A man who suffered post-traumatic stress disorder after being the victim of an armed hold up at a Westpac branch, and who was unsuccessful in his claim against the bank, has now been unsuccessful on appeal, with the Supreme Court of the Australian Capital Territory, Court of Appeal finding the bank owed no duty to customers to protect them from the actions of an armed robber.
On 1 February 2010, Mr Roberts attended the Westpac bank at Fyshwick to bank a cheque. As he approached the counter, he noticed something flick past his right side and he heard a male yelling behind him “Put the money in the bag. Put the money in the bag.” Mr Roberts was told by the offender to place his hands on the counter. The offender was armed with a gun and was wearing a black balaclava. Mr Roberts perceived that the gun was pointed at himself and not the teller and he was frightened of being shot. He lay on the ground and while he was on the ground, he heard the offender say, “I’ll shoot him. Put the money in the bag. Don’t press the button. I’ll kill him.” Mr Roberts believed that he was going to die. The offender threatened to kill Mr Roberts unless the teller placed the money in the bag. The bank teller activated the security shutters and the offender fired a shot and ran out of the bank.
Mr Roberts developed post-traumatic stress disorder as a result of the incident.
Mr Roberts commenced proceedings in the Supreme Court of the ACT against Westpac Banking Corporation (WBC) in negligence, also claimed damages. He alleged that the bank teller had activated the security screen when it was unsafe to do so in the situation and that WBC was negligent in failing to instruct staff how to respond during a bank robbery.
Her Honour Ashford AJ found that WBC had no control over the offender, and although WBC had a duty to ensure reasonable care was taken, they had no duty to control the actions of the offender, as the conduct of the offender was unpredictable. Her Honour found that there was no breach of duty of care owed by WBC to Mr Roberts. Ashford AJ found that WBC owed a duty to both its staff and customers but no duty to prevent criminal activities of a third party.
Mr Roberts appealed. He argued on appeal that the primary judge erred in finding that the bank teller did not hear the offender’s threat towards him. He also argued that the primary judge erred in finding that the WBC did not owe a duty to Mr Roberts to take reasonable care to avoid the foreseeable risk of injury associated with unpredictable conduct of a bank robber.
The court found that the primary judge was correct in finding that the WBC had no control of an offender coming onto its premises, and there was no breach of duty of care. The primary judge was entitled to accept the employee’s evidence that she did not “hear” the offender’s threat to shoot Mr Roberts if the security screens were activated. The primary judge was correct in finding that Mr Roberts established neither breach of duty nor causation. WBC did not have any indirect practical control over the offender by its control of its staff, as to how they must respond when confronted by an armed offender. WBC had no capacity to fulfil such a duty.
Accordingly, the court dismissed Mr Roberts’ appeal: Roberts v Westpac Banking Corporation  ACTCA 68.
This article was written by the Wolters Kluwer Torts Law editor and first appeared in the Australian Tort, Personal Injury, Health & Medical Law Tracker dated 1 February 2017.