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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mitchell & Ors v United Co-Operatives Ltd [2012] EWCA Civ 348 (22 March 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/348.html Cite as: [2012] EWCA Civ 348

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
HHJ ARMITAGE QC
7HD01460; 7HD01461 and 7HD01462

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd March 2012

LORD JUSTICE WARD:

1. It is a sad feature of our suburban life that some areas are at high risk of crime. One such place is Shaw Road, Heaton Moor, a side road off the main road linking Stockport and Manchester. In the small parade of shops is a convenience store at the material time owned by the Co-operative Society selling the usual range of comestibles, alcohol and cigarettes. The three appellants, Mrs Josephine Mitchell, Mrs Denise Benton and Mrs Diane Goodwin were employed in the shop when robbers entered, put them in fear and stole cigarettes and cash. It was such a shocking experience for these ladies that they suffered post-traumatic stress and developed an anxiety state as a result. They claimed damages from their employer for the psychiatric injury they suffered from their ordeal. On 26th November 2010 His Honour Judge Armitage Q.C. sitting in the Manchester County Court dismissed their claims. Was he right to do so?

The background in a little more detail

2. Mrs Mitchell began to work at the premises as a shop assistant in about 1988 when the shop was trading under the name "Dawn till Dusk". She was joined in 1999 by Mrs Benton. The shop was then sold to United Co-operatives Ltd, the respondent to the appeal, late in 1999. Mrs Goodwin, who had commenced employed with the respondents in about 1995, was transferred to the Shaw Road premises as manager in February 2005.
3. Whilst Dawn till Dusk was operating, the cash tills and the staff operating them were behind a glass screen which enclosed that area, access being obtained by the staff through a door which was locked behind them. The Co-op changed the layout and removed the glass screens, Mr John Hilbert, the commercial manager of the group providing security services for the Co-op explaining to the judge in his evidence (p. 177):

"Well, we never thought screens were an appropriate measure in the type of retail environment that we wanted to promote. What we wanted to do is not only make the selling experience as good as possible for the customers but also, you know, we're big on ethics in the way we work and engage with people and obviously we want the staff to have the best experience and interaction with the customers as much as possible."

4. In a risk assessment carried out in 2003 it was noted that:

"The store is situated on a side road, about half a mile from the main Heaton Moor Road which leads within minutes to the main trunk roads through the city centre. The store is situated on a parade, with a hairdresser at its far end and flats above. The store faces a large estate of good class, predominantly detached housing, most of which is laid out in cul-de-sac fashion. … The position of the store and its proximity to major roads, coupled with the lack of formal or natural surveillance provides any potential armed robber, or shoplifter [with the opportunity] to observe the store for a great deal of time without being noticed. There is a road running directly to the side of the store, which, due to low light, provides an excellent hiding/getaway position for offenders."

In those circumstances the overall risk rating was high.

5. Harsh reality justified that assessment. There were two robberies in the eleven years before the Co-op acquired the premises but ten robberies between 25th February 2000 and 7th December 2005. These crimes were committed on 25th February 2000, when a shotgun was produced, 6th November 2001 when the robbers were armed with batons, 16th March 2002 when a knife was used, 13th January 2003, 11th March 2003, 20th December 2003, 24th June 2004 when Mrs Mitchell and Mrs Benton were the victims, 14th February 2005 when Mrs Benton and Mrs Goodwin were the victims threatened with a screwdriver, 18th October 2005 and 7th December 2005 when Mrs Mitchell was the victim.
6. The robbery on 24th June 2004 took place at about 10 o'clock in the morning. Mrs Benton was at the till close to the door when two men entered the shop, one of them jumped over the counter to take money from the till, cigarettes and some bottles of brandy. Mrs Benton called out and Mrs Mitchell who had been restocking the shelves at the back of the shop ran towards the till. She was grabbed by the neck by the other man who pushed her over to the till and held her against the counter. He told her to order Mrs Benton to open the till which she did. The first man grabbed notes including "smoke notes" which emit dye when passing a transmitter at the doorway. Mrs Benton pressed the panic button, a third man entered the shop to ask why they were taking so long and all three fled, possibly into a car which had been waiting outside.
7. On 14th February 2005 Mrs Benton was again at the till when at about 1.30 pm two men entered wearing crudely fashioned masks. One of them jumped over the counter with a big garden bin and started putting cigarettes into it. The other man forced Mrs Goodwin to open the till and took about £200. He was armed with a screwdriver and, spotting the smoke notes, asked Mrs Goodwin to open them but she answered, "No, and if you're going to start messing about with those I am moving". The men left. Other customers in the shop appeared to be oblivious of the robbery.
8. On 7th December 2005 three men wearing balaclavas entered the shop at about 11 am. One was carrying a black dustbin which he filled with cigarettes. One of the men saw Mrs Mitchell, who had momentarily moved from the till and demanded to know whether the manager at the back of the shop had a panic button. She eventually confirmed that he had. He shouted at the others that they should leave. The manager in the back office saw the incident on the closed circuit television and pressed the panic button and called the police.
9. The Co-op, alive to the attacks on their premises and on their employees, had risk assessments made in 2002 and 2003. They introduced a series of measures to reduce the incidence of robbery including, as the judge recorded:

