DISTRICT COURT OF QUEENSLAND
CITATION:
Funnell v Michael Hill Jeweller (Australia) Pty Ltd [2019] QDC 255
PARTIES:
NICOLE GAI FUNNELL
(Plaintiff)
v
MICHAEL HILL JEWELLER (AUSTRALIA) PTY LTD (ABN 82 003 181 333)
(Defendant)
FILE NO/S:
D21/2018
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
13 December 2019
DELIVERED AT:
Southport
HEARING DATE:
16 – 18 September 2019
JUDGE:
Kent QC DCJ
ORDER:
1. Judgement in favour of the plaintiff against the defendant for $270,439.33.
2. I will hear the parties as to costs.
CATCHWORDS:
TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – CIVIL LIABILITY LEGISLATION – RISK OF HARM: FORESEEABLE AND NOT INSIGNIFICANT – where parties agree there was a duty of care and the incident, a violent crime, was foreseeable – where no evidence of similar injuries resulting from similar incidents was provided – where the plaintiff suffered pre-existing psychiatric conditions – where the medical experts agree these contributed to her injury, although to different extents – where the employer was unaware of these pre-existing vulnerabilities – whether the risk of psychiatric injury was foreseeable and not insignificant.
TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – CIVIL LIABILITY LEGISLATION – RESPONSE TO RISK AND AVOIDABILITY – where the plaintiff submits the relevant incident was avoidable had the defendant taken precautions – where the defendant submits precautions would be ineffective and overly onerous – where the defendant has since taken the precaution of lowering the value of items for which staff must obtain identification prior to removal from secure storage – whether a reasonable person in the defendant’s position would have taken precautions.
EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – PARTICULAR CASES – PRECAUTIONS TO PREVENT INJURY – where the plaintiff submits the defendant’s breach was a necessary condition of the occurrence of injury – where the defendant submits criminal behaviour is unpredictable and irrational and precautions would be ineffective – where the plaintiff tended to follow instructions – where a suggested precaution is now in place and not overly onerous – whether the injury would have occurred if the suggested precautions were in place.
WORKERS’ COMPENSATION – LIABILITY TO PAY COMPENSATION – GENERALLY – where parties agree there was a duty of care and the incident was foreseeable – where the defendant was not aware of the plaintiff’s pre-existing vulnerability – where the court finds the injury was nevertheless foreseeable and preventable – where the plaintiff failed to comply with a sales process not a safety procedure – where contributory negligence is not pleaded – whether it is appropriate for the scope of liability of the defendant to extend to the injury caused.
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B, s 305D
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, cited
Benic v NSW [2010] NSWSC 1039, cited
Brisbane Youth Service Inc v Beven [2018] 2 Qd R 291, followed
Browne v Dunn (1893) 6 R (HL) 67, cited
Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45, cited
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, cited
Eaton v TriCare (Country) Pty Ltd [2016] QCA 139, followed
Hansen & Anor v Patrick & Ors [2018] QCA 298, cited
Henderson v State of Queensland (2014) 225 CLR 1, cited
HG v R (1999) 197 CLR 414, cited
Ilosfai v Excel Technik Pty Ltd [2003] QSC 275, applied
Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182, applied
Kelleher v J & A Accessories Pty Ltd [2018] QSC 227, followed
Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, cited
Lusk & Anor v Sapwell [2011] QCA 59, cited
Makita (Australia Pty Ltd) v Sprowles (2001) 52 NSWLR 705, cited
McLean v Tedman (1984) 155 CLR 306, cited
Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 205 CLR 254, applied
Perkovic v McDonnell Industries Pty Ltd (1987) 45 SASR 544, followed
Queensland Corrective Services Commission v Gallagher [1998] QCA 426, cited
Rands v McNeil (1955) 1 QB 253, cited
Reck v Queensland Rail [2005] QCA 228, followed
Re Day (2017) 340 ALR 368, cited
Roads and Traffic Authority v Royal (2008) 82 ALJR 870, cited
Tame v NSW (2002) 211 CLR 317, applied
The Corporation of the Synod of the Diocese of Brisbane v Greenway [2018] 1 Qd R 344, cited
Vozza v Tooth & Co Ltd (1964) 112 CLR 316, cited
Waugh v Kippen (1986) 160 CLR 156, followed
White v Calstores Pty Ltd [2006] QCA 535, applied
Woolworths Ltd v Perrins [2016] 2 Qd R 276, cited
Henderson COUNSEL:
MT O’Sullivan for the plaintiff
R Morton for the defendant
SOLICITORS:
Shine Lawyers for the plaintiff
McInnes Wilson Lawyers for the defendant
Introduction
This is a claim for damages for personal injuries said to have been suffered by the plaintiff in the course of her employment with the defendant. In summary, the plaintiff was a sales assistant (“sales professional” in some of the evidence) at the defendant’s jewellery store at Helensvale. On 1 November 2015 she was the victim of an attempted robbery. She suffered minor physical injuries, but has subsequently developed significant psychiatric injuries therefrom. She thus claims damages said to have been suffered by reason of the defendant’s negligence in failing to provide her with a safe system of work in various particulars, with the overarching theme that proper precautions were required which would have prevented the incident occurring.
The defendant does not significantly dispute many of the factual elements of the case, including that an incident of this general kind was foreseeable, but says that it was not negligent; in any case no causal relationship is demonstrated to either the happening of the event or indeed any consequential injury to the plaintiff. It is further disputed as to exactly what the psychiatric sequelae of the incident were. Therefore, in summary, there were significant disputes as to both liability and quantum.
In my conclusion the incident, and the plaintiff’s injury, were avoidable had the defendant adopted earlier its present policy of requiring customers to produce identification for demonstration of any items valued at more than $2,000, and having this as a safety policy rather than merely part of the sales process. Thus the defendant is liable for negligently causing the plaintiff’s injury.
