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23 August 2006

by Jim Gurry

The Plaintiff claimed injuries namely post traumatic stress disorder, severe depression, and elevated anxiety as a result of an armed robbery. The Plaintiff was awarded damages in the sum of $109,502.25.

Facts

The Plaintiff, Sonja White (aged 36), began working for the Defendant, Calstores Pty Ltd, on 23 March 1998 as a console operator at its Kingston service station. In October 1998 at about 8:00 pm, the Plaintiff was working alone. Whilst serving a regular customer ("W") she saw the sliding glass doors of the shop open and saw two dark figures standing there holding guns. One of the offenders put a rifle to the back of W's head whilst the other offender stood there pointing a pistol at her.

One offender demanded that the Plaintiff put money in the bag he thrust at her. At the same time, the other offender forced W's head onto the bench using the rifle. After money was put into the bag the offenders left the shop through the sliding glass doors.

Liability

The Plaintiff relied in particular on:

• An allegation that the security system in place was defective or inadequate;

• A lack of any or any adequate training;

• An allegation that the lighting in and around the premises was inadequate.

At all material times the Plaintiff had access to a remote control and to a fixed button near the console to control the operation of the sliding glass doors. She gave evidence that on the day in question once the number of customers entering and exiting the shop declined she used the remote control to lock the doors and then open them from time to time to allow customers to enter and exit as needed. Specifically she contended that she unlocked the doors to allow W to enter and locked the doors once W was inside.

The Plaintiff's case was the door mechanism must have malfunctioned so that the doors were not in fact locked when the offenders entered the premises. She gave evidence that she had experienced similar problems in the months preceding the robbery and had reported those problems to the defendant and to her superiors. A former manager of the service station confirmed that there had been problems with the operation of the doors when he was in charge.

The employer argued that any problems with the door mechanism had been rectified and that the doors were operating without malfunction on the day in question. It relied in particular on closed circuit video footage which appeared to show the doors opening and closing as the Plaintiff walked past them and to show the Plaintiff using the remote control after the offenders had exited the store.

The Plaintiff acknowledged that she had been provided when she commenced employment with a "Service Station Security Manual" which inter alia provided advice on procedures for remote door locking and what to do in case of a robbery. She claimed however that at the time of the robbery she had not completed a training module on armed robberies because she had been rostered to work when it was offered and it had not been rescheduled by the date of the robbery.

The Defendant argued that the lack of lighting and/or effect of reflection on shop glass did not impact upon the Plaintiff's inability to observe the offenders from entering the shop because she was in fact serving W at the relevant time and would not have observed the offenders any earlier in any event.

Decision

District Court Judge Tutt accepted that at the time the offenders entered the shop premises the doors were not locked. His Honour found that it was impossible to determine whether the offenders entered the premises because of the Plaintiff's failure to lock them or because of a defective locking mechanism on the remote control, and said that it did not matter anyway. He accepted that if the Plaintiff failed to lock the doors then such failure was no more than inadvertence or inattention to perform her duties and was not a deliberate failure on her part to follow her employer's instructions in relation to security.

Tutt DCJ pointed out that it was common knowledge that such premises are high risk venues and become soft targets for such offences particularly when there is only one operator on duty. He accordingly found that:

"the employer breached its duty of care to provide a safe place of work; safe system of work and to ensure the health and safety at work of the plaintiff in that when it required the plaintiff to work alone in the shop premises at night it should have provided her with the assistance of a security guard to police and/or secure the premises during the night shift at which time there was a foreseeable risk of injury to the plaintiff from the type of occurrence which in fact occurred on 27 October 1998 at approximately 8:00 pm."

Considerations for Employers

An employer's duty of care owed to an employee is well established. It has been summarised as a duty "… to take reasonable care to avoid exposing the employee to unnecessary risk of injury." Hamilton v Nuroof (WA) Pty Ltd [1956] 96 CLR 18 at 25. Further, the oft quoted passage in McLean v Tedman & Anor (1984) 58 ALJR 541 at 544 was referred to in this decision, "An employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system."

Tutt DCJ's decision is a reminder for employers that they must do more than just provide a safe system of work. Employers must also "prescribe, warn, command and enforce obedience" to their commands as was said in the decision of McLean v Tedman & Anor. Employers who own premises that are high risk venues and likely to become soft targets for such offences must ensure they have appropriate security measures in place and provide a security person where necessary.

This decision should be contrasted with the New South Wales Court of Appeal decision in Coca-Cola Amatil (NSW) Pty Ltd v Pareezer, where a contractor to Coca-Cola was shot five times while refilling and collecting money from a soft drink vending machine. At trial, Justice Hulme found Coca-Cola had been negligent in requiring the contractor to collect money from a site which it knew posed an unreasonable risk of assault and robbery. Coca-Cola appealed the decision. On appeal, the contractor claimed there were a number of precautions that could have been taken including: providing training in armed robbery awareness; requiring a second person to accompany the driver; providing personal security alarms; and requiring a guard at the site of the vending machine to escort the filler. However, the NSW Court of Appeal unanimously held that the contractor failed to establish that any of the above precautions could have prevented his injury. Young CJ in Eq at paragraph 146 of this decision said:

"I appreciate that tort law merely requires the plaintiff to establish that the defendant's conduct is a cause of his injury. However, neither common sense nor any other rational process leads me to the view that the plaintiff has established that any reasonable precautions which the Coca Cola company might reasonably have taken to protect Mr Pareezer from armed robberies would have been likely to have prevented his injury."

The critical distinction is of course that in this case, contrary to the Coca Cola case, it should have been possible to lock the sliding glass doors so as to deny the offenders access to the console. Whether that would simply have caused them to hide their weapons and or not wear masks is debatable, particularly as one was apparently a prior customer.