|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
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  EWCA Civ 348 (22 March 2012)
Cite as:  EWCA Civ 348
[New search] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM MANCHESTER COUNTY COURT
HHJ ARMITAGE QC
7HD01460; 7HD01461 and 7HD01462
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE LEWISON
| Josephine Marie Mitchell
|- and -
|United Co-operatives Limited
Stephen Grime QC and David Boyle (instructed by Weightmans LLP) for the respondent
Hearing dates: 14th November 2011
Crown Copyright ©
LORD JUSTICE WARD:
The background in a little more detail
"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."
"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.
- 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.
"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?
"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
"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."
"… 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."
"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."
"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."
"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."
"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."
"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."
"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.
"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."
Lord Justice Tomlinson:
Lord Justice Lewison: