JACQUELINE COLLINS v. FIRST QUENCH RETAILING LTD
| OUTER HOUSE, COURT OF SESSION |
| A3333/01 | OPINION OF LORD CARLOWAY in the cause JACQUELINE COLLINS Pursuer; against FIRST QUENCH RETAILING LTD Defenders: ________________ |
Pursuer: McEachran Q.C.; McKay Norwell, W.S.
Defenders: Lindsay; Brechin Tindal Oatts
31 January 2003
1. MERITS
(a) The Pleadings and the Issues
It is agreed that, on 17 June 1998, the pursuer was working in the course of her employment in the Victoria Wine Shop at 77 Slateford Road, Edinburgh. Although not admitted on record, it was agreed, in terms of a Joint Minute lodged at the proof, that the defenders, having taken over the assets and liabilities of Victoria Wine, were the pursuer's employers. On record, it is also agreed that one John Crombie was arrested, convicted and sentenced to seven years imprisonment at the High Court at Edinburgh on 27 October 1998. The actions of Mr Crombie leading up to his conviction are not admitted by the defenders, although ultimately they were not disputed at the proof. These actions, the pursuer avers, amounted to an assault upon her when she was alone in the shop on that day. The assault was for the purpose of robbing the shop and was carried out using a knife as a weapon. Throughout the incident, the pursuer feared for her life.
The positive actions, which the pursuer complains of, were those of the robbers but she sues the defenders on the basis of their fault in failing to provide her with adequate protection from such an attack. She avers a factual background whereby the Slateford Road shop had a history of serious incidents. Since 1977 there had been thirteen reported crimes, including five thefts, one minor assault, one serious assault and one assault with intent to rob. There were two armed robberies in 1994 and four in 1996. There was another incident in September 1997 when one employee, Susan Deas, resigned after being threatened by a violent customer. The pursuer had commenced work in the shop in November 1997. She had been concerned about security and had requested better security from her area manager, Joseph Minnes, in the form, amongst other things, of security screens and double manning. No action was taken. A further incident occurred on 31 May 1998 involving an armed robbery, when another employee, Grace Hendry, was minding the shop. The pursuer's case of fault is essentially based on the failure to introduce the twin precautions of security screens and/or double manning.
The defenders' response is that the Slateford Road shop was not located in a "high risk" area and the number of incidents there was not "significantly higher" than other similar outlets in Edinburgh. It is said that other shops had suffered more serious crimes. The defenders continue:
"Prior to the assault on the pursuer, the branch did not have any problems with violent customers or with other threats to its security ... As the branch did not have a history of problems with violent customers or robberies, the foregoing measures were considered to be sufficient to protect members of staff and to deter violent customers and robberies."
The measures were the fitting of panic buttons on the counter and in the back shop, the installation of a Closed Circuit Television system and the employment of two members of staff during the evenings. The installation of security screens would only be undertaken if no other means were available to protect staff, given the effect of such screens in alienating customers. Despite the averment quoted, the defenders accept that there had been an armed robbery on 31 May 1998, but aver that this was an isolated incident and there was nothing to suggest that a similar incident was likely to occur. The defenders maintain that the pursuer had not asked for improved security.
Both parties refer to a meeting after the robbery on 24 June 1998, with the pursuer claiming that, in the course of the discussion, Mr Minnes had ultimately accepted that there had been requests for better protection and the defenders denying this. It is agreed, however, that security screens were put up some time after the robbery although the defenders say that these were ultimately removed.
The primary issues are then: (1) what happened to the pursuer on the day of the robbery; (2) was there a history of violence in the shop; (3) did the pursuer complain and, if so, what was the response to her complaint; (4) were the defenders at fault in not providing improved security; (5) did that fault cause the pursuer's injury ?
(b) The Robbery
The pursuer gave evidence about what had happened on the day of the robbery. Her version of events, which described a particularly disturbing incident, was not disputed by the defenders and I accept the pursuer as credible and reliable in relation to her account. Indeed, her general credibility and that of her fiancé were not disputed by the defenders, who in submissions, accepted both as obviously honest and truthful and I proceed on that basis
At about 12.15pm, the pursuer was working alone. The door was "burst open" by men wearing masks made from balaclavas. They shouted at the pursuer not to press the alarm button. However, she did press the panic button under the counter. This resulted in automatic communication with the police station at Haymarket (presumably the West End police office in Torphichen Street). One of the men threw the pursuer against a set of shelves, causing them to break and cut the pursuer. He held and pressed a knife to her throat. He ordered her to open the door to the back shop from where she was pushed down into the cellar. She was ordered to open the floor safe, which was located there. She did this. The men then told the pursuer to face the wall in the cellar while they made their escape. To the pursuer, the incident seemed to last for hours but it had only been something less than five minutes.
