A Canberra court has found Westpac is not liable for post-traumatic stress disorder suffered by a customer who thought he would be gunned down during a Fyshwick bank robbery.
The ACT Supreme Court lawsuit by Gary Nigel Roberts alleged Westpac breached its duty of care owed to its customers during the failed armed hold up in February 2010.
Mr Roberts was being served by a teller at the Wollongong Street bank, about 12.45pm on February 1, when a balaclava clad offender, who was armed with a gun, demanded cash.
The offender pointed the gun at a number of people and repeatedly threatened to kill Mr Roberts, saying: "Put the f---ing money in the bag or I'll f---ing shoot him. Someone is going to get shot. Put the money in the bag. Don't press the button."
Mr Roberts pleaded with the teller to hand over money and said to the man: "Please don't kill me. I've got two kids."
But a bank employee activated the security screens.
In response, the offender yelled "I f---ing warned you", fired the gun, and then fled empty handed in a waiting car.
As the gun fired, Mr Roberts thought he had been killed.
Mr Roberts claimed damages for negligence from Westpac after he suffered a major depressive episode and chronic post-traumatic stress disorder as a result of the incident.
His lawyers argued Westpac had a duty of care, as occupier of the premises, "to exercise reasonable care towards those lawfully on the premises, including employees and customers, and not to increase the risk of harm to those persons".
Mr Roberts's legal team said the duty remained in place after the arrival of the gunman.
The court was given documents about security, which said staff should comply with demands and only activate alarms and security screens when not endangering personal safety or the safety of others.
Mr Roberts claimed his injuries had been the result of failure of staff to follow this training and protocol.
But Westpac denied liability, arguing it had no duty of care in such circumstances as the bank had no control over the offender or his actions.
Acting Justice Linda Ashford, in a decision published on Thursday, found in favour of Westpac.
Acting Justice Ashford said the bank had owed Mr Roberts a duty, but it did not extend to preventing harm from criminal activity by a third party.
"I do not find there was a breach of the duty owed by the defendant to the plaintiff … I am satisfied the bank took reasonable steps to hinder the robber, but could never control the actions of the offender," the judge wrote.
"A robbery is unpredictable. The defendant had no knowledge or forewarning. Training can never predict how the staff will react during a robbery, nor indeed how any other person will react.
"Clearly, risks are minimised if certain procedures, including handing over money, are followed, but there must be some discretion vested in staff in such a tense situation. [Staff] thought it safe to press the button, and consequently did so."