Faucett v St George Bank Ltd

[2003] NSWCA 43

Reported Decision: (2003) Aust Tors Reports 81-699

Court of Appeal

CITATION:	FAUCETT v ST GEORGE BANK LTD [2003] NSWCA 43
HEARING DATE(S):	3 March 2003
JUDGMENT DATE:	11 April 2003
JUDGMENT OF:	Mason P at 1; Meagher JA at 2; Sheller JA at 3
DECISION:	1 Appeal allowed; 2 Set aside the verdict and judgment for the defendant; 3 In lieu thereof, verdict and judgment for the plaintiff in the amount of $104,305 to take effect from 5 October 2001; 4 The respondent to pay the costs of this appeal and of the hearing at first instance.
CATCHWORDS:	Negligence - Duty of Care - Bank - Duty to employee - System of delivery of cash - Security within bank - Level of protection required - Evidence - Expert opinion - Whether outside specialist knowledge - Ultimate issue
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	State of New South Wales v Seedsman (2000) NSWCA 119 Mannall v The State of New South Wales (2001) NSWCA 327 Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070 Maloney v Commissioner of Railways (1978) 52 ALJR 292 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Tame v New South Wales (2002) 76 ALJR 1348 Greenland v Chaplin (1850) 5 Ex 243; 155 ER 104 R v GK (2001) 53 NSWLR 317 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (Court's 'Allstate' Judgment No 33) (1996) 64 FCR 79 Naxakis v West General Hospital (1999) 197 CLR 269 O'Brien v Gillespie (1997) 41 NSWLR 549 Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640 H G v The Queen (1999) 197 CLR 414 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
PARTIES :	Peta Faucett - Appellant St George Bank Ltd - Respondent
FILE NUMBER(S):	CA 40316/02
COUNSEL:	J P Gormly SC/B G McManamey - Appellant CRR Hoeben SC/S Flannigan - Respondent
SOLICITORS:	Turner Freeman - Appellant P W Turk & Associates - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1252/00 (Parramatta)
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

CA 40316/02
DC 1252/00 (Parramatta)

MASON P
MEAGHER JA
SHELLER JA

FAUCETT v ST GEORGE BANK LIMITED

Following an armed robbery at the bank where she worked as a teller, the appellant suffered a severe psychological reaction that affected her everyday life and her capacity to obtain and retain employment. The bank had security screens but not anti-jump screens and, during the robbery, the robber had jumped over the counter where he had held a gun to the appellant's head. The bank had recently changed its system of cash delivery so that guards no longer escorted tellers to the strong room when they delivered money to the bank.

HELD (per Sheller JA, Mason P and Meagher JA agreeing):

1. That an employer bank owes a duty to take reasonable care of its employees and should reasonably expect that armed robberies in its premises may be attempted. The scope of the bank's duty extends to taking reasonable care to protect its employees when that happens as well as taking certain steps to minimise likely harm: Maloney v Commissioner of Railways (1978) 52 ALJR 292 cons; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 foll; Tame v New South Wales (2002) 76 ALJR 1348 foll.

2. That evidence of an expert security adviser that the defendant had failed in their duty to provide a safe system of work should not have been admitted: R v GK (2001) 53 NSWLR 317 cons; Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (Court's 'Allstate' Judgment No 33) (1996) 64 FCR 79 appr; Naxakis v West General Hospital (1999) 197 CLR 269 cited; O'Brien v Gillespie (1997) 41 NSWLR 549 cited; Idoport Pty Ltd v National Australia Bank Limited (2000) 50 NSWLR 640 cited. The opinions he expressed could not be described as being wholly or substantially based on specialised knowledge: HG v The Queen (1999) 197 CLR 414 foll.

3. That the respondent's duty to its employees did not extend to installing anti-jump screens but did require, at least, that they had the protection of a guard while in possession of the cash in the bags until they could be placed in the strong room or vault.

4. That the cause of the appellant's injury was a question of fact that must be determined by applying commonsense to the facts of the case: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 foll. The respondent's system of delivery of large sums of money in cash by placing the appellant in possession of it was an attractive target for an armed robber and materially contributed to her being attacked and injured as she was.