CCTV monitoring outside and inside the shop including a monitor at the till showing the view outside the shop door;

panic alarms connected to a control centre;

video surveillance (Imigix);

fob operated door locks;

minimising the amount of cash in tills;

provision of "smoke notes";

training of staff to avoid confrontation with the robbers;

provision of a part-time security guard for a limited period after a robbery; and

provision of a mobile security response team.

10. Mr Brian Edwards, who served for thirty years for the Metropolitan Police, retiring in 1999 with the rank of Detective Chief Superintendent, gave expert evidence for the Co-op. His evidence seems to have been accepted by the judge. In his evidence-in-chief he was asked how the Co-op's policy on robberies and loss prevention and crime prevention compared in his experience of the retail industry to other similar sorts of retailers. He answered:

"Very favourably indeed. If I can just expand a little bit, there's a wide range of research and guidance that's available, National Occupational Standards on the Management of Violence in the Workplace, and when compared to that range of guidance the measures that the Co-operative have in place are very favourable and when I bench mark those against the retail industry generally again I think there is not many other retailers that I've come across that have the same suite of measures in place that they have."

What then are the issues that fall for decision in this appeal?

11. The defendant did not deny that it owed its employees the common law duty of reasonable care to keep the employees safe. The test as expressed by Swanwick J. in Stokes v Guest, Keene and Nettlefold (Bolts and Nuts) Ltd [1968] 1 W.L.R. 1776, 1783, recently approved by Lord Mance in Baker v Quantum Clothing Group [2011] UKSC 17 at paragraph 9, is this:

"He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

In the appeal the focus has centred upon first, the Co-op's removal of and failure to install security screens around the till and the areas containing goods of high value and high portability, and secondly, the absence of a security guard. The appellants contend that these measures would have deterred the robbers and prevented their suffering the injuries they did.

The lack of security screens

12. Mr Terence Hack, with thirty years experience in the security industry, expressed the opinion in his written report that among the measures which could have deterred these crimes were the retention or re-introduction of the counter screen and locked door to the till area that had been installed prior to the Co-op acquisition of the premises and removed by them. He pointed out that the majority of the robberies involved robbers coming over the counter or behind the counter and thus this measure could have made these crimes more difficult and bought time for the staff to respond to the situation. Mr Edwards' report did not comment on the need for screens. In their joint report they did deal with the counter screen and door and noted that it had been in place when the Co-op took over the premises. Their comment was:

"There is no evidence that its replacement was considered. The effectiveness of the device is not known as the construction has not been seen but it would have proved some barrier between the staff and stock and the criminals. The device should have been considered."

13. In his oral evidence Mr Hack repeated that he was satisfied that if screens had been in place a number of these robberies would not have occurred. His view was (p. 148 of the bundle):

"… the odds are that they would not decide to attempt [a robbery] if the access to the goods is too difficult, and that applies both to the cigarettes and to the cash."

14. Mr Edwards was asked about screens in his evidence-in-chief when counsel for the defendants put this to him (p. 212):

"Q. Now, I understand that the question of screens was not something that you dealt with in great detail in your initial report. Tell me this. What is your perception about the role of a security screen in premises such as this?

A. They're a legitimate security option. They will deter some robbers. They certainly won't deter all robbers and it is my personal experience that I've known many, many robberies that have taken place in shops that have been screened to various extents and I am sure most people working within the retail security would share that experience, and in fact the design and layout of the store in my experience needs to be taken into consideration in deciding whether or not to have a screen installed because sometimes the trauma of somebody breaking through the screen can be far more than the robbery itself if the staff have no easy escape route from behind the counter.

Q. Now, you talk about escape routes. Are you simply talking about a bolt hole or a back office or –

A. I am talking about a back office where it's possible to install a proper security door so that they can get behind it if the screening were to buy them a short amount of time so they can get behind the door, lock it and secure themselves away from the direct attack.

Q. In the context of this particular store we have already heard the evidence that there is effectively an outside wall of the store so there would be nowhere to hide from that, is that right?

