Richardson v Tooradin District Sports Club Inc
[2025] VCC 459
•17 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-23-05679
| TARA LEE RICHARDSON | Plaintiff |
| v | |
| TOORADIN DISTRICT SPORTS CLUB INC | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13, 14, 17, 18, 19, 20 and 24 February 2025 | |
DATE OF JUDGMENT: | 17 April 2025 | |
CASE MAY BE CITED AS: | Richardson v Tooradin District Sports Club Inc | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 459 | |
REASONS FOR JUDGMENT
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Subject:TORTS – NEGLIGENCE
Catchwords: Breach of duty – adequacy of security measures – armed robbery at gaming venue
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Czatyrko v Edith Cowan University (2005) 214 ALR 349; Robinson v Each Ltd [2024] VSCA 313; Wyong Shire Council v Shirt (1980) 146 CLR 40; New South Wales v Fahy (2007) 32 CLR 486; Vairy v Wyong Shire Council (2005) 223 CLR 422; Rosenberg v Percival (2001) 205 CLR 434; Jones v Dunkel (1959) 101 CLR 298; East Metropolitan Health Service v Ellis [2020] WASCA 147; Cotton On Group Services Pty Ltd v Golowka [2022] VSCA 279; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Munday v St Vincent’s Hospital Pty Ltd [2021] VSCA 170
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W O’Neill SC with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Ms R L Kaye KC with Mr A J Macaskill | Hall & Wilcox |
Table of Contents
Introduction
Witnesses and evidence at the trial
Quantum evidence
LIABILITY
CCTV
The armed robbery
Credit
The Plaintiff
Rena Casey
Expert evidence
Plaintiff’s background
Examination-in-chief (T50-102)
Work with the Defendant
Training/induction
Movement of cash on the premises
The day of the armed robbery
Cross-examination (T102-208)
Expert evidence
Anthony Zalewski, security consultant
Evidence-in-chief (T242-283)
(a) The premises were sizeable and isolated
(b) There were substantial amounts of cash present
(c) There was no ongoing guardianship of the main entrance
(d) There were limitations with natural surveillance
(e) There were no internal barriers to negotiate
(f) There was an absence of protocols to ensure ongoing guardianship at the main entrance
Risk assessments
Cross-examination (T283-322)
Defendant’s evidence
Rena Casey
Evidence-in-chief (T549-580)
Cross-examination (T580-623)
Expert evidence
Peter Smith, Managing Director of Ulong Risk Management
Evidence-in-chief (T628-663)
Cross-examination (T663-693)
THE LAW
Causation
Foreseeable risk of injury
Breach – reasonableness of the proposed measures and Defendant’s response to the risk of harm
Allegations of negligence/breach of duty
Relocation of the reception desk
Natural surveillance
Barrier
Other issues
Cash handling
Risk assessment
The remaining allegations of negligence
Reception manned 100 per cent of the time
Plaintiff
Defendant
TRAINING – to keep a look out/not leave the desk unattended – not having duties that require the receptionist to focus on their computer screen
Plaintiff
Defendant
An ESL
Plaintiff
Defendant
Findings
Annexures
Annexure A – Screenshots taken from CCTV film footage at the premises (exhibit 3)
Annexure B – Screenshots taken from CCTV film footage of the armed robbery (exhibit D)
Annexure C – Plaintiff’s hand-drawn plan of the interior of the premises (exhibit A)
HER HONOUR:
Introduction
1Tara Lee Richardson (“the plaintiff”) is a thirty-nine-year-old former gaming cashier. In the course of her employment with Tooradin District Sports Club Inc (“the defendant”), she suffered psychiatric injuries which are the subject of this proceeding.
2On the morning of 7 February 2020, a robber, armed with a knife, entered the defendant’s premises and demanded money from the plaintiff, who was working at the cashier desk (“the armed robbery”).
3The plaintiff contends the armed robbery was caused by the defendant’s negligence – its failure to provide a safe place of work for her.
4While at the commencement of the trial there were essentially five allegations of negligence, ultimately there were three interwoven allegations – not having a fully manned receptionist desk 100 per cent of the time; that receptionist, with modified duties, trained to keep a watch and focus on security, and the provision of an electronic locking system (“ELS”) at the reception desk.[1]
[1]Transcript (“T”) 823
5The defendant denies negligence. An allegation of contributory negligence was withdrawn prior to the hearing.
6The plaintiff’s claim is for damages for pain and suffering and pecuniary loss and is governed by the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”)
Witnesses and evidence at the trial
7Liability evidence was given by the plaintiff and security expert, Dr Tony Zalewski.
8The defendant called two liability witnesses: Rena Casey, the defendant’s current HR manager and the plaintiff’s former co worker, and security expert, Peter Smith.
9Numerous documents were tendered by both parties including the CCTV film of the armed robbery and still photographs from that film, plans et cetera.[2]
[2]See Annexure A – still photographs taken from the CCTV film footage of the premises (exhibit 3); Annexure B – still photographs taken from the CCTV footage of the armed robbery (exhibit D); Annexure C – plaintiff’s hand-drawn plan of the interior of the premises (exhibit A)
10I have read all the tendered material.
Quantum evidence
11Evidence as to damages was given by the plaintiff and her husband, Craig Earle; the plaintiff’s general practitioner, Dr Kishantha; the plaintiff’s former treating psychologist, Peter Horton, and medico-legal psychiatrist, Dr Peter Lugg.
12The plaintiff also tendered reports from medico-legal psychiatrists, Dr King and Dr Prytula, who examined the plaintiff on the defendant’s behalf.
13The defendant called medico-legal psychiatrist, Dr Peter Doherty.
LIABILITY
14I propose to deal with liability evidence first.
CCTV
15There were a number of CCTV films taken on the day at the premises. In summary, the offender was shown approaching the premises via Stumblers Lane at 10:23:59. He was shown in the porch area at 10:10:24:03. At 10:24:06, he was inside the front door.
16By 10:24:14, the offender was at the bar window. He moved next door to the cashier desk at 10:24:17. At 10:24:26, he was shown leaving the premises.
17It is about 22 seconds from the time the offender enters the premises until he leaves.
The armed robbery
18The plaintiff and her then co worker, Rena Casey, witnessed the armed robbery.
19There were only a few minor factual matters in issue – including which staff member brought the money to the cashier desk, how Ms Casey came to be at the cashier desk at the time of the armed robbery, and whether or not the plaintiff had unbundled the notes in her float before the armed robbery. These were of little consequence and ultimately just a matter of context.[3] Otherwise there is no issue as to the circumstances of the armed robbery – some of which was captured on the CCTV at the premises.
[3]T715
Credit
The Plaintiff
20Most of the defendant’s attack on the plaintiff’s credit related to her evidence of her psychiatric condition pre and post the armed robbery and her health and activities in general thereafter. The defendant argued the plaintiff understated her level of psychiatric distress before the armed robbery and overplayed it thereafter, she was somewhat nonresponsive when faced with questions that really impacted her credit and attempted to bolster her case when she was caught out.
21In terms of liability evidence, there were inconsistencies in the plaintiff’s evidence and “things that were plainly wrong”, such her evidence of the absence of duress alarms and the presence of $100,000 on the premises. She was 100 per cent sure she had not counted out the bundle of notes before the robbery until confronted with her statement to the police. She was a very unreliable witness.
22The plaintiff ‘s case was the plaintiff was a compelling witness and the Court would have no trouble believing she was doing her best to tell the truth. In terms of credit, counsel focussed on the plaintiff’s evidence as to damages. There was a limited challenge in cross-examination on that issue, not suggesting she did not have the symptoms complained of. There were real issues of memory. While it was conceded there were obvious issues about her reliability at times, she was prepared to accept the accuracy of medical records put to her. She was very candid about her cannabis use.
23In my view, there were issues with the plaintiff’s credit in terms of her evidence as to the timing and nature of mental health issues before and after the armed robbery. She was inclined to understate the former and overstate the latter, although it is clear she has suffered a serious psychiatric illness as a result of the armed robbery which continues to impact her mental health, as all medical practitioners agree.
24However, the plaintiff’s credit is of limited relevance to her evidence of the armed robbery. In this regard, at times, her evidence was unreliable but only on peripheral issues such as whether she had untied the bundle, the circumstances of Rena’s presence, and the amount of money on the premises. It was acknowledged she was wrong about there being no duress alarms on the premises at the time of the armed robbery.
Rena Casey
25I found Ms Casey to be an honest, reliable witness who made appropriate concessions when asked. She showed concern for the plaintiff’s welfare both at the time of the armed robbery and on her return to work.
26I accept that Ms Casey was a measured witness, certainly not an advocate for the defendant.[4] There was no attack on her credit by the plaintiff.[5]
[4]T728
[5]T793
Expert evidence
27I found Mr Smith a more credible witness than Dr Zalewski.
28Mr Smith gave cogent, clear evidence of his views on the security measures suggested by Dr Zalewski, demonstrating his current knowledge of hands-on risk management experience in gaming venues. He was prepared to make reasonable concessions, both about risk assessments and training, and he explained himself thoroughly and logically.[6]
[6]T742
29As the defendant submitted, Mr Smith’s explanation of what would have happened in the six seconds was thorough and he doubted very much that the receptionist could have responded in that time, and what needed to have occurred during that period for her to have activated an alarm.[7]
[7]T743
30Dr Zalewski’s evidence was less clear and given somewhat on the run, changing its focus to some degree from what he had set out in his report – especially in relation to the ESL which he had only mentioned in passing in his report.
31Some of the matters on which he based his opinion were factually incorrect such as there being $100,000 on the premises. More significantly, he had the reception desk in the wrong place until this was pointed out to him while in the witness box.[8]
[8]T743
32I accept the defendant’s submission that Dr Zalewski was unrealistic and lacked credibility, expecting a response from a receptionist sitting at the desk – within about half a second – to see, recognise and respond to robber at the door when she was not expecting him to be there. This was particularly so when contrasting this with the plaintiff’s own reaction, or lack of reaction, when she saw the offender on the CCTV.[9]
[9]T742
Plaintiff’s background
33The plaintiff was born in October 1985 and is presently agreed thirty-nine. She has been married to Craig Earle since October 2019. They have two children, Noah, aged eight, and Mia, aged four. Her eldest son, Riley, who is fourteen, lives with his father.
34Having completed Year 11 in Melbourne, she then worked full time at Hungry Jacks. She left home at nineteen and moved to Queensland, where she worked for Optus for two years. After Riley was born in 2011, she worked at BWS bottle shop for about three years, then IGA. In 2016, she did a personal training course, obtaining Certificates III and IV.
