Plaintiffs seeking common law damages, and workers compensation insurers seeking recovery under s183(1) of the Workers Compensation Act 1951 (ACT), from a tortfeasor are all too well aware that they must first establish the tortfeasor was liable.
That proved to be an insurmountable hurdle in a recent decision of the ACT Supreme Court in Roberts v Westpac Banking Corporation  ACTSC 397.
The plaintiff, a customer of the bank, was standing at the counter of a Westpac branch in Canberra on 1 February 2010 waiting to deposit a cheque when, an armed robber approached him from behind and pointed a gun at him.
The evidence of a number of the witnesses was that the assailant yelled to a bank teller to put money in a bag and said that, if she activated the security screens, he would shoot the plaintiff.
However, other witnesses gave evidence that they either heard or assumed (rightly or wrongly) that the assailant had threatened to shoot one of them, not the customer. In any event, one of the tellers did in fact raise the security screens, the assailant discharged the gun and fled the scene.
The plaintiff, who was injured during the course of his employment, was entitled to workers compensation benefits. The evidence was that he believed he was going to die and, although physically unharmed, he was found to have suffered a post-traumatic stress disorder and major depressive disorder.
The plaintiff also brought proceedings against Westpac seeking damages at common law. He alleged the bank was liable on two grounds, vicariously for the actions of its employee in raising the security screen, and also in failing to provide appropriate training to its staff in the event of a robbery.
In its Defence, the bank tendered its Administration Manual setting out its procedure in the event of a hold-up, which provided that staff were to obey an offender’s instructions but the security screen could be activated if doing so did not endanger the safety of staff or others. The teller who had activated the security screen also gave evidence about what she understood were the bank’s protocols in such circumstances, and the court accepted that she had followed those protocols.
Acting Justice Ashford considered the scope of the duty of care the bank owed to its customers and whether the bank had breached that duty.
After a detailed analysis of the evidence, including opinions given by two security experts, Her Honour agreed with the bank’s submissions that the duty owed by the bank could only extend so far as it had control of its premises and those in the premises.
The bank had no control over the actions of the assailant, it had no knowledge or forewarning of his actions, and she found that the bank did not owe a duty to prevent harm from criminal activity by a third party, following the High Court authority of Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.
Her Honour went on to say that no guidelines or training could guarantee the safety of any person during the course of an armed robbery.
Although Her Honour did not assess the damages that would have been awarded to the plaintiff had he succeeded, it appears the judgment could have been very significant indeed.
The plaintiff had received significant incapacity benefits from the workers compensation insurer by the time of hearing, in addition to medical expenses totalling over $90,000.
Ashford AJ’s decision has not affected the plaintiff’s workers compensation entitlements, and he will continue to receive payments whilst he remains certified incapacitated for work and requires medical treatment.
Given the potential damages (and recovery) involved, and the costs associated with a 13 day hearing run some 5 years after the incident, the decision is not surprisingly under appeal to the ACT Court of Appeal.
The workers compensation insurer clearly has a vested interest in the plaintiff succeeding in his common law claim, as Her Honour’s decision presently extinguishes any right it has to recover payments made from the bank, and leaves it exposed to a significant ongoing liability to the plaintiff.
The extent to which a workers compensation insurer might become involved in common law proceedings brought by an injured worker against a tortfeasor will depend on the circumstances of each particular case and the potential recovery at stake. Much of the Roberts decision turned on the evidence of what occurred rather than expert opinion. In light of that, any assistance from the workers compensation insurer, beyond facilitating access to bank employee witnesses, may not have achieved a different outcome.
The workers compensation insurer will undoubtedly keep a close eye on the appeal.
This article was written by Sarah McJannett, Special Counsel and Richard Garnett, Partner.