A. That is my understanding.

Q. Presumably a screen is only good if it is kept locked?

A. There are a number of factors. Yes, it's only effective if it's kept locked, if all members of the staff are behind the screen, and I should point out that most of the designs of screens in retail environments are not high specification security screens. They are invariably fitted as an add-on after the counter has been designed with the inherent weakness in the structure, and most organised professional criminals know that very well and don't let the existence of screens influence their decision whether or not to attack the premises."

Under cross-examination these exchanges took place at p. 222:

"Mr Harrison: So if we think that through a reasonably organised potential robber anticipates that there is going to be a panic button somewhere and knows that the time available to get in and get out of the premises is very limited and that enhances the advantage of having a screen for a robber who is trying to get to the stuff behind the screen.

A. Again I come back to my original point that against a determined robber who is set on defeating such resistance as is often in my experience the screens will probably delay them by 10 to 15 seconds. Offset against that, if you have a member of staff contained behind a screen the trauma that they are going to experience in the attack is considerable."

Mr Edwards was cross-examined about the joint report he had agreed with Mr Hack as follows (p. 227):

"Q. … You say [some barrier between staff and the stock and the criminals] should have been considered?

A. Yes. It should have been considered, not necessarily installed, for the reasons that I've I think indicated. For example, if the store had had an escape route or something of the kind and if the nature of the attackers were relatively low grade attackers then screening may have been an option."

15. The judge reviewing Mr Hack's evidence, said:

"22. … He regarded screens around the tills as a good deterrent. It seemed to me that many such devices would deter till-dipping and pilfering, but not a robber showing the determination apparent in [the robberies in which the claimants were the victims] and earlier robberies. He accepted that once a robbery was underway the emphasis must be on measures to keep staff out of the way and on reducing the risk of personal violence.

…

24. Mr Edwards accepted that screens would deter some robbers, but not all. They would only be effective if kept locked and all staff were within. Further the provision of such an enclosure, from which the staff could not retreat easily if a determined attempt was made to breach the secure area, was not desirable. I find that argument persuasive. It seems very unlikely that staff would want to be confined in an area with a determined robber."

16. He stated his conclusions as follows:

"30. Although the robberies described by the claimants were not very sophisticated my conclusion is that they were not 'spur of the moment decisions'. Each demonstrated a degree of planning and physical preparation. Nervousness apparent in the robbers was not necessarily a sign of poor preparation. Each was executed quickly, with a degree of success and raised the suspicion in the claimants' minds that the robbers were local people, with local knowledge, who had taken the trouble to attack the shop at its most vulnerable time rather than taking a chance.

31. Once the shop was targeted the best solution was to lock the robbers out if they could be identified in time. Once the robbers were inside the premises it seems to me that nothing was going to reduce, to any significant extent, the risk of psychiatric or physical injury. It is for that reason that I conclude that although a screen might well have had some deterrent effect it carried risks for the staff which outweighed any benefit. Thus I am satisfied that reasonable care for reasonable safety did not require the provision of a security screen/enclosure."

Security guards

17. In his written report Mr Hack pointed out that, to be of any value, a security guard is needed before the robbery, not after it. Criminals can easily see when a guard is or is not present. To be of any value the guard would have to be outside the premises with a door fob and portable personal attack buttons so that he could observe the street and the vehicles with time to react, lock the shop door and raise a local or remote alarm. An external guard used in this way would not affect trade and would serve to protect staff, customers and the business. It was within the experience of Mr Edwards that security guards were not necessarily a deterrent against determined robbers who were prepared to escalate the level of violence to overcome such resistance as was offered. In his experience the approach taken by the Co-operative Society in relation to security guards was a standard practice for medium/high risk outlets in the retail industry. In their joint report their comment was:

"In our experience determined robbers would not abandon their plans because of a guard stationed in the store. If a guard had been employed at the appropriate times and in the appropriate way he could have deterred or prevented some of these crimes."

18. In his evidence Mr Hack repeated that there should be a permanent security guard standing outside the store because if he is inside the store he does not actually stop people getting in and by the time they are in the store it is too late. Giving his evidence, Mr Edwards distanced himself from the joint report staying (p. 226):

"On reflection I don't think that a guard would have materially influenced the outcome of the three robberies subject to this claim and I apologise to the court if that is an inaccuracy in that joint report."

19. Dealing with security guards the judge commented about Mr Hack's evidence that to be effective, the guard should be outside to prevent access and he commented in paragraph 22:

"I was attracted by that proposition. It seemed to me that such a person, especially if they had the means to lock a door by remote control, the door being generally unlocked, had the best chance of distinguishing between a shopper and a group of robbers."

He noted counsel for the defendant's submission that both screens and security guards were out of keeping with a local or convenience store and neither would have deterred motivated robbers. Counsel also submitted that providing guards was not reasonably affordable in the long term.