Two of the robbers were arrested, the driver of the getaway car having managed to crash it in the traffic chaos which, coincidentally, had developed on Slateford Road. The whole episode was the subject of a press report [Pro 6/20]. The two robbers were arrested by Sergeant Alan Veitch just outside the shop, the sergeant having responded to the panic button call. Sergeant Veitch spoke to the extreme distress of the pursuer when he went to the scene, describing her as almost hysterical. In due course, there was a prosecution, which resulted in the pursuer going to court about five times before Mr Crombie eventually pled guilty.
(c) The Shop's History
(i)THE EVIDENCE
The pursuer had worked for Victoria Wine from January 1988, initially as a supervisor, then as a store manager and, from about 1991, as a "Base Branch" manager at the defenders' shop in Murrayfield. She said that she was offered the post of manager of the Slateford Road shop by Mr Minnes, her immediate superior as area manager, as both a challenge and a promotion. According to the pursuer's testimony, she was not told about any prior incidents in the shop before she accepted the post. When she started work, the history began to unfold through what her staff and customers told her. When asked about past incidents, Mr Minnes had denied these, maintaining that whoever had reported them to the pursuer must have been lying. When he came to give evidence, Mr Minnes maintained that he had not been aware of any significant incidents at the shop other than a window being broken. He said that he had not known about the 1994 crimes because they had occurred before his responsibility for the shop began.
After the robbery, the pursuer obtained a letter from Lothian and Borders Police, dated 16 February 1999, detailing the crimes reported as occurring at the shop. This letter [Pro 6/1] is partly typed and partly manuscript. It is agreed as "accurate" in the Joint Minute, but its contents were to some extent, in any event, spoken to by Sergeant Veitch. It refers to a number of incidents since November 1997 (misprinted as 1977) and then details the crimes committed in the shop in the preceding years. These were: 1997 - 2 crimes; 1996 - 4 crimes; 1995 - 3 crimes; 1994 - 3 crimes (2 armed robberies on 12 January and 7 February); 1993 - 5 crimes. The 1994 incidents were reported in the press. The first [Pro 6/23 - 24] was said in the newspaper to have occurred at about 9 pm and to have involved a man with a double-barrelled shotgun. The second [Pro 6/22] was said to have been a similar incident happening just after 10pm. Both episodes seem to have occurred when more than one member of staff was present.
Three to four months before she had taken up the post, the pursuer said that there had been an incident involving Susan Deas. According to the pursuer's report of what Grace Hendry had told her about this, a drug abuser had seemingly torn the front door off its hinges and broken the windows. After release from custody, he had returned and threatened Miss Deas. Although he must have been the responsible area manager at the time, Mr Minnes said he had not been aware of the Susan Deas episode. His position was basically that he had not known that there was a security issue. If he had, then he would have passed the matter on to the defenders' Security Department to take such steps as were deemed fit. Mr Minnes visited the shop every four to six weeks or so. He maintained that it was in a mixed middle and working class area and was not a difficult place to work in. According to his testimony, there was no evidence to suggest it was a problem shop.
After the pursuer had taken up her post as manager, there was an incident involving her co-employee, Grace Hendry. This is noted in the police letter [Pro 6/1] as "31.5.98: Attempted armed robbery resulting in 1 x lone staff member assaulted. 1 x customer assaulted." The pursuer was contacted immediately after that incident. This incident was the subject of a press report in the Evening News [Pro 6/21]. Miss Hendry gave evidence that she had been an Edinburgh University student and worked in the shop part time, usually in the evenings or at weekends. On Sunday 31 May, just after she had opened the shop, a drunk or hungover male had entered the shop and bought some cigarettes. He returned later in the afternoon and pulled out a gun, came round behind the counter and seized her by the throat. She was dragged into the back shop. A member of the public came to her aid. The miscreant made off, having hit that person on the head. Miss Hendry's head had also struck a wall. Miss Hendry had been on her own, a situation which she was not comfortable with, but accepted as she wanted the work. She said that it was the defenders' policy only to allow a certain number of staffing hours and the only time there was double manning was when there was a delivery or in the evenings. The pursuer did not agree that the record at Slateford was no worse than that of, for example, the other five shops within a radius of a mile, namely: Roseburn, Gorgie, Chesser, Murrayfield and Corstorphine. According to the pursuer, although there were some good customers, Slateford Road was a mix with more customers of an unruly type than the pursuer had been used to. Mr David Lowe, who had worked for a period in 1998, said that the shop was not a nice one to work in and that a lot of undesirables came in.
