SUPREME COURT OF QUEENSLAND

CITATION:	Pere v Central Queensland Hospital and Health Service [2017] QCA 225	
PARTIES:	JAMES PERE
(applicant)
v
CENTRAL QUEENSLAND HOSPITAL AND HEALTH SERVICE
(respondent)	
FILE NO/S:	Appeal No 1776 of 2017
DC No 1402 of 2015	
DIVISION:	Court of Appeal	
PROCEEDING:	Application for Leave s 118 DCA (Civil)	
ORIGINATING COURT:	
District Court at Brisbane – [2017] QDC 2 (Butler SC DCJ)	
DELIVERED ON:	6 October 2017	
DELIVERED AT:	Brisbane	
HEARING DATE:	20 July 2017	
JUDGES:	Gotterson and Morrison JJA and Applegarth J	
ORDERS:	1.	Leave to appeal refused.
2.	Cross appeal dismissed.
3.	Applicant to pay the respondent’s costs of the application for leave to appeal on the standard basis.	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LIABILITY IN TORT – GENERAL PRINCIPLES – where the applicant was employed by the respondent – where the applicant was acting unusually while at work – where a co-worker escorted the applicant to the Emergency Department – where medical staff believed the applicant to be either under the influence of alcohol or illicit drugs, or suffering from a medical condition that would require urgent attention – where a doctor discussed the taking of blood and urine samples with the applicant – where the hospital staff reported the applicant was calm and co-operative and that consent was obtained prior to the taking of the samples – where the applicant claims no consent was given and, further, that a nurse observed him as he gave his urine sample – where the applicant claims to have suffered shame and humiliation from the incident, culminating in a psychiatric injury – whether the learned primary judge erred in finding the applicant freely consented to the taking of blood and urine samples – whether the actions of the medical staff constituted assault or battery – whether leave to appeal should be granted
EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – CAUSATION AND FORESEEABILITY – CAUSATION – where the applicant claims medical staff at his workplace committed assault and battery against him in taking his blood and urine samples – where the applicant claims to have suffered a psychiatric injury as a result of the incident – where the respondent had no formal protocol regulating the taking of blood and urine samples from employees who appeared to be under the influence of alcohol at work – where the applicant seeks damages from the respondent as his employer for negligence and failing to take precautions against a risk of injury to a worker under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where there existed other unrelated issues at the time causing the applicant stress – whether the learned primary judge erred in finding the applicant failed to establish a probable connection between the incident and the applicant’s psychiatric condition – whether leave to appeal should be granted
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305D
Freeman v Home Office (No 2) [1984] QB 524; [1983] 3 All ER 589, cited
Freeman v Home Office (No 2) [1984] QB 524; [1984] 1 All ER 1036, applied
Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; [2009] NSWSC 761, cited
Pere v Central Queensland Hospital and Health Service [2017] QDC 2, related
Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, applied	
COUNSEL:	The applicant appeared on his own behalf
B F Charrington for the respondent	
SOLICITORS:	The applicant appeared on his own behalf
McInnes Wilson for the respondent	
[1]	GOTTERSON JA:  In April 2015 James Pere, commenced proceedings in the District Court at Brisbane for damages for personal injury against his former employer, the respondent, Central Queensland Hospital and Health Service.  The claim was tried over four days before a judge of the court at Brisbane.  On 27 January 2017, his Honour gave judgment by making an order dismissing the claim.  In reasons for judgment published that day, damages were assessed at $346,038.45.
[2]	On 22 February 2017, Mr Pere filed a notice of appeal against the judgment.  Later, on 9 March 2017, the respondent filed a notice of cross appeal against the assessment of damages.
[3]	Mr Pere represented himself at the hearing of the appeal.  He had acted for himself at trial.
Leave to appeal
[4]	Given that his claim did not relate to property and that judgment was not given for any amount, Mr Pere may appeal to this Court only with leave.  In this case, the applicant has not filed an application for leave to appeal.  Presumably he was not aware of the need for leave.  Of course, he would now require an extension of time within which to apply for leave to appeal and to appeal under Rule 748 of the Uniform Civil Procedure Rules 1999.  Given that the applicant is self-represented, I intend to proceed on the footing that he has made a timely application for leave to appeal.
[5]	Considerations that are relevant to the grant of leave are whether there is a an important point of law or question of general public importance involved, and whether there is a reasonable argument that there is error in the decision under appeal which has led to a substantial injustice necessitating correction on appeal.  The latter consideration focusses attention upon the viability of contentions made by the applicant of error on the part of the learned primary judge.  An assessment of viability needs to be made within the context of the circumstances in which the claim was made, the decision at first instance, and the alleged error or errors in it.  I now turn to those factors.
The factual circumstances in which the claim was made
[6]	The applicant commenced employment with the respondent as a Fire Safety and Security Officer at the Gladstone Hospital prior to August 2012.  In the evening on 2 August 2012, he was observed to be acting in an unusual manner of work and was directed by a co-worker to attend the Emergency Department.