The pleadings – Amended Statement of Claim
Relationship of the parties
The defendant owed the plaintiff a non-delegable duty of care to take all reasonable care for her safety and avoid exposing her to unnecessary risk of injury in her employment; and there was an implied contractual term to similar effect. Reference is then made to Chapter 5, Part 8, Division 1 of the Workers Compensation and Rehabilitation Act 2003 (“WCRA”). It is acknowledged firstly, that there is no breach of such a duty unless the risk was foreseeable and not insignificant and, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions (s 305B(1)).
Further, in deciding whether a reasonable person would have taken the precautions, the court must consider:
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking the precautions to avoid the risk of injury (s 305B(2)).
Further, pursuant to s 305D(1), a decision that a breach of duty caused a particular injury comprises two elements:
(a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
(b) it is appropriate for the scope of liability of the person in breach to extend to the injury so caused (scope of liability).
The pleading acknowledges that, as s 305D(2) sets out, in deciding in an exceptional case, in accordance with established principles, whether a breach of duty (being a breach of duty that is established, but which cannot be established as satisfying ss (1)(a) above) should (nevertheless) be accepted as satisfying ss 1(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.
Further, the pleading acknowledges s 305(D)(4), that for the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.
The incident
On 1 November 2015 at about 2.00pm, the plaintiff was working with two other female shop assistants in the shop. The shop was open to a public foyer area within Westfield Helensvale shopping centre; it had no doors, or security doors, restricting access or egress; and it was accessed by the public simply walking in from the arcade area to the shop. There was no protective barrier within the shop such as security glass; no security guard on duty in the shop; no warning signs to the effect that the area was under surveillance via CCTV; no male staff member on duty; and, as background, the premises had been the subject of at least three robberies or attempted robberies in circumstances similar to the subject incident.
The incident occurred when a male customer, who became the assailant, entered the shop and viewed a gold necklace and matching wrist chain in a display cabinet. The plaintiff spoke to him from behind the serving counter. The assailant asked the price of the necklace and the plaintiff replied that it was almost $13,000. The assailant asked if that was the best price and thereupon the plaintiff took the necklace from the cabinet to scan it at the nearby cash register to obtain the requested price. Upon her return she informed him that the best price was $7,900. The assailant said he needed to call his girlfriend and enquired about a smaller necklace and bracelet in the cabinet, then asked the plaintiff if he could feel the weight of the first necklace. In accordance with her training (at least on the plaintiff’s case), the plaintiff asked him to produce his driver’s licence for inspection. She had not been instructed to secure the licence before accessing the display cabinet or before the customer handled any jewellery of the value in question[1] (to this point, the factual narrative in the amended statement of claim is admitted in the second further amended defence of the defendant).
[1]Paragraph 3(p) of the ASOC is admitted; paragraph 3(a) of the 2nd Further Amended Defence; also 4(d).
The assailant then moved his hand to his right side, as if reaching for his wallet (this is all visible on CCTV footage). The plaintiff retained the chain in her possession, keeping the counter and some distance between herself and the assailant. Suddenly the assailant aggressively reached over the counter and grabbed the necklace. The plaintiff held on to the chain and resisted the attempt to steal it, with the assistance of her co-worker, Rachel Coulthard. The assailant used both hands to pull on the chain and it broke. He then let go and fled. The plaintiff suffered bleeding to her hand, was shocked, became nervous and anxious and then developed panic attacks and psychiatric injury.
Particulars of negligence
The plaintiff pleads a number of particulars of negligence as to the failure to provide a safe system of work. These include failure to provide a security guard; failure to monitor customers and intervene as necessary; failure to have security doors at the entrance of the shop; failure to have a door person controlling the passage of customers; failing to have a male attendant on duty to deal with customers such as the assailant; failure to train the plaintiff and other staff not to resist an attempted stealing; failing to have a system in place enabling the sale price of jewellery to be ascertained without the need to remove the item from the cabinet; failing to have signs on display warning of the use of CCTV cameras; failure to monitor customers by means that advised them their presence was being recorded; failing to provide a protection barrier in the event of a robbery; and failing to adequately train staff, including the plaintiff, that the drivers licence of the customer needed to be retained by them and secured before expensive jewellery was removed from the display cabinet.[2]
[2]Paragraph 4(a)
It is also pleaded that the defendant failed to provide the plaintiff with specific training in respect to reasonably safe movement of jewellery within the shop; and failed to carry out appropriate risk assessments[3]. It is pleaded that the defendant is liable at common law as modified by the WCRA outlined above because, but for the above failures (“the precautions”), the plaintiff would not have been involved in the incident and/or suffered the injury; or alternatively, it is said that this is an exceptional case, and the court will find that the above failures materially contributed to the injury suffered by the plaintiff.
[3]Paragraph 4(c) and (d)
It is thus said that the defendant is in breach of its duty of care and/or the implied contractual term.
It is said that the defendant exposed the plaintiff to a foreseeable risk of injury which was not insignificant; that a reasonable person in the defendant’s position would have taken precautions against; that there was a higher probability that injury would occur to the plaintiff if care were not taken and that such an injury would be serious. It is said that the burden in taking precautions to avoid the risk was modest in the circumstances considering the profitability of the shop and of the defendant’s business; the turnover of jewellery at the shop; the previous robberies or attempted robberies at the shop and other shops operated by the defendant and the risk of injury to staff by such an incident as outlined.[4] Thus it is said that in the circumstances it is appropriate that responsibility for the injury be imposed on the defendant.
[4]Paragraph 7(f)
Injuries
The pleading sets out the psychiatric injury, namely a generalised anxiety disorder with features of post-traumatic disorder arising out of a chronic adjustment disorder with anxious mood. It is pleaded that a causal connection exists between the defendant’s breaches, the incident and the injury suffered by the plaintiff.
Damages
It is pleaded that the plaintiff has suffered various consequences including significant economic loss and damages under other headings.
The second further amended defence of the defendant
As outlined above, many of the factual elements of the plaintiff’s amended statement of claim are admitted. However the defendant denies that the plaintiff suffered the psychiatric conditions pleaded as a consequence of the incident, or any act or admission of the defendant. Rather, pre-existing conditions are referred to together with pre-existing alcohol abuse and symptoms of post-traumatic stress disorder from a motor vehicle incident in 1988 which was aggravated by other incidents thereafter, prior to the November 2015 incident. The defendant pleads that if the plaintiff did suffer any psychiatric injury as a consequence of the incident, it was a short lived exacerbation of her pre-existing condition, lasting approximately six months.