Legislation cited:
Evidence Act

1995

(2000) NSWCA 119

(2001) NSWCA 327

(1970) 92 WN (NSW) 1070

(1978) 52 ALJR 292

(2000) 205 CLR 254

(2002) 76 ALJR 1348

(1850) 5 Ex 243; 155 ER 104

(2001) 53 NSWLR 317

(1996) 64 FCR 79

(1999) 197 CLR 269

(1997) 41 NSWLR 549

(2000) 50 NSWLR 640

(1999) 197 CLR 414

(1991) 171 CLR 506

ORDERS

1. Appeal allowed;

2. Set aside the verdict and judgment for the defendant;

3. In lieu thereof, verdict and judgment for the plaintiff in the amount of $104,305 to take effect from 5 October 2001;

4. The respondent to pay the costs of this appeal and of the hearing at first instance.

**********

CA 40316/02
DC 1252/00 (Parramatta)

MASON P
MEAGHER JA
SHELLER JA

Friday, 11 April 2003

FAUCETT v ST GEORGE BANK LIMITED

Judgment

1 MASON P: I agree with Sheller JA.

2 MEAGHER JA: I agree with Sheller JA.

3 SHELLER JA:

Introduction

The appellant, Peta Faucett, sued the respondent, St George Bank Limited, to recover damages for injuries she claimed to have suffered as the result of an incident which took place at about 9.05 am on 3 June 1998. The appellant was carrying out her duties in the employment of the respondent at its bank premises at 166 Waldron Road, Chester Hill when an armed robbery occurred in the bank premises. During the robbery the appellant was threatened with a gun. She claimed that the incident and the injuries she suffered in consequence were caused by the respondent’s negligence.

4 His Honour Judge Delaney sitting at Parramatta heard the proceedings on 4 and 5 September 2001. On 5 October 2001 his Honour entered a verdict for the respondent and ordered the appellant to pay the respondent’s costs. From that decision the appellant now appeals to this Court.

Reasons for judgment in the District Court

5 The respondent’s utilisation of lax security methods was the gravamen of the appellant’s claim that the respondent was negligent. As a result the appellant said the bank was robbed and she was put at risk. The appellant was a teller at the bank. Judge Delaney found that on 3 June 1998 the Chester Hill branch was robbed while or shortly after Brambles Security had made a cash delivery to the bank. A robber threatened the appellant with a gun to her head. She was traumatised as a consequence. She claimed that since that time she had had severe psychological reactions. This not only affected her everyday social life but also interfered with her capacity to obtain and retain employment.

6 Judge Delaney accepted that the incident had significant and serious psychological and psychiatric consequences for the appellant in the form of a depression that disabled her. He also found it more likely than not that the effects of this incident led to her being dismissed from her employment.

7 The particulars of negligence included failing to install counter-to-ceiling Perspex security screens, failing to provide a security guard for the premises and failing to heed the warning created by robberies of other financial institutions in the Chester Hill area. The appellant alleged that the security devices installed were inadequate and that the system for delivery of cash to the bank involved bags of money in cash being delivered in full view of the public to an unprotected place behind the counter and security personnel leaving the premises before the cash was secured. It was common ground that the system of delivery of money to the bank was one agreed upon by the security company and the “unions”.

8 The appellant, who was born on 1 March 1964, left school at the age of 15 in 1979. After leaving school she had various forms of employment. She first married in 1986. She re-married in 1989 and for a time owned and operated a newsagency. On 17 May 1990 her first child was born. She was diagnosed with stage 3 cervical cancer and post-natal depression and referred to a psychiatrist for therapy. She was prescribed anti-depressant medication. She continued to be employed until her second child was born on 21 October 1992. She again suffered from post-natal depression and was prescribed an anti-depressant. She began work with the Advance Bank in June 1997. In February 1998, following the respondent’s acquisition of the Advance Bank, the appellant’s employment was transferred to the respondent.

9 The appellant gave evidence that when the branch was owned and run by Advance Bank the money in cash was delivered by Armaguard. Guards would escort the tellers with the cash into the vault and would remain until the money was locked into the vault and the vault was closed. They would then go out and get the next bag and the operation would be repeated until all the cash was delivered in the vault. After the branch was taken over by the respondent in early 1998 the system was changed. The guards from Brambles, which replaced Armaguard, handed the bags of money to the first available teller by passing it over the counter. On a couple of occasions when the new system first started the appellant said, presumably to a Brambles guard or guards, “can you take it up to the vault with us?” and they said “no, it’s not part of the job”.

