Apr 8, 2022 | Business Law, Employment Law
In this article, we identify the liabilities involved in the voluntary assumption of risk and how to avoid breaching duty of care.
In March 2010, a security guard sued his employer and the owner of Lidcombe Power Centre, for PTSD resulting from an intruder threatening his life. This case, Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (2020) (‘Capar’), sheds light on how far an employer’s duty of care extends when an employee voluntarily assumes risk of injury.
The Capar case
The plaintiff was employed as a security guard for Lidcombe Power Centre. Whilst on duty surveying the CCTV footage, he detected an intruder entering the premises. As the plaintiff left the control room to investigate, he came upon the intruder who wielded an axe and threatened to kill him. The security guard fled to the control room for safety and called the police; who arrived shortly and apprehended the intruder. The guard suffered from PTSD as a result of the incident and initiated proceedings in negligence against the owner of the shopping centre, the security company that was paid to provide security for the premises, and his own employers (the sub-contractors of the security company).
Injured persons and “obvious risks”
The plaintiff’s negligence claims were initially dismissed by the NSW Supreme Court.
In accordance with the Civil Liability Act 2002 pt 1A div 4, the Court ruled that the security guard was aware of the “obvious risk” of mental or physical harm when he chose to leave the control room and confront the intruder.
In negligence proceedings, the injured person is ‘presumed to have been aware of the risk of harm if it was an obvious risk’. This means that the injured person is assumed to be conscious of risk ‘even if the person is not aware of the precise nature, extent or manner of occurrence of the risk’.
Voluntary assumption of risk and duty of care
The Civil Liability Act 2002 states that ‘a person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff’.
In the Capar case, the security guard’s contract did not specify that he was obligated to confront the intruder. Owing to his voluntary assumption of an obvious risk, his employer’s duty of care was found not to extend to the actions which caused PTSD.
According to the Civil Liability Act 2002 pt 1A div 2, a person is negligent in taking precautions against a risk of harm if the risk was foreseeable, not insignificant, and if a reasonable person in the injured person’s position would have taken appropriate precautions.
Owing to these conditions, neither the occupier of the premises, the contractors nor the security guard’s employers, were made liable for negligence.
How do I avoid breaching duty of care?
There are a number of steps that can be taken to help protect your business from risks of liability in negligence:
- Ensure all staff understand their duties and perform them correctly. Have a clear written guide because if staff are unclear on their responsibilities, the likelihood of risk and personal harm may increase.
- Implement security measures on your premises that reduce the risk of liability caused by the actions of trespassers.
- Communicate a clear plan to all employees in case of an invasion. In the case of an invasion, staff should not approach or confront an intruder. They should retreat to safety and contact the police immediately.
- If you are employing security personnel, have clear and explicit discussions on the extent of their role and the potential risks that may arise.
If you would like to learn more about how breaches to duty of care may affect your personal or professional life, please see our blog for more information.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with employment law or negligence matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Apr 6, 2022 | Building and Construction Law
When you discover a building defect on your property, your first reaction may be to pursue an action against the builder contracted to complete the work. If your builder goes into liquidation, you become eligible to access the Home Building Compensation Fund (HBCF). However, compensation provided from the HCBF is capped at $340,000. What if your loss is double that?
A decision by the Court of Appeal in the ACT reaffirmed that certifiers may also be liable for building defects. They have a duty of care to ensure that building works, at the completion of each stage, meet the required standard.
Case Study: Asset Building Certifiers v Hyblewski [2020]
In the case of Asset Building Certifiers Pty Ltd v Hyblewski [2020] ACTA 21, the Court held that the appellant (the certifier of the building) was responsible for building defects which he failed to recognise during inspections.
Construction started on the block of land purchased by the respondent in 2012. On 9 November 2012, the appellant issued a certificate at the “pre-slab” stage inspection and a second at the “pre-sheet” stage in February 2013. However, at both stages of construction, the works were defective.
Once the building was complete, a dispute arose over various defects resulting in the owner suing the certifier in the Supreme Court of ACT. The Court held that there was an implied term in the contract between the owner and the certifier which required the certifier to carry out the work with due care and skill. The Court found that the certifier had breached this obligation by issuing the certificates and failing to identify the various defects.
