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Which case won?

casea
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 robbery.
caseb
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.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
a39%
b61%

Expert commentary on the court's decision

Phil GriffinManaging Director
“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.”
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 foreseeablethe 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 describeMs 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 woulnot 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. 

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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