Failure to protect staff from armed robberies found a breach of duty of care

An employer was found liable for the post-traumatic stress disorder suffered by one of its employees as a consequence of an armed robbery. The Court of Appeal (NSW) found that the employer had failed to take reasonable steps to deter armed robberies following similar earlier incidents.
Facts of the case
The employee was employed by the employer as a bar stewardess in its bowling clubhouse. She worked shifts of 4 ½ to 5 hours from 3 in the afternoon to early evening.
Two armed men robbed the clubhouse while she was on duty. She suffered post-traumatic stress disorder and had not worked since the robbery. The employee sued the employer in the District Court for breach of its duty of care as an employer. Her case was based on the employer's failure to take reasonable care to deter or prevent armed robberies at the clubhouse, particularly after an armed robbery only 19 days earlier. (There had been two earlier robberies at the clubhouse). The trial Judge awarded her $350,152.
The employer conceded that it owed a duty of care and that an armed robbery was reasonably foreseeable, but challenged the findings of breach of duty and causation.
The employer argued that even if there was an implicit finding of causation the trial Judge had failed to give adequate reasons and there should be a new trial. It also submitted that there was no evidence that anything the club could have done would have prevented the third robbery.


The court held that after the second robbery the club's duty to its employees was to take reasonable steps to protect them from being injured as a result of a further robbery.

There was no certainty that the employment of security guards would have prevented this robbery but the evidence established that security guards should have been employed to deter potential robbers and in particular those who had carried out the second robbery.

As nothing was done to upgrade security the club was in breach of that duty and the Judge's implicit finding on causation was open on the evidence.
On the night of the third robbery the club had been kept open until 9 pm when only three patrons were still present and the robbers waited until then. It is a reasonable inference that the robbery would not have occurred if the clubhouse had been closed at 7.30 or 8 pm when more patrons were present.

After the third robbery the club acted promptly by engaging security guards and closing the clubhouse earlier in the evening. These measures proved successful and the persons who had carried out the second and third robberies did not return and there was no further robbery for over two years. It was a reasonable inference that more probably than not these additional security measures would have been effective if they had been implemented after the second robbery.

There was no need to order a new trial for lack of reasons where no question of credibility arose and the evidence enabled the Court of Appeal to make the necessary findings.

The employer's appeal as dismissed with costs.
See: Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 400, Court of Appeal (NSW) (Handley, Sheller and Hodgson JJA) 12/12/02.