In this case the worst fear of any bank customer was realised – being caught up in a bank robbery.
The customer developed post-traumatic stress disorder and sued Westpac for allegedly breaching a duty to take reasonable care to protect him against a foreseeable risk of harm posed by the criminal behaviour of an armed robber on the bank’s premises.
In February 2010 Gary Roberts was banking a cheque at Westpac in Fyshwick, ACT. He filled in a deposit slip and went to the counter, then heard a male behind him say:
“Put the money in the bag! Put the money in the bag!”
Initially he thought this was a joke, but then realised it was a robbery.
Gary turned his head and saw a tall man wearing a black balaclava, armed with a shotgun.
He perceived that the gun was pointed at him, rather than the teller.
As Gary got down on the ground he heard the offender say to the teller:
“I’ll fucking shoot him. Put the money in the bag. Don’t press the button. I’ll fucking kill him.”
Gary believed he was going to die, and said to the offender:
“Please don’t shoot me. I’ve got 2 kids.”
To the teller Gary said:
“Please give him the fucking money, please give him the fucking money.”
Gary then heard the security screen going up and the offender saying “I fucking warned you”, before firing a shot in the air and running out of the bank.
Gary thought he had been killed, but got up and ran after the offender to see where he was going.
Gary returned and remonstrated with the bank staff about who had pressed the button, and why that had happened when the offender had threatened to kill him.
The teller (Felicity Raeside) was a graduate local business banker on her first day of work at that branch.
Felicity said she had received training in October 2009 from the bank, during which she was told she could give in to the demands of a robber, and could press the security screen button if it seemed safe to do so.
Felicity thought the gun was mainly pointed at her colleague, who was handing over money to the offender. When her colleague crouched down beside her, out of sight of the offender, Felicity pressed the security button which activated the security screen.
Neither Felicity nor her colleague recalled any threats being made by the offender against Gary, although other bank staff did recall those threats.
After the incident Gary developed PTSD.
He claimed that he would not have PTSD if the bank’s staff had been trained to always (or at least, almost always) follow the instructions of a bank robber.
An auditory expert gave evidence of a well-known phenomenon called ‘auditory exclusion’ to explain why Felicity did not ‘hear’ the offender’s threats against Gary.
Did Westpac owe a duty of care to Gary?
Gary submitted that Westpac did owe him a duty of care because, amongst other things:
- he was vulnerable to harm, and especially so from Westpac’s intervening conduct, and he had no capacity to protect himself
- he had to rely totally on Westpac, even telling its staff to give the offender the money
- by intervening in the way it did, Westpac assumed a measure of responsibility for the resulting events
- proximity was established and in a very direct sense
- the relationship between Gary and Westpac, whilst that of occupier and lawful entrant, was also one of banker and customer
- Westpac’s business lured robbers to its premises as it involved the handling and dealing in potentially large sums of money, and was therefore of a nature that could reasonably be expected to expose its customers and staff to a risk of injury from offenders
- the nature or degree of the hazard or danger liable to be caused by Westpac’s activity as a banker, and by its conduct in intervening during a robbery was potentially grave
- Westpac had (or ought to have had) knowledge that its conduct would or could cause harm to the appellant
- obedience to the offender would have averted the harm to the appellant.
On appeal Justices Burns and Gilmour agreed with the trial judge that Westpac did not owe a duty of care to Gary:
- it is exceptional to find in law a duty to control another’s actions to prevent harm to strangers, particularly as such conduct is generally unpredictable and irrational
- the general rule is that in the absence of a special relationship (such as employer/ employee, school/ student), 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 harm is foreseeable
- in this case Gary did not assert that Westpac has the capacity to control the offender directly, but relied on Westpac’s capacity to control its employees and thereby to exert control over the offender
- however Westpac owed no duty of care to Gary, as Westpac had no ability to control the armed offender indirectly through its staff
- Westpac’s staff were bound to act in different and unpredictable ways to an armed offender, despite the training they had received
- whilst Gary (and other bank customers) were vulnerable to the risk of violent crime, Westpac had not assumed any responsibility to protect them from harm
- the relationship of banker and customer did not create a special relationship giving rise to a duty of care. Whilst an attempted armed robbery was foreseeable, it was not a daily incident of Westpac’s business, which was banking
- any duty to protect customers would conflict with the bank’s duty to protect its staff. Such conflicting duties were irreconcilable, and were a further reason for denying that any duty of care existed to customers.
Breach of duty
Even if a duty of care had been established, there was no evidence that Westpac had failed in its duty to train its employees about harm minimisation in the event of a bank robbery. The experts agreed that employees must have some discretion about whether to engage pop-up screens, and should not always follow an offender’s demands.
Further, even if a duty of care had been established, there was no evidence that had Felicity been ‘properly’ trained, she would have reacted differently, causing the offender to behave differently, thereby avoiding injury to Gary.
The decision is Gary Nigel Roberts v Westpac Banking Corporation  ACTCA 68.
Greg Carter is a freelance litigation lawyer based in Perth, specialising in fixed-fee commercial dispute resolution.
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