Examination-in-chief (T50-102)
Work with the Defendant
35The plaintiff commenced full-time employment with the defendant in September 2017. She was then seven or eight weeks’ pregnant with Mia.[10]
[10]T50
36She generally worked a five-hour shift from 12.00pm to 5.00pm or 5.00pm to closing. When she started, she was just behind the bistro/bar.[11] In 2018, she obtained her gaming licence and also worked in bingo.[12]
[11]T54
[12]T56
Training/induction
37She could not remember doing any kind of induction when she started with the defendant. She was shown about the place to see where various things were located.[13]
[13]T53
38In terms of training or instruction as to how to deal with an armed robbery if one occurred, all she remembered was she was told if someone comes in you give them what they want. She was not aware of any protocols or procedures relevant to an armed robbery at the premises. There was a conversation about how to manage difficult or intoxicated people.[14]
[14]T54
39She did not recall seeing a sheet of paper headed “During an Armed Robbery”[15] when she worked at the premises, but she remembered being told what to do “verbally”.[16] It is possible she did see it.[17]
[15]Exhibit 2
[16]T60
[17]T112
40The Staff Policy Handbook[18] was familiar to her. She remembered being shown the Handbook when she started the job. She did not recall getting a copy but she had seen it.[19]
[18]Exhibit 1
[19]T60
41Normally on a Wednesday morning, there would be two chefs and three other staff to start work at 10.00am. There would be a receptionist rostered from the start of the day. That morning, the plaintiff was working as a gaming attendant and Adana was rostered to work in the bar.[20]
[20]T77
42There were security guards working at the premises from 7.00pm.[21]
[21]T54
43There were forty-five poker machines in the gaming room. There would usually be three to four patrons on the pokies before 11.00am on a weekday. In the afternoons, it is “quite busier” with fifteen to twenty people. [22]
[22]T55
44The bistro was open for lunch and dinner, catering for about one hundred people. It used to be quite busy – potentially one hundred patrons or more.[23]
[23]T56
45She was not aware of any system for making sure the reception was not left unmanned. It was left unmanned quite often.[24]
[24]T99
46There was a sign-in book on the reception desk for patrons using the Club. A sign partially blocking the passageway near that desk read “All Visitors Must Sign Guest Register Before Entering The Club”.[25]
[25]T66
47The plaintiff drew a plan of the interior of the premises, describing the various locations from the front door to the gaming room.[26]
[26]Exhibit A – Annexure C
48To access the gaming room after coming through the front door, you would just go straight down the corridor and then to your right, opposite the footballers’ and netballers’ room.[27] There was no physical barrier between the gaming area and the corridor.[28] There was no system for monitoring who was going in and out of the gaming room.[29]
[27]T68
[28]T69
[29]T70
Movement of cash on the premises
49There was a safe in the back office. She was not allowed to go and collect money from there. It was the duty manager or receptionist’s job.[30]
[30]T64
50The typical balance in the cash drawer in the gaming room was $3,000. It would be brought to her from the back office. If she ran out of money during the day, she would open the back door behind her where there was a safe. [31]
[31]T59
51Staff had to move thousands of dollars around the premises while patrons were there. The cash handling was obvious to them. Cash would be moved quite a lot from the big safe to the little safe – three or four times a day.[32]
[32]T59
The day of the armed robbery
52She was supposed to start work at midday but came in just after 10.00am, having been phoned to come in earlier.[33] She entered by the back door, which was the door accessed by other staff on their arrival in the mornings. It was Rena’s job to unlock the front doors.[34]
[33]T77
[34]T76
53Just after 10.00am,[35] she was standing behind the bar that is accessible to the gaming room. That bar can be accessed without first going through the gaming room.[36]
[35]T75
[36]Exhibit A, T73
54The offender first came to the bar (next to the counter). He realised he was at the wrong window because it was not the cashier. She “moved to open the space” and that is when he approached. He said “put all the money in the bag” – a Woolworths’ bag. He had a big knife in his hand.[37]
[37]T74
55Rena was standing next to her. Rena was there because she brought her the $20,000 to put in her back safe. At the time the offender arrived, Rena had only just put the cash in the safe.[38] They shut the door, and they were just standing there next to each other, just talking.[39]
[38]T75
[39]T76
56Rena had moved the cash after the front door was opened but put it into the safe before the offender arrived.[40]
[40]T78
57After being asked by the offender to put the cash in the bag, the plaintiff grabbed the bundle – the float for the start of the day, which was kept in the drawer underneath for the day to start. It was just a bundle. She had not counted it out yet.[41]
[41]T78
58She tried to put the bundle in the offender’s bag. He asked for the rest of the money and she said, “That’s all I have”, then she stepped back and then he ran.[42]
[42]T79
59She saw the offender come in from her peripheral vision on the cameras above her head. He had a covering over his face like a ski mask or a sort of mask.[43]
[43]T78
60There was no barrier-type mechanism in front of the bar. There was no alarm button.[44]
[44]T79
61She then went screaming out for Rebecca, the duty manager, who was in the back office at the time. She thought she had just lost her unborn baby. Rena locked the doors and the police were called.[45]
[45]T80
62When the robbery occurred, Rebecca was in the back office. She would not have been able to see the reception foyer from that office. There was no one the offender would have seen as he ran towards the foyer area.[46]
[46]T81
63She went home after making a statement to the police, having been collected by her husband, Craig, whom she had called. There was no debrief at the scene. She went to work the next day to meet with the psychologist.[47]
[47]T80
Cross-examination (T102-208)
64She did exactly what the offender told her to do. She gave him the money and did not argue with him. He was certainly in a hurry. He ran in confidently, knew what he was doing. Out of the corner of her eye, she had seen this person on the CCTV monitor running in through the front door. It took a few seconds to realise what was happening.[48]
[48]T102
65By the time she realised he was there, he was in front of her. She now knew he ran in through the front door where she saw him. There was no time between seeing him on the CCTV monitor at the front door and him appearing in front of her to do anything in response. It felt like it was a 60-second thing or probably less. There was no time for her to do anything. There was no time to say anything to Rena She called Rebecca straight away. She told her that she was pregnant and told her of her fears.[49]
[49]T103
66There was a locked door to the cashier’s office and a sliding door between it and the bar.[50] The sliding door was always open.[51] She was at the bar side of the sliding door when the offender approached.[52]
[50]T138
[51]T139
[52]T141
67She could not remember the single page “During an Armed Robbery” [53] about what to do in a robbery being located in the gaming room. It might have been in the back office near the safe.[54]
[53]Exhibit 2
[54]T104
68She had not read the whole of the Staff Handbook but had signed it.[55]
[55]T105
69She never read the page of the Handbook “Armed Hold-Up – No amount of money is worth a life – Do Not Panic!!!”[56] She would not have worked there if she knew about the risk of armed robbery.[57] She then agreed she had probably read it but her memory now is not having read it.[58]
[56]T108
[57]T110
[58]T111 and T114
70She was not aware there were several duress alarms at the premises at the time.[59] Five years ago, there were no buttons. She would have pressed the button. Rena would have known about a button. She could have pressed it at the same time if there was a button there.[60]
[59]T113
[60]T115
71She knew there were CCTV monitors on the premises. The manager had a lot of CCTV views in his office.[61]
[61]T105
72There was a monitor where she was standing – above her head – “like an old tv with a camera” on which she saw the offender “above (her) peripheral vision”.[62]
[62]T116 and T118, Exhibit 3
73She did not know if the little rectangular television screen at reception was operating that day.[63]
[63]T117
74She did not know if there was a sign saying effectively this area is under 24-hour video surveillance at the premises that day.[64]
[64]T120
75The manager is the person who brings the $20,000, “unless Rena’s there, she will go in and get it and bring it across”.[65] Rebecca did not bring the money that day.[66] Generally it would be the manager but it was Rena that day.[67]
[65]T120
[66]T121
[67]T122
76She denied that she had phoned Rena to talk to her about some troubles she was having outside of work.[68]
[68]T122 - Exhibit 11 – Ms Casey’s attachment to the Employer Claim Form, T124
77She did not remember calling Rena and telling her to come to her. She remembered having a discussion with her about her son.[69]
[69]T210 (re-examination)
78Having confirmed she did not have a chance to count the money before the offender arrived, that she was 100 per cent sure she did not, she was then shown her police statement where she stated she had already started counting the notes. In her mind, she had given the offender the whole bundle.[70]
[70]T124
79There can be lots of movements of money at the premises during the day. Every day money gets moved consistently.[71]
[71]T128 and T129
80There were always at least three staff at the premises there for opening and closing.[72]
[72]T132
81Generally, there was someone at reception from 10.00am to 5.00pm.[73] If they left the desk, say to go to the bathroom, usually someone else from the office or a manager will sit in their seat. There is supposed to be someone there but there are times when it is unattended. She knew it was unmanned quite often because she worked there.[74]
[73]T133-134
[74]T134
82She could not give an exact figure as to how much was in the back safe that day, having been reminded she told Dr Zalewski there was $100,000 on the premises that day.[75]
[75]T136
83When paying out, she handed over money to patrons between the two bits of glass either side of the cashier’s desk.[76]
Expert evidence
Anthony Zalewski, security consultant
[76]T143
Evidence-in-chief (T242-283)
84Dr Zalewski is a risk management consultant specialising in security and safety, and a director of Global Public Safety Pty Ltd. He has been appointed by the current Victorian Police Minister as permanent Chair of the Victorian Security Industry Advisory Council (VSIAC). He was an operational member of Victoria Police for seventeen years before completing his law degree.
85He wrote a report dated 20 January 2025 after having interviewed the plaintiff.
86Based on the legislative requirements, guidance materials and common industry practice, he would have expected the defendant to have developed carefully thought-through plans and strategies to minimise risk, including security and safety risks for the staff. The information provided to him did not disclose this approach.
87He had not been provided with any risk assessment. Systems of security across industry sectors are all built from a risk assessment. If they are not done correctly, then it becomes a haphazard approach – because action is limited to the obvious issue and there will not be a sequential assessment of all the steps that might be in place to deter the commission of a robbery.[77]
[77]T249
88The following should have been relevant considerations to enhance layers of protection:
(a) The premises were sizeable and isolated
89There were about forty machines in the venue, so it is medium sized, but it was not small. It was isolated and so there was no passing traffic or connection of eyes, it was set right back from the highway so there was no through road effectively going past the building.
