In this case the worst fear of any bank customer was realised – being caught up in a bank robbery.
The customer developed post-traumatic stress disorder and sued Westpac for allegedly breaching a duty to take reasonable care to protect him against a foreseeable risk of harm posed by the criminal behaviour of an armed robber on the bank’s premises.
In February 2010 Gary Roberts was banking a cheque at Westpac in Fyshwick, ACT. He filled in a deposit slip and went to the counter, then heard a male behind him say:
Put the money in the bag! Put the money in the bag!
Initially he thought this was a joke, but then realised it was a robbery.
Gary turned his head and saw a tall man wearing a black balaclava, armed with a shotgun.
He perceived that the gun was pointed at him, rather than the teller.
As Gary got down on the ground he heard the offender say to the teller:
I’ll fucking shoot him. Put the money in the bag. Don’t press the button. I’ll fucking kill him*.
Gary believed he was going to die, and said to the offender:
Please don’t shoot me. I’ve got 2 kids*.
To the teller Gary said:
Please give him the fucking money, please give him the fucking money*.
Gary then heard the security screen going up and the offender saying “I fucking warned you”, before firing a shot in the air and running out of the bank.
Gary thought he had been killed, but got up and ran after the offender to see where he was going.
Gary returned and remonstrated with the bank staff about who had pressed the button, and why that had happened when the offender had threatened to kill him.
The teller (BL) was a graduate local business banker on her first day of work at that branch.
BL said she had received training in October 2009 from the bank, during which she was told she could give in to the demands of a robber, and could press the security screen button if it seemed safe to do so.
BL thought the gun was mainly pointed at her colleague, who was handing over money to the offender. When her colleague crouched down beside her, out of sight of the offender, BL pressed the security button which activated the security screen.
Neither BL nor her colleague recalled any threats being made by the offender against Gary, although other bank staff did recall those threats.
After the incident Gary developed PTSD.
He claimed that he would not have PTSD if the bank’s staff had been trained to always (or at least, almost always) follow the instructions of a bank robber.
An auditory expert gave evidence of a well-known phenomenon called ‘auditory exclusion’ to explain why BL did not ‘hear’ the offender’s threats against Gary.
Gary submitted that Westpac did owe him a duty of care because, amongst other things:
On appeal Justices Burns and Gilmour agreed with the trial judge that Westpac did not owe a duty of care to Gary:
Even if a duty of care had been established, there was no evidence that Westpac had failed in its duty to train its employees about harm minimisation in the event of a bank robbery. The experts agreed that employees must have some discretion about whether to engage pop-up screens, and should not always follow an offender’s demands.
Further, even if a duty of care had been established, there was no evidence that had BL been ‘properly’ trained, she would have reacted differently, causing the offender to behave differently, thereby avoiding injury to Gary.
The decision is Gary Nigel Roberts v Westpac Banking Corporation  ACTCA 68.