Kenneth Hurst, currently an independent security consultant, was the defenders' Head of Security at the time of the robbery. He had been in that post since 1995, after a career in the police which had seen him reach the rank of Detective Chief Superintendent of the Surrey Police. He advised the defenders' Human Resources Director and the Director would decide on whether the advice should be acted upon and funded. All criminal incidents ought to have been reported, through the area managers, to his Security Department. Not all incidents (e.g. window smashing) were reported and Mr Hurst had not been made aware of the Susan Deas incident. A prepared statement from Mr Hurst [Pro 7/3] recorded the defenders' computer details of the incidents reported to the Security Department from 1 January 1990 as follows:
| "15/1/1990 | Code 519 | Burglary | |
| 04/02/1991 | Code 142 | Robbery | Stolen £868.50 |
| 16/02/1991 | Code 142 | Robbery | Stolen £230.00 |
| 19/02/1991 | Code 165 | Assault on Staff | |
| 16/11/1991 | Code 165 | Assault on Staff | |
| 12/01/1994 | Code 142 | Robbery | Stolen £160.00 |
| 07/02/1994 | Code 142 | Robbery | Stolen £1,401.78 |
| 17/06/1995 | Code 345 | Smashed Window | Stolen £65.15 |
| 31/05/1998 | Code 143 | Attempted robbery | Nothing Stolen |
| 17/06/1998 | Code 168 | Robbery - rear of | Stolen £2,920.12 |
| 21/11/1998 | Code 165 | Assault on Staff" | |
As will be seen, Mr Hurst did not regard the occurrence of crime at Slateford Road as "significantly higher" than that in other similar shops.
(ii)ANALYSIS
I accept the evidence on the history of crimes in the shop as brought out by the police letter and the defenders' computer data. These reveal that there had been two incidents of robbery in 1991, two again in 1994 and, by the time of the pursuer's robbery, yet another in 1998. There were then some five robberies in this shop in less than a decade before the incident involving the pursuer. There had also been sundry other crimes in the years from 1995 to 1997. It is not disputed that the pursuer was not told of the history of the shop. Mr Minnes said that he was not aware of the history prior to, say, 1995. For reasons which will appear later, I did not find Mr Minnes a reliable historian in relation to this general area of evidence and I am not prepared to accept his evidence of ignorance. What is certainly the case is that the defenders were aware of the history, given their computer data, and Mr Minnes, as the area manager, ought to have been aware of it too.
In the absence of any detailed statistical evidence relating to the other shops in Edinburgh, I am unable to reach a conclusion on how the Slateford Road shop compared to the others statistically in terms of reported crime. I do, however, accept the pursuer when she said that she had encountered more unruly customers in the shop than she had in Murrayfield. Her evidence in that regard was supported to a degree by Mr Lowe, whose evidence I also accept, who referred to the presence of undesirables in the shop. It is also consistent with Miss Hendry's unease at being alone in it, and with what happened to her in May 1998, her evidence concerning which was not in dispute. I should add here that I found her evidence generally credible and reliable, being given in what I regarded as a reasonably fair and balanced manner. Quite apart from the generality concerning off license premises as a soft target for criminals, to which I will make reference later, this shop was one where robberies had occurred in the past and, there was every reason to suppose, would happen again in the future. It was also a shop into which, from time to time, unruly and undesirable elements of society would go and might well cause trouble, including physical violence. In short, it was a place where the occurrence of violence was, or at least ought to have been, anticipated by the defenders. Such violence was reasonably foreseeable, especially given the manning levels in, and physical state of, the shop.
I should add that, in making this assessment, I have not taken into account the episode regarding Susan Deas. She did not give evidence. The pursuer gave hearsay evidence of what she had been told by Grace Hendry about these episodes but Miss Hendry did not speak to the episodes or about where she might have gleaned information about them. Although I have no reason to reject the pursuer when she said she had been told about an incident concerning Miss Deas, in the absence of rather more direct evidence about what had happened, I am unable to reach a view on what did happen or on what its significance might have been, especially in relation to whether it may or may not have been reported.
(d) The Pursuer's Complaints
(i)THE EVIDENCE
The pursuer claimed to have repeatedly asked Mr Minnes for security screens and complained about the risk of violence, not just cheeky customers and shoplifters. Particular concerns involved the lack of window shutters and the state of the side door. She said that she had sent a report to him every month and each one would have dealt with security. A copy of these reports would have been kept in the base branch. Until the incident, the pursuer said that her requests for a security screen had been denied by Mr Minnes on the grounds of both necessity and cost. It was also said that there would be a problem because the building was listed.
According to Vincent Slaven, the pursuer's fiancé, after the pursuer's move from Murrayfield to Slateford, the pursuer had told him that her customers had warned her that the shop was a problematic one. She had also complained of the dank cellar and the antiquated CCTV system. She had said that she had reported the problems and, because she felt that she was not getting anywhere with Mr Minnes, had put them in her monthly reports. However, the reaction of management had been to give the problems a low priority and to direct the pursuer to turn the shop around in economic terms. One excuse had been the listed building one. Mention had been made of security screens, once the pursuer had got to know about some of the prior incidents, but management had not felt that such screens were necessary. At that time, the pursuer had not been aware of the number of robberies. The pursuer had come to be regarded as a bit of a troublemaker because of her complaints. She had gone off work because she felt that she was getting nowhere with her complaints.
