25 Jan 2017Imagine you are a bank customer caught up in a bank robbery. There you are minding your own business when a balaclava clad robber races into the bank waving a shotgun. He points the gun at you and threatens to shoot you unless the bank teller hands over money. A teller hands over money and crouches behind the desk.
You lie on the floor and plead with the robber to let you live. You tell him you have two kids at home. He doesn’t react and just demands more money.
Another bank teller, who is on her first day in the job, activates the security screens that thump up, leaving you high and dry on the outside with the robber.
The frustrated robber screams “I f…ing warned you”, fires the gun into the air and flees. You are left a shivering mess. You are diagnosed with post-traumatic stress disorder (PTSD) as a result of this terrifying experience.
Customer sues bank for damages for PTSD
All this happened to a Canberra man. It was an interesting case. The customer sued the bank for damages associated with PTSD. He claimed that the teller’s action in pressing the alarm that activated the security screens left him at the mercy of the robber, and that this act breached the bank’s duty of care.
The customer argued that the bank should have trained its tellers and staff always to obey a bank robber’s instructions, but in this case they didn’t. However, the customer lost the case, as the bank successfully argued that the teller didn’t hear the robber’s threat to shoot the customer, and the teller thought that the gun was pointed at her work colleague behind the counter.
Acting Justice Linda Ashley found that the teller acted in the belief that it was safe to activate the alarm and, as the bank had no control over an armed robber’s conduct, it was not liable for the customer’s PTSD.
Traumatised bank customer appeals unfavourable decision
The customer appealed. ACT Chief Justice Helen Murrell with Justices John Burns and John Gilmour heard the appeal. The case came down to a fine definition of law, and it didn’t go well for the poor customer.
The appeal judges found that the first judge had correctly ruled that there was no duty of care owed to the customer in this case, and even if there was a duty of care, it was not breached by the teller’s act of activating the security screens.
The judges said that the bank had no indirect control over the robber’s action through its control over its staff as to how they are trained to respond when confronted with an armed offender.
They also ruled that the bank does not have a special relationship with a customer who enters its premises that gives rise to a duty of care.
The court ordered the customer to pay the bank’s legal costs.
Criminal behaviour of a third party and the bank’s position
In NSW the concept of duty of care is set out in the Civil Liability Act 2002. The full text of the ACT decision can be read here: Roberts v Westpac Banking Corporation [2015] ACTSC 397 and the appeal can be read here: Gary Nigel Roberts v Westpac Banking Corporation [2016] ACTCA 68. It was a curious case that I hope does not set a precedent for the legal obligation for a duty of care.
The judges accepted the bank’s argument that the teller believed the shotgun was pointed at her work colleague and not at the customer, and that she acted to save her colleague.
The appeal judges stated:
That the risk of harm to a customer during the course of an attempted armed 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.
For more information, please see the articles below.
What is “duty of care” if you are injured?
Failure to meet duty of care to employees costs employer $120,000 for rolled ankle
Did the hospital owe a duty of care to the friend of a mentally ill patient? Which case won?