10 On 3 June 1998 Brambles delivered three bags of money. The appellant gave the following account of what happened.

“… I was booting the Advance Bank system up, so I come in a bit early and I got a coffee and I went downstairs, and tried to bring the computer up, and the system crashed and one of the St George girls said ‘Brambles is here’, it was 5 to 9. So she went and let them in, and I was on the phone, and the girl next to me was counting her money into her drawer, mine was already in, counted and done, so I was on the phone to head office to get them to help me bring the system up, and Brambles handed one bag over, so I took that and put it down on the floor, and they went out again and got another bag. And they did it a second time, and I put that on the floor, and then the third time the bank was open, 9 o’clock, and all the customers were coming in, and Brambles came in, and they gave me another bag, and I was still trying to get the system up. So they left and the money was on the floor in between my legs, and then everyone sort of started serving, and the system was still down, and we were still on hold.
Then the girl next to me screamed and I’ve looked down at the end where she was looking, and there was a man up on the counter. So I just automatic – I dropped the phone and hit all the buttons, I didn’t know if it was camera or pop ups, and the screens went up. We couldn’t hear any – we didn’t know if he was on our side or their side, because it was an L-shaped branch, and we couldn’t see, we were cut off. And then he came around with one of the girls, Gail, and the gun and balaclava and started screaming ‘Which one of you bitches set the screens off?’ and it was just mad panic.
The girl that was next to me on my right had fainted, and the girl on my left was tapping me on the shoulder, saying ‘Don’t tell him it was you, don’t tell him it was you’. Then he told us to get on the floor, and we were on the floor pushed up against the wall, then he started screaming, ‘Get up, get up, get up’, but we didn’t know who he was talking to. So I turned my head and he had the gun at my head and he was telling me to get up. And when I stood up, he just started waving the gun around and saying ‘Put them in this bag’, and he just dropped this gigantic bag out from – I don’t know where it came from, out of his jacket, out of his hand, and I put the money into the big bag. Then he told me ‘Get back on the floor’, and then it went quiet, but we didn’t hear any doors or anything, so I didn’t know if he was still in the bank. And the phone rang and I was under the impression that once the pop up screens went up, it was like a back to back security, but it wasn’t, it was just a customer asking for a balance on an account. I hung up from her and realised I had the phone with me, so I dialled 000 and rang the police.”

11 It became apparent to the appellant that the robber had escaped up the back stairs and out the back door of the branch.

12 From February 1999 the appellant consulted Dr Ben Teoh, a psychiatrist, at Parramatta. Judge Delaney said that when Dr Teoh saw the appellant he thought her in an agitated state. She was tearful, restless, and had a depressive effect. However, Dr Teoh found that she was reactive during the interview and that her cognitive functions were intact. He prescribed anti-depressant medication. Her progress was slow. There was a marked fluctuation of mood. The appellant told the trial Judge that she became irritable at work and lost her temper and assaulted another colleague. Because of this behaviour she was eventually dismissed. Dr Teoh thought the appellant was suffering from a major depression. He said:

“Although she has a pre-existing history of depression, it is my opinion that the robbery has substantially contributed to the precipitation of her depression and the perpetuation of her condition over the last few months. She remains anxious and depressed. Attempts were made to return her to work through a rehabilitation program. Despite working a few days a week, she found it difficult to deal with the situation at work. Unfortunately, she became more irritable and following an argument at work, she lost her temper. She has been dismissed as a result of her behaviour – she was accused of attacking a colleague. I feel that this behaviour is related to her irritability as a result of the robbery. I do not think that Mrs Faucett is exaggerating her symptoms or making any attempt to perpetuate her condition. She comes across as being genuine and reliable in her complaints and expression of her distress.

13 In another report of 26 April 2001 Dr Teoh said that the appellant had suffered considerable psychological distress with severe depression after the robbery and that her family had to suffer disruption and emotional distress as a result of her condition. She had gradually improved to the point where he thought that she was nearly in complete remission of her depressive symptoms, although she remained fragile. Judge Delaney accepted this opinion.

14 Judge Delaney held that the appellant’s claim was one permissible in accordance with what this Court has said about an employer’s liability for an employee’s injury in the form of mental illness in State of New South Wales v Seedsman (2000) NSWCA 119 and Mannall v The State of New South Wales (2001) NSWCA 327. He thought there was no doubt that the respondent had a non-delegable duty to institute, maintain and enforce a safe system of work to avoid the foreseeable risk of injury. Chomentowski v Red Garter Restaurant Pty Limited (1970) 92 WN (NSW) 1070 was referred to. In that case, the Court said that, even though the risk of assault could not be eliminated altogether, it was within the duty of the defendant in that case to take any steps that were reasonably available to reduce it. When such steps were not taken there was a causal connection between that failure and the injury suffered. A proposition that the actions of a third party were a novus actus interveniens was rejected (1075, 1083 and 1086). If a risk is reasonably foreseeable, immunity in the past holds no promise of immunity from foreseeable risk in the future; 1073.