The defendant denies that there was a causal relationship between the plaintiff’s injury and any of the particulars referred to in that none of them was a necessary condition of the occurrence of any injury to the plaintiff and that none of the precautions would have prevented any such injury. It is further said that having regard to the relevant factors, none of the precautions were reasonably required. The defendant pleads that it committed no breach of duty or obligation to the plaintiff and the system of work was not unsafe. Further it is not appropriate for the scope of liability to be extended to the defendant because there was nothing it could reasonably do which would have prevented the injury. It is said that any foreseeable risk of injury was insignificant and no reasonable person in the defendant’s position would have taken the precautions suggested.
Thus liability is denied; it is said that the condition suffered, if any, was much less serious and temporary; it is also pleaded that the plaintiff has been capable of employment either at all times or from about six months after 1 November 2015.
Reply
The plaintiff’s reply put many contentions in issue, and added to the case about training, that she should have been trained that if in doubt about a customer’s intentions, valuable items should not be removed from a display case without identification.[5] This is slightly narrower than the pleading in the amended statement of claim, which called for retention of a driver’s licence before expensive jewellery was removed from the cabinet (i.e. without reference to doubt about intentions).
The evidence
[5]Paragraph 2(a)(iv)
The plaintiff
The plaintiff’s evidence included her background including some previous mental health issues, her work history including considerable experience in the retail sector and her present circumstances such as her status as a carer for her elderly parents. She described how the incident occurred[6] including her interactions with the assailant and the eventual struggle with him concluding with the necklace breaking at which point the assailant ran away. The plaintiff was considerably distressed after the event and was not able to continue working for the employer. She said that she was not able to go back to working in retail positions particularly in jewellery.
[6]Transcript 1–32 ll 13 to 37.
The plaintiff said that she had not received any instructions about having to secure an expensive item prior to asking for a drivers’ licence.[7] She said that there was no reason why she could not have locked the necklace away and then asked for the drivers’ licence but she had not received any instructions to do that.
[7]Transcript 1–39 ll 46 to 47.
The plaintiff also gave evidence as to a previous incident which happened in the workplace in September 2014. A customer came into the store and was looking at a piece of jewellery. He made inquiries about finance and the plaintiff asked for his drivers’ licence. At that stage the man grabbed the item and ran. He was chased to the car park where he was apprehended.
After leaving the defendant’s employment the plaintiff did a six week course in hospitality and then gained employment at the Nerang RSL. She said that she enjoyed that employment and was quite successful until one day when one of her co-workers surprised her and she decompensated and suffered a panic attack. Those symptoms continued and eventually she was not able to keep working at the RSL. Thereafter she did some Uber driving for a period of time. She felt somewhat safer in that occupation. However eventually she did not make very much money and did not continue after a car accident. It was after that time that she became the full-time carer for her elderly parents and began receiving the carers’ pension. She said that if not for the incident she would have continued working for Michael Hill jewellers indefinitely but that she would have reduced her hours to enable her to care for her parents.[8]
[8]Transcript 1-47 to 1-48.
As to pre-existing health issues the plaintiff acknowledged that she had taken Aropax for many years, for anxiety. She also said that she had consumed alcohol on a regular basis, drinking about one bottle of champagne per day. However she began drinking more heavily after the incident, possibly up to 3 bottles per day for a few months.
The plaintiff was extensively cross-examined about the sales process in which she was trained. She was taken through training manuals in some detail. She agreed that she was trained not to take entire trays of stock out when serving customers; not to leave merchandise unattended; to always close and re-lock showcase doors; and to ensure all merchandise removed was replaced. I am not aware of any suggestion she breached any of these procedures.
Ms Funnell was taken to written company policy documents which set out a requirement for sales staff to obtain identification when demonstrating products in excess of $20,000. It was common ground between the parties that the item in question in the incident did not exceed $13,000 in value.
In relation to the training as to the sales process, Ms Funnell agreed that there were a number of steps involved, from an introductory conversation to “probing” questions designed to engage with the customer and find out information about their intentions and requirements, to a demonstration process where the product is demonstrated to the customer. There was also a process referred to as “smoke out” which was designed to overcome objections by the customer. There was eventually a negotiation and conclusion of the sale. Although Ms Funnell was not familiar with all of the details and terminology which were shown to her in the training manuals, she did agree generally that there were such steps and that if a customer tried to short circuit the process, the training dictated that the sales person should try to go back to the probing questions at the beginning. She agreed that staff were meant to follow the six step sale process[9]. She agreed that if a client came in and started talking about the price, that is, to try to commence almost at the end of the process, her training was to go back to the start.[10]
[9]Transcript 1–74 ll 39 to 42.
[10]Transcript 1–76 ll 1-7.
She agreed that there was training along the lines that suspicious behaviour by a customer would be indicated among staff by the code word “De Beers”. She agreed, as demonstrated by photographs, that there were security cameras in the areas both outside and inside the store which were visible to customers. In relation to the obtaining of identification she agreed that the whole point was the value of the goods or the behaviour of the customer; and if she thought there was a risk of a customer stealing the goods she would not let the goods anywhere near the customer without getting the identification. She agreed that the clear system when concerned about the behaviour of a customer was not to put the goods within their reach until she had the identification.[11]
[11]Transcript 1–98 ll 1 to 4.
However she denied that she knew that she should not have taken the item out of the cabinet when he asked for the best price[12]. When challenged that this was contrary to the training she said;
“Depends. I explained this yesterday. It depends on the customer. Some people would be in a rush. Some people aren’t. Every scenario is different. Not every time is it that we have to be regiment if we go and ask this, and do that, do that. Like, the seven steps. It never happened always. This guy, you know, asked – which we do – check it. I went over to the counter like I supposed to and scanned it.”
