Unsuccessful appeal against the dismissal of a claim against the respondent bank for damages associated with a post traumatic stress disorder sustained during an armed robbery.
- Whether an occupier should be held liable for damages caused by the criminal activities of a third party
The appellant attended a Westpac bank in the ACT at the time of an armed robbery. In the course of the robbery, the robber threatened to shoot the appellant if a Westpac employee activated security screens. Acting in compliance with bank training, the Westpac employee ignored the robber’s demands and activated the security screens. The robber subsequently shot a bullet in the air and left the premises. After these events, the appellant allegedly suffered post traumatic stress as a result of the fired shot.
The Decision at Trial
At first instance, the trial judge dismissed the claim for damages on the basis that an occupier will not be liable for the criminal activities of a third party regardless of whether damage from these activities was foreseeable.
The Issues on Appeal
The main issue on appeal was whether Westpac owed a duty to customers who were on the bank’s premises to take reasonable care to protect them against the foreseeable risk of harm posed by the criminal behaviour of a bank robber who has gained entry to the bank.
The Decision on Appeal
The Court of Appeal upheld the decision of the trial judge. The appellant argued that the training given by Westpac to its employees should have been to ‘almost always’ comply with a robber’s instructions, however, the appellant failed to clearly articulate the exceptions to the ‘almost always’ rule and failed to establish that the subject circumstances were not among those exceptions.
The Court of Appeal emphasised that Westpac had no control over an armed robber’s conduct which was unpredictable, and to impose a duty on it was unreasonable given the circumstances. The Court of Appeal concluded that just because “the risk of harm to a customer during the course of an attempted robbery was foreseeable is not sufficient of itself to impose upon Westpac, as the occupier of the bank premises, a duty to take reasonable care not to increase the risk of harm to a customer from the criminal behaviour of a third party”.
The trial judge’s determinations that breach of duty and causation were not established, were also affirmed.
Implications for you
This decision clearly upholds the long established principle that the law will not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
Importantly, this case also highlights the need for businesses to have training in place for their employees to deal with such occasions. The fact that Westpac had trained their employees, and that the employee in question had followed her training, helped Westpac highlight that they had contemplated such events and taken some precautions to minimise the potential damage that could have been caused.