15 The appellant relied on the evidence of Mr Jennings, a licensed security consultant. Mr Jennings prepared a report dated 11 April 2001. Under the heading “Trends in Recorded Crime”, Mr Jennings quoted published data said to show trends in robbery classifications over the calendar years 1995 to 1999. In 4.2, part of this data was described as “Total Armed Robberies” and based on it Mr Jennings expressed the opinion that clearly there had been over a given period a significant increased in armed robberies in New South Wales. Further, he said that the Bankstown local area, which included Chester Hill, had the seventh highest robbery rate of the 197 areas examined. “Chester Hill branch was in 1998 … in a very high risk area indeed for robberies”.

16 Under the heading “Opinion”, Mr Jennings said, amongst other things:

“10.1 The Defendant was, in my opinion, failing in their duty to provide a safe system of work when they permitted a publicly observable cash delivery system to be instituted, which had large cash deposits from armoured cars deposited on the teller’s counter. This place of deposit is at the extreme opposite end of the bank to the strong room where that cash has to be secured placed an enormous additional risk upon the tellers at that end of the counter. The deposits increased the personal injury risk factors upon this Plaintiff and any other staff so designated, to a level wholly incompatible to reasonably acceptable security and safety system, by 1998 standards.
10.2 Failing to provide a security system that was commensurate to the obvious risks of robbery in such a high risk area, in that providing a pop-up screen without the provision of anti-jump screens, is an open invitation for criminals to jump the counter before the screen is activated. If they could do so, as a great many did in the 90’s, then the effect was having a very dangerous armed person effectively sealed behind the pop-up screen with the staff. Even though the offender could still escape via the staff door, this theoretically gave the offender a ‘closed target’ where all staff were under his control, the psychological effect of which upon those staff, is far greater than if the staff can at least see the public area and what is happening out there. In such a high risk area a full length fixed screen (in addition to the pop-up screen), was absolutely essential to achieve any reasonably acceptable level of security for the staff.”

After the hold up, anti-jump screens were fitted to the respondent’s Chester Hill branch.

17 Mr Jennings was cross-examined about an earlier report of 17 March 1999 that he had prepared for the respondent and evidence he had given in the case of Nosti v St George Bank Limited.

18 In that earlier report Mr Jennings had said:

“8e These ‘anti-jump’ screens are the most obtrusive piece of security equipment in common use at banks, as it is seen as a screening of the communications across the counter and removes any aura of friendly services that the bank may be promoting, in its public relations/marketing programmes. Its sole use in a security context is to prevent offenders from vaulting the counter into the teller area and as such has a very important role to play in bank security. However, it is a measure which is commonly only recommended where the full threat assessment has indicated a level of risk which demands such precautions.”

19 Judge Delaney accepted the respondent’s counsel’s submission that Mr Jennings had not established that anti-jump screens were required for the respondent’s Chester Hill branch before the robbery on 3 June 1998. His Honour said that cross-examination demonstrated that Mr Jennings had inappropriately used statistics to come to this conclusion. When asked about the basis on which he compiled his data, his reliance on trends of recorded crime in data outlined in para 4.2 of his report was held to be erroneous. He had included figures for all robberies and did not confine himself to the specifically relevant category of robbery with firearms. The breakdown figures for Bankstown were not included. Shown up-to-date figures that indicated a decrease in certain categories, Mr Jennings had to concede, so his Honour said, that he had not accurately and adequately explained his reasons for his conclusions. The trial Judge found that Mr Jennings’s assertion in para 4.4 of his report that it was quite reasonable to assume that by any assessment that the area of the respondent’s Chester Hill branch was in 1998, as then, in a very high-risk area indeed for robberies was unsupported. His Honour rejected the contention that on any analysis of his evidence the subject branch was in a high-risk area. According to the trial Judge much of Mr Jennings’s expert evidence was unsubstantiated.

20 Judge Delaney said that the documentation tendered showed that the delivery of money to the branch was not within the control of the respondent. It was the subject of an agreement between the Reserve Bank and Brambles. The system of work was imposed upon the respondent.

21 Judge Delaney accepted the appellant’s evidence that it was the action of the robber with the firearm that caused her to be particularly distressed and concerned. It was the gun and the threat of immediate death that was the theme in her nightmares. The respondent’s counsel submitted that the installation of anti-jump screens would not have altered the outcome of the robbery. According to the trial Judge the real question in the case was whether or not it was reasonable in the circumstances to provide anti-jump screens and the additional security Mr Jennings suggested when anti-robbery measures existed. His Honour observed that to say in those circumstances that these measures were inappropriate or insufficient was all very well with hindsight. His Honour found that in all the circumstances it was not “appropriate” for the screens to be installed, although they were available. It was not required that the respondent should install them. Judge Delaney concluded there was no breach by the respondent of its duty of care. The respondent was not, in all the circumstances, required to undertake the additional course of action suggested by the appellant.