(b) There were substantial amounts of cash present
90Everyone would know by the nature of the premises that that would be the case. The plaintiff told him there could be up to $100,000 on the premises, but his experience said, with forty machines, there was a substantial amount of cash.[78]
(c) There was no ongoing guardianship of the main entrance
[78]T251
91By that, he meant staff presence, which could be an administrator or a receptionist or security, although he would not expect security to be engaged at that venue on a Wednesday morning.[79]
[79]T252
92Someone there is early notice to someone who might be seeking to enter, casing the joint.[80] It is another layer of security, but maybe there is a connection of eyes potentially, and that person may be able to do one of many things, whether or not it is hit an alarm, lock a door or warn others.[81]
[80]There was no evidence someone had “cased the joint”
[81]T252
93Under the heading of Guardianship in his report, he noted it is unclear if an electronic strike control lock (“ESL”) was installed on the front door that could be operated at the reception point. If so, the entrance door could have been easily locked had a staff member then been present and aware of the masked and gloved bandit approaching.[82]
[82]January 2025 report paragraphs 5.4(b) and 5.9 (only mention of ESL in report)
94Normally you would have a strike release – a button at the counter that could effectively lock the door. If trouble is coming towards the door, then a person at reception could hopefully see that trouble and take action, locking the door. This is risk avoidance rather than risk reaction, locking the door. It would cost around $1,000, depending on the quality. If you are going to have a strike release, then you want to give the person at reception the best chance possible of being able to see in advance what is occurring or about to occur.[83]
[83]T253
95Positioning of the guardian is terribly important, noting that the counter with the frosted glass – the counter he thought was reception – was not in the ideal position. He was made aware of the correct location of the reception desk.[84]
[84]T254
96The reception counter would not provide lines of sight that you would expect, it would not be the optimal position, which would be somewhere right in the middle where the person sitting could see out the glass windows that sit to the right of the entrance and effectively see down Stumblers Lane;[85]
(d) There were limitations with natural surveillance
[85]T255
97This is the connection of eyes between places and it is another part of a risk assessment as to being proactive. If there was good natural surveillance, effectively you would be able to detect it in the early stages and to take action to lock the door;[86]
(e) There were no internal barriers to negotiate
[86]T256
98These were not floor to ceiling barriers, it was just one of the layers, such as a whiteboard that just blocked vision from the point of entry into the venue.[87] It is only placement of a barrier that effectively blocks vision from the front or further into the venue;[88]
(f) There was an absence of protocols to ensure ongoing guardianship at the main entrance
[87]T244
[88]T246
99Protocols are documents that effectively hold the system together and would be created after you did a risk assessment, not just some random one-off action.[89] A protocol would say, in writing, “in trading hours the reception desk must be manned at all times”. The protocol would address changeovers, toilet breaks and unforeseen circumstances.[90]
[89]T257
[90]T258
100A sign-in book is another compliance issue.[91]
[91]T258
Risk assessments
101There are two parts; it is a risk assessment and risk management; one leads to the other. By the risk assessment, you would identify all potential risks that may occur or arise from violent behaviours, such as robbery related violence. There would be a process of risk identification analysis and evaluation and then there are treatments or controls that are put into place, namely physical (anything from cameras, locks, barriers), personal, personnel and protocols.[92]
[92]T259
102The development review of security and safety symptoms is a field of specialised knowledge which applies across the industry and professional sectors, starting in at least 1990 and, of course, updates and new technologies.[93]
[93]T260
103The Staff Policy Handbook is comprised of eleven points on behavioural guidance should an incident occur; it was reactive.
104Nothing has been discovered to indicate careful thought and planning had occurred about the risk of robbery related violence. This was unexpected, considering there had been previous incidents at the venue.[94]
[94]T261
105The response to previous incidents would depend on the type of incident and what happened. He had knowledge of the 2011 robbery. His experience was that previous incidents at a venue would trigger normally pretty quickly a risk assessment, so a competent security consultant would come out and do a review. His experience was, even if there had not been a robbery, that similar premises were subject to armed robberies and there were a number of them at that time which would trigger, again, risk assessments. These places are members of an association, such as the Australian Hotels Association, Gaming et cetera.[95]
[95]T264
106There was limited coverage of the approach points on the CCTV. The better the coverage to avoid the offence would be to look at the outside area. The starting point of an assessment is outside, rather than inside.[96]
[96]T264
107The only image he could produce from the CCTV was the image of Stumblers Lane, showing the bandit approaching the premises with facial covering and pink gloves, carrying a bag, running towards the premises. Four seconds later he is on the porch, then two seconds later he is coming through the door, a period of six seconds.
108However, when you look at the first photograph, the offender has obviously come from down Stumblers Lane somewhere, so it is a lot more than six seconds that he has been tooled up. He would expect the availability of CCTV footage further back from what is shown on the first still.
109If the reception counter was in the right spot, the correct spot for direct lines of sight, then there was more than six seconds, which is a long time to notice someone is running towards the premises, wearing a facial covering and is wearing pink gloves.
110From his time in the armed robbery squad, his experience was it would take a bank teller one to two seconds to be able to hit a pop-up screen.[97] Bank robberies no longer happen because of the hardening in processes.[98]
[97]T265
[98]T266
111Natural surveillance is also relevant because it is another layer and the more layers you build, the greater the deterrent effect. Altogether, they create the impression of a harder target, so therefore you increase the deterrent effect.[99]
[99]T267
112He conceded there would not be an expectation to have security guards at the premises at that early time on a weekday because of the cost et cetera; however, as long as the venue opens its door, until it closes there is always the risk of a robbery and you cannot say there is a greater chance of a robbery when it is quiet or busy, because you do not know how perpetrators think, but security is appropriate at peak levels of activity, such as risk of intoxication.[100] Quiet times are a more preferred time for a robbery.[101]
[100]T269
[101]T270
113There are relevant risk assessment guidelines, such as ISO-3100 Risk Management.[102]
[102]T270
114While the defendant asserted glass screens at the gaming counter provided protection, if there had been better layers of security from the external perspective, then the robbery may never have occurred. He did not think those screens would have helped one way or another.[103]
[103]T272
115Duress devices are reactive devices effectively because usually the robbery is over by the time they would have any effect.
116It is normal practice to have the cash register being placed under the counter and that there be a locked door the public could not open. He did not really think the width of the counter was important.[104]
[104]T273
117Had the layers he suggested been in place, it would have been evident to a perpetrator preplanning and conducting observations, that ongoing guardianship was a key consideration in the prevention of crime at the premises.
118By doing a risk assessment and taking a number of steps, you would end up with a harder target, with a greater number of layers of security and therefore a likelihood of deterring crime.[105]
[105]T274
119If the measures he suggested had been taken at the premises it was more likely than not the armed robbery would have been deterred because all those layers of security, including the ESL on the door, might have influenced someone more likely than not to think in terms of “well, this one’s too hard, I’ll try somewhere else”.[106]
[106]T275
120He disagreed with Mr Smith’s view that a receptionist provided minimal deterrence to a motivated and determined armed robber. That was not his experience. It does have an impact.[107]
[107]T276
121While Mr Smith thought most individuals at a desk were not accustomed to encountering armed, disguised offenders and may not act on the situation immediately, not recognising it, a briefed and trained staff member would just know what to do if someone does not look right. You can always unlock the door anyway. The extent of training required would not be comprehensive or excessive.[108]
[108]T277
122The receptionist would not need to be looking at the window or the doors all the time. They might be attracted to movement outside and would normally look in that direction anyway, that is normal human behaviour.[109] The realities were that you would be attracted to the bigger movement which would be through the window.[110]
[109]T278
[110]T278
123He disagreed with Mr Smith that if everything was set up with the lock and the receptionist present, you would not have enough time to activate the alarm to prevent the offender coming in. There is at least six seconds in this case between the first screenshot in the Lane, and then the person coming through the door. Clearly the offender had come a fair distance because there was no vehicle in the shot.[111]
[111]T280
124There are glass windows allowing visibility to individuals approaching from the entrance and large areas in the carpark. It is the positioning of the counter that is wrong. The better the layers, the more deterrent effect.[112]
[112]T281
125He disagreed natural surveillance depended on the human factor requiring continuous vigilance from the observer.[113]
[113]T282
126He disagreed that, with a lock present at the front door, the offender would likely factor in ways to bypass security.[114] Strike plates are about the size of the water cup in the witnessbox.[115]
[114]T282
[115]T28?
Cross-examination (T283-322)
127He maintained that, as a compliance requirement in every club he has gone into, there is always someone there at the point of entry, having been told the receptionist that the Panther’s Club in New South Wales was sometimes away from their desk.[116]
[116]T285
128“Maybe”, the Panthers was unique in having no-one at reception.[117]
[117]T322 (re-examination)
129While a receptionist is not there as a deterrent, their presence is part of the deterrence strategy. It is an important layer, although he was not saying the presence of a receptionist alone would be a deterrent.[118]
[118]T286
130He thought it appeared the armed robbery was well planned, but he did not know.[119] The fact the Victoria Police investigation did not come up with any leads did not mean the armed robbery was planned. The offender may have just been lucky.[120]
[119]T286
[120]T290
131If there had been systems in place that were better than those in place, there may have been an outcome, a prevention at the door. It may have deterred the offender and the offence may never have happened.[121]
[121]T291
132While the concept of guardianship had its limitations, it was one additional layer.[122] He had not said guardianship alone would deter and there was no guarantee it would eliminate the risk, there was a greater chance of deterrence. He disagreed the layer made no material difference in terms of deterrence.[123]
[122]T292
[123]T293
133If a risk assessment was not done in writing, it has not been done.[124] Single actions are not a safe way to minimise risk. To do so you conduct a risk assessment, a methodology which minimises the risks. It has to be in writing and list all the recommendations.[125]
[124]T294
[125]T295
134The front windows were sizeable. If the reception counter had been in the right spot, the receptionist would have been attracted to movement.[126] You would “probably not” expect the receptionist to be looking out the whole time she is sitting there. She should be keeping an eye on things inside and outside depending on what activity is occurring. While she would be doing other jobs, her major focus would be on the activity of who is coming and going.[127]
[126]T296
[127]T297
135He disagreed it was not an instantaneous thing for a receptionist to react – he would “expect almost an instantaneous response”. “This is not with the benefit of hindsight, this is the evidence.” The man was coming towards the building with a covered face and wearing pink gloves, if that did not get a response in about half a second, there would be something “terribly wrong”.[128]
[128]T298
136He stressed the importance of movement. He agreed he had no idea how far the offender had travelled down Stumblers Lane.[129] There would have been ample time for a receptionist sitting at the desk to activate an ESL to prevent the man from entering. He agreed a motivated offender who planned an offence could find another way of entering if they were concerned about the door being locked. That was always an option.[130]
[129]T302
[130]T303
137He agreed sitting at the receptionist desk you can look through the front door and windows to the outside, but only partly through the two windows to the right of the door. Sitting at reception, you would not be able to see out into the carpark and the direction the bandit came from. You would not be looking at the approach, so there is no natural surveillance, there were limited direct lines of sight.[131]
[131]T306
138From the screenshots, there are four seconds, up to six seconds, for a person in reception to detect a person coming quickly towards the door masked with gloves. Because he had the screenshots, he did not view the premises himself.[132]
[132]T309
139The reception desk should have been placed further forward. It may be an obstacle depending on where it is positioned, but there are Australian Standards that would tell you that and it is a big reception area.[133]
[133]T310
140He maintained it would make a difference to a perpetrator having a whiteboard or some other item blocking vision to what is down in the gaming room, because unless he has cased it already, the offender does not know where the room is.[134] It is another layer of security and the more layers, the greater the deterrent effect. It is the collective layers that make the difference. He disagreed a barrier would make an obstacle for patrons or one that required being moved.[135] The concept is to block vision where you can.[136] He agreed you could not see a barrier from outside looking into the premises.[137]
[134]T311
[135]T312
[136]T313
[137]T314
141He agreed, in a number of photographs, there appeared to be very good natural surveillance. He agreed some of the CCTV images showed different parts of the carpark. It was reasonable CCTV coverage. There was reasonable natural surveillance.[138]
[138]T316
142He knew from experience there could be up to $100,000 cash on the premises and he did not rely just on the plaintiff for that information.[139]
[139]T318
143He could not agree the procedures the defendant had in place were proportionate and in line with the standard of a club of that nature. The realities are, at little cost and little effort, the system could have been far better. It was more likely than not the offender would have been sent off to the next place with those layers.[140] He did not believe it was unlikely the layers would have deterred a well-motivated perpetrator.[141]
[140]T319
[141]T320
144He was not aware of another way of entering the premises.[142]
Defendant’s evidence
Rena Casey
[142]T324 (re-examination)
Evidence-in-chief (T549-580)
145Rena Casey is currently the defendant’s office and HR manager.