20. The judge's conclusion was:

"32. Both experts favoured a guard, provided the guard was outside. The pattern, such as it was, of several well spaced raids each year, made it likely that only an 'all opening hours' guard, preferably with control of the door, was likely to provide a significant additional deterrent. The presence of a guard would not guarantee that a robbery would fail, but might deter a particular type of robber. The deterrence lay in the visibility of the guard and the possibility that the guard was capable of controlling entry.

33. I have considered whether provision of a part-time guard working on an unpredictable rota might be the most cost-effective method of providing such a visible deterrent. The flaw in what otherwise appear to be an attractive compromise is that, if visibility is the key to deterrence, any absence, or presence, could be noted by robbers reconnoitring on the chosen day and adjusting their decision to suit what they found. A potential robber need not try to work the probability of presence, but could ascertain it on a day by day basis.

34. I accept that provision of a full-time guard may have some deterrent effects. It was not tested, other than in the short term, when the spacing of actual robberies suggests that the robbers realised that security was likely to be higher immediately after an attack. I am not satisfied that the failure to provide full-time guarding amounts to a failure to take reasonable care for the safety of the claimants."

Discussion

21. Mr Michael Redfern Q.C. who now appears for the appellants submits that the judge failed to distinguish measures which would have deterred the robbers from measures which would have prevented the robbery, the former being the correct consideration. It seems to me, however, that the judge was perfectly aware of the difference and his judgment is based on the "deterrent effect" of screens (see paragraph 31) and the "deterrent effect" of a full-time guard (34). Having looked carefully at the whole of the material before the judge, I am satisfied that he did not fall into error. The reasonable steps to be taken by the employer were to deter robberies: no employer could be expected to go so far as to prevent any robbery taking place at all.
22. On the question of providing security screens, the appellants complain that the judge failed to see the direct link between the provision of screens and the incidence of robbery, evidenced both by the few occasions when the Dawn till Dusk shop was raided and the high incidence of robbery after the screens were removed by the Co-operative Society. In my judgment no such link is established. It is not possible to say what part the presence of screens or the absence of screens played upon the criminal mind. I accept the "causative potency" of the screens in as much as they would stop a robber jumping over the counter or getting behind the counter in order to raid the till or remove the cigarettes. The more important question, however, is not only what deterrent effect that would have upon a robbery taking place but also what deterrent effect the presence of screens would have to guard the employees against psychiatric injury. Thus it seems to me that the judge was fully entitled to conclude that although the screen might have some deterrent effect, it carried risks for the staff which outweighed that benefit. That conclusion depended upon his accepting the evidence of Mr Edwards and Mr Edwards could be criticised for having departed somewhat from his own written report and the joint report made with Mr Hack. The judge heard both experts at length and he was fully entitled to prefer the opinions expressed by Mr Edwards. I certainly cannot say he was wrong to do so.
23. As for providing a permanent guard I was struck, when giving permission to appeal, by the judge's saying he was "attracted" by the proposition that a guard should be outside to prevent access; that in paragraph 32 he observed that a guard "was likely to provide a significant additional deterrent" only to conclude that failure to provide full-time guarding was not a failure to take reasonable care. The conclusion is not explained in great detail but the appeal is not against the inadequacy of the reasoning: the attack is more that it is against the weight of the expert evidence. The claimants' argument does, however, depend on the permanent presence of a guard outside the premises and thus the judge considered in paragraph 33 whether the provision of a part-time guard was "an attractive compromise". The attractiveness lay in a part-time guard not being as costly a measure as a full-time guard. Thus it seems to me the judge had well in mind the cost implication of round the clock security. There was not a great deal of evidence before him on this aspect and he did not refer to that evidence. But there was some evidence and enough evidence that the business at this particular shop was running at a loss of about £60,000 per annum and that the provision of full-time guarding would have cost £30,000 per annum. A proper approach requires a balance to be struck against the probable effectiveness of the precaution that can be taken and the expense that it involves. The implication of the judgment is that the judge did hold such a balance and it came down against requiring full-time security. There was, moreover, evidence from Mr Edwards that the respondents' approach to risk management was standard practice for retail outlets of this kind and there was certainly no evidence to suggest that small convenience stores in a suburban area should be equipped with a security guard on the door during all opening hours. Thus I am satisfied that the judge's conclusion that the failure to provide full-time guarding did not amount to a failure to take reasonable care for the safety of the claimants was a conclusion he was entitled to reach.
24. In my judgment this appeal should be dismissed.

Lord Justice Tomlinson:

25. I agree.

Lord Justice Lewison:

26. I also agree.