Identification of a Causal Connection
The key issue that arose in the Hyblewski case was whether there was a causal connection between the certifier’s breach and the owner’s loss. This meant that the actions of the certifier in failing to recognise the defects during the course of construction must have caused the owner’s loss.
The certifier argued that there was no causal link, as the builder’s defective work already existed at the time the certificates were issued. This argument was unsuccessful as the Court found that had the certifier issued a written notice to the builder rather than issue certificates, the builder most likely would have fixed the defects. Therefore, the Court found that the defects were caused by the certifier’s breach of duty.
When assessing the causal link between an action and the damages, the Court will consider what the various parties (such as the certifier, the owner and the builder) would have done had the certifier exercised reasonable care and skill. The Court will also look at whether the owner would have suffered the loss and damage as a result.
In some circumstances, certifiers can be found liable for defective building work (in addition to the builder). In this instance, the Court found that there was a causal link, as the certifier is responsible for assessing a builder’s work for compliance and allowing work to either continue or stop.
Determining the Existence of a Duty
There have been cases in NSW where the courts have been reluctant to find that principal certifying authorities owe a duty to take reasonable care when issuing occupation certificates. In Chan v Acres [2015] NSWSC 1885, the Supreme Court of NSW placed significant weight on the need to establish actual reliance and the owner’s vulnerability, to the extent that an absence of vulnerability may be determinative against the existence of a duty.
In this case, an owner builder renovated his property and obtained an occupation certificate. The renovation contained structural defects. The property was sold to the plaintiffs who sued the certifying authority, the vendor and the structural engineer. At the first instance, the Supreme Court held that the plaintiffs were vulnerable because it was reasonably foreseeable to the certifying authority that a purchaser would suffer loss if defects were not identified and rectified before sale.
The certifying authority appealed and the appeal was allowed as the Court of Appeal found that the plaintiffs failed to establish the relationship of “vulnerability” and “reliance” between themselves and the certifying authority. The Court held that the plaintiffs could have protected themselves by negotiating the terms in the contract of sale with the vendor.
It was also noted that the role of a certificate is to show suitability of a building for occupation and this “does not require that all of the building work… has been carried out in accordance with approved plans and specifications, and in a proper and workmanlike manner.”
Pursuing an action for building defects
A defect in construction law refers to work that has not been performed in accordance with the standards and requirements of the particular contract.
Matters that will be taken into consideration in determining if there is a defect may include:
- The quality of any work and the standard of workmanship;
- Whether design directives have been followed and correct materials have been used; and
- Whether the works have been performed in accordance with contractual specifications and drawings.
If you believe that defective building work has occurred on your property, you should act quickly. Knowing your rights and the relevant time limitations in pursuing a claim for defective work will empower you to take the appropriate steps to have the work rectified.
If you need more information, assistance, or advice on how to proceed please call us on (02) 9963 9800 or via our contact form. To learn more about how Etheringtons Solicitors can assist you, please visit our blog here.
Mar 30, 2022 | Employment Law
Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.
In light of the most recent COVID-19 outbreak in Sydney, there is widespread discourse surrounding the vaccine rollout in Australia. Whilst the COVID-19 vaccination is currently voluntary, the NSW Government has recognised there may be future circumstances in which proof of vaccination is necessary; for example, border entry or intrastate travel. Further, many industries such as the aged care sector have begun considering mandatory COVID-19 vaccines for all staff in order to prevent further outbreaks in vulnerable communities. So it begs the question, can an employer force an employee to get vaccinated?
Can my employer enforce mandatory vaccinations?
Mandatory vaccination policies can be considered lawful and reasonable, based on industry-specific considerations. In an era before COVID-19, this was only ever contested with the annual flu vaccine. But now, it has become strongly encouraged for aged care workers to get the COVID-19 vaccination, and some workers are objecting.
Whilst the issue of mandatory COVID-19 vaccines remains undetermined at this stage, Courts have recognised the ability of employers to terminate employment for failure to comply with other mandatory vaccination programs.