146She started work in 2006 as a receptionist and as at the date of the armed robbery, was acting in both roles, having been appointed acting HR manager about five days earlier.[143]
[143]T556
147She was just new in the HR role, only a week or five days. She was on a three-month trial and was still on reception, so doing effectively two jobs.[144]
[144]T557
148In 2020, there were duress alarms at every till, the reception and managers desks and various bars. There was a monitoring system with Sure Safe Security, who responded from offsite when the duress button was pressed.[145]
[145]T551
149There was CCTV at the premises at all poker machines, five or six outside the venue, a few in reception and “sort of every area” was covered. It was a way of viewing the images coming into the premises. They wanted to make sure they had visuals so each area had the other areas on there. Monitors were always turned on.[146]
[146]T551
150There were signs in reception, the gaming area and the function rooms and most entry points saying there were CCTV cameras in operation at the premises.[147]
[147]T552
151The main safe room was next to the manager’s office. There is also a gaming area strong room, which was behind the cashier.[148]
[148]T552
152They did banking twice a week and had a minimum of $25,000 in the main safe. The gaming float would be up to $20,000 or $30,000.[149] Back in 2020, the float at the start of the day in the gaming room would be $5,000.[150]
[149]T552
[150]T554
153Generally, the duty manager would do the gaming and do the float for the day and put the float in the drawer ready for the gaming person. That all had to be done before the doors of the premises were opened, because of the regulations.[151]
[151]T553
154If the float needed to be increased, the cashier asked the duty manager, who would attend to it. The duty manager would get the money out of the small safe behind the cashier’s desk. The money would not come from the main safe.[152]
[152]T554
155Movements of money were really just float increases. When she did the banking, she walked through to the carpark. That would be the only movement.[153]
[153]T555
156Mercury was the gaming provider. It is paid a small fee per machine and provides legal and other support services.[154]
[154]T555
157She was still working at reception that day, because Chris, the admin lady, was not there. Before opening the premises, she would have been out the back office counting the money then did data entry.[155]
[155]T559
158When patrons came in, she would just help them sign into the black screen.[156]
[156]T559
159There was usually someone at reception 80 per cent of the time, and if she was not there, usually Chris – who sat behind the frosted glass doing admin – would help.[157]
[157]T560
160At the time of the armed robbery, she was standing behind the bar counter:
“I got a call [phone] from Tara to, if she could talk to me, and so I came out and we were having a discussion there about her kids, and I think it was about her ex, and a pick-up at school or something along those lines. … Yes, I think we were just there, and then all of a sudden the guy was there, um, I heard Tara gasp, I think I took a couple of backward steps, Tara moved across to the cashier, I moved back to the sliding door there, I saw her (Tara) push across the money, the float, and then he ran out.”[158]
[158]T561
161She then went round the bar, locked the front door and went to reception and called triple zero. Bec came out from the manager’s office. She told Bec, “We’ve been robbed”. She thought Bec went to Tara while she was on the phone to police.
162When the man appeared, it did not register immediately what was going on. She thought it took a couple of seconds for her to realise it was real – “it was a bit of a shock”.[159]
[159]T561
163When sitting at reception, she could see through the front blind if it was not down. She could see through the windows to the right of the blind. Through that window, she could see part of Stumblers Lane. Through the window to the right she could see a fence line and part of the carpark and maybe some of Stumblers Lane.[160]
[160]T566
164She could see the front door from her reception desk. From there, “you are sort of looking out into the carpark up into the tennis courts”. She could probably see not quite halfway up Stumblers, or a quarter of the way up Stumblers.[161]
[161]T567
165She was shown the photograph of the offender entering the premises[162] and her line of visibility in terms of his approach. If she was sitting at reception and happened to be looking out the window or the door, if she saw a man approaching with his face covered and wearing pink gloves running in, and there was about a six-second timeframe between when she saw him running from the start of the bitumen to when he got to the door, she did not think she would have had time to press a button, if there had been one there, to lock the doors before he got there:[163]
“… you would have to be physically staring at that spot, and physically having your hand ready to press a button … not doing your work, not entering-– not answering the phone, not doing your computer work and what we normally would do at reception.”[164]
[162]T567; Exhibit D
[163]T568
[164]T568
166If the reception area was moved to the middle of the foyer, there would be no room for patrons to come in. You need the foyer area because they have so many groups coming in.[165]
[165]T569
167She did not know why you would need a pinboard in reception. If you put up a board or something, there would be no flow and people would not be able to walk in or out.[166]
[166]T570
168You cannot see the gaming room and bar when sitting at the reception desk.[167] You cannot see those areas if you are at the front door, you can just see straight to the hallway.[168]
[167]T570
[168]T571
169If she was outside looking in, she could not see in because of the reflective glass.[169]
[169]T569
170After the armed robbery, she asked the policeman attending if there was anything further they could do to stop this, and he said, “You can’t stop idiots running in with a weapon, there’s nothing you can do”.[170]
[170]T571
171She was not present when any other armed robbery occurred at the premises. She changed her answer to the plaintiff’s interrogatory from there having been a robbery in 2006 to robberies in 2001 and 2011 because “it came to light, either though the President,” that the dates were wrong.[171]
[171]T571
172She remembered, when she started in 2006, Chris told her, “this is Deb. She was involved in a robbery, and has come back.”[172] She identified a number of certificates involving employees who had done armed robbery survival courses, including Deb, who did a course in September 2001, after the 2001 robbery.[173]
[172]T573
[173]T580
Cross-examination (T580-623)
173Julie Smith, the duty manager, and Chris in admin, were not there that day. Rebecca Keres, the assistant manager, was present.[174]
[174]T582
174No one would work on the reception on the weekend. In the evenings, a security person would be at reception, starting at 5.00, 6.00 or 7.00pm. They would sit at reception and also walk around the premises.[175]
[175]T583
175Potentially, people would be able to, at some times, walk straight past reception and go into the gaming area during the day on the weekend.[176]
[176]T584
176The staff all reported to her from the time she was appointed HR manager and she is still responsible for them. She was not sure whether the plaintiff was rostered on that morning, but often they would ring around if someone was not available.[177] The plaintiff would take up that opportunity if she did not have other commitments. She was reliable to turn up to work, she was a pleasant, valued member of staff, people got on with her, the punters liked her.[178]
[177]T585
[178]T586
177Debbie, who got the training certificate in September 2001, was the person involved in the other robbery.[179]
[179]T586
178To the extent there are any, she has not read records of the 2011 robbery. She did not know if there was any risk assessment done after the 2011 robbery or after the litigation in 2016/2017. She had not seen any risk assessment documentation in relation to any armed robbery before February 2020.[180]
[180]T588
179The only assessment is with the insurer and it relates to money handling at the premises. They have had risk assessments, but she was not sure if they were more about where chemicals were kept, and signage, and “that sort of thing”.[181] If anyone came out from the insurance company, they were interested in things like meters, thermal reports and things like that, not movement of cash. There has been no review of security arrangements.[182]
[181]T589
[182]T590
180She just saw the offender arrive physically in front of her. She saw him ask for the cash.[183]
[183]T590
181Bec would have opened all the floats. She did not touch any of the money going out, it is up to the duty managers.[184] She was not responsible for doing all the money on the day of the armed robbery. The only other person there was Bec. When it was suggested to her she took it out, she said, “No, that was never my role”. She did not bring the cash over on that day.[185]
[184]T592
[185]T594
182Normally the float and the larger amount would be brought to the gaming register at the same time from the main safe by the duty manager. The gaming person would receive a single bundle of notes that would be their float. Sometimes it could be a bundle. The process would then be that the notes that were bundled would be unbundled and counted into the drawer. That should have happened before the front door was opened.[186]
[186]T594
183She did not know whether or not the plaintiff had unbundled her cash and counted it before the front door was opened that day.[187] She thought she remembered the plaintiff handling and opening a bundle. She seemed to agree it would not have been counted out, and it was highly likely the plaintiff had not yet unbundled it.[188]
[187]T594
[188]T595
184She agreed she now had all the other responsibilities, including HR, as well as her receptionist role, and that could include going to help with an issue somewhere else in the premises and involve her being away from reception a lot more than she was beforehand.[189]
[189]T596
185She agreed she could be away from reception for up to 20 per cent of the time, even when she was just the receptionist. There was not a legal obligation she had to be there all the time, nor a business rule or protocol. There is no 100 per cent time that someone needs to be there.[190]
[190]T598
186Tara called her. She did not bring Tara the money. A welfare check would not be an unusual part of her HR duties.[191]
[191]T599
187She was very clear she had been phoned by the plaintiff because she remembered that was what HR was all about and that was her first sort of thing where a staff member had asked for help.[192]
[192]T626
188There were duress alarms, but they were not pressed during this robbery and it did not occur to her to press one. She was worried about the plaintiff. She was there with her and then worried about locking the doors.[193]
[193]T599
189Tim Burgess, the Club President, has been around the Club for more than thirty years. He attends regularly several times a week. She does a monthly report to him, and he is sort of her boss.[194] When she made enquiries, he made her aware of the 2011 robbery.[195]
[194]T601
[195]T602
190She disagreed it would be feasible for a small desk to be put in the middle of the foyer.[196]
[196]T603
191From the CCTV at the bar, she could see what was happening down the front at reception.[197]
[197]T607
192She has not asked Mercury to do a risk assessment. They have not come out and looked at the security arrangements.[198]
[198]T608
193It is clear what she is doing when she is carrying cash in the premises.[199]
[199]T609
194She agreed that there would be a wider range of vision if the desk was positioned in the middle of the foyer. She then said you would probably see about the same, but you would be able to see down Stumblers Lane further than you can see now.[200] Even where the desk now is you can see very well.[201]
[200]T610
[201]T611
195She agreed part of her job was to be welcoming. She was always keeping half an eye on whether someone was coming in. You would hear the door open ready to greet someone and you also had the CCTV.[202]
[202]T611
196Counsel for the plaintiff counted out six seconds. In that time, if she saw someone coming towards the premises dressed in a mask and gloves, she would be able to realise what was happening and press a button “if (she) was sitting, staring out, and saw them (she) would, but doing (her) job, being on the phone and that, (she) wouldn’t”.
