Bank robberies may be foreseeable. But does a bank owe its customers a duty to protect them against the risk of harm by a bank robber?
The Supreme Court, Court of Appeal, says No.
A bank has no control over the unpredictable conduct of an armed robber: Roberts v Westpac Banking Corporation [2016] ACTCA 68
Key take outs
- There are limits on the duty of care owed by an occupier service provider, such as a bank, to its customers during a crisis situation caused by a criminal third party. This case has implications for other businesses which may be the subject of third party criminal conduct, such as casinos and petrol stations.
- Even though the risk of criminal conduct at a premises may be foreseeable, the occupier does not owe a duty of care to prevent harm to a customer or bystander, where the occupier has no prior knowledge, assumed responsibility or control over the third party’s actions.
- The Court of Appeal found it impractical to expect staff to comply with training when involved in a sudden, unpredictable event such as an attempted robbery. The business may give advice to staff regarding how to respond to a violent robbery. But a failure to do so does not translate into a breach of duty to customers.
Background Facts
The appellant customer was being served by a bank teller when he heard a man behind him yelling, “Put the money in the bag. Put the money in the bag.” He saw the man pointing a gun at him.
The appellant dropped to the floor and heard the man say to the teller, “I’ll…shoot him. Put the money in the bag. Don’t press the button. I’ll…kill him”.
The bank teller did not hear the threat to kill and activated the security shutters. The offender said “I…warned you” and fired a shot into the air. The appellant thought he had been killed and suffered post‑traumatic stress.
Duty of care?
Occupiers owe a duty to take reasonable care to avoid foreseeable risk of harm to those lawfully on their premises. However, the Court of Appeal found that the bank did not owe its customers a duty of care to protect against unpredictable criminal behaviour, even though it is reasonably foreseeable that attempted bank robberies will occur.
The bases of the Court of Appeal’s findings are as follows:
No control: A bank has no control over an offender. A bank also has no practical control over the conduct of its staff during an attempted robbery.
Vulnerability: Although bank customers are vulnerable to the risk of violent crimes, this generalised vulnerability does not give rise to a duty of care.
No assumption of responsibility: The fact that a bank has the capacity to put safety protections in place (such as screens), does not mean it assumes responsibility to protect customers from harm from third parties.
No special relationship: There is no special relationship between a bank and its customer giving rise to a duty of care, as contended by the appellant. Attempted armed robbery at a bank is foreseeable, but not common-place. No risk of harm is brought about by the ordinary activities of a bank. In this case, the risk was caused by the unexpected and extraordinary (albeit foreseeable) activity of an armed criminal.
Conflicting duties: A bank has a duty to protect the safety of its employees. That duty could conflict with a duty to protect its customers. Where a suggested duty of care gives rise to conflicting obligations, that will ordinarily be a reason for denying that the duty exists.
Impractical: The appellant argued that the bank should have trained its staff to obey an offender at all times. The Court of Appeal rejected this argument as impractical and unreasonable.