Mr Lowe recalled the incident involving Miss Hendry, although he had not been in the store at the time. After this, according to Mr Lowe, complaints were made about security, notably about a security screen. Although not initially responsive, the later attack on the pursuer prompted action, at least after the staff had obtained sick lines for a couple of weeks, when they felt their complaints had not been dealt with. They went back to work after the screens had been promised. Miss Hendry testified that she had been left with the impression, after her incident, that the defenders, presumably in the sense of their higher management, had not cared about what had happened to her. They simply accepted that someone had been attacked, but did not seem sorry about it. She had been angry about the attack on herself. She received counselling only after the pursuer's incident and she had broken down on the telephone when speaking to a member of the defenders' staff. After the pursuer's attack, she had felt it too unsafe to work there and the staff effectively went on strike. She recalled that the CCTV was improved and the staff were given personal alarms. The staff wanted screens but that was not what the defenders wished as part of the shop's image. She was re-assured when the screens were introduced.
According to the pursuer, at the meeting after the incident, Mr Loring had asked Mr Minnes if he had previously received reports on security but he had denied this initially, before accepting that he did remember receiving some requests for better security. She confirmed that after the incident, the staff staged some form of protest about the lack of security.
Mr Minnes described his function generally as helping and supporting some 30 to 40 managers "to maximise" the profits from their stores. Apart from a reference to the side door of the shop, he said that he could not remember receiving any complaints about security precautions such as screens until after the robbery involving the pursuer. He accepted that he made no recommendation to the defenders' security manager about such screens. He did not remember any complaints about violent customers. He did not recall accepting at the meeting after the robbery that he had received complaints about security from the pursuer in the monthly reports. The monthly reports sent to him had been "binned". He had no recollection of the pursuer going off work because of her concerns over security. Mr Minnes had completed the form relative to the Grace Hendry incident on May 1998 [Pro 6/29] and sent it to the defenders' Security Department. In this form there is a section in which the writer can describe any action taken to prevent a recurrence. Mr Minnes had not put anything in that section. He did so when completing the form concerning the pursuer's incident [Pro 6/30], recommending that Mr Hurst visit the shop and consider additional security measures. He also accepted that the staff had walked out after the pursuer's robbery because of the security issue. He had obtained substitute staff until a security screen had been installed.
Philip Loring, now the defenders' head of communications and operations, had been the regional manager for Scotland and the North of England at the time of the robbery. He had heard of no concerns about the security of the shop prior to the pursuer's robbery. He attended the meeting afterwards with the pursuer, the purpose being to see what could be done to get the pursuer back to work. The Trade Union representative (Rab Knox) had mentioned the need for security screens in all of the defenders' shops. Mr Loring, after discussion with Mr Hurst, did not think a screen was warranted. The incident had been a sad one but, in his view, there had been no long term problems at the shop justifying the installation of a screen. However, a removable one was put up given that the pursuer was such a valued employee. Mr Loring said that, at the meeting, the pursuer had said that she had advised Mr Minnes of the past incidents, rather than expressed concerns about security. Mr Minnes had no formal record of this and Mr Loring did not recollect Mr Minnes accepting that he had received such advice.
(ii)ANALYSIS
I accept the evidence of the pursuer in relation to her making complaints to Mr Minnes about the lack of security in the shop, including screens, prior to the incident involving Miss Hendry and intensifying thereafter. Her evidence was supported by that of her fiancé to whom she had contemporaneously made her concerns known. Although I do consider that, especially in giving evidence about her complaints and the lack of action concerning them, the pursuer was perhaps over keen to put her point across rather than simply answer the questions asked, the prolixity of her responses might have been because of her condition (see below). Overall, I am satisfied that the pursuer and her fiancé gave their evidence on the merits of the case truthfully and that this evidence can be relied upon.
Mr Minnes purported to have a poor memory for various events. He eventually said that his memory was not good in relation to events last week, far less those happening in 1998. However, I do not believe that his memory is as bad as he said it is and conclude that I should not rely upon his evidence in relation to complaints made about security measures. From his demeanour in the witness box and notably also his fondness for failing to recollect, I did not believe Mr Minnes' evidence on what complaints were made to him. Of course, Mr Minnes' function was primarily in relation to the economics of the shops and not their security. He might legitimately focus on profits rather than security. That might explain his inability to recollect such matters, because they would not be amongst his priorities. However, I do not think that this is the whole story. Once the pursuer's incident had occurred, especially following upon Grace Hendry's episode, I rather think that Mr Minnes would have been able to recollect whether security measures had been raised with him. They were, after all, later discussed with his immediate superiors. I do not think that the passage of time has diminished his recollection to the extent he maintained.