22 In case he was wrong the trial Judge assessed damages as follows:

Non-economic loss, 30% of a most extreme case $68,505

Past economic loss to the date of trial
as a loss of opportunity $10,000

For the future $25,000

Past medical treatment $800

Total $104,305

Appellant’s submissions

23 At trial the appellant contended that the respondent was in breach of its duty of care in two respects. The first arose from the system by which the bags of money were delivered to a teller in the public area of the bank. The appellant contended that if the monies had been delivered to the vault there would have been a decreased likelihood that a robbery would have occurred. The appellant submitted that his Honour’s conclusion that the delivery of the money was not within the control of the respondent was not supported by the evidence and was in fact contrary to the evidence before him. Section 4.1.4 of the document issued by the Reserve Bank of Australia and called “Centralised Cash System Facilities for Banks”, the only evidence of any arrangement between the respondent and the Reserve Bank, provided that cash would be handed over to two tellers, one of whom was the authorised officer to sign for it. The document did not stipulate the place within the bank where the money was to be handed over. Mark Hunt, the Executive Manager Security and Investigation of the respondent, conceded that the respondent determined where within the bank the handover of the money occurred and that it would be a simple matter for the respondent to require the handover to take place within the vault as had previously been the case when Armaguard was responsible for the delivery of money. As the result of this erroneous finding of fact, Judge Delaney did not determine whether the system adopted for delivery of money constituted a relevant breach of the respondent’s duty of care to the appellant.

24 Mr Jennings gave an opinion (para 10.1 of his report) that the system of handing over cash delivery was incompatible with reasonable acceptable security and safety systems by 1998 standards. For reasons that will appear, this evidence was inadmissible and of no weight though not challenged in cross-examination. No evidence was called to the contrary. In any event the appellant submitted that it was commonsense that the placement of large sums of money in an unsecured area by means that were clearly visible to the public was likely to tempt any would-be robber and thereby increase the prospect of a hold-up occurring. It was no co-incidence that the robbery occurred in the time and manner that it did. On this basis alone, it was said there should have been a verdict for the appellant.

25 As to the second respect in which the appellant alleged negligence, her case was based upon the absence of anti-jump screens. The appellant acknowledged Mr Jennings’s concession that the armed robbery figures in para 4.2 of his report were in fact the figures for all robberies. Also the comparative statistics for other areas were based on total robberies. This was explained by the necessity to do the comparison by reference to total robberies as the figures for armed robberies alone were not available.

26 According to the appellant the figures that were available for armed robberies in the Bankstown area showed that robberies with a firearm for 1995 and 1996 had totalled 39 and 38 respectively. In 1997, the year immediately before the hold up, that number had increased to 76, a 100 per cent increase on the previous year. It was submitted that if the respondent had carried out a proper risk assessment in the months immediately before the hold up one of the things it would have had to consider was that the Chester Hill branch was located in an area in which armed robberies were increasing dramatically. It was commonsense that consideration of that alone would have demanded the installation of higher security measures to protect staff. Those measures would have included anti-jump screens. It was also pointed out that the respondent had taken over the bank only in early 1998 and should have carried out a risk assessment at that time. It was not suggested that the figures quoted by Mr Jennings for all robberies were incorrect. When that data was considered together with the figure showing a rapid increase in armed robberies in the Bankstown area it was clear that Judge Delaney’s conclusion that Mr Jennings’s assertion at para 4.4 of the report was unsupported by examination of the relevant data was incorrect.

27 In any event, Mr Jennings’s conclusion was that the Chester Hill branch was in 1998 a very high-risk area indeed for robberies. This was based on the data for total robberies and not the more limited category of armed robberies. Mr Jennings did not express an opinion limited by relying on the armed robbery figures.

28 Quite separately the trial Judge was required to consider whether the respondent was in breach of its duty of care in failing to install anti-jump screens. It was submitted that Judge Delaney failed to consider whether the risk of injury was foreseeable. The risk of a hold up including the possibility of an armed robber jumping the counter was something that was foreseeable. Its foreseeability was recognised by the respondent in its installation of pop up screens. The trial Judge, it was said, did not make any analysis of the data involving robberies in the area. He did not consider the fact that anti-jump screens were subsequently installed presumably after an appropriate risk assessment. Although the respondent called Mr Hunt, no attempt was made to suggest that there had been any change of circumstances that had caused a change in risk assessment. Nor was any suggestion made of any form of risk assessment being carried out before June 1998. Mr Hunt conceded that the installation of anti-jump screens would have acted as a deterrent and reduced the risk to those inside. There was no physical impediment to their installation or any suggestion that they involved a prohibitive cost.