[7]	There he was seen by a nurse, Miss T Gardner, and a locum medical officer, Dr M Droulers.  Nurse Gardner observed that the applicant appeared to be under the influence of alcohol.  She asked him if he had been drinking.  Her evidence was that he denied that he had.  Dr Droulers made a similar observation to the plaintiff who made a similar denial to him.  By contrast, the applicant’s evidence was that he told Nurse Gardner that he had drunk two glasses of wine during the day.
[8]	Dr Droulers recorded that the applicant was “co-operative”, and had “bloodshot eyes, slurred speech, ataxic gait”.  He formed the opinion that a blood test to screen for alcohol and a urine test to screen for illicit substances needed to be administered.  He was concerned that if the applicant’s condition was not explicable by his blood alcohol level or the presence of illicit drugs, then he might be suffering from one of a number of possible medical conditions that would need urgent attention.
[9]	According to Dr Droulers, he discussed the taking of the blood and urine samples with the applicant.  He told him that “we need to do this”.  The applicant “seemed to be in agreeance”.  He was calm and did not object or resist.
[10]	Nurse Gardner took a sample of the applicant’s blood.  Her evidence was that if asked by a medical officer to take a patient’s blood, she would obtain the patient’s permission before doing so.  Her notes of taking this sample recorded “as per MO and pt consent”.  She took the sample from the front of the applicant’s right arm in the cubital fossa region.  She also recorded that he was sitting quietly at the time.  Her evidence was that he was “alert and oriented and cooperative”.  The applicant gave a different account.  He said that as he was talking to the doctor, a nurse approached him from the other side with a needle syringe in her hand and poked him.
[11]	Nurse Gardner accepted that she probably provided the applicant with a specimen jar for the urine test although she could not recall doing so.  Nor could she recall whether or not she escorted the applicant to the toilet where he provided the sample.  The applicant alleged that Nurse Gardner was present in the toilet when he passed urine into the jar and that she was looking at his penis as he did so.  Nurse Gardner denied having ever observed a male patient give a urine sample, either on that or any other occasion.
[12]	The applicant’s case, and the medical evidence relied upon by him at trial, centered upon the proposition that the circumstances in which he alleged the blood and urine samples were taken had initially caused him shame and humiliation.  Thereafter he had suffered a psychiatric injury which was variously described in his statement of claim as “depression and/or anxiety disorder and/or adjustment disorder with anxiety and depression”.  This injury had had an adverse impact on his income earning capacity both in the past and into the future.
The decision at first instance
[13]	There was, therefore, apparent conflict between the evidence of the applicant on the one hand and of Nurse Gardner and Doctor Droulers on the other.  The learned primary judge expressed the following conclusions concerning the applicant’s credibility and the issue of consent to the taking of the blood and urine samples:
“[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.”
[14]	His Honour then detailed aspects of the evidence that informed these conclusions and continued:
“[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.”
[15]	With regard to the alleged viewing of his penis as he gave the urine sample, his Honour made the following findings:
“[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.”
[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.”
[16]	His Honour reasoned that because the applicant had consented to the taking of the blood and urine samples, the actions of the hospital staff in taking them did not constitute either assault or battery.
[17]	The applicant’s claim was also framed in negligence.  The learned primary judge referred to both common law principle and the provisions of ss 305B-305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”) relevant to such a claim.
[18]	His Honour concluded that the applicant had not satisfied the conditions for a breach of duty to take precautions against a risk of injury to a worker as set out in s 305B.  His Honour reasoned to that conclusion as follows:
“[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.”
[19]	His Honour was also not satisfied that the applicant had proved that the circumstances in which the tests were taken had, conformably with the provisions of s 305D, caused the psychiatric condition.  He said:
“[85]	The medical opinions of Dr de Leacy and Dr Klein diagnosing a psychiatric condition and finding a causal link between the subject event and that conditions 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 Klein.  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 following 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.
[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.”
[20]	For these reasons, the negligence claim also failed.
[21]	His Honour then proceeded to assess the damages that the applicant would have been awarded had his claim on liability succeeded.  It is unnecessary to detail the components of the assessment for present purposes.
Alleged errors at first instance
[22]	In oral submissions, the applicant explained that the crux of his complaint against the judgment at first instance was with the finding that he had consented to both the blood test and the urine test.  He submitted that for consent to be given to the tests, it had to be freely given; that as he was an employee of the respondent, there was a “power imbalance” between him and his employer such that he did not have true freedom whether to consent or not; that since he was uniformed at the time, it would have been unseemly in the public eye in the Emergency Department to have resisted undergoing the tests; and that he was too intoxicated to consent to them.