What I am unable to reach a concluded view on is whether there was an admission by Mr Minnes about pre-existing complaints at the post robbery meeting. The evidence was conflicting on that and, given Mr Loring's account, I am not prepared to hold that such an admission was made albeit that this was the pursuer's interpretation of what had been said.
In conclusion then, this was a shop where physical violence against staff was, or ought reasonably to have been, anticipated. It was also the case that the responsible member of staff at the shop, the shop manager (i.e. the pursuer), had made her concerns known to her line manager, Mr Minnes. These complaints may not always have been transmitted to head office as they ought to have been. From what that office knew already, however, it was foreseeable that some form of attack on staff would occur in the then state of the premises and manning levels. In that regard, I reject the submission of the defenders that they could not reasonably have foreseen the actions of the robbers.
(e) Fault
(i) GENERAL
The pursuer's approach in submissions was to treat the case as no different from any other one involving employer's liability. In that regard, it was not disputed by the defenders that the operator of a shop owes a duty to those employed in the shop to take reasonable care to protect them from the actions of criminals and violent customers, albeit that the risks cannot be entirely eliminated. The specific dangers attaching to this particular shop have already been detailed. The general position of "off-license" premises, such as Victoria Wine, as a target for robberies was, if it needed to be, spoken to by Sergeant Veitch, whose evidence, as an impartial observer, I accepted as fairly stated and balanced. They were a target, first because of the amount of cash they were likely to carry. In the case of this shop, some £2,817.78 was obtained in the robbery [see Pro 6/30] and that during the early part of the day. Secondly, they were attractive to robbers because of the value, and perhaps popularity, of the stock of alcohol. Mr Minnes accepted that it was well known that off licences were subject to robberies and burglaries. This was at least partly the reason why the defenders had set up a counselling service for employees experiencing such events. Mr Loring also accepted that off licenses were particularly vulnerable to robberies.
The pursuer lodged and spoke to a press report from 1994 [Pro 6/25], which referred to a Detective Superintendent asking "late night shops" to "wise up to the threat of armed raiders". It cautioned that robbers were turning to corner shops and licensed stores for easy cash instead of banks and main post offices, which had invested in tight security measures. The Superintendent's "common sense" advice included having at least two members of staff working at all times. The article referred to 69 "hold ups" over a period of fifteen months, 21 with knives, 11 with guns and the remainder with assorted weapons, such as baseball bats. The report appeared to focus particularly on the dangers of single manning a shop late at night.
The defenders did have certain security measures in place, such as two panic buttons connected to the police station at Haymarket and the CCTV system. There was double manning during the busy times, being the last few hours of trading, and when deliveries were taking place. The defenders also issued guidance to their staff on what to do if there was a robbery [Pro 7/6]. This included several directions such as not leaving a customer unattended in the front shop and always calling for assistance if unsure of a customer. The guidance continues:
"Finally, if you do find yourself in danger from any source, remember that you are more important than any stock or money, so don't try to be a hero. Follow the shop procedure for this type of incident ... but above all Do As The Intruder Tells You."
The pursuer, however, did not agree then that the defenders carried out their policy on violence and disorder [Pro 7/5] to the effect that: "The company places the safety and well-being of its staff above all other considerations."
(ii) DOUBLE MANNING
(a)EVIDENCE
In Sergeant Veitch's view, premises where single females worked were more vulnerable to attack than those with two members of staff. Such premises were more attractive to a potential perpetrator of a robbery, although there were a number of other complex factors involved. Sergeant Veitch ventured to suggest that a criminal gang was more likely to rob a shop staffed by one person because of the criminal fraternity's knowledge of the law of corroboration!
It was explained by Mr Minnes that the defenders' policy on double manning was that it only occurred in the last three hours of trading and otherwise depended upon the turnover of the shop. He did not consider that there was anything to say that the presence of two people, as distinct from one, in a shop would make any difference. Mr Loring also confirmed the double manning policy as being used in the last three hours of trading because there was more business then and there was a greater risk. Mr Loring had instructed that the shop "remain" double manned after the pursuer's robbery [Pro 6/4] but could not recall whether this instruction had been issued after the Grace Hendry incident.
