Nicholls v Ladbrokes Betting & Gaming Ltd [11.07.13]

Defendant not liable for psychiatric injury to cashier following robbery; no evidence to conclude magnetic lock necessary or should have been have been used after dark.

Implications

In order to defeat a claim for failure to protect employees from criminal attacks on an employer’s property, a defendant will need to demonstrate that:

  • It has carried out a proper risk assessment to assess the risk of attack at that particular store/premises; and
  • It has taken appropriate measures, based on the level of security risk, to minimise the risk of such attacks.

One difficulty in reaching a decision on liability in this case relates to the evidence available on the level of security risk at the shop. This will always be a key issue and defendants faced with claims should ensure that clear and comprehensive evidence is available on this issue.

Background

The claim involved a betting shop in Coventry, where the Claimant worked as a cashier. On the evening of 5 November 2007 the Claimant and a manager, Mrs Swift were working behind the counter. At about 6.30pm a robbery occurred.

Two men burst into the shop. One pointed a gun at the Claimant. He demanded that she unlock the door into the staff area, open the safe and give him money. The Claimant did so. She was badly shaken by the incident and suffered psychiatric injury as a result.

The Claimant alleged that the robbery had occurred because the Defendant had failed to take proper precautions, in particular in failing to keep the front door locked by operating the magnetic lock fitted to it at all times after dark. If the lock was in operation, the front door of the shop was held closed unless a member of staff pressed a switch to release the lock.

The Defendant’s training manual stated that the lock should be used at opening and closing times. However, it gave no guidance about when the lock should be used at other times. Whether the lock was used outside these times depended on which manager was on duty.

The Defendant presented expert evidence to the effect that the store was situated in a location where there was a low risk of robbery. The Claimant did not present any evidence as to the crime rate/history in the area.

At first instance, His Honour Judge Mithani QC found in favour of the Claimant.

Decision

The Court of Appeal allowed the Defendant’s appeal. Lord Justice Tomlinson held as follows:

  • The Judge had failed to engage with the (Defendant’s) evidence which demonstrated that the shop was at low risk of robbery having regard to its location. Although the Judge was critical of the witness evidence presented by the Defendant, he failed to have regard to the witnesses' unchallenged evidence concerning the crime rate/history in the area.
  • The essence of the Judge’s conclusion was that the Defendant ought to have instructed staff at this shop to use the magnetic lock after dark. However, there was no evidence before the Judge on which he could have concluded that the Defendant would have been negligent in not installing a magnetic lock at these premises. It was not considered an essential security measure within the industry. Having installed the magnetic lock for use during the opening and closing of the store, the Defendant was not under a duty to ensure that the lock was used at other times. By installing the lock the Defendant had adopted a more exacting approach to security than its competitors.
  • The evidence before the Judge did not satisfy the conclusion that a reasonably prudent employer would have imposed a policy of using the magnetic lock at these premises in the hours of darkness.

Lord Justice Floyd also allowed the appeal.

Lord Justice Jackson disagreed, in his view the Judge was entitled to conclude that the Defendant ought to have instructed staff to operate the magnetic lock in the hours of darkness.