29 In the circumstances Judge Delaney should have considered each of these matters to determine whether there had been a relevant breach of its duty of care. If they had been properly considered it was submitted that the trial Judge would have concluded there was such a breach and the appellant was entitled to a verdict.

Written submissions ordered at trial

30 When the evidence finished, the trial Judge ordered the parties to provide written submissions. Both parties were to provide them by 14 September 2001. The Judge specifically ruled out a process by which one party filed written submissions and the other party had an opportunity to respond. No order was made for service. By making such orders it was said that the appellant was denied the opportunity available during oral submissions to hear the defendant’s case and to be able to respond to any matters that took the appellant by surprise. In the respondent’s written submissions the assertion was made that Mr Jennings’s conclusions were inconsistent with the recorded crime data. Because of the trial Judge’s order the appellant was denied the opportunity of showing that the respondent’s submissions were inconsistent with the evidence. It was submitted that the impact of this error was shown by the fact that the trial Judge adopted the respondent’s submissions. On any proper examination of the evidence, his Honour should have concluded that there had been a relevant breach of duty of care by the respondent.

31 During the hearing of the appeal the appellant emphasised that neither party was ordered to serve its written submissions on the other. The appellant took no steps to obtain the respondent’s submissions and was unaware of what they contained until after Judge Delaney gave judgment. It is unusual if written submissions are ordered for the parties not, of their own volition, to exchange them. Certainly it is unusual for a party not to approach the solicitors and ask for the other party’s submissions to be made available. While it is better practice that a judge formally order that the submissions not only be filed but exchanged by a particular date, I am not impressed by the argument of unfairness by a party who did not complain when not served with the other’s submissions but does complain after judgment is given. As will be seen, nothing in this appeal turns upon the fact that the written submissions were not exchanged.

32 The appellant claimed that a verdict should be entered for it in the amount of damages assessed by the trial Judge.

Respondent’s submissions

33 The respondent accepted the appellant’s assertion that the agreement dealing with the procedure for the handover of money by Brambles to the respondent did not provide for the location within the bank where the money was to be handed over.

34 The respondent submitted that the appellant had not established that the respondent could have altered the delivery of money. Her evidence was that the delivery could occur at any time of the day and that requests to have delivery of money put into the vault were refused as being “not part of the job” of Brambles.

35 The appellant relied upon Mr Jennings’s report to establish that the installation of anti-jump screens in June 1998 was a reasonable step for the respondent to have undertaken in the Chester Hill branch. The respondent relied upon the earlier report in the proceedings of Nosti v St George Bank Limited particularly where Mr Jennings said anti-jump screens were only fitted “where a threat assessment shows a level of risk which necessitates them”.

36 The trial Judge accepted that Mr Jennings had not established that anti-jump screens were required in the respondent’s Chester Hill branch before the robbery of 3 June 1998. The branch was equipped with a multitude of security devices appropriate to its level of risk. Mr Jennings failed to establish that the installation of anti-jump screens was a reasonable step for the following reasons:

(a) He did not conduct a full threat assessment (required in order to establish the security measures to be implemented) in his report.

(b) He did not provide acceptable evidence that the subject branch attracted a high level of risk that would necessitate a higher level of security than that already provided.

(c) His reliance on trends and recorded crime data was erroneous. It included figures for all robberies and did not confine itself to the specific relevant category of “robbery with a firearm”. The break down for figures was not included. It was apparent from such break downs that rather than indicating an increase of 88.6 per cent there was a decrease in instances of robbery with a firearm. Consequently his assertion at para 4.4 of his report that “from this data it is quite reasonable to assume that by any assessment the area of the respondent’s Chester Hill branch was in 1998 as now in a very high risk area indeed for a robbery” was unsupported by an examination of the relevant evidence. His speculation was unsubstantiated by corroborative evidence. It was submitted that the appellant’s reliance upon this evidence resulted in her failure to establish that the installation of anti-jump screens was a step reasonably required by the location of the Chester Hill branch in an area where the level of risk warranted such a step.

37 As to the provision of written submissions, the respondent pointed out that no objections were raised to his Honour about what was proposed.