Mr Hurst explained that the double manning policy was based on the fact that most offences occurred in the late evening, on dark nights. It would start around 6 or 7pm, but did not prevent shops from being robbed. However, Mr Hurst was of the view that whether a shop was staffed with male or female staff did make a difference. There was less of a risk with two males than with two females. According to research carried out by Ladbrokes betting offices, there was just as much robbery when two or three members of staff were on duty as with only one. If the robber was determined, it would not make "a great deal of difference" whether one or two members of staff were on duty. Mr Hurst was of the view initially that he could not say that there would be no difference between having one or two staff but thought that whether there were one or two staff in a shop would not prevent robberies. If there was a male person present then there would be a difference but not a great deal of difference. He then said that, in his experience, it made no difference, in deterring robbers, whether there were one or two employees. Nevertheless, he seemed to accept that it was arguable that one female was more vulnerable than two. There was always a debate with the police on double manning. Some police forces, notably that in Edinburgh, thought there should be double manning all the time, but this was not company policy. However, Mr Hurst said that the real reason for the police view stemmed from a desire to cut down reports of shoplifting, incidents of which often resulted in the police being called out.
(b)ANALYSIS
I do not consider that I should place any weight upon the contents of a newspaper report which purports to report the views of what a police officer, albeit a high ranking one, was advising shopkeepers in general to do. This is not just because neither the policeman nor the journalist gave evidence, but also because the article was a very general one and related to 1994. However, I do accept Sergeant Veitch's evidence that premises where single females are employed are more vulnerable to attack than those staffed with two. He gave his evidence in a sensible and balanced way and had some fourteen years experience in the police upon which to base his view. I am not convinced that the reason for the greater safety in numbers stems from a knowledge of the laws of evidence. Rather, premises occupied by one person are, as a generality, easier to attack since, amongst other things, there is only one person to concentrate upon. The importance of having more than one person in the shop is not just as a deterrent to robberies but to all forms of physical attack, or even simply verbal abuse.
I gained the impression from the defenders' evidence that their policy on double manning had little to do with the safety of their staff, but was based on economic considerations. A shop with a greater turnover may have greater staffing, not because of safety but because that was beneficial in trading terms. So far as the deterrent value was concerned, I am not prepared to place any weight upon what a Ladbrokes' study revealed in the absence of that study being produced. So far as Mr Hurst's evidence is concerned, however, he appeared to waver, albeit only slightly, in exactly what he was saying about double manning (see above) and this causes me to doubt the reliability of his evidence on this chapter. He did agree at least that the addition of a male member of staff would make a difference and to that extent conceded that a single lone female, as the pursuer was, would be more vulnerable to attack. I consider that vulnerability established.
Having regard to all the evidence, I am of the view that the employment of two members of staff in premises, where physical attacks might be anticipated, is a step which materially reduces the risk of such an attack, including a robbery, happening. It is also an obvious and apparently practical step which might have been taken. In the absence of any economic or other argument to the contrary, I consider that it was also both a reasonable step to take and one which, in this case, ought to have been carried out. The pursuer was in a particularly vulnerable position, being left alone in a shop susceptible to violent attack, in charge of substantial quantities of cash and stock. Furthermore, the use of double manning was in accordance with the advice given by the local police to the defenders. Mr Hurst said that this was simply because of shoplifting, but I do not accept, even if that was a stated reason, that this is the only reason for tendering what appears to be sound advice. The police advice was not followed because of company policy reasons and, as I have already noticed, that policy appears to have been driven by economics rather than a consideration of the safety of staff. The extent of that consideration must be doubted in light of the evidence of Miss Hendry about the lack of concern after her incident. Indeed, the occurrence of that incident at the end of May 1998 ought at the very least to have prompted the defenders into taking immediate steps to reduce any risk of repetition. Such steps ought to have included double manning at all times in the absence of other effective measures. In short, the defenders' insistence that the pursuer work alone in this shop was a breach of their duty to take reasonable care for her safety.
(iii) SCREENS
(a)EVIDENCE
On the basis, which I accept, that the pursuer had raised the question of security with Mr Minnes, at best he ought to have referred that matter to the Security Department for consideration since he could not decide upon, though he might recommend, the installation of security screens. As already noticed, Mr Hurst did not think that the number of incidents at Slateford Road was "significantly higher" than other similar outlets in Edinburgh. Some off licences had suffered more serious and frequent crimes and total security screens had been installed. These were mostly in the peripheral city areas and the cost was about £10,000 per shop. Before installing screens, the views of the staff and customers would be taken into account, although Mr Hurst would not necessarily follow the recommendations of the local manager, even an experienced one. The screens had a deterrent effect on customers. Here, there was no pattern of offending at the shop to suggest the use of security screens. One criterion was if a number of robberies had occurred within a twelve month period or there had been a series of robberies and the offenders had not been caught. It was not simply a question of numbers, said Mr Hurst. Each crime had to be looked at individually. Otherwise, security was a standard specification with a burglar alarm, panic button near the till, a CCTV system and a counter-cache for surplus notes. There were the written procedures (see above [Pro 7/6]) and the defenders' policy was that it is better that stock be taken than a member of staff be injured. Mr Hurst said that screens sometimes did not deter robbers, who used concrete blocks or sledgehammers to break through the security door. Upon his assistant carrying out a risk assessment after the pursuer's robbery, it was decided that upgrading the CCTV system and installing portable personal attack buttons should be done but a security screen was not required as it was not the case that this shop was becoming a target for robbers.
