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.

The principles of duty of care in the Civil Liability Act 2002 pt 1A div 2 stipulate that a person is negligent in taking precautions against a risk of harm if;

  1. the risk was foreseeable, and
  2. the risk was not insignificant, and
  3. in the circumstances, a reasonable person in the injured person’s position would have taken those 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.