Updated: Nov 15, 2021
The Intersection of General Principles, Negligence Reform and the Workplace.
In March 2010, an intruder broke into premises along Parramatta Road in Sydney.
Upon detecting the intruder on CCTV, the sole security guard, Mr Gengiz Capar, left his office to investigate further. He confronted the intruder who threatened to kill him and then, started chasing him. Mr Capar ran back to his office, locked the door, and called the police. The police arrived and arrested the intruder.
Mr Capar commenced proceedings against the owner of the premises, the company whom the owner retained to provide security services, and his employer.
At first instance, Mr Capar failed. The Court held that by leaving the safety of his office and confronting the intruder, Mr Capar was the author of his own loss.
The New South Wales Court of Appeal allowed Mr Capar’s appeal. In so doing, it addressed the general principles of the doctrine of the voluntary assumption of risk, their role in the Workplace and the extent to which recent Reforms have affected them.
The Doctrine of Voluntary Assumption of Risk
Establishing that a plaintiff has voluntarily assumed a particular risk requires the defendant to prove that the plaintiff knew of the risk of injury and voluntarily agreed to incur the risk of injury.
The preferred view is that successfully establishing a plaintiff’s voluntarily assumption of risk does more than excuse any liability in negligence to the plaintiff. It denies the existence of that liability.
Courts have been reluctant to embrace the doctrine in the defendant’s favour either preferring to find contributory negligence or identifying types of scenarios where the doctrine is not available. In New South Wales, that reluctance led the authors of the Review of the Law of Negligence – Final Report to look upon the doctrine as largely defunct.
The Final Report’s response to the doctrine’s future, amongst many other issues, purported to give the doctrine a new lease on life by recommending that it be made easier for a defendant to establish a plaintiff’s awareness of the risk. Section 5G of the Civil Liability Act 2002 (NSW), passed upon the Final Report’s recommendations, broadly presumes that a plaintiff who suffers harm was aware of the risk of injury if that risk was an obvious one.
The presumption raises its own challenges in the application of the doctrine but still reflects a legislative desire for the doctrine to play a role.
But what role does it play where the plaintiff is injured at work or while attending an emergency?
Chapman v Hearse (1961) 106 CLR 112 concerned the tragedy of Dr Cherry, a medical practitioner, who raced to the aid of a man lying injured on the side of the road following a motor vehicle accident and while attending to the man was, himself, struck by a passing car and killed. The High Court did not entertain any allegation that Dr Cherry had voluntarily assumed any risk.
Cases such as McCafferty v Metropolitan Police District Receiver 1 WLR 1073, Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 and Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 extended that same thinking to the workplace.
Nothing in the Final Report, the Civil Liability Act 2002 (NSW) or other legislation passed in Australia brings the doctrine into play in those types of situations.
Mr Capar’s situation is one of those situations. To hold that the doctrine was available to the defendants ignored established authority and suggested that the Civil Liability Act 2002 (NSW) enhanced the doctrine’s role more than it in fact did.
1. The doctrine of the voluntary assumption of risk remains available to defendants as a basis for denying liability.
2. The doctrine’s key features are an awareness of the risk and a considered voluntary acceptance of that risk.
3. Reform in the law of negligence throughout Australia significantly modifies what an awareness of risk can involve.
4. Certain key scenarios, such as the workplace, remain beyond the doctrine’s reach.
The name of the case is Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre  NSWCA 354 (22 December 2020).