(b)ANALYSIS
The use of screens in a retail outlet is reasonably seen very much as a last resort method of security. In that regard, I accept the evidence of Mr Hurst, which was also spoken to by Mr Minnes, that such screens would be likely to have an adverse effect on trade within the shop. Customers do not like them. On the other hand, they are no doubt an effective method of deterring robberies, particularly of the relatively casual sort. Of course, they are not a complete answer to the determined criminal but they must be regarded as providing about as secure an environment as possible without having to close the shop altogether. A robber might seek out easier targets where the effort involved might not justify the eventual potential gain. In broad terms, I am unable to hold that the incidents occurring in this shop, at least prior to the Grace Hendry one, justified the installation of security screens. In that regard, I accept, in general terms, that the defenders' criteria for the installation of screens as set out by Mr Hurst were reasonable ones to apply. Given the existence of this shop in a "mixed" area without a high incidence of crime, albeit that, as I have held, some undesirable and troublesome elements were present, I do not consider that it was reasonable for the defenders to install security screens. In short, I do not hold that the failure to install such screens amounted to a breach of the defenders' duty of reasonable care. Slightly more problematic is whether the defenders ought to have installed the screens after the Hendry incident. On balance, I doubt whether it is reasonable to have expected the defenders to have installed them in time for the robbery occurring less than a month later and, on that basis, reject too the notion that such installation should have occurred.
(f) Causation
The pursuer maintained that the incident would not have happened had there been security screens. She did not think that the robbers would have attempted the robbery if there had been such screens. She made reference to an incident, which she had been told about by someone not a witness, occurring after the screens had been put up. This involved an unruly customer threatening a member of staff but being unable to do other than shout and bang on the screens. I readily accept that the use of screens would have been likely to have deterred the robbery but, since I have held that the defenders did not require to install such screens, this part of the case becomes irrelevant. I should add too, that in the absence of more direct evidence concerning the incident mentioned, I would have been reluctant to take its circumstances into account on the basis only of a report to the pursuer.
A more difficult problem is whether it can be said that the introduction of double manning would have prevented the robbery. In looking at this question, it is not easy to form a view on whether, but for the defenders' omission, the third parties would not have acted as they did. It is important, in the context of this case, to note the evidence of what actually happened. Sergeant Veitch explained that there had been three robbers but only one acted as the main perpetrator, with a second as lookout at the door and a third in the car. Effectively, the main element of the robbery was carried out by one knife wielding person. Now, it is undoubtedly true that the existence of double manning would be unlikely to stop the carefully planned robbery, especially where the robbers are armed with firearms or the like. However, this robbery does not seem to fit into that category. Some thought must have gone into it, given that the main robber seems at least to have been aware of matters such as the existence of the safe in the cellar. No doubt he would have been aware too that the pursuer would be on her own. In all the circumstances, I hold that the prospect of this robbery occurring would have been substantially diminished had there been double manning. The defenders created a situation in which a robbery, or similar act of physical violence to staff, was much more likely to occur than if there had been double manning. They placed the pursuer in this situation. Put another way, I am satisfied that the defenders' failure to take reasonable care and introduce double manning materially increased the risk of a robbery of this type, and indeed of other forms of violence, happening. I am accordingly satisfied that the defenders' failure was a material cause of the incident, which resulted in the pursuer's condition. Had there been double manning this robbery would probably not have occurred. I should add also that I am of the view that, even if the robbery would have happened anyway, the prospect of the pursuer having been threatened in the way she was would have been much diminished by the existence of double manning. The prospect of her having suffered the psychological injury she sustained would have been materially reduced to the point that I think it unlikely that it would have occurred.
2 DAMAGES
(a) Solatium
(i)EVIDENCE
After the robbery, the pursuer was unable to return to work for fear of a similar incident occurring. She was reluctant to leave her house as she thought that the robbers, only two out of three of whom had been caught, might be after her. Perhaps the letter from the procurator fiscal referring to a victim notification scheme did not help this feeling [Pro 6/26]. She did have Post Traumatic Stress Disorder counselling for about 8 months. She had anti depressant drugs but these had produced side effects. At present, the pursuer is frightened and depressed. She practically never leaves the house, at least without her fiancé, whom she accompanies if he is away from home.
Mr Slaven described his fiancée as having been a confident outgoing person before the robbery. She was a very successful and organised manager. She had made some recovery after therapy and prior to going to college but he confirmed the problems she spoke to concerning the college ambience. Going to college (see below) had been a major achievement and its failure had been a blow. She now rarely went out of the house without him. At one point she had become obsessive about cleaning the house.