[23]	The applicant submitted that the respondent had acted outside its own guidelines in taking the blood sample.  He contended that the respondent’s witnesses had changed their stories and that they had lied to the court on “many important things”.
[24]	Significantly, the applicant did not challenge the finding of the credit against him, particularly the finding that his credibility was so poor that his evidence should not be acted upon where it conflicted with other credible accounts.  Nor did the applicant advance any accepted legal bases for challenging any of the findings of fact made by his Honour.
[25]	I note at this point that the applicant apparently had planned to advance his case on appeal by adducing further evidence on special grounds.  The evidence consisted of many documents exhibited to an affidavit he made, further documents he hoped to obtain in answer to three subpoenas he had caused to be issued, and the oral evidence of two persons on whom he had caused subpoenas to be served.  His application to adduce this evidence was heard and refused at the hearing of the appeal.
Discussion
[26]	In my view, this appeal has no prospects of success for the following reasons.
[27]	The question whether a person has consented to the taking of a blood or urine test is essentially one of fact.  In a case to which the learned trial judge referred, Freeman v Home Office (No 2) a prisoner brought an action in battery against a prison doctor for administering drugs to him by injection.  He argued that he was incapable of consenting to the procedure because he was in the defendant’s custody.  He failed at trial.
[28]	In dismissing his appeal, both Stephen Brown LJ and Sir John Donaldson MR cited with approval the view expressed by McCowan J at first instance:
“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 real consent is not in fact so.  I have borne that in mind throughout the case.”
[29]	In their Honours’ view, the sole issue was whether there was real consent.  Donaldson MR (with whom Fox LJ agreed) observed:
“Real consent provides a complete defence to a claim based upon the tort of trespass to the person.  Consent would not be real if procured by fraud or misrepresentation but, subject to this and subject to the patient having been informed in broad terms of the nature of the treatment, consent in fact amounts to consent in law.”
[30]	To similar effect, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ observed in Rogers v Whitaker:
“In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended.”
[31]	It is not necessary that the words “I consent” be used to signify real consent.  Real consent may be inferred from the patient’s conduct.
[32]	In this case, there was evidence from Dr Droulers that he explained to the applicant that he proposed that the samples be taken and that the tests needed to be done.  The applicant appeared to agree to them; he did not object.  Nurse Gardner’s contemporaneous note recorded the applicant’s consent to them.  Furthermore, his conduct in presenting his arm and in participating in the application of the tourniquet and cleaning solution and the vein identification, were overt manifestations of his consent to the blood test.  His passing of urine into the sample jar manifested his consent to that test.
[33]	As to intoxication, it is, of course, not the case that a person need be fully sober in order to give consent to procedures undertaken in the emergency department of a public hospital.  The applicant now wishes to rely on his blood alcohol reading of ·2 grams per litre as having negated a capacity on his part to give real consent.  According to Dr Droulers, the applicant’s observed behaviour was consistent with such a reading.  Notwithstanding, he was observed by Dr Droulers to consent to the tests.  There was no contrary evidence adduced by the applicant that, with that reading, he would have been functionally deprived of a capacity to give real consent.
[34]	In regard to the applicant’s status, Dr Droulers gave evidence that, given the applicant’s appearance, he treated him as his patient.  The applicant was not ordered to undergo the tests as if he was an employee who worked at Dr Droulers’ direction.  The applicant’s contention of an abiding “power imbalance” that precluded real consent on his part is quite unpersuasive.
[35]	Lastly, whilst it is true that the respondent did offer an apology to the applicant in the context of resolving an industrial dispute with him, it is apparent from the evidence of Mr R Brennan, that it was offered because the respondent did not have in place a formal protocol that regulated the taking of blood or urine samples from employees who appeared to be under the influence of alcohol at work.  Certainly, there was no protocol in place which precluded tests in such circumstances.
[36]	It remains to note that the applicant’s notice of appeal nominated in excess of 20 “grounds of appeal”.  These grounds did not articulate legal errors of principle or as to fact finding such might sustain an appeal.  They consisted of a mixture of comment and criticism, sometimes straying beyond the evidence adduced at trial or demonstrating a misunderstanding of it.  It is unnecessary to deal with those grounds on that account.  To the extent that they embraced the crux of the applicant’s case, they have been dealt with in these reasons.
[37]	Given that the appeal has no prospects of success, the application for leave to appeal must be refused.
Cross appeal
[38]	In view of the failure of the appeal, it is unnecessary for this Court to adjudicate upon the cross appeal in relation to the assessment of damages.  For that reason alone, it should be dismissed.
Orders
[39]	I would propose the following orders.
1.	Leave to appeal refused.
2.	Cross appeal dismissed.
3.	Applicant to pay the respondent’s costs of the application for leave to appeal on the standard basis.
[40]	MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the orders his Honour proposes.
[41]	APPLEGARTH J:  I agree with the orders proposed by Gotterson JA and with his Honour’s reasons.