Recent Case Studies
The Fair Work Commission recently held in Barber v Goodstart Early Learning [2021] FWC 2156 that breaching a childcare employer’s mandatory vaccination policy constituted grounds for fair dismissal. In this case, Barber objected to the vaccination due to a “sensitive immune system” and other medical grounds, but failed to obtain a medical certificate exempting her from requiring the vaccine. In determining that the mandatory vaccination policy was reasonable, the Fair Work Commission considered various factors including;
- Goodstart’s occupational health and safety obligations under the relevant legislation;
- Government advice encouraging vaccination;
- The unique risk to children who cannot get vaccinated due to their age;
- Whether the policy allowed for medical exemption; and
- Whether the cost of vaccination was covered by the employer.
This finding was based on the previous case of Arnold v Goodstart Early Learning [2020] FWC 6083, in which Ms Arnold pursued an unfair dismissal claim after being dismissed for failing to comply with the directive that all employees receive a flu vaccination. Ms Arnold’s objection was not based on medical reasons, but rather she relied on international human rights instruments to justify her refusal. The Fair Work Commission observed that Goodstart’s policy regarding vaccination was ‘lawful and reasonable in the context of its operations’ and was ‘necessary to ensure the company met its duty of care to the children in its care’.
Considerations for employers
Whilst the above cases illustrate that mandatory vaccination programs can be legal, this is dependent on the specific circumstances of the employee and their role. Generally, employers cannot introduce blanket mandatory vaccination programs unless there are genuine health or compliance justifications. In the context of COVID-19, it is important for employers to consider the concerns held by employees in relation to access to vaccines and potential side effects and allow employees to express their concerns where they exist to avoid feelings of discrimination.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with a variety of employment law matters, whether you are the employer or employee.
If you need further advice or assistance, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Mar 6, 2022 | Litigation and Court
Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107
A former patient has recently succeeded in a medical negligence action against the Nepean District Hospital (“the Hospital”) for the improper diagnosis of a shoulder injury. Ms Makaroff (“the Plaintiff”) was awarded a sum of $276,319.95 in damages on appeal. This case highlights the importance of seeking legal advice if you or your loved ones have experienced unsatisfactory care or poor health outcomes as a result of receiving medical treatment.
Establishing medical negligence
A party (the defendant) can be found to be negligent if they fail to take reasonable care to avoid causing damage to another person (the plaintiff). In order to establish a claim for negligence, a plaintiff must address the following elements under the Civil Liability Act 2002 (NSW):
- That a duty of care (to exercise due care and skill) between the plaintiff and the defendant existed;
- That this duty of care was breached by the defendant;
- That this breach caused the plaintiff (causation) to suffer injury or loss (damage); and
- That this damage suffered was not too far-removed (remoteness) from the consequence of the
Each of these factors has been considered in greater detail in our previous article. The law of negligence is not straightforward, and highly dependent on the specific circumstances of the case.
There are also numerous defences which a defendant may establish in order to defer liability. For example, we have considered the dangerous recreational activity defence in a previous article regarding a case where a jockey was injured during a horse race. The Court in Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107 considered this defence in the context of assessing the standard of care expected of medical professionals.
Case Study: Makaroff v Nepean Blue Mountains Local Health District
The Plaintiff was injured on 19 September 2010, when one of her horses bit her on her right forearm, which led to the dislocation of her right shoulder. An X-ray conducted at the hospital indicated that she had “moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency”. No ultrasounds or MRIs were conducted, and she did not receive an orthopedic review, prior to being discharged two days later. Neither the hospital or her GP advised the Plaintiff that she required an urgent radiological examination or orthopedic review. Based on this advice, the Plaintiff did not obtain an ultrasound until 3 February 2011, by which time it was too late for surgery to be effective.
In this case, the Plaintiff claimed that had she been properly diagnosed in a timely fashion, she would have undergone surgery and would have properly recovered the function in her arm. She alleged that the hospital and her GP breached their duty of care by their negligent treatment and sought damages for her pain, further injury and loss.