[12]Transcript 2–4 l 40; 2-24 ll 10-15.
She agreed that she asked for identification for goods that were less than $20,000 because she was suspicious of his motives, but she denied that she thought he was going to grab the chain and run.[13]
Other witnesses
[13]Transcript 2–31 ll 16 to 21.
Dr Foxcroft
The plaintiff also called Dr Foxcroft, a specialist psychiatrist who reported on the plaintiff at the request of her solicitors. He concluded that the plaintiff developed a generalised anxiety disorder with features of post-traumatic stress arising out of a chronic adjustment disorder with anxious mood as a consequence of the workplace incident on 1 November 2015. Prior to the injury she had significant vulnerability factors, but no evidence of any psychiatric impairment or condition. She had a PIRS rating of 7 percent. She has a partial incapacity for work which is ongoing and her overall prognosis is poor.[14] Dr Foxcroft re-examined the plaintiff on 7 September 2018 and confirmed his previously held opinion. He expressed the view that this examination contradicted the findings of Professor Whiteford in his examination of 22 November 2017 and the opinions therefrom. He did not agree that Ms Funnell’s symptoms had returned to her previous level of function. However, she had improved and he concluded she had a 5 percent impairment attributable to the incident.
[14]Report of Dr Foxcroft, 2 August 2017, Exhibit 1, Tab B1.
In a further report of 9 September 2019, Dr Foxcroft referred to an updated examination on 6 September 2019. He concluded she continued to exhibit symptoms of a significant anxiety disorder. She had received counselling from a psychologist in the meantime and her anti-depressant medication had been increased to 40mg daily. Her prognosis was poor and she had a partial capacity for work.
In cross-examination some differences in collateral information compared with what the plaintiff was reporting to Dr Foxcroft were put to him, and he agreed that the accuracy of the patient’s self-report is important and many of the details were self-reported symptoms. It was put to him that Professor Whiteford’s view that her condition continued with occasional flare ups was correct, however he said that repeated stressors accumulate so that the likelihood of previous symptoms resolving decreases.[15] Overall, Dr Foxcroft did not seem to accede to the competing opinions of Professor Whiteford which were put to him.
[15]Transcript 2-70, ll 17-22.
Rachael Coulthard
The plaintiff also called her co-worker, Rachael Coulthard. She continued to be employed with the defendant in the Helensvale store. She had worked with the plaintiff for about 12 months. She gave evidence that prior to the incident the plaintiff appeared to be a confident person, well able to engage with customers and appearing to be happy rather than anxious. She described how the incident occurred. She was present at the time. She said that in order to negotiate a price it was necessary to take the item of jewellery to the register, as the plaintiff had done. She gave general evidence that there was training to the effect that identification could be required, but was not aware of the $20,000 limit.
Ms Coulthard recalled the plaintiff being a little bit away from the counter, that is, moving further away, in the time leading up to the snatch.[16] She said that when she engaged with a customer she would tend to try to engage in conversation before removing an item from a display cabinet, to enquire whether or not the customer was a genuine buyer. She felt she would have asked for identification (which the plaintiff in fact did, although the argument seems to be that she should have done so sooner). She recalled the plaintiff being very shaken up by the incident.[17]
[16]Transcript 2-91, ll 5-20.
[17]Transcript 2-92, l 20.
She agreed in cross-examination that where identification was required, it should be requested before removing the item from the cabinet[18] (this is no doubt correct, but there seems to have been no requirement, according to the defendant’s then policy, to require identification for this item which was valued at less than $20,000). She agreed that security cameras were quite visible in the store, as are security cameras at other jewellery stores. She also agreed that Ms Cadzow, the manager, ran a tight ship in terms of following correct procedure and that the centre’s security guards patrolled regularly and were available if called. She also spoke of a recent event where there was an attempted snatch and grab in the presence of a security guard.[19] This no doubt underlies the unpredictability of criminal behaviour, something referred to by the defendant.
[18]Transcript 2-93, l 12.
[19]Transcript 2-98 to 99.
Ms Coulthard also said that there was training to “go back to North” (i.e. back to the start of the sales process) if a person asked for the price, but said it was oral, not written;[20] and in the recent event, identification had not been taken, despite the property (a watch) having been removed from the case. She agreed that in the sales process, involving as it does human interactions, it is hard to have completely inflexible guidelines.[21]
[20]Transcript 2-101 to 102.
[21]Transcript 2-104, l 42.
Kellie Lee Pattison
Ms Pattison was a sales person with the defendant in 2014 – 2015. She was present for the incident. She described the offender smashing the counter, and the plaintiff standing back from the counter.[22] The plaintiff was very shaken afterwards.
[22]Transcript 2-106 to 107.
Sandra Rosalia Cadzow
Ms Cadzow was the manager and was present at the time of the incident. She had experienced a previous snatch and grab incident, in the Beenleigh store in 2012/13; and another one, at Helensvale in April 2015 where identification had been requested and given, but returned.[23] She was very shaken and had completed an incident report in relation to that. She said normally identification, if required, was requested before removing the item from the cabinet.[24]
[23]Transcript 2-112.
[24]Transcript 2-113.
Jason Mark Blond
The plaintiff also called Mr Blond, who worked with the plaintiff subsequently at the RSL Nerang where he was the head chef. The plaintiff worked well there from October 2016 but then decompensated when he scared her as a prank; she became very upset and had to be sent home.[25] Later she was easily startled – for example, if plates were dropped – and sensitive and it interfered with her work. He also gave evidence of pay rates.
[25]Transcript 2-117.
Donna Lesley Newton
Ms Newton is the plaintiff’s sister. She gave evidence of adverse impacts she observed on the plaintiff including being shaken, wanting to stay at home and drinking heavily; agitation and mood swings. In cross examination her honesty was challenged as she had been dismissed from the defendant’s employment because of dishonesty;[26] but she denied having an axe to grind against the defendant.
Defendant’s witnesses
[26]Transcript 2-124, l 39.
