The Facts
Male assailant posing as customer asks price of necklace
On 1 November 2015, the 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 area.
At approximately 2pm, a male assailant posing as a customer entered the shop and asked the sales assistant 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.
Assailant unsuccessfully attempts to snatch necklace
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.
Sales assistant suffers psychiatric injury following attempted robbery
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 home.
As a result of the attempted robbery, the sales assistant suffered psychiatric injury, making it impossible for her to go back to working in retail.
She took legal action against her employer in the District Court of Queensland, claiming that her psychiatric injury was caused by her employer’s negligence. It was up to the court to determine if this was the case.
Expert commentary on the court's decision
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 owed a duty of care to sales assistant
The court was in no doubt that Michael Hill Jeweller owed a duty of care to Ms Funnell to take all reasonable care for her safety and avoid exposing her to unnecessary risk of injury during her employment.
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 section 305 of the Queensland Workers Compensation and Rehabilitation Act 2003.
Under section 305, 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. (For more information, please see Failure to meet duty of care to employees costs employer $120,000 for rolled ankle.)
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 section 305 depends 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.