Decision in this case – considering duty of care and causation
The Primary Judge at first instance rejected the claim that the Hospital and her GP had breached their duty of care, as the Civil Liability Act 2002 (NSW) s 5O precludes liability of both parties as they acted in a manner that was ‘widely accepted in Australia by peer professional opinion as competent medical practice’ at the time it was provided. Additionally, the Primary Judge held that even if a breach could be established, there was no ‘causal link’ between the alleged breach and her subsequent injuries.
However, on appeal, the Court found that the hospital had in fact breached its duty of care to the Plaintiff. Experts claimed that a competent professional medical practice required the patient to be advised of the urgency of seeking an orthopedic consultation within 2-3 weeks of the injury. Judge Simpson also found that the hospital breached its duty of care by failing to refer the Plaintiff for radiological investigations when she presented symptoms which suggested the need for further investigation. The Court held that, but for the hospital’s breach, the Plaintiff would have undergone surgery by mid-November 2010 and there would have been a “very high degree of probability that she would have had a better outcome”.
As such, the hospital was held liable on appeal, and ordered to award the Plaintiff with $276,319.95 in damages. The appeal against the Plaintiff’s GP, however, was dismissed as the Court found that there was no breach of duty.
How Etheringtons Solicitors Can Help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with a variety of negligence matters, whether you are the injured party or a professional.
If you need further advice or assistance, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Apr 2, 2024 | Family Law
Following the breakdown of a marriage, separated or divorced parties must agree on how to divide their joint assets. As the division of property and finances is not included in a divorce order, a separate agreement must be made between you and your wife.
Reaching an amicable agreement with your wife about the division of joint assets will save you time, money and stress. Alternative dispute resolution processes such as mediation can assist in resolving any disagreements that may arise during this process.
If you cannot reach an agreement with your wife through these means, you can apply to the Federal Circuit and Family Court of Australia (‘the Court’) to have financial orders made that will settle the dispute for you.
What is a financial order?
A financial order is a set of orders made by the Court relating to the division of property or finances. When applying for a financial order, the Court will hear evidence presented by you and your wife and make a just and equitable decision. This decision may include altering property interests, redistributing finances, and ordering for the payment of spousal maintenance.
What factors affect the Court’s decision?
Contrary to the belief of a 50/50 split, there is no established formula or percentage the Court will use when making financial orders. Instead, decisions are made on a case-by-case basis depending on the individual circumstances of the separated parties.
The Family Law Act 1975 (Cth) s 79(4) sets out a number of factors for the Court to consider when making financial orders. These factors include but are not limited to:
- The ‘net asset pool’ comprising of the current value of all assets and liabilities. This includes superannuation entitlements, personal assets, assets in partnership, trust, or companies.
- Direct financial contributions toward the acquisition, conservation or improvement of any property of each party. This includes assets owned at the beginning of the relationship.
- Indirect financial contributions such as gifts or inheritances.
- Non-financial contributions toward the acquisition, conservation or improvement of any property of each party. For example, home improvement or renovations to increase the value of the family home.
- Financial contributions made to the welfare of the family, including any contribution made in the capacity of a homemaker or parent.
- The future needs of each party with regard to age, health, financial resources, superannuation, childcare, and earning capacity.
The Court’s decision may involve the alteration of property interests and asset ownership to allow for the just and equitable redistribution of finances between parties.
Am I required to pay my wife spousal maintenance?
Spousal maintenance is financial support that is paid to your wife if she cannot adequately support herself following separation or divorce. This obligation depends on the financial capacity and needs of each party. Husbands and wives share an equal duty to support and maintain one another should the circumstances call for it.
For example, if your wife is unable to support herself after separation, and you have the financial means to support her, you may be required to provide your wife with spousal maintenance.
Ultimately, an order for spousal maintenance is decided by an overall assessment of each party’s ability to adequately support themselves, and if they are unable to do so, whether the other party has the capacity to meet those expenses and support them.
Contact Us
It is important to remember that there is no presumption of equality when dividing assets following a separation or divorce. If you are considering separation, or have already separated from your wife, we recommend seeking independent legal advice.
If you would like to discuss your unique situation with a family lawyer, please contact Etheringtons Solicitors in North Sydney on (02) 9963 9800 or via our online contact form.
