 9 of the Workers Compensation and Rehabilitation Regulation 2003. The plaintiff submits for an ISV of 8. Having regard to Dr de Leacy’s opinion I would assess an ISV of 6 to be appropriate. Accordingly I would calculate general damages at $7,880.00.
Special damages and interest
- [97]The plaintiff’s claim for special damage of $14,664.39 appears appropriate. However, interest of only $107.88 is applicable.
Past economic loss
- [98]The plaintiff’s calculation of past loss including superannuation and interest at $149,128.18 appears in order.
Future economic loss
- [99]The plaintiff seeks a global sum of $250,000.00 for future economic loss. Dr de Leacy opined that the plaintiff would have continuing residual symptoms and his employability would be affected. He considered the plaintiff may be able to work full time in a suitable unskilled role but not in security or hospital environments.[55]The plaintiff testified that he is actively applying for work but has so far failed to gain employment. Having regard to the plaintiff’s reduced capacity to obtain and retain employment I assess a global award of $150,000.00 for future economic loss. Loss of future superannuation is calculated at a rate of 9.5% to be $14,250.00. Future out of pocket expenses should be allowed at $10,000.00.
Fox v Wood
- [100]The plaintiff claims $2,752.24 in accordance with the principal in Fox v Wood. In the absence of adequate information I would make no award in this category.
Assessment of damages
- [101]Accordingly, I assess total damages before the deduction of the Work Cover refund to be $346,038.45.
Conclusion
- [102]The plaintiff’s claim must be dismissed. I will hear the parties on the question of costs.
Footnotes
[1] Statement of Claim, para 4.
[2] Statement of Claim, para 5.
[3] Defence, para 4(a)-(e).
[4] Transcript 1-35, ll 7-8.
[5] Transcript 2-37, ll 19-23.
[6] Transcript 1-35, ll 13-18.
[7] Transcript 1-35, ll 33-40.
[8] Transcript 1-35, L 45 to 1-36, L 5.
[9] Transcript 3-108, L 20.
[10] Exhibit 19.
[11] Exhibit 20.
[12] Transcript 4-19, ll 25-40.
[13] (1992) 175 CLR 218 at [310]-[311].
[14] (2015) 87 NSWLR 779, at [94]-[130].
[15] Transcript 1-35, L 15.
[16] Transcript 4-27, ll 40-42.
[17] Transcript 2-73, ll 20-22.
[18] [1984] 2 WLR 802.
[19] [1984] 2 WLR 802 at 812; citing from McCowan J [1984] 2 WLR 130 at [145].
[20] [1984] 2 WLR 778.
[21] Freeman v Home Office (No. 2) [1984] 2 WLR 802 at [813].
[22] Transcript 4-50, ll 16-18.
[23] Transcript 3-20, ll 41-46.
[24] Transcript 4-82, ll 20-40.
[25] Transcript 4-83, L 5 to 4-84, L 10.
[26] Transcript 3-15, ll 45-47; 3-16, ll 1-7.
[27] Exhibit 1. Letter by M. Geraghty 28 August 2012; letter by R. Brennan 26 September 2012.
[28] Exhibit 21. Letter by M. Geraghty 23 September 2012.
[29] Transcript 3-54, ll 20-40; exhibit 15.
[30] Exhibit 6.
[31] Transcript 4-83, ll 25-30.
[32] Exhibit 1. Letter M. Geraghty 10 December 2012.
[33] Exhibit 13. Letter Z. Beers 31 January 2013.
[34] Exhibit 22. Letter M. Geraghty 17 April 2013.
[35] Exhibit 8. WorkCover claim form 24 April 2013.
[36] Exhibit 9. Workplace incident report.
[37] (1980) 146 CLR 40 at [47].
[38] Exhibit 3.
[39] Transcript 2-22 to 2-24.
[40] Transcript 2-26, ll 20-34.
[41] Transcript 2-27, ll 1-13.
[42] Transcript 2-29, ll 8-12.
[43] Transcript 2-38, L 27 – 2-39, L 17.
[44] Transcript 2-39, ll 19-23.
[45] Exhibit 14.
[46] Exhibit 14, p 22.
[47] Exhibit 14, p 25.
[48] Exhibit 18.
[49] Exhibit 18, p 14.
[50] Defence at paras 5-6.
[51] T3-33, ll 1-5.
[52] [2012] QSC 298.
[53] [2012] QSC 298 at [67].
[54] See Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [47] – [57].
[55] Exhibit 4, Supplementary Psychiatric Report p 3.