197She did agree, however, it was a quiet morning and there were not numerous punters to greet. She would have been entering the figures, she may have seen a flash in the corner of her eye, she would just be speculating.[203]
[203]T612
198If she had been trained and there was a button, she was just speculating whether she could or could not have seen the offender and hit a button.[204]
[204]T613
199If her job description was to be constantly looking out and looking up, she supposed she would be looking up more.[205]
[205]T614
200A lock would have been an improvement in security if it locked the door in time. Training would also be an improvement in security in terms of keeping a lookout for the front door. It would be feasible to spend no more than $1,000 on a lock and that would be a reasonable improvement in security.[206]
[206]T617
201You could certainly include redesigning the receptionist job so that keeping an eye out while you were on reception was an important part of that role.[207]
[207]T618
202Screening an area off would be a bit of an issue.[208] She did not know how a screen in the middle of the foyer could work very well. It was not workable.[209] You would have to talk to the committee about making major changes.[210]
[208]T618
[209]T619
[210]T620
203It was likely she would see someone in six seconds, if she had been looking up. She agreed, more likely than not, she would be able to see someone, see a flash of movement. If she was looking up and someone was coming from Stumblers Lane, “that could have happened”. If someone was coming from the other way, she could not see them.[211]
[211]T621
204She would never sit and stare to be in a position to see the bandit and then be able to press the button. That was something she would never do; she was too busy doing her work.[212] She would have to stop what she was doing and then put her hand on the button.[213]
[212]T624 (re-examination)
[213]T625
205She thought moving the whole desk forward, was difficult, given the defendant had just finished renovations, commenced in 2019. They spent nearly $1 million on the renovations which were done by professional architects. She was not aware the design took into account security arrangements.[214]
Expert evidence
Peter Smith, Managing Director of Ulong Risk Management
[214]T623
Evidence-in-chief (T628-663)
206Mr Smith has a Bachelor of Science in Security and a number of Certificates in Risk Management and Security, including Certified Force Science Analyst. He has 25 years’ experience in the security industry and currently provides security consultancy services to various industry sectors that face the threat of robbery and armed robbery. He spent six years with the Australian Federal Police.
207From 2009-2019, he was the enterprise risk assessment consultant for the Orange Ex-Services Club where he managed the risk of armed robbery. He has been re-engaged by them to review the armed robbery risk.[215] He is a security trainer, operational and safety and defensive tactics, Panthers Rugby League Club – probably one of the largest venues in Australia, with an annual turnover of $165 million, with hundreds of poker machines.[216]
[215]T630
[216]T663
208He provided an expert security report addressing the expert report of Jason Fullerton dated 14 October 2024. Mr Fullerton’s report was ultimately not relied upon by the plaintiff.
209Mr Smith also provided a supplementary report dated 26 January 2025, having been asked to comment on Dr Zalewski’s January 2025 report.
210Evidence-in-chief comprised reference to parts of Mr Smith’s report dealing with what appears to be an issue in the case now having heard Dr Zalewski’s evidence and distilled it all. Mr Smith was also taken to parts of Dr Zalewski’s evidence that was not in his report.[217]
[217]T629
211Having adopted his reports, Mr Smith was asked about Dr Zalewski’s suggestions.
212A presence of a receptionist even when accompanied by an unarmed security guard provides minimal deterrence to a motivated and determined armed robber.[218]
[218]Paragraph 51(ii) of his first report
213You have an offender who is motivated to commit the robbery and they have a weapon, they use speed, surprise and aggression to effect control. The receptionist simply becomes a victim.
214This robber’s MO was really well planned. He chose a time when there were very low patron numbers. He came in, was calm and collected. He targeted only accessible cash and he was in and out of the premises in 22 seconds.[219]
[219]T633
215It is not his experience that a reception desk needed to be manned at all times. It is not uncommon for a receptionist to help in other roles.[220] Reception is not a security guard house. He totally rejected the proposition that it is mandatory or essential that a receptionist desk had to be manned 100 per cent of the time.[221]
[220]T634
[221]T637
216A receptionist has multiple duties and is not a security guard. It is not just sitting there in a guard type role, solely focussing on what is occurring outside.[222]
[222]T638
217He agreed that the concept of guardianship meant that if somebody is there it might deter somebody. That might be fine in a shoplifting situation but in an armed robbery where you have a determined armed offender, the guardianship issue becomes very, very limited in terms of its deterrent factor.[223]
[223]T639; second report
218Natural surveillance involved the concept of visibility. It is part of crime prevention through environment design concept and the desirability of designing a space that is open, that people can see any behaviour or antisocial behaviour. CCTV helps where you do not have natural surveillance capabilities.[224]
[224]T640
219An ESL is a type of lock that controls access using electrical power, acting in conjunction with a latch mechanism to allow a door to be unlocked remotely or electronically rather than manually with a key. Based on the CCTV footage, it appears the front doors were equipped with manually operated locks and door bolts [225] and did not have any electronic functioning.
[225]T62 - plaintiff’s description of the front doors
220Even assuming an ESL was installed on the entry doors, which could be activated from the reception desk, and the receptionist was present at the time the offender entered, a sequence of events would need to occur for the receptionist to activate the strike lock.
221As a certified force science analyst, a number of steps needed to be considered before you could really comment on the efficacy of an ESL.[226]
[226]T641
222In terms of human performance under critical stress, there is the issue of reaction to a threat – for example if you have previously driven over a large pothole, you have some expectation of seeing it and then changing your behaviour when you next approach it. Most people, unless they have some experience, have nothing to measure what is going on when they see what it is happening on the CCTV. There is then the time that the person recognises a threat exists, and then formulates a response “what do I need to do”?
223Even if there was an ESL on the wall behind the receptionist desk (you do not mount them on furniture which may have to be moved), it is an unreasonable expectation for the receptionist to activate it within that time. The lock is for locking out people, keeping troublemakers out.[227]
[227]T644
224You do not mount these buttons on a desk; you mount them on a wall. He would be massively surprised if anyone mounted a strike lock on a desk, it is not just done from an installer’s perspective because of issues with wiring.[228]
[228]T644
225The primary purpose of an ESL is not for an armed robbery situation, but primarily to initiate a lockdown.[229] He was not saying it was not possible to use one in an armed robbery context; he was just saying it is not usual.[230]
[229]T645
[230]T646
226When asked about the ability of the receptionist or someone who had seen the CCTV to operate the button within six seconds, he pointed out:
“… we’ve also watched it already with the perception in our minds that we know what’s going on, we know that an armed robbery is about to occur”
which would not be the other case with other people. They would have no idea what was going on:
“So to suggest that somebody running for four seconds, even though they are wearing this sort of thing, for somebody who has no context of what’s about to occur, that within a four-second window that there’s going to cycle through that reaction response time, and then initiate that before that door is just broken enough in terms of the door jamb so the strike no longer - I doubt it.”[231]
[231]T647
227It is likely that a retrofitted ESL would be noticeable due to the presence of the strike plate, wiring, control panel or indicator lights. In such cases, the offender would likely factor in ways to bypass this security measure – so approach in a different way, reducing the amount of natural surveillance, have a different physical approach, changing the approach as they went through the door, like looking away or pulling the mask down once they got through, approaching the door with a greater subterfuge and concealing their hands better.[232]
[232]T649
228The situation with bank tellers and their response time of one to two seconds was completely different. They are activating the screen once the offender is on the premises. The event happens in much more context. In a bank there is a highly visible threat, you know exactly what is going on and it shortens the reaction time. When the threat is muddied in terms of what you cannot really see, you do not really perceive it as a threat, you are not sure what is going on, then the reaction time is extended, which would have been the situation here.[233]
[233]T651
229Training really would not make much difference because the high-fidelity training which is involved mimicking a robbery would need to be repeated many times to really make much difference. That training is more effective for police officers where you do it over and over again, putting them under stress in training situations in the hope that when they are confronted with it they fall back on that training.[234] It needs to be repeated more frequently than once per year.[235]
[234]T653 and T654
[235]T654
230He doubted whether that training would make the receptionist better able to hit the button.[236]
[236]T655
231He was against moving the desk to the centre of reception; it would create a massive choke point.[237] From an operational security perspective, it would be just horrendous.[238] It would also be a massive cost as you would have to build a wall behind reception and repair the place where the desk had come from. It could also be ruled as cost prohibitive.[239]
[237]T655
[238]T656
[239]T657
232He was against the use of a whiteboard or a pinboard, it was anti-natural surveillance.[240] It ran counter to natural surveillance principles where you would want a premises where you can see as much as you can.[241]
[240]T658
[241]T659
233At some stage, someone had run some level of risk assessment that had resulted in the risk control measures which addressed the likelihood of a robbery and the consequences.
234Someone had looked at that issue and had taken measures – CCTV cameras, signs notifying of the presence of cameras, glass security screens at the gaming counter, duress buttons, cash register under counter, gaming room safe behind locked door, gaming room and bar counters were wide and not easy to reach or jump over and there were a minimum of three staff at any time.[242]
[242]T660, page 7 - first report
235The defendant put in place security measures that were in line with industry standards for clubs assessed with the possible likelihood of armed robbery. With the exception of a lack of training or guidance specifically addressing the psychological trauma that armed robbery victims may face, the defendant adopted the recommended measures to manage the psychological impact of such an event.
236It was important to note that the primary goal of any armed robbery procedure is to ensure staff comply with the offender’s directions to prevent escalating the situation to the point where the offender feels compelled to use physical violence. Additionally, the procedure is aimed to facilitate the offender’s departure from the premises as quickly as possible.