Conclusion

38 To recover against the respondent for negligence, the appellant needed to demonstrate that the respondent owed her a duty of care and that the respondent’s breach of that duty of care caused the injury the appellant complained of.

39 The respondent accepted that as the appellant’s employer it owed the appellant a duty of care. It is necessary to determine the scope of that duty. The respondent’s duty was to take reasonable care. In Maloney v Commissioner of Railways (1978) 52 ALJR 292 Barwick CJ said:

“It is easy to overlook the all important emphasis upon the word ‘reasonable’ in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect.”

40 In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, a case about the responsibility of a shopping centre owner for injury to the employee of a tenant as the result of an attack in a car park on the tenant at night while walking to his car, Hayne J said at 292 [110]:

“Some emphasis was given in oral argument to the proposition that an employer may owe an employee a duty to take reasonable care to prevent the employee being robbed. If that is so, however, it is because the employer can prevent the employee going in harm’s way; compare Chomentowski v Red Garter Restaurant Pty Ltd . The employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken Kondis v State Transport Authority (1984) 154 CLR 672.”

41 Reasonable foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty, or remoteness of damage; see per Gleeson CJ in Tame v New South Wales (2002) 76 ALJR 1348 at 1352 [12]. The Chief Justice referred to what Pollock CB said in Greenland v Chaplin (1850) 5 Ex 243 at 248; 155 ER 104 at 106. A person “is not … expected to anticipate and guard against that which no reasonable man would expect to occur.”

42 I have no difficulty in concluding that an employer bank owes a duty to take reasonable care of its employees and should reasonably expect, unfortunately, that armed bank robberies in its premises may, from time to time, be attempted. The scope of the bank’s duty extends to taking reasonable care to protect its employees when that happens. The respondent’s business of banking in its Chester Hill branch involved the free entry and egress from the bank chamber of members of the public during business hours and across the counter service to members of the public.

43 In Tame at 1364 McHugh J said that many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability. But courts have exacerbated the impact of this weakening of the foreseeability standard by treating foreseeability and preventability as independent elements. Courts tend to ask whether the risk of damage was reasonably foreseeable and, if so, whether it was reasonably preventable. His Honour pointed out that, if this is done in applying what Mason J said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48:

“An affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. …
Once these two questions are answered favourably to the plaintiff, there is a slide – virtually automatic – into a finding of negligence.” (at 1365 [99])

44 The ultimate issue remains of what, in the circumstances of the relationship of employer and employee between the respondent and the appellant, the respondent’s duty of care to the appellant required it to do. In this case did the respondent’s failure to reduce the risk of injury in an armed robbery show a want of reasonable care for the safety of the appellant?

Non-installation of jump screens

45 The difficulty with the appellant’s case stemmed from its reliance upon the evidence of Mr Jennings. As a security adviser Mr Jennings was competent to advise a bank upon ways of securing a bank branch and its contents. He could no doubt advise from his experience upon the protection provided by particular security devices. He could advise upon the capacity of the counter-to-ceiling screens to prevent robbers vaulting the counters, even though that might be thought to be a matter of common sense. There may be other relevant matters that he could give evidence about though he did not in the present case. One would be the cost of installing the screens and the disadvantages, if any, in terms of convenience, safety, and customer relations of doing so. His evidence on such matters should be taken into account when the Court considers whether the respondent provided a safe system of work and took reasonable care for the appellant. But Mr Jennings cannot assume the task of the Court by opining upon whether what was done was less than that required to satisfy the test of what is reasonable care for the respondent’s employees and in particular the appellant.

46 This distinction can be illustrated by a simple example. If there was stored in a building a priceless work of art coveted by determined and dishonest people throughout the world, no doubt even more elaborate security arrangements than those suggested here could be provided. Their installation would make access to the place of storage far more difficult and therefore the chances of unlawful intrusion lower. But the respondent was conducting a banking business and Mr Jennings’s evidence in Nosti v St George Bank Limited was that the relationship between the respondent and its customers can be affected by the installation of counter-to-ceiling screens.

47 The appellant called no evidence about the practice or experience of banks in installing counter-to-ceiling screens and whether their installation, when weighed against their cost and inconvenience, could be regarded as something essential or necessary for the safety of the bank’s employees. Mr Hunt gave evidence but was not cross-examined about this.