Tishara Mina
The defendant called Ms Mina who is the defendant’s general manager of retail for Australia. She gave evidence of the general structure of the business. There are about 161 stores in Australia for which she has responsibility for 69. In 2015 she was a regional manager including for Helensvale. The defendant is a middle-market jeweller providing a product at an affordable price. It mostly has premises with open doors and no security guards;[27] exceptions are a couple of “flagship” stores which are different, with more expensive products, and are more secure. In a store such as Helensvale, the most expensive item would be $15,000 to $20,000; for a flagship store, up to $100,000.
[27]The idea is an open, friendly environment; Transcript 3-19.
She was generally aware of “snatch and grab” offences, including from her previous occupations in other retail settings. She was not aware of a previous psychiatric injury therefrom. She noted the defendant and other similar competitors have CCTV monitoring, and recently the defendant has placed small “tent” signs in stores advising of this. A security guard, if employed, would be necessary for about 60 hours per week. Lockable security doors would in her view be undesirable; an offender could be trapped inside with vulnerable staff.[28] As to male staff, the defendant will not allocate employment or shifts on the basis of gender and such discrimination does not mitigate security risk. The defendant trains staff to take customers to the beginning of the sales process or to “go back to North” to establish a relationship with the customer, understand their intention, ensure both parties feel comfortable and better demonstrate the product based on the customer’s intention. This is reinforced through role plays and daily check-ins.
[28]Transcript 3-21.
She said the plaintiff’s immediate removal of the chain from the cabinet when asked for the best price was not in accordance with this training. Rather, she was trained to engage with the customer to determine why they were interested in the piece and who it was for, before negotiating price, starting from the displayed retail price. The tactics are aimed at slowing down the process and gauging the customer’s intent; this assists security as well as sales. She said the sales process was not identified as an anti-theft policy, but the two overlap and staff are trained to follow the sales process.[29]
[29]Transcript 3-44, ll 40-45.
As to asking for identification, this had to be balanced against volume of customers and time constraints; having somewhere to physically put the document; and its potential to break down the sales process.
In cross examination, she agreed staff safety was a priority; however this is diluted by some concessions as follows. Although three previous robberies at the Helensvale store were admitted on the pleadings, she was only aware of the plaintiff’s incident. Accordingly she had not analysed any of the previous ones nor was she aware of records of them; in fact there were none.[30] The evidence of police records shows there were 31 snatch and grab incidents in the 34 Queensland stores in the five years from March 2010 to November 2015.[31] However no such records were disclosed by the defendant. The defendant seems not to have had a system of keeping such records.
[30]Exhibit 9
[31]Exhibit 1, volume 1 tab A2
Ms Mina said the policy as to the value of an item where identification is requested had been revised down from $20,000 (as it was in 2008) to $2,000 more recently because of a risk assessment, but this was more to do with a recent spate of incidents in Melbourne than the plaintiff’s incident.[32] At the time the reporting process for such incidents was oral and there was no formal process to assess the risk factors that led to the incident.[33] To the extent it is relevant, she did not agree with the suggestion the policy should have been reduced to $5,000 by the time of the plaintiff’s incident.[34] She did agree the item in question here was an expensive item, although then qualified this, saying it is subjective.[35] On the evidence as outlined above, it seems to have been one of the most expensive items in this store, which would seem to be the relevant context, and thus would seem to justify the descriptor “expensive”.
[32]Transcript 3-34; also Transcript 3-36, ll 9-24.
[33]Transcript 3-35, ll 20-32.
[34]Transcript 3-41, l 45.
[35]Transcript 3-42, ll 3-17.
Ms Mina was critical of the plaintiff for removing the item from the cabinet; rather she should have returned to “probing” questions.[36] She did not agree that the sales process in this regard should also have been taught as a theft prevention policy.[37]
[36]Transcript 3-46.
[37]Transcript 3-47.
Gregory Barry Cornish
Mr Cornish is a workplace health and safety manager for the defendant. He established the pay rates for security guards. He also confirmed there was an increase in thefts in January 2019 which prompted a review resulting in the change to the value for which identification is required to $2,000. The “tent” cards (referring to CCTV monitoring) were deployed in April 2019 and there have been 18 instances of snatch and grabs since then, apparently across all of the business, i.e. Australia, New Zealand and Canada. There was an instance in Canada where the offender provided identification but still left with a gold chain.
He said in cross examination that he had not found any incident reports relating to specific incidents, rather there was an Excel spreadsheet produced from an “incident register”. He agreed it is important for staff to know that the sales process has an important part to play in lowering the risk of a snatch and grab.[38] He did not agree that doors would help safety.
[38]Transcript 3-55, l 5.
Professor Whiteford
Professor Whiteford examined the plaintiff and concluded that she suffered from pre-existing post-traumatic stress disorder (from previous traumas, a motor vehicle accident and being a witness to a murder) which was aggravated by the incident of 1 November 2015. By the time of his examination in November 2017 her condition had returned to pre injury level. She had returned to work (at the RSL) but should not return to the defendant’s employment, for risk of relapse. Her PIRS rating was 4%. He did not agree with Dr Foxcroft that the subject incident caused a permanent impairment.[39]
[39]See e.g. Transcript 3-91, ll 8-9.
He also regarded the snatch and grab incident as being relatively minor, not such as to cause a person of normal fortitude to suffer a psychiatric condition, although an adjustment disorder for a period was possible.[40] He watched the CCTV footage. In cross examination the proposition was put to him that a large number of people in the community would be susceptible to having adverse symptomatology from such an event for longer than six months (i.e. longer than the definitional span of an adjustment disorder, according to the DSM V) and he denied this.
[40]Transcript 3-78.
The factual underpinning for this opinion (i.e. the “normal fortitude” opinion) is unclear. He did not refer to research on the topic, or the number of robbery victims he had examined or treated, in what circumstances, or any other published statistics, textbooks or other material. It is, of course, important that an expert opinion, within a field of specialised knowledge, based on facts either observed or otherwise proved, expose all of those facts and their basis, and the reasoning process for the conclusion reached.[41] There is no room for veering into speculation or inference.[42] Thus I do not find this opinion, not having exposed this factual basis, to be very weighty, as referenced later.
