Gary Roberts was quietly going about his business at the bank. He was confronted by an armed robber who yelled to a bank employee words to the effect “don’t push the button or I’ll kill him”. The employee activated pop-up security screens prompting the offender fire a shot into the air. Mr Roberts developed a post-traumatic stress disorder and sued the Bank.
The Trial Judge, applying Modbury, found that Westpac did not owe a duty to take reasonable care to avoid foreseeable risk of injury to the Plaintiff from the criminal actions of another.
On appeal the Plaintiff argued that this was different - it was not Westpac’s capacity to control the robber (the central pillar of the Modbury immunity being the lack of capacity to control) but rather the control by Westpac of its employees via training that was the foundation of the duty.
In rejecting this submission the ACT Court of Appeal said “the feature of the extent of Westpac’s control, if any, over an offender, coming onto its premises, is… the dominant one…” and “The inability to control the conduct of an armed offender … is an unassailable obstacle ... A party in the position of Westpac has no capacity to fulfil it. Westpac necessarily acts through its staff. They are not casual bystanders in such circumstances. They too will likely be impacted and some will themselves potentially be victims of a violent crime. They too are vulnerable to harm both of a psychological and physical nature. Their capacity in the course of an attempted armed robbery to act or not act in a particular way so as not to increase the risk of harm to customers of the bank will generally, viewed prospectively, be unknown. Their conduct during an attempted armed robbery is not within the practical control of an employer such as Westpac”.
The relationship of banker/customer did not create a “special relationship” such as that of school/pupil or jailer/prisoner to give rise to an exception to the Modbury immunity despite “the Plaintiff’s colourful submission that the nature of Westpac’s activity lured robbers to its bank premises…”. Mere foreseeability itself was not sufficient to prevent reliance upon Modbury.
“Conflicting responsibilities” to employees also told against a duty - insisting upon compliance with directions from robbers or preventing staff from acting for their own protection would be a potential breach of the bank’s stringent duty to its employees.
In any case such as this the issue of causation looms large. It was incumbent on the Plaintiff to establish that if the Westpac employee had been properly instructed she would have obeyed the offender’s instruction not to push the button and no psychiatric injury would have befallen him. There was no doubt that the particular Westpac employer was extremely traumatized by events and was concerned for the safety of herself and her co-worker. As such the proposition that had she been trained to always obey an offender she would not have activated the security screen was not proven and causation was not established.
This case establishes that sympathy alone will not be enough for a Plaintiff to be successful at trial. While the Plaintiff was placed in a terrible position, the proper application of principle and policy dictated against a finding that the Bank should be responsible for the harm.
When you are considering these matters always pay close attention to the aspects of capacity to control, conflicting duties, and of course, causation or in other words – would the steps the Plaintiff suggests ought be taken by the Defendant actually prevent the injury.
For those in the retail sector obviously the matter highlights the need for a structured training program and policies on hold-ups that put employees’ safety first.