Safety policies are an employee’s best friend6 February 2020 | Employer's Liability
An iconic jeweller was found liable for failing to implement adequate safety polices after an employee developed psychiatric injury following an attempted robbery.
- Whether psychiatric injury was reasonably foreseeable in circumstances where the prospect of robberies were known to the employer
- Whether the employer should have taken additional precautions against the risk of robbery
- Whether the failure to implement precautions materially contributed to the harm suffered by the plaintiff
- The precise psychiatric sequelae resulting from the incident
The plaintiff was employed by Michael Hill (the employer) as a sales assistant. On 1 November 2015, she was the victim of an attempted robbery, which involved a struggle between her and the assailant over an item of jewellery. During the incident, the plaintiff suffered minor physical injuries, however thereafter developed significant psychiatric injuries.
The plaintiff issued proceedings alleging that her employer was negligent in failing to provide her with a safe system of work. In particular, she argued that the employer had failed to enact adequate safety measures which would have prevented the incident from occurring. Notably, these measures included a policy prohibiting staff from retrieving expensive items of jewellery until customers had provided a valid drivers license.
While the employer conceded a number of factual elements of the case, including that the incident itself was reasonably foreseeable, it denied the causality between its own conduct and the occurrence of the event. In support of this argument, the employer relied on the principles outlined in Lusk v Sapwell, noting that “where an employer’s negligence consists of an omission to provide safeguards, the employee must establish that performance of the duty would have averted the harm”, rather than “possibly” averting it. Additionally, and in the alternative, the employer denied that the plaintiff’s psychiatric injuries were suffered as a consequence of the incident, instead attributing her symptoms to several earlier incidents.
The decision at trial
The court concluded that many of the preventative measures suggested by the plaintiff would have been overly onerous and problematic for the employer’s business efficacy, or entirely ineffective. These included employing a full-time security guard, installing security doors at the store’s entrance, and erecting CCTV warning signs. However, the court determined that a policy requiring customers to produce identification for demonstration of items over $2,000 was neither burdensome nor ineffective. As there was no indication that the attempted robbery would have occurred had the policy been in place, and given the low cost of amending the employer’s training practices to incorporate such a policy, the court found the employer liable for negligently causing the plaintiff’s injury.
The plaintiff was awarded $270,439.33 to cover past and future loss of earnings, psychological treatment and medication, and general damages.
Implications for you
This case provides employers with a timely reminder of the importance of ensuring staff are appropriately trained for the risks they may encounter in the course of their employment including foreseeable risks arising from the criminal conduct of third parties.