[41]See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA at [85]; also Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [90].
[42]HG v R (1999) 197 CLR 414 at [41].
He said that people suffer stressors over their life span and the effects can be cumulative, increasing the risk of a trauma later in life causing symptoms.[43] He said the plaintiff’s PTSD symptoms have waxed and waned over time, making it hard to identify the contribution from this event.
[43]Transcript 3-80.
Professor Whiteford was sceptical as to the plaintiff leaving the RSL employment; she was coping with it when he saw her, although with some exaggerated startle response and noise intolerance. He noted her symptoms can fluctuate.[44]
The plaintiff’s submissions
[44]Transcript 3-87, ll 19-23.
The general setting and suggested precautions
The plaintiff submitted that there was an ever present risk of an attempted robbery in the relevant work environment. These “snatch and grab” offences numbered 31 similar incidents in Queensland stores of the defendant from March 2010 to November 2015.[45] Moreover, it is obvious that small and easily transported items which are valuable are likely to attract attempted theft, with consequent risk of assault to staff.
[45]Exhibit 1, Document A2; Transcript 3-32, l 35.
The fact that the defendant had safety instructions focussed on compliance with the demands of, and not pursuing, an offender was indicative of the defendant’s knowledge of the risk. The plaintiff thus submits that the risk was foreseeable; it was not insignificant; and a reasonable person in the position of the defendant would thus have provided a safe system of work by taking various precautions. These included:
(i) providing a security officer in the store;
(ii) providing doors that could be closed, so as to reduce the possibility for a quick escape;
(iii) providing signs (such as the “tent” - a small sign in the store - which has since been instituted, a copy of which is in evidence) advising customers they are being recorded whilst in the store.
(Steps (i) to (iii) above, so it seems to be argued, reduce the “soft target” characteristics of the defendant’s business; making it a less desirable and thus less likely target for a criminal; thus the incident would likely not have occurred)
(iv) instructing that staff members who are suspicious of a customer’s intentions should not retrieve an item, such as the subject valuable gold chain, from the security of the display case until the drivers licence of the customer is obtained (and the identification verified) and retained by staff.[46]
[46]Paragraph 4 of the amended statement of claim and paragraph 2A(iv) of the amended reply.
(This step would be a more direct preventive, in that it is apt to prevent an attempted robbery from proceeding, even if the offender did select the store as a target and began to attempt to commit the offence; and it may rely less on a robber being logical and predictable)
Thus the plaintiff submits that the incident would not have occurred had steps (i), (ii), (iii) or (iv) been taken prior to the incident.
The duty of care
The plaintiff submits that the duty of care to secure the safety of the plaintiff, in the present circumstances is a high one. Reference is made to Lord Denning in Rands v McNeil:[47]
“It is trite knowledge that the greater the danger the greater the precautions that should be taken.”
[47](1955) 1 QB 253 at 257.
Further, in McLean v Tedman:[48]
“In deciding whether an employer had discharged its common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”
[48](1984) 155 CLR 306 at 313.
Reference is also made to Brisbane Youth Service Inc v Beven[49] on this topic, particularly in the context of possible assault by third parties. This is instructive; the present case is one of the same category, where the injury is caused by the deliberate act of a third party (in this case, unidentified) offender, but in all the circumstances the employer may nevertheless be liable. That case concerned the defendant’s unreasonable exposure of the plaintiff social worker to the risk of overt sexual conduct by a client. The employer was found liable, having not taken the necessary (although, at first blush, rather extreme[50]) precaution of dispensing with the offender as a client; i.e. declining to offer any further services to her.[51]
[49][2018] 2 Qd R 291.
[50]However it was explained that there were alternatives for the client: see Ibid Sofronoff P at [176] and Gotterson JA at [182]; McMurdo JA, who dissented, differed on this point at [231].
[51]Ibid at [113].
The plaintiff emphasises a number of passages from that judgment, at paragraphs [159] to [169]. These deal with the obligations of an employer, as opposed to the employee, to take relevant steps to assess risks and guard against them in the workplace. The court did not accept the idea that categories of workers, like social workers, who may work in situations carrying some risk of injury, implicitly accept the sole obligation of assessing the risk so as to absolve the employer from its usual duty to ensure the safety of the workplace. The President in the leading judgment, noted at [160] that:
“An employer is, or ought to be, in a better position to identify and to assess risks in the workplace and to determine the propriety of exposing its employees to them.”
Further at [164]:
“The respondent’s agreement to perform her duties under her contract of employment was not conclusive against her claim. It could not be said, and it is not said by the appellant, that she undertook to provide services to persons who might assault her.”
His Honour said at [166]:
“However, in my view, the fact that the dangers to which social workers might be exposed may be both obvious and expected does not operate to reduce an employer’s duty to ensure an employee’s safety. On the contrary, while the standard of the employer’s duty of care remains the same, the occasion for action may become more evident by an employer’s appreciation of the ubiquitous nature of such risks and the potential for such risks to carry severe consequences for employees.”
The plaintiff also refers to the President quoting from Von Doussa J in Perkovic v McDonnell Industries Pty Ltd:[52]
“… generally speaking, the greater the degree of danger inherent in the work, the more likely will be the need for instruction and warning… The employer’s duty to exercise reasonable care for the safety of his employees will often require that skilled employees be reminded periodically about the risks of their work and the need to guard against them.”
Beven represents, in my view, an example of the high degree of responsibility imposed on an employer to avoid foreseeable risks of harm to its workers from criminal conduct by third parties.
[52](1987) 45 SASR 544 at 554.
Reck v Queensland Rail[53] dealt with the training of employees to negotiate risks in the workplace. In that case Fryberg J set out at [15] and [17] observations about the nature of the employer’s duty in relation to training in methods of avoiding risks inherent in the system of work. His Honour made the following observation at [17]:
“Moreover, in the circumstances of the case, proper instruction required training. Training to perform an action involves more than issuing warnings and giving commands. It requires the employer to demonstrate and explain the action, and then to have the employee practice it until it becomes automatic. That is one way of reducing the risk of injuries due to inadvertence. The finding that on the balance of probabilities, had the appellant performed its duty the accident would not have occurred, was justified.”
