Reasons for judgment in the District Court
5 The respondent's utilisation of lax security methods was the gravamen of the appellant's claim that the respondent was negligent. As a result the appellant said the bank was robbed and she was put at risk. The appellant was a teller at the bank. Judge Delaney found that on 3 June 1998 the Chester Hill branch was robbed while or shortly after Brambles Security had made a cash delivery to the bank. A robber threatened the appellant with a gun to her head. She was traumatised as a consequence. She claimed that since that time she had had severe psychological reactions. This not only affected her everyday social life but also interfered with her capacity to obtain and retain employment.
6 Judge Delaney accepted that the incident had significant and serious psychological and psychiatric consequences for the appellant in the form of a depression that disabled her. He also found it more likely than not that the effects of this incident led to her being dismissed from her employment.
7 The particulars of negligence included failing to install counter-to-ceiling Perspex security screens, failing to provide a security guard for the premises and failing to heed the warning created by robberies of other financial institutions in the Chester Hill area. The appellant alleged that the security devices installed were inadequate and that the system for delivery of cash to the bank involved bags of money in cash being delivered in full view of the public to an unprotected place behind the counter and security personnel leaving the premises before the cash was secured. It was common ground that the system of delivery of money to the bank was one agreed upon by the security company and the "unions".
8 The appellant, who was born on 1 March 1964, left school at the age of 15 in 1979. After leaving school she had various forms of employment. She first married in 1986. She re-married in 1989 and for a time owned and operated a newsagency. On 17 May 1990 her first child was born. She was diagnosed with stage 3 cervical cancer and post-natal depression and referred to a psychiatrist for therapy. She was prescribed anti-depressant medication. She continued to be employed until her second child was born on 21 October 1992. She again suffered from post-natal depression and was prescribed an anti-depressant. She began work with the Advance Bank in June 1997. In February 1998, following the respondent's acquisition of the Advance Bank, the appellant's employment was transferred to the respondent.
9 The appellant gave evidence that when the branch was owned and run by Advance Bank the money in cash was delivered by Armaguard. Guards would escort the tellers with the cash into the vault and would remain until the money was locked into the vault and the vault was closed. They would then go out and get the next bag and the operation would be repeated until all the cash was delivered in the vault. After the branch was taken over by the respondent in early 1998 the system was changed. The guards from Brambles, which replaced Armaguard, handed the bags of money to the first available teller by passing it over the counter. On a couple of occasions when the new system first started the appellant said, presumably to a Brambles guard or guards, "can you take it up to the vault with us?" and they said "no, it's not part of the job".
10 On 3 June 1998 Brambles delivered three bags of money. The appellant gave the following account of what happened.
"… I was booting the Advance Bank system up, so I come in a bit early and I got a coffee and I went downstairs, and tried to bring the computer up, and the system crashed and one of the St George girls said 'Brambles is here', it was 5 to 9. So she went and let them in, and I was on the phone, and the girl next to me was counting her money into her drawer, mine was already in, counted and done, so I was on the phone to head office to get them to help me bring the system up, and Brambles handed one bag over, so I took that and put it down on the floor, and they went out again and got another bag. And they did it a second time, and I put that on the floor, and then the third time the bank was open, 9 o'clock, and all the customers were coming in, and Brambles came in, and they gave me another bag, and I was still trying to get the system up. So they left and the money was on the floor in between my legs, and then everyone sort of started serving, and the system was still down, and we were still on hold.
Then the girl next to me screamed and I've looked down at the end where she was looking, and there was a man up on the counter. So I just automatic - I dropped the phone and hit all the buttons, I didn't know if it was camera or pop ups, and the screens went up. We couldn't hear any - we didn't know if he was on our side or their side, because it was an L-shaped branch, and we couldn't see, we were cut off. And then he came around with one of the girls, Gail, and the gun and balaclava and started screaming 'Which one of you bitches set the screens off?' and it was just mad panic.
The girl that was next to me on my right had fainted, and the girl on my left was tapping me on the shoulder, saying 'Don't tell him it was you, don't tell him it was you'. Then he told us to get on the floor, and we were on the floor pushed up against the wall, then he started screaming, 'Get up, get up, get up', but we didn't know who he was talking to. So I turned my head and he had the gun at my head and he was telling me to get up. And when I stood up, he just started waving the gun around and saying 'Put them in this bag', and he just dropped this gigantic bag out from - I don't know where it came from, out of his jacket, out of his hand, and I put the money into the big bag. Then he told me 'Get back on the floor', and then it went quiet, but we didn't hear any doors or anything, so I didn't know if he was still in the bank. And the phone rang and I was under the impression that once the pop up screens went up, it was like a back to back security, but it wasn't, it was just a customer asking for a balance on an account. I hung up from her and realised I had the phone with me, so I dialled 000 and rang the police."