237While he advocates a formal risk assessment document, an informal risk assessment is no less valid than a formal one if you carry out the things that are thought of informally.[243]
[243]T661
238Nothing Dr Zalewski had said made him change his opinion.[244] He would not make any of the changes suggested in the whole package of layers – “You do not chain people to desks.”[245]
[244]T661
[245]T662
239Unless you go cashless, where there is money on the premises you are always going to be a target for armed robbery.[246]
[246]T660
Cross-examination (T663-693)
240If you can consider the same factors in an informal process as you do in a formal risk assessment, the outcome is the same, but he agreed that there was no evidence of what was considered before those measures would take in place informally.[247] He agreed what was in place does not show that that was done by a properly trained risk assessor.[248]
[247]T663
[248]T664
241The duress button is pretty irrelevant and not of help. It also might trigger some behaviour in the offender.[249]
[249]T665
242One thing that is emphasised in all armed robbery training is comply, comply, comply.[250]
[250]T666
243His general perspective was the robber was reasonably rational and acted on the basis of identification of the site and what it had in place, and what the benefit was likely to be.[251]
[251]T667
244A lock was useless if the offender was too close to the door, when it was unlikely it would shut. By the time one realised what was going on, the door would have been open sufficiently enough for the person to get in and the strike lock will not operate.[252] The lock alone would not be a sufficient deterrence to make a difference.[253]
[252]T669
[253]T670
245Many different ways to deter or prevent should be considered if they were reasonably practicable. He agreed it was not just doing one thing or another, you needed to have a systematic approach based on your knowledge of what worked and what did not, and your assessment of the premises.[254]
[254]T670
246You not only look at what is there, what can be done to make a difference, you have got to evaluate it in terms of the impact that would have on the business in its daily operation and financially within its security budget and deal with, for example, discuss with the CEO those issues and get them to do their best in that regard.[255]
[255]T672
247He agreed an untrained person was not going to have the capability of properly assessing everything. He had not seen any documented risk assessment in this case. What he could say is what he saw was consistent with what industry practice was in terms of addressing likelihood and consequences.[256]
[256]T673
248You do not need to do risk assessments all the time, you would start off with a comprehensive risk assessment which is a very detailed one, and then on an ongoing basis, do a negative risk assessment. Somebody should be looking at these issues, and someone should be tasked with the security portfolio within the administration of the Club.[257]
[257]T674
249He knew of one previous robbery at the premises. That would be another prompt for someone to say, “Well we should have a look at reviewing the risk” and he would be reviewing the risk. The history of previous incidents was relevant. He did not alter his view when told the most recent robbery was 2011, not 2006.[258]
[258]T675
250Guardianship was negated when there is an armed offender on the premises.[259] A receptionist would offer minimal resistance.[260] A receptionist will delay an offender, but not much.
[259]T679
[260]T680
251He agreed the offender specifically chose this venue because there would be fewer people around but disputed having someone present at the front desk is going to be a factor the offender would consider when deciding whether to do the robbery or not.[261]
[261]T680
252He agreed the offender had put priority on the speed he was doing things by ignoring the money in the safe.
253A barrier would be a minimal delay.[262] It would not slow you down much.[263] It just does not slow you down enough. He could not see a barrier as a deterrent and its presence was really “so what?” It did not seem to make any difference other than the fact it created a dreadful sort of concealment point for the offender.[264]
[262]T681
[263]T682
[264]T683
254He did not think relocating the desk was any great advancement. You could lose some of the natural vision.[265]
[265]T684
255How the strike lock is used, even with what was put at the other layers, does not make the whole thing work. It also assumes that the receptionist looking out of the window 100 per cent of the time.[266] He disagreed again with the six-second opportunity.[267]
[266]T686
[267]T687
256The cost of an ESL would probably be more in the vicinity of $2,000 to $3,000 with the wiring. This may on the surface not seem that much.[268] The cost of the lock depended on the location.[269] The lock was really from a crowd control, rather than a robbery perspective.[270]
[268]T692
[269]T691
[270]T693
257There could be a problem with a tailgate scenario – an offender following in a patron who had been permitted entrance of the premises.[271]
[271]T689
258He did not believe there was any more the defendant could have done to deter or prevent a robbery like this which was done so easily by one person on their own with a knife and a balaclava.[272]
[272]T693
259He did not believe moving the desk provided deterrence, in fact it created a greater risk than it was solving.[273]
[273]T693
260Manning the desk full time was minimal deterrence because of the ease it could be overcome by an armed offender.[274]
[274]T693
261He did not agree that improved protocols would have made this a safer venue.[275]
[275]T693
262Most venues of this size do not do documented formal risk assessments. A lot of clubs cannot afford to pay $5,000-$10,000 or they feel that they have sufficient knowledge to do it themselves through experience.[276]
[276]T694(re-examination)
263He did not agree that the measures put forward by Dr Zalewski were valid.
264Once an armed offender was on the site, the concept of guardianship was negated. It would not have been a reasonable practice to make sure a receptionist was stationed 100 per cent of the time at the front desk. It does happen at Orange because there are people coming in and out of the Club all the time – principally to satisfy the entry requirements of its many patrons.[277]
[277]T696
265Moving the front desk into the middle of the foyer would create a horrible choke point in the case of an emergency evacuation. It created a very dangerous situation.[278]
[278]T697
THE LAW
266It is not in dispute that the defendant owed a duty to take reasonable care for the safety of the plaintiff.
267As the employer, the duty owed by the defendant to the plaintiff is well established. It was defined by the High Court in Czatyrko v Edith Cowan University:[279]
“ The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”
[footnotes omitted]
[279](2005) 214 ALR 349 at 353, paragraph [12]
268The Court of Appeal in Robinson v Each Ltd[280] recently restated the principles that apply in determining the fate of applications of this nature.
[280][2024] VSCA 313 (“Robinson”)
269“First, the employer … owed a non-delegable duty to … [the plaintiff] to ensure that reasonable care was taken for her welfare and safety in the course of her employment … .
270Second, the content, or scope, of that duty is determined by the nature of the event giving rise to the claim and the foreseeability of the risk of injury in those circumstances.
271In cases in [Victoria], that analysis is governed by the common law[281] and the principles set down in Wyong Shire Council v Shirt.[282] In that case, Mason J’s classic statement remains a foundation of the law of negligence in this country:
‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.’[283]
[281]Part X of the Wrongs Act 1958, which applies to claims for damages resulting from negligence, does not apply to claims to which the Workplace Injury Rehabilitation and Compensation Act 2013 applies, that is, to claims for damages for injuries arising out of or in the course of employment: Wrongs Act 1958, ss 45(b), (c)
[282](1980) 146 CLR 40 (‘Shirt’) [at 47-48]
[283]Ibid 47-48 (Stephen J agreeing at 44, Aickin J agreeing at 50)
272Third, the foreseeable risk of injury must be identified with some precision, but not to the extent that it involves a prediction as to the exact circumstances that give rise to the injury. The risk may be one that is posed to a class of employees or to an individual employee (or both).
273Fourth, once the risk is identified, then the task of the court is to determine what a reasonable employer would have done in response to that risk. That exercise cannot be carried out with hindsight but, rather, must be carried out by evaluating the risk as it existed at the time of the alleged negligent act or omission.
274In New South Wales v Fahy, Gummow and Hayne JJ said that the response ‘requires looking forward to identify what a reasonable employer would have done, not backward to identify what would have avoided the injury’.[284] It may be that a reasonable response is to do nothing; alternatively, it may require a response.
[284](2007) 32 CLR 486, 505 [57] (emphasis in original)
275One of the things that emerges starkly from the authorities is the importance of not being beguiled by decisions in other cases and, instead, concentrating on the facts of the instant case in determining questions of foreseeability and reasonable response — as judged prospectively and not retrospectively.
276In their dissenting judgment (but not as to principle), Gleeson CJ and Kirby J said in Vairy v Wyong Shire Council:
‘The issue of breach of duty in an action framed in negligence is one of fact, although its resolution involves the application of normative standards. The central question concerns the reasonableness of the defendant’s behaviour. It is understandable that, in a search for consistency, comparisons with similar cases will be made. However, as Lord Steyn said in Jolley v Sutton London Borough Council, decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases.’[285]
[285](2025) (scil 2005) 23 CLR 422, 425 [2] (citations omitted)
277Fifth, having identified what constitutes a reasonable response to the risk, it must then be determined whether taking that course of action would have avoided or minimised the occurrence of the injury to the plaintiff.”
278Further, at paragraph 150 of Robinson, the Court said “[i]t should be emphasised, as the authorities we have referred to demonstrate, that in carrying out this normative exercise of determining what constitutes an appropriate response to the established risk, the approach must be one of reasonableness from the employer’s perspective at the time it becomes aware of the risk and thereafter — not one of perfection coloured by hindsight. In Rosenberg v Percival, Gleeson CJ said:[286]
‘In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated.’”[287]
[286](2001) 205 CLR 434, 441–2 [16] (citation in original) (emphasis added) (‘Rosenberg’)
[287]See, eg, Jones v Bartlett (2000) 205 CLR 166, 176 [19]; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 263 [17], 291-292 [109]
Causation
279The relevant test for causation is governed by common law principles.[288]
[288]Cotton On v Golowka [2022] VSCA 279 at paragraph [73]
280In Cotton On, the Court of Appeal set out the test of effectively looking at what the defendant would have done had reasonable care been exercised; and how the taking of that action would have averted the loss or damage which the plaintiff in fact suffered:[289]
[289]Ibid at paragraph [76]
“So, recently in this Court in Munday v St Vincent’s Hospital Pty Ltd, Maxwell P and Walker JA said:
‘And, as Maxwell P explained in Wodonga Regional Health Service v Hopgood, when a plaintiff alleges a negligent omission:
[T]he causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts, premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no such omission.’
In that context, his Honour explained, the plaintiff’s counterfactual hypothesis must identify:
(a)what the defendant would have done had reasonable care been exercised; and
(b)how the taking of that action would have averted the loss or damage which the plaintiff in fact suffered.”[290]
[290][2021] VSCA 170, [22]-[23]
281At paragraph 122 of Cotton On, the Court of Appeal referred to the recent West Australian Court of Appeal decision in East Metropolitan Health Services v Ellis.[291] In that case, the Court restated the basic principle:
“‘In this regard, it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant's breach caused the plaintiff to suffer harm is insufficient. The court must be satisfied that it is more probable than not that the defendant's breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm.’”[292]
[291][2020] WASCA 147
[292]Ibid at paragraph [263] (Quinlan CJ, Mitchell and Beach JJA)
282In Adeels Palace Pty Ltd v Moubarak,[293] the High Court said:
“49.Nor did the evidence show that security personnel could or would have prevented re‑entry by the gunman: a determined person armed with a gun and irrationally bent on revenge. The evidence given at trial by the plaintiffs' expert security consultant did not go beyond the assertion that a security person confronting the gunman at the entrance to the restaurant ‘would have at least altered the chain of events and thereby likely altered the outcome’. The security consultant called on behalf of Adeels Palace emphasised that the overriding principle which should govern the conduct of security personnel confronted by a gunman is ‘safety for all parties’ and that ‘once a determined gunman is targeting a victim or victims there [is] no guaranteed safe or effective option’.