So the plaintiff relies, as I understand it, on the authorities for principles that an employer is required to guard against risk of criminal conduct towards its employees in the workplace, including by third parties; and that the duty in relation to training, including to deal with such a risk, is also a high one.
[53][2005] QCA 228.
Application of these principles in the context of the evidence
The plaintiff further submits that she should be assessed as being an honest witness who outlined her past traumatic events, her psychiatric condition, pre-existing need for medication (Aropax) and her drinking of alcohol. It is pointed out (in support of her creditworthiness and the impact of the incident) that she became quite emotional when pressed, in cross-examination, to watch the CCTV footage of the incident; in contrast, she did not display emotion when discussing her previous traumatic events.
It is submitted that the plaintiff was a hard worker who enjoyed her work. There is also no doubt about the actual circumstances of the incident as it is recorded on CCTV and was the subject of consistent evidence from the plaintiff and her co-workers.
The plaintiff also submits that the incident was very stressful, as indicated by her need for immediate comfort after the incident and wanting to go home. She was described by witnesses as being very shaken up and her hands were shaking; she was visibly upset and couldn’t really talk about it (the event).[54]
[54]Ms Coulthard at Transcript 2-92, ll 13-24; Ms Pattison at Transcript 2-108, ll 1-10.
The plaintiff submits that the fact that witnesses greatly exaggerated the time estimates for the incident (compared to the true facts revealed by the CCTV footage) is a measure of the impact of the incident and its stressful nature.
The plaintiff submits that she complied with work practice in retrieving the chain from the display cabinet to read its barcode at the register and was returning it to the display case when the further discussion happened. She points out that the defendant does not contend that she should have secured or retained the drivers licence prior to removing the chain from the display case.[55] She said that she had not been instructed not to take the chain from the display cabinet,[56] and although the chain could have been replaced in the display cabinet she had not been instructed to lock it away until the licence was obtained.[57] She was adamant that it was only for goods valued over $20,000 that identification was required.[58] This was, in fact, correct.
[55]Further amended defence, paragraph 4(d).
[56]Transcript 1-39, l 30.
[57]Transcript 1-41, ll 10-12.
[58]Transcript 2-24, ll 23-30.
As to the challenge to the plaintiff, for not precisely following sales procedure, it is submitted that the “Compass” sales process was not mandatory and there was a degree of flexibility in its use. As noted in cross-examination, not every client interaction magically followed the same process.[59] The plaintiff also submits that staff were not advised that the Compass sales process was an important part of a safe system of work, and that it would have been appropriate to have advised staff that the probing and other features of the sales process were part of their own personal safety, that is, in reducing the risk of a snatch and grab. Thus if the sales person was suspicious they should have been trained that it gave them time to slow the process down, to gauge the intent of the customer and identify them, or for safety purposes.
[59]Transcript 1-67, ll 5-10.
The plaintiff submits that concessions were made along these lines by Mr Cornish, the Workplace Health and Safety Manager.[60] He did seem to do so, particularly at Transcript 3-55, l 5. The plaintiff’s point, as I understand it, is that it should have been emphasised that these processes were relevant to safety, not just achieving sales (Mr Cornish seemed not to dispute this), and that this different emphasis was important and would have been likely, on the plaintiff’s case, to have had the plaintiff behave in a way that would have avoided the incident.
[60]Transcript 3-54, l 30 to Transcript 3-55, l 30.
Thus the plaintiff submits that she has proved on the balance of probabilities that the defendant is liable for her injuries in accordance with common law as modified by the WCRA. This is expressed in terms of the pleadings in paragraph 2(e) in the statement of claim. That is, the submission is that liability is established because of proof to the required standard that there was a relevant duty to take all reasonable care for the safety of the plaintiff and avoid exposing her to unnecessary risk of injury in her employment. The risk of injury was foreseeable, not insignificant, and a reasonable person in the defendant’s position would have taken the precautions. This conclusion is reached, considering:
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking the precautions;
and having regard to factual causation and scope of liability.
Thus the plaintiff submits that she should succeed on liability.
The defendant’s submissions
The defendant submits that there was no foreseeable risk of psychiatric injury from such an incident as occurred or alternatively, the risk of injury was insignificant.
The defendant submits that a reasonable person in its position would not have taken the suggested precautions having regard to:
(a) the very low (insignificant) probability that any injury would occur;
(b) that any injury was unlikely to be serious;
(c) the burden of taking precautions to avoid the risk of injury;
(d) the lack of efficacy in taking any of those precautions.
Further, the defendant submits that any breach of duty was not a necessary condition of the occurrence of the injury and in that sense causation is not established. It further submits that it is not appropriate for the scope of liability to extend to the injuries so caused where the plaintiff was vulnerable to the injury but the defendant did not know of that.
The defendant refers to Inghams Enterprises Pty Ltd v Kim Yen Tat[61] at [27]-[28] and the reminder from the High Court that in the context of liability issues in such cases, the statutory provisions are the starting point.[62] It is emphasised that there must be a risk of injury, not just the happening of the incident; the risk must be not insignificant; and a reasonable employer would have taken the precautions.[63] Then if those elements are established, the lack of precautions must be a necessary condition of the occurrence of the injury (a “but for” test[64]; more than a possibility[65]; “would” rather than “could”[66]) and it must be appropriate to extend the scope of liability to the injury (s305D(1)(b)).
[61][2018] QCA 182.
[62]Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 432 [11].
[63]Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 305B(1)(a) – (c).
[64]See The Corporation of the Synod of the Diocese of Brisbane v Greenway [2018] I Qd R 344 at [38], [56].
[65]Ibid at [45].
[66]Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [26]-[27] per De Jersey CJ; Woolworths Limited v Perrins [2016] 2 Qd R 276 at [173].