48 Mr Jennings should not have been asked nor permitted to give evidence such as that set out in paras 10.1 and 10.2 which I have quoted. It was not part of the function of this expert to state as his opinion that the respondent failed in its duty to provide a safe system of work or to provide a security system which was commensurate to the obvious risks of robbery. Section 80 of the Evidence Act 1995 provides relevantly that evidence of an opinion is not inadmissible only because it is about (a) a fact in issue or an ultimate issue. But as Mason P pointed out in R v GK (2001) 53 NSWLR 317 at 326-7, “judges should exercise particular scrutiny when experts move close to the ultimate issue, lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions.” In Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (Court’s ‘Allstate’ Judgment No 33) (1996) 64 FCR 79 at 83 Lindgren J said:

“I find it convenient at the outset to state some principles of the general law against which, in my view, the effect of par 80(a) is to be determined. It is fundamental that the ascertainment of the law relevant to a matter before a court and its proper application to the facts of the particular case are of the essence of the judicial function and duty. Although those processes are properly the subject of submission, evidence of opinion, whether as to the identification of the relevant law or as to its proper application, is not admissible. The rationale underlying this fundamental principle may be expressed in various closely related ways: to admit such evidence would be to permit abdication of the judicial duty and usurpation of the judicial function; such evidence cannot be allowed to be probative or to rise higher than a submission; such evidence is necessarily irrelevant.”

With his Honour’s statement I entirely agree; see also Naxakis v West General Hospital (1999) 197 CLR 269 at 306 [110] note 137; Cross on Evidence , Australian edition 29105; Odgers Uniform Evidence Law 1.3.4460; O’Brien v Gillespie (1997) 41 NSWLR 549 at 557; Idoport Pty Ltd v National Australia Bank Limited (2000) 50 NSWLR 640 at 655 [39].

49 That apart, the Evidence Act by s79 treats opinions based on specialised knowledge as an exception to the opinion rule. Its admission is conditioned upon the person having specialised knowledge based on the person’s training, study, or experience and giving evidence of an opinion that is wholly or substantially based on that knowledge. So far as appears, Mr Jennings’s specialised knowledge was that of a security adviser. The opinions he expressed in paras 10.1 and 10.2 could not be described as wholly or substantially based on that specialised knowledge: HG v The Queen (1999) 197 CLR 414 at 427 [38].

50 It was well open on the evidence, or the lack of it, and in my opinion correct for the trial Judge to reject the submission that the respondent was in breach of its duty of care to the appellant by not installing anti-jump screens.

Method of delivery of money

51 The method of delivering the money in cash as the appellant described it was obviously one putting the appellant at considerable risk. Anyone who is known to be carrying sums of money in cash in public is vulnerable to robbery, particularly if they have no visible protection. Banks are vulnerable to armed robbery. The movement into a bank branch of cash in bags presents an attractive temptation for any armed criminal. The system in place on 3 June 1998 involved a guard from an identified security company bringing three bags of cash into the branch premises, one at a time. It seems to be generally accepted that the amount of cash in the three bags was about $500,000. It was certainly a considerable amount. These bags were placed by the guard on the counter. By the time the third bag was being brought in the branch was open to the public. The bag was placed on the counter in full view of any member of the public who happened to be in the bank chamber. The bag was then lifted by the teller, in this case the appellant, onto the floor. It was agreed that a better system for moving the cash into the vault in the presence of a guard had previously been used and was available. In these circumstances to place the appellant in the situation of having in her possession bags containing a very large amount of money in cash and to leave her unprotected in that position, was very obviously a breach of the duty of care that the respondent, as employer, owed her as its employee. Reasonable care for her safety would have required, at least, that she had the protection of the guard while she had the care of the cash in the bags until such time as it could be placed in the strong room or vault. In my opinion, the evidence of the system for delivering the cash to the bank which led to its being in the unguarded and unprotected custody of the appellant and which resulted in her being held at gun point by a robber involved breach of the respondent’s duty of care and negligence. In coming to a different conclusion Judge Delaney was diverted by his finding, which was erroneous, that the place and method of delivery was outside the respondent’s control.

52 The cause of the appellant’s injury is a question of fact which “must be determined by applying commonsense to the facts” of this case; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 particularly at 515-7. The respondent’s system of having large sums of money delivered in cash by placing the appellant in possession of it was an attractive target for an armed robber and materially contributed to her being attacked and injured as she was.

53 Accordingly, in my opinion, there should have been a verdict for the appellant in the amount of the damages assessed by the trial Judge, which have not been challenged.

Order

54 I propose the following orders:

1. Appeal allowed;

2. Set aside the verdict and judgment for the defendant;

3. In lieu thereof, verdict and judgment for the plaintiff in the amount of $104,305 to take effect from 5 October 2001;

4. The respondent to pay the costs of this appeal and of the hearing at first instance.

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Last Modified: 04/15/2003