50.Recognising that changing any of the circumstances in which the shootings occurred might have made a difference does not prove factual causation. Providing security at the entrance of the restaurant might have delayed the gunman's entry; it might have meant that, if Mr Bou Najem was a random victim, as seemed to be the case, someone else might have been shot and not him. But neither plaintiff proved factual causation by pointing to possibilities that might have eventuated if circumstances had been different.”
[293](2009) 239 CLR 420 (“Adeels Palace”)
283At paragraph 53, the High Court said:
“In the present case, in contrast, the ‘but for’ test of factual causation was not established. It was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place. That is, the absence of security personnel at Adeels Palace on the night the plaintiffs were shot was not a necessary condition of their being shot. Because the absence of security personnel was not a necessary condition of the occurrence of the harm to either plaintiff, s 5D(1) was not satisfied. … .”
Foreseeable risk of injury
284In order to determine whether the defendant failed to take reasonable precautions against the risk of harm, it is first necessary to identify the risk of harm.
285In this case, it is accepted that there was an identifiable risk of harm – the risk of psychiatric injury to a gaming worker at the premises in the event of an armed robbery.
286However, the defendant asserts it was alert to that risk and had systems in place to address it which were in line with industry standards for a club of similar size and comparable risk. The defendant was “clearly a club that had turned its mind to security”.[294]
[294]T734
287The measures the defendant had in place were appropriate and should not be ignored. It was not a venue with a laissez faire attitude to security. There were extensive CCTVs including monitors throughout the premises, signs notifying people as a matter of deterrence that it is under CCTV, and there were also duress alarms.[295]
[295]T710
288There were at all times from opening, three staff so the staff were not alone and there was a receptionist role. Significantly, there was a locked door to the gaming room.[296] The plaintiff said she could not walk in there because the door was locked.[297]
[296]T711
[297]T712
289There were also strongrooms which held most of the cash, and there were only relatively small amounts brought out for the floats when necessary on the floor.[298]
[298]T712
290There was training by the Staff Policy Handbook about what to do in the case of an armed robbery. She did exactly what the Handbook said when there was an armed robbery – stayed calm and complied.[299]
[299]T711
291As Mr Smith said: “One can’t complete[ly] remove the risk in a premises like this one.”[300]
[300]T712
292The plaintiff’s case, however, was that it was notable that none of the steps the defendant had in fact taken had any real effect on the ability of a robber to get in the premises. There is no focus on keeping an offender out or delaying an offender, keeping the offender out is the main issue the plaintiff relied on.[301]
[301]T802
Breach – reasonableness of the proposed measures and Defendant’s response to the risk of harm
293Having identified the risk, the task of the Court is to determine what a reasonable employer would have done in response to that risk at that time.
294Was the defendant’s response to the risk of injury reasonable?
295As at the time of the armed robbery, had the defendant failed to do something that was reasonably practicable to reduce the risk of injury to the plaintiff?
296The plaintiff must present adequate evidence that an alternative and safe system of work existed. She must establish that there were precautions which the defendant could have reasonably taken to have protected her.
Allegations of negligence/breach of duty
297The plaintiff’s case was ultimately that the defendant had failed to do three things which were somewhat intertwined – the “layers” as Dr Zalewski described.
298The defendant had failed to provide a safe system of work by failing to have a reception desk manned 100 per cent of the time, by a person trained to focus on people entering the premises and whose duties were designed consistent with keeping a watch and the provision of an ESL which could be operated by that person to shut the door when a suspicious person was seen entering the premises.[302]
[302]T823
299As counsel for the plaintiff submitted at the commencement of his address, before some allegations of negligence were withdrawn:
“… the value of Dr Zalewski's main measure, which is the combination of the receptionist being there, receptionist keeping a look-out, being trained, being positioned with the best natural surveillance, and having the strike lock mechanism, all taken together, if it works and it’s not going to work every time, of course, if it works, it’s you can’t get in, bad luck. And none of the measures that this club had in place come close to even addressing that sort of thing, let alone being effective. … when it does work, it’s really effective, it stops you getting in. Plus, it may have that deterrent effect. But none of the measures that were in place come close to that.”[303]
[303]T803
300While some layers may have been more effective than the others, even in combination, they need to be considered as a whole when the Court considers their reasonableness and their effectiveness.[304]
[304]T786
301In response, the defendant submitted while Dr Zalewski talked about layers, his suggestions, firstly, have to be reasonable and appropriate. Secondly, they have to make some sort of material causal difference:
“One has to look at closely each one to ascertain that. It’s not just sufficient … to throw up a few ideas and speculate that combined they might make a difference, particularly in circumstances where some of those ideas … [were not] practical, feasible or necessary.[305]
…
[305]T709
… it’s not sufficient for the plaintiff to pick a few measures and say, well, separately they’re not sufficient but together they are, because if the measures individually make no causal difference or very limited causal difference, then putting them together … does not get the plaintiff home on the balance of probabilities.”[306]
[306]T842
302Counsel for the defendant’s submissions addressed Dr Zalewski’s “layers” which, after the evidence, boiled down to the following:
(i) full-time manned reception;
(ii) the receptionist doing no other duties other than looking out;
(iii) the desk in a different spot (natural surveillance);
(iv) the strike lock;
(v) some sort of barrier or board.[307]
[307]T710
303A number of allegations about which both lay and expert evidence was given and submissions made by counsel for the defendant were abandoned by the plaintiff in addresses.
Relocation of the reception desk
304Counsel for the plaintiff conceded “as it turned out, you don’t need to put a desk in the middle of reception at all”.[308]
[308]T798
305Any issues of crowding the foyer are not relevant because on the evidence, the reception desk could have stayed where it was.[309]
[309]T817
306Movement of the desk was not relied on. In any event, Dr Zalewski meant the positioning of a desk, moving it was too literal. Any movement of the desk is not part of the case now “absolutely”.[310] The plaintiff was not pursuing the issues of the positioning of the reception desk and natural surveillance.[311]
[310]T818
[311]T821
307From the defendant’s perspective, Mr Smith was against moving the desk to the centre of reception; it would create a massive choke point.[312] From an operational security perspective, it would be just horrendous.[313] It could also be ruled as cost prohibitive.[314]
[312]T655
[313]T656
[314]T657
Natural surveillance
308Ultimately, it was not said there was a lack of natural surveillance. Whether you move the whole desk or put a desk on “the bird” on the floor of the foyer, you do not need to do it.[315] “On the evidence natural surveillance is good enough.”[316]
[315]T819
[316]T821
309Further, Ms Casey said that she could see through all those windows. So if you can see anyway, you do not need to move the desk.[317]
[317]T819
Barrier
310It was conceded a barrier on its own would not to win the case, it was just another layer.[318]
[318]T822
311The defendant described Dr Zalewski’s evidence in this regard as really vague, both in terms of what the barrier was going to be or where it was going to be put, coming up later in re-examination with the idea of there being a screen behind the receptionist’s desk if the desk was in the middle of the foyer.[319]
[319]T728
312Mr Smith was against the use of any sort of barrier like a whiteboard or a pinboard, it was anti-natural surveillance.[320] In any event, it was not possible to see any barrier inside the premises if you were outside looking in. Further, any barrier might create a concealment area for an offender and disrupt the flow of patrons in the reception area as Mr Smith and Ms Casey explained.
[320]T658
Other issues
313Compliance with the Staff Handbook was not in issue because the plaintiff cooperated with whatever was said in that document in any event.[321]
[321]T825
314There was a lot of evidence from expert and lay witnesses about the plaintiff’s about cash handling procedures on the premises and whether a risk assessment was necessary.
Cash handling
315While the lay witnesses both were asked about cash handling on the premises, the plaintiff did not make a lot of this issue and it was not directly relevant to the armed robbery.[322]
[322]T825
316As the defendant submitted, cash handling on the premises is causally irrelevant as the offender did not target a cash movement and that issue “goes nowhere”.[323]
[323]T760
Risk assessment
317While there was a lot of evidence about risk assessments from the expert witnesses and Ms Casey was asked questions about this issue, the plaintiff did not ultimately allege any breach on the basis of any failure by the defendant to conduct a formal risk assessment – having initially described this as a “blatant” failure.[324]
[324]T796
318In those circumstances, the issue of the “missing witness”[325] does not have to be considered. Whether or not any inference can be drawn from the defendant’s failure to call the Club President, Mr Burgess about whether any risk assessment was done, is not an issue.
[325]Jones v Dunkel (1959) 101 CLR 298
319Counsel for the plaintiff ultimately acknowledged the issue of a risk assessment was a “marginal point”.[326] Counsel could not explain why the defendant should have done a formal risk assessment.[327] It was conceded the plaintiff could only rely on the measures that Dr Zalewski actually identified.[328]
[326]T799
[327]T800
[328]T797
320The defendant argued the lack of a formal written risk assessment does not get the plaintiff very far. Not much weight can be put on the failure to do a formal risk assessment when Dr Zalewski did not suggest any measures beyond what he has given evidence about.[329] It goes nowhere causally.[330]
The remaining allegations of negligence
Reception manned 100 per cent of the time
[329]T842
[330]T758
321Both parties agreed if the Court does not accept that it was reasonable for reception to be manned 100 per cent of the time, the rest of the plaintiff’s case failed because the other allegations depended on that finding being made.
322The plaintiff’s case was the protocol is that the desk should have been manned 100 per cent of the time. It makes a real difference on the facts; however, it was conceded it was only of value combined with the strike lock.[331]
[331]T805
323The defendant submitted if it is accepted that it was reasonable reception was left unmanned for small periods of time, such as in this case, then that is effectively the end of the case for the plaintiff in respect of other measures, which would prevent entry to the premises.[332]
[332]T714
Plaintiff
324A receptionist manning 100 per cent alone is not to be treated in isolation either in terms of effectiveness or reasonableness – “but where it becomes compellingly reasonable is when you take into account that then the strike lock, that measure can be employed all the time.”[333]
[333]T786
325While Mr Smith said, “You don’t need someone there 100 per cent of the time” there were other examples of clubs where someone was there all the time.[334] Comparisons with other clubs were of little merit if you did not know what other security measures those clubs had in place. There is a very strong tendency to look how it is done at other places and if that is how it is done that is reasonable, without taking into account the suggestion that it could be done a different way at these premises with a combination of measures that would have been effective.[335]
[334]T786
[335]T787
326You do not need to treat your receptionist like they are a security guard, you just give them a slightly different role than they otherwise would have. It is not a conflation of reception and security.[336] Potentially you take away some of the receptionist duties so “she is not looking at the screen as much. She does not need to be staring into the void as the defendant suggested.[337]
[336]T810-T811
[337]T810
Defendant
327It was reasonable that reception was not manned 100 per cent of the time.[338]
[338]T714
328The starting point was that the desk was manned at least 80 per cent of the time.[339]
[339]T714
329The plaintiff agreed there was a receptionist rostered from the start of the day. Ms Casey gave evidence that at least 80 per cent of the time reception was manned, even when she was doing the dual roles, and Chris, the admin lady, was also behind the wavy glass four days of the week. While the plaintiff said reception was unmanned quite often, she could not see from the gaming room who was at that desk, and agreed that if the receptionist was not there, usually someone else stood in.[340]
[340]T714
330While Dr Zalewski said reception should always be manned, he also conceded that “if someone wants to have a go, they don’t normally worry about who’s around”. That is a very significant concession about the presence of a receptionist being a deterrent to a motivated perpetrator.[341]
[341]T716
331This was to be contrasted with the evidence of Mr Smith’s evidence, who had extensive experience at other clubs. It was not his experience that receptions are manned 100 per cent of the time. It is not a “security guardhouse”. This is really a key issue because the plaintiff’s case at many points “really conflates the ideas of reception with the idea of a security guardhouse”.[342] That was significant because Dr Zalewski rejected the need for a security guard in this type of situation – a gaming venue of this nature at 11.00am on a Wednesday.