Foreseeability of injury
The defendant concedes that the risk of the relevant event was foreseeable and actually foreseen by the defendant. However, the defendant emphasises the importance of the reference in s 305B to “a risk of injury”. If injury (as opposed to the event) is not foreseeable then there is no relevantly foreseeable risk and the plaintiff’s case, in the defendant’s submission, fails.[67] The defendant argues that the plaintiff’s submissions fail to deal with this distinction.
[67]Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 at 55 [26].
The defendant refers to Ilosfai v Excel Technik Pty Ltd[68] which concerned an employee claiming unreasonable exposure to the risk of a psychiatric injury working as a technician installing equipment at the Edward River Aboriginal Community and later at the Maroochydore Watch House. He complained of abuse and threats. In dismissing the claim, Chesterman J observed:[69]
“The first question to be addressed is whether the defendant should reasonably have foreseen that the plaintiff might suffer injury, whether psychiatric or ‘physical’ as a result of an assault at Edward River. The defendant accepts, correctly, that in certain circumstances it would owe a duty to take reasonable care to protect the plaintiff from the criminal behaviour of third parties despite the unpredictable and unlawful nature of that conduct…
The existence of the duty depends upon the reasonable foreseeability of injury from criminal activity by third parties…
Even if it were foreseeable that the plaintiff might be abused (and I am not satisfied there was more than that) it was not such an occurrence as to give rise to a foreseeable risk that it would cause injury.”
[68][2003] QSC 275.
[69]Ibid at [30], [31] and [33].
In similar vein, the defendant refers to Eaton v Tricare Country Pty Ltd[70] where Philip McMurdo JA, in dealing with the obligation of an employer to guard against psychiatric injury, referred to Koehler, in particular:[71]
“The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable.”
[70][2016] QCA 139.
[71]Ibid at [30].
The defendant concedes that there had been numerous instances of snatch and grab offences. The plaintiff herself had been the subject of such an event about a year previously without showing any sign of psychiatric injury. However the defendant submits that when the reports of the psychiatrists, Professor Whiteford and Dr Foxcroft, are analysed carefully, they do not give rise to a conclusion that an employer should have foreseen psychiatric injury. Professor Whiteford expressed the view that the relevant event would not have caused injury in someone without the plaintiff’s “significant vulnerability”. He did not think it would cause psychiatric injury in the vast majority of people in the population.
It was submitted that Dr Foxcroft opined that pre-existing vulnerabilities led to the plaintiff developing symptoms, and that he was not asked in evidence in chief about Professor Whiteford’s view about the likelihood of injury in a person of normal fortitude (nor was he cross examined about it). It is also underlined by the defendant that the focus is on the foreseeability by a person in the defendant’s position, rather than a specialist psychiatrist.
A parallel is drawn with physical injury, in that questions of liability are to be decided in the light of what the employer knew, or ought reasonably to have known, of the employee’s particular incapacity, if any.[72]
[72]Waugh v Kippen (1986) 160 CLR 156 at 165.
The defendant submits that there was no reason for the employer to foresee the psychiatric injury, and thus liability is not established.[73]
[73]Tame v NSW (2002) 211 CLR 317 at 7 per Gleeson CJ.
These principles are underlined in Benic v NSW[74] and relevant observations therein were adopted by Ryan J in Kelleher v J & A Accessories Pty Ltd.[75] Her Honour noted the reference by Garling J to either knowledge by the defendant of the alleged risk of harm, or else, by reference to other features, that the defendant ought to have known it. The other features will vary but may include, knowledge and experience, public notoriety, publications and academic knowledge and also the obviousness or likelihood of the event using common sense. Her Honour referred to these matters, particularly to the common sense assessment of the not insignificant risk of injury, in the circumstances of that case, in her assessment of liability.[76]
[74][2010] NSWSC 1039 per Garling J particularly at [92]
[75][2018] QSC 227 at [436].
[76]Ibid at [439].
Thus the defendant submits that there was no pleaded basis for the defendant’s knowledge of the risk of injury, or circumstances why it ought reasonably to have known of it.
It is further submitted, in similar vein, that if there was a foreseeable risk of injury then it was insignificant in the sense that it was highly unlikely that a person subjected to the sort of event the plaintiff experienced would psychiatrically decompensate as opposed to merely being upset. Ms Mina, the manager, had long experience in the retail business and had not heard of anyone suffering psychiatric injury from such an incident, and the defendant argues that this was not contested.
As to the reasonable precautions, the defendant submits that it was not reasonable to require an employer in the defendant’s position to take the suggested steps. Further, there is no evidence that any of them would have prevented the injury. It is submitted that a finding to the contrary would have very wide reaching ramifications for retail businesses in Australia and that the court should hesitate in such a finding because of possible impact on the wider retail industry. Examples were advanced such as liquor stores or cigarettes. It is not clear to me that such examples compare with jewellery stores, or with a necklace valued at between $8,000 and $13,000 which is extremely transportable. Certainly the evidence did not, as I understand it, engage with such comparisons.
The defendant submits that the suggested precautions are impractical, particularly having regard to the costs or inconvenience of the suggested steps or the effect on the employer’s business. Of the suggested precautions advanced by the plaintiff:
- A full time security officer within the store would be the most expensive (see below);
- A different system of doors presumably would not be particularly expensive when compared with shop fitouts, although there is no evidence expressly dealing with the issue;
General Damages $6,950.00
Past Economic Loss $72,571.74
(Plaintiff’s figure for total potential earnings, $112,950,
less 10%, less actual earnings $29,083.26)
Interest thereon @ 1% p/a for 3 years on $40,000 $1,200.00
Past loss of superannuation @ 9.25% $6,713.00
Future economic loss $182,000.00
(Plaintiff’s claim of $280,000 less 35% for contingencies)
Future superannuation @ 11.33% $20,620.00
Future psychological treatment $4,400.00
Future medication $7,587.06
Special damages $14,586.85
Fox v Wood $75.00
Subtotal $316,703.65
Less refund $46,264.32
Total $270,439.33
There will be judgement in favour of the plaintiff against the defendant for this amount. I will hear the parties as to costs.