11 It became apparent to the appellant that the robber had escaped up the back stairs and out the back door of the branch.
12 From February 1999 the appellant consulted Dr Ben Teoh, a psychiatrist, at Parramatta. Judge Delaney said that when Dr Teoh saw the appellant he thought her in an agitated state. She was tearful, restless, and had a depressive effect. However, Dr Teoh found that she was reactive during the interview and that her cognitive functions were intact. He prescribed anti-depressant medication. Her progress was slow. There was a marked fluctuation of mood. The appellant told the trial Judge that she became irritable at work and lost her temper and assaulted another colleague. Because of this behaviour she was eventually dismissed. Dr Teoh thought the appellant was suffering from a major depression. He said:
"Although she has a pre-existing history of depression, it is my opinion that the robbery has substantially contributed to the precipitation of her depression and the perpetuation of her condition over the last few months. She remains anxious and depressed. Attempts were made to return her to work through a rehabilitation program. Despite working a few days a week, she found it difficult to deal with the situation at work. Unfortunately, she became more irritable and following an argument at work, she lost her temper. She has been dismissed as a result of her behaviour - she was accused of attacking a colleague. I feel that this behaviour is related to her irritability as a result of the robbery. I do not think that Mrs Faucett is exaggerating her symptoms or making any attempt to perpetuate her condition. She comes across as being genuine and reliable in her complaints and expression of her distress.
13 In another report of 26 April 2001 Dr Teoh said that the appellant had suffered considerable psychological distress with severe depression after the robbery and that her family had to suffer disruption and emotional distress as a result of her condition. She had gradually improved to the point where he thought that she was nearly in complete remission of her depressive symptoms, although she remained fragile. Judge Delaney accepted this opinion.
14 Judge Delaney held that the appellant's claim was one permissible in accordance with what this Court has said about an employer's liability for an employee's injury in the form of mental illness in State of New South Wales v Seedsman (2000) NSWCA 119 and Mannall v The State of New South Wales (2001) NSWCA 327. He thought there was no doubt that the respondent had a non-delegable duty to institute, maintain and enforce a safe system of work to avoid the foreseeable risk of injury. Chomentowski v Red Garter Restaurant Pty Limited (1970) 92 WN (NSW) 1070 was referred to. In that case, the Court said that, even though the risk of assault could not be eliminated altogether, it was within the duty of the defendant in that case to take any steps that were reasonably available to reduce it. When such steps were not taken there was a causal connection between that failure and the injury suffered. A proposition that the actions of a third party were a novus actus interveniens was rejected (1075, 1083 and 1086). If a risk is reasonably foreseeable, immunity in the past holds no promise of immunity from foreseeable risk in the future; 1073.
15 The appellant relied on the evidence of Mr Jennings, a licensed security consultant. Mr Jennings prepared a report dated 11 April 2001. Under the heading "Trends in Recorded Crime", Mr Jennings quoted published data said to show trends in robbery classifications over the calendar years 1995 to 1999. In 4.2, part of this data was described as "Total Armed Robberies" and based on it Mr Jennings expressed the opinion that clearly there had been over a given period a significant increased in armed robberies in New South Wales. Further, he said that the Bankstown local area, which included Chester Hill, had the seventh highest robbery rate of the 197 areas examined. "Chester Hill branch was in 1998 … in a very high risk area indeed for robberies".
16 Under the heading "Opinion", Mr Jennings said, amongst other things:
"10.1 The Defendant was, in my opinion, failing in their duty to provide a safe system of work when they permitted a publicly observable cash delivery system to be instituted, which had large cash deposits from armoured cars deposited on the teller's counter. This place of deposit is at the extreme opposite end of the bank to the strong room where that cash has to be secured placed an enormous additional risk upon the tellers at that end of the counter. The deposits increased the personal injury risk factors upon this Plaintiff and any other staff so designated, to a level wholly incompatible to reasonably acceptable security and safety system, by 1998 standards.
10.2 Failing to provide a security system that was commensurate to the obvious risks of robbery in such a high risk area, in that providing a pop-up screen without the provision of anti-jump screens, is an open invitation for criminals to jump the counter before the screen is activated. If they could do so, as a great many did in the 90's, then the effect was having a very dangerous armed person effectively sealed behind the pop-up screen with the staff. Even though the offender could still escape via the staff door, this theoretically gave the offender a 'closed target' where all staff were under his control, the psychological effect of which upon those staff, is far greater than if the staff can at least see the public area and what is happening out there. In such a high risk area a full length fixed screen (in addition to the pop-up screen), was absolutely essential to achieve any reasonably acceptable level of security for the staff."