[342]T717
332A very busy club, like Orange, which had reception manned all the time, had 85,000 visitors a year. By contrast, this was a quiet time of the day, low patronage with the staffing levels proportionate to patronage and to risk.[343]
[343]T718
333Also, Ms Casey said she knew of other clubs which were not manned 100 per cent of the time.[344]
TRAINING – to keep a look out/not leave the desk unattended – not having duties that require the receptionist to focus on their computer screen
[344]T718
Plaintiff
334While Dr Zalewski talked about scenario training, he really ended up saying it is a “protocol” in terms of being at the desk 100 per cent of the time. “Scenario” training was not relied on.[345]
[345]T816
335“You regard it as part of your job to keep a look out, and perhaps you do not have duties that really require you to focus on the screen.’[346]
[346]T817
Defendant
336Dr Zalewski’s evidence in relation to training was very vague. He did not really offer much in terms of training.[347]
[347]T844
337He talked about a robbery survival program and then said, “one didn’t need a great deal of training”. There was no evidence about what the training would entail or how it would work to materially improve reaction times.[348]
[348]T754
338Mr Smith discussed the sort of training that the police undergo but queried whether that would be relevant for a receptionist. In any event, he doubted even with training whether the receptionist would have been able to activate the lock.[349]
[349]T754
339It is reasonable for a receptionist to do other duties, as Mr Smith explained. It is not a security guardhouse.[350]
[350]T720
340While she had other duties, Ms Casey was still sitting at reception to do her work, even when she was also HR manager at the same time. Reception was her desk. Her HR role was limited, with the duty manager doing lots of other tasks. She was not at reception for reasons that were reasonable – dealing with the plaintiff’s HR issue that day.[351]
[351]T721
341Dr Zalewski himself agreed that you would not expect a receptionist to be looking out the one window or the one place the whole time she was sitting there. “Probably not”.[352]
[352]T719
342To make out causation, the plaintiff probably has to submit the receptionist should have been looking out the window the whole time and again, that conflates a security guard role with the receptionist role in circumstances where Dr Zalewski specifically disclaimed the need for a security guard in that type of situation.[353]
An ESL
[353]T720
Plaintiff
343You could put it under the reception desk. In terms of practicalities, there is a duress alarm under the counter. It was not disputed that the plaintiff was wrong and the venue in fact had duress alarms on the day of the armed robbery.[354]
[354]T818
344The button being on the wall is a “red herring.” While a strike lock is usually used to keep people out after they had been ejected, “it is a bonus that you get as well in terms of the practicality of installing it”.[355]
[355]T818
Defendant
345The reasonableness of an ESL is somewhat tied up with causation. The difficulty in activating an ESL in time, particularly Ms Smith’s evidence, informs the reasonableness of the need for such a measure in place for armed robbery. There is no reasonable need for a measure that is hard to use to prevent this type of armed robbery. An ESL is really more for lockdowns, as Mr Smith explained.[356]
[356]T722
346There is paucity of evidence in terms of the placement of an ESL. Dr Zalewski had referred to it briefly in his report and does not say anything about it being located at the reception desk until his oral evidence, where he really firms up the specificity of a lot of his evidence.[357]
[357]T750
347Mr Smith spoke of the impracticality of placing the button beneath the desk and that you would have it behind you on a wall or you might even have it on the door.[358]
[358]T750
Findings
348Taking into account all the evidence, I am not satisfied there has been any breach by the defendant of its duty of care to the plaintiff as alleged.
349As the parties agreed, if it is not reasonable for the reception desk to be manned 100 per cent of the time, then the other suggested “security” measures have no effect.
350In my view, it was not reasonable as at the said date to have the reception desk manned 100 per cent of the time.[359]
[359]T806
351Significantly, Dr Zalewski would not expect a security person to be engaged to work at that venue on a Wednesday morning. The presence of a security guard was not part of the plaintiff’s case.
352To then suggest instead a receptionist desk that should be manned 100 per cent of the time, does conflate reception with security – security which Dr Zalewski did not consider necessary.
353While Dr Zalewski said reception should always be manned, he also conceded that “if someone wants to have a go, they don’t normally worry about who’s around”. This was, as the defendant described, “a very significant concession about the presence of a receptionist being a deterrent to a motivated perpetrator”.[360]
[360]T716
354In my view, the system the defendant had in operation on the said date at the reception desk was reasonable from a security perspective. The desk was manned at least 80 per cent of the time, and four days a week there was back up assistance from the admin lady, Chris, who took over reception when Ms Casey was away from the reception desk.
355Further, it was reasonable for Ms Casey to leave reception, where she was based, on this morning to speak to the plaintiff about HR matters in her new role.
356“Training” as the plaintiff finally put it, ties in directly with the requirement to have the reception desk manned full time. That was the written “protocol” Dr Zalewski was suggesting – “in trading hours the reception desk must be manned at all times” allowing for toilet breaks and unforeseen circumstances.
357The other “training” suggested was the receptionist being trained to keep a look out et cetera, focus on what is going on outside. That role again has all the hallmarks of a security role.
358It is reasonable that a receptionist perform a number of roles. A receptionist has a range of duties, as Ms Casey described, and she is not a security guard. Her job is not just sitting there in a guard-type role solely focussing on what is happening outside. To limit her role effectively to just keeping a look out – a security role – is not realistic or reasonable in a club of this nature where there is no requirement for a security guard to be engaged.
359There can only be a breach by the defendant failing to have an ESL installed if it is accepted the reception desk should have been manned all the time, with the receptionist in a position to operate the lock if required.
360What became a major part of the plaintiff’s case in running, was given very little attention in Dr Zalewski’s report. He simply stated it was unclear if an ESL was installed on the front door, that could be operated at reception – if so, the entrance door could have been easily locked had a staff member been present and aware of the bandit approaching.
361In evidence-in-chief, Dr Zalewski’s evidence became “normally you would have a strike release – a button at the counter that could effectively lock the door”. Mr Smith, when responding to this issue in his report, first explained in detail what the ESL involved.
362In Mr Smith’s view, the real focus of the lock was not an armed robbery situation but for lockdowns. Further, there were significant difficulties with installation – particularly placement of the button at the reception desk.
363Despite its relatively low cost, I am not satisfied the installation of an ESL was reasonably practicable. Further, there was no evidence of an ESL being used at other gaming venues in the manner Dr Zalewski suggested.
364Overall, I am not persuaded it was reasonable for the defendant to have implemented any of the security measures suggested by Dr Zalewski – the plaintiff’s case falling away with the finding it was not reasonable to have the reception desk manned 100 per cent of the time.
365I accept the measures in place at the premises were reasonable and consistent with industry practice at the time for clubs assessed with the possible likelihood of armed robbery. That practice was reasonable.
366Further, as Mr Smith explained, the primary goal of any armed robbery procedure is to ensure staff comply with the offender’s directions to prevent escalating the situation to the point where the offender feels compelled to pursue physical violence. This is precisely what happened in this case. The plaintiff followed this procedure set out in the Handbook to the letter.
367Due to the conclusions I have expressed in relation to the issue of breach, it is unnecessary to address and draw conclusions in relation to causation and damages.
368However, if it was accepted there was a breach, I am not satisfied that it is more probable than not that any such breach caused the relevant harm; it is not sufficient to conclude that the breach “may have been a cause of the harm”.[361]
[361]East Metropolitan Health Service v Ellis (supra) at paragraph [611] (Quinlan CJ, Mitchell and Beach JJA)
369It was not shown to be more probable than not that, but for the absence of the suggested measures, the armed robbery would not have taken place.[362]
[362]Adeels Palace (supra) at paragraph [53]
370I accept the detailed analysis by Mr Smith of the factors and time involved in the receptionist responding having first seen the offender at the front door and then being able to activate the ESL before he entered the premises. I am not persuaded that it is more likely than not that the robbery could have been avoided in this six-second period before the offender opened the door. It is a totally different situation to the bank teller scenario upon which Dr Zalewski based his opinion.
371I accept there were too many variables, exactly as was the case in Adeels Palace for it to be able to be concluded on the balance of probabilities, if there was an ESL present and if Ms Casey had been sitting at the reception desk 100% of the time, she would have been able to activate the lock in enough time to prevent entry by the offender.[363]
[363]T751
372Further, as counsel for the defendant submitted, the proof is really in what the plaintiff herself said about her reaction time to all of this. Having seen the offender at the front door, on the CCTV, in the seven seconds that followed until he arrived at the desk, she did nothing, she did not say anything to Rena. Rena herself took a couple of seconds to register what was happening even when the offender appeared right in front of her.[364]
[364]T746
373The plaintiff has failed to establish that there was negligence on the part of the defendant that was a cause of her injury, loss or damage.
374Accordingly, the proceeding is dismissed.
Annexure A
Screenshots taken from CCTV film footage at the premises (exhibit 3)
Annexure B
Screenshots taken from CCTV film footage of the armed robbery (exhibit D)
Image 1 – Masked bandit approaching the venue along Stumblers Lane
Image 2 – Bandit approaching main entrance
Image 3 – Bandit entering through main entrance
Image 4 – Bandit moving through foyer. No staff present
Image 5 – Bandit at cashier window
Image 6 – Bandit at next cashier’s window
Image 7 – Bandit leaving venue through foyer toward entrance – no staff present
Image 8 – Bandit egressing from foyer
Image 9 – Staff member moving toward and securing door
Image 10 – Two staff members in foyer after robbery
Annexure C
Plaintiff’s Hand-drawn Plan of the Interior of the Premises (exhibit A)
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