Opinion
Did the employer’s negligence cause the sales assistant’s psychiatric injury? Which case won?
18th Jun 2020
The facts
On 1 November 2015, a sales assistant was behind the counter at a jewellery shop performing her usual duties. The jewellery shop was open to a public arcade within a shopping centre and customers could access the shop simply by walking from the arcade area into the shop. At approximately 2pm, a male assailant posing as a customer entered the shop and asked the sales assistant for the price of a necklace in the display cabinet. The sales assistant replied that the price was $13,000. The assailant then asked if that was the best price, prompting the sales assistant to remove the necklace from the display cabinet and scan it at a nearby cash register.
The sales assistant then returned and informed the assailant of the best price, being $7,900, at which point the assailant asked if he could feel the weight of the necklace. The sales assistant asked the assailant for his driver’s licence. The assailant pretended to reach for his wallet before aggressively lunging across the counter and attempting to snatch the necklace out of her hands. The sales assistant held onto the necklace and resisted, resulting in the chain breaking and falling to the floor and causing the shop assistant’s hand to bleed. The assailant then ran from the store empty-handed.
The sales assistant was visibly upset immediately after the incident, with her colleagues describing her as being very shaken up and with shaking hands. She could not speak about the incident and expressed a desire to go home. After the incident, she became nervous and anxious, experiencing panic attacks, agitation and mood swings, startling at loud noises, drinking heavily and preferring not to leave her home.
The sales assistant suffered psychiatric injury, preventing her from returning to work in retail. She commenced proceedings against her employer in the District Court of Queensland alleging negligence and seeking damages for her psychiatric injury.
The case for the sales assistant
- My employer knew that a violent crime like this one could occur. There were 31 snatch and grab incidents in its 34 Queensland stores in the five years prior to the incident.
- It was foreseeable by my employer that I might suffer psychiatric injury if attacked by a much larger and younger male, in a violent struggle for an expensive item, as happened in this incident.
- My employer should have taken precautions to make my work safe. It should have employed a security guard to deter any would-be robbers such as the assailant.
- It also should have installed security doors at the entrance to the shop. This would have prevented the assailant from making a quick escape, which in turn would have discouraged him from committing the robbery.
- It also should have displayed signs warning of the use of CCTV cameras. If the assailant was aware that he was being filmed, it is unlikely he would have attempted the robbery.
- My employer also should have trained me to secure identification from customers before removing expensive jewellery, such as the necklace in question, from the display cabinet. Had this occurred, I would have taken this step, which would have prevented the attempted robbery.
The case for the employer
- We could not have foreseen that the incident would cause the sales assistant to suffer psychiatric injury, since she had not disclosed to us that she had a drinking problem, or that she was taking antidepressants to manage a pre-existing anxiety disorder.
- In any event, the sales assistant’s psychiatric injury was the result of previous traumas, including a motor vehicle accident and being witness to a murder. It was not a result of the attempted robbery.
- The cost of employing a full-time security guard for 60 hours per week in every one of our stores in Australia would be an unreasonable precaution, as it would cost in excess of $12 million.
- Security doors are not commonly used in any other similar jewellery stores and would not necessarily have prevented the incident.
- Everyone knows that jewellery stores are monitored by CCTV cameras. Since the incident we have installed signs warning of the presence of CCTV cameras in our other stores and this measure has not prevented snatch and grab robberies.
- The sales assistant was trained to follow a six-step sales process. When the assailant jumped straight to the end of the process by asking the price, she was trained to slow the process down and gauge his intent by going back to step one. Had she done this, rather than removing the necklace from the cabinet, the risk of the incident would have been avoided.
District Court finds in favour of sales assistant
On 13 December 2019, the Southport District Court in the matter of Nicole Gai Funnell v Michael Hill Jeweller (Australia) Pty Ltd [2019] QDC 255 determined that the employer, Michael Hill Jeweller, was negligent and ordered the company to pay Ms Funnell $270,439.33.
Employer breached duty of care to sales assistant
In determining that Michael Hill Jeweller breached its duty of care to Ms Funnell, the Court relied on s305 of the Workers Compensation and Rehabilitation Act 2003 (Qld). Under s305, an employer is in breach of its duty of care to its employee if the risk of injury to the employee was foreseeable, the risk of injury was not insignificant, and a reasonable person in the position of the employer would have taken precautions.
In determining whether a reasonable person in the employer’s position would have taken the precautions, the court must take into consideration the probability that the injury would occur if care were not taken, the likely seriousness of the injury and the burden on the employer of taking the precautions.
Psychiatric injury was reasonably foreseeable
The Court found that Ms Funnell’s injury was foreseeable and not insignificant. The experience of being a victim of violent crime, which in the Court’s view described Ms Funnell’s circumstances, gave rise to a reasonably foreseeable risk of psychiatric injury.
The Court also found that a reasonable person in the position of the employer would have taken precautions against the foreseeable risk of both the incident and the injury.
Employer failed to take reasonable precaution
The precautions of employing a full-time security guard, installing security doors and displaying signs warning of the use of CCTV cameras were not reasonable, nor were they likely to have prevented Ms Funnell’s injury.
However, at the time of the robbery it was the employer’s policy to require staff to secure identification for demonstration of items of jewellery valued at over $20,000. The Court noted that since the robbery in question, the employer had in fact adopted a policy reducing that monetary limit to $2,000.
In the Court’s view, it would not have been overly expensive or onerous to take action prior to the incident by amending the policy to reduce the monetary limit to $2,000. The employer should have taken this reasonable precaution.
Employer’s breach of duty of care caused sales assistant’s injury
Whether Michael Hill Jeweller was liable for its breach of its duty of care under s305 depended on whether that breach caused Ms Funnell’s injury. The Court concluded that it did, because had the value limit for requiring ID been reduced to $2,000 and had Ms Funnell received thorough training on that policy, it would have likely prevented her injury.
Employers should consider inherent dangers of employee’s role
This case highlights that the risks inherent in an employee’s role are an important consideration in determining the reasonable precautions that an employer must take to meet its duty of care to its employees. In particular, the Court noted that there is a ‘high degree of responsibility imposed on an employer to avoid foreseeable risks of harm to its workers from criminal conduct by third parties’.
There is a duty on the part of an employer to have in place policies which protect workers from potential injury. This case demonstrates that a failure to devise and implement such policies may expose a worker to a risk of injury which can lead to a finding of negligence against the employer.
A version of this article first appeared on the Stacks Law Firm website, and can be found here.
Phil Griffin is a lawyer at Stacks Law Firm, practising in Bundall, on Queensland’s Gold Coast. While he has experience across various areas of litigation, Phil’s predominant area of work has been in compensation law matters, which have been his main focus for over 25 years. Phil is driven by a deep-rooted sense of justice and fairness, and a passion for helping people. He has been fortunate to work with some of the best legal minds in the industry, which has further strengthened his knowledge and skills over the years.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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