The medical evidence for the pursuer came from Dr Jan Calder, a psychiatrist. Dr Calder had dual qualifications, having both law and medical degrees, and now worked for the Mental Welfare Commission. She had worked at the Royal Edinburgh Hospital for some three years and had initially been asked to see the pursuer in about December 2000. At that stage, Dr Calder was a Senior House Officer, and thus not widely experienced. She spoke to her two reports [Pro 6/12, 32]. In the first, Dr Calder expressed the view that the pursuer was suffering from Post Traumatic Stress Disorder to a moderate to severe degree consequent upon her experience in the robbery. She was suffering from anxiety, avoidance and hyper-arousal as well as developing depression of moderate degree. Her condition was such as to prevent her returning to work. She found it difficult to go out alone, especially at night, but did manage some shopping trips along with her fiancé. She had obsessive cleaning and checking rituals designed to allay anxiety. Given the chronic nature of her condition, Dr Calder thought it unlikely that she would regain her previous level of functioning. However, she noted that the pursuer believed that a satisfactory outcome of the current case would relieve her symptoms.
In her supplementary report, having seen the pursuer in November 2002, Dr Calder expressed the view that the pursuer still fulfilled the diagnostic criteria for PTSD, depression and anxiety. Her views on the pursuer were, to a large degree, unchanged, except that she thought the pursuer was worse than she had been two years previously, perhaps because of the increased anxiety concerning the case. She did not think that there would be any significant improvement beyond her previous state, given the chronicity of her condition, albeit that there were further treatment options including further medication, different from the paroxetine she had previously tried. The alternatives might produce good results. Therapy, notably in the form of EMDR (Eye Movement Desensitisation and Reprocessing - a form of reprocessing memory by using rapidly alternating eye movements), might also be attempted and provide positive assistance. The pursuer did have an insight into her problem and did want to do something about it. This was important.
Dr William McKinley, chartered clinical psychologist, gave evidence for the defenders under reference to his reports [Pro 7/2 and 7/15]. Dr McKinley has considerable experience as a psychologist notably in head injury and PTSD cases (see his curriculum vitae appended to his report). He saw the pursuer and Mr Slaven in October 2002. He had some general medical practitioner records together with sundry reports, including the first one from Dr Calder. He noted that two of the pursuer's GPs had said that the pursuer's psychological health had been good before the robbery, although he thought that she might have been pre-disposed to obsessive-compulsive symptoms when highly anxious. He concluded that, more or less immediately after the robbery, she had developed symptoms of PTSD. The disorder was particularly marked in the early months and was still persisting when she saw Dr Calder. However, by the time of his assessment, he did not consider that she had all the requisite symptoms. Rather she had first a continuing and very marked phobic anxiety, whereby she cannot bear to left alone. Secondly, she had developed a significant, possibly "full-blown" obsessive compulsive disorder. She also had a major depressive disorder although that was in abeyance when he saw her. At the time of his report, the pursuer was doing her nursing access course, but Dr McKinlay was cautious as to prognosis and wondered whether, as in fact happened, her phobia would be disruptive to her studies.
Like Dr Calder, Dr McKinlay saw the pursuer again in November 2002 [Pro 7/15]. By this time, he had seen more GP records but there was nothing in them to suggest any pre-existing condition. He could see no grounds for supposing that, but for the robbery, she would have developed significant psychological problems. Her anxieties had increased, perhaps because of the court case but also because of her failure to continue with the college course. She was suffering from a recurrence of the PTSD. The main problem remained the pursuer's severe phobic anxiety, whereby she avoided going out and exposing herself to social occasions. He thought that her obsessive-compulsive and depressive elements had all but gone. Dr McKinlay was of the view that she should undergo a course of treatment, which she was keen to do. He had recommended and referred her to the Keil Centre, a private clinical psychology practice, which might carry out the standard cognitive behavioural treatment and the more revolutionary EMDR. The therapy might be prolonged, perhaps several months initially with subsequent occasional follow-ups. Some 20 to 30 sessions might be needed for the initial stage. There was, however, a reasonably good prospect of a recovery to the point where she would undertake training and employment.
(ii)ANALYSIS
Dr McKinlay did not regard the fact that he operated in a different discipline from Dr Calder as important, nor did he think that the fact that Dr Calder thought there was a persisting PTSD was of great note, given the phobic disorder that he had diagnosed. I agree with this as a generality. Dr Calder's psychiatric views were not unhelpful, especially in relation to her first meeting with the pursuer. However, in so far as there were differences between them, I prefer the approach of Dr McKinlay, particularly, but not exclusively, so far as the future is concerned. Dr Calder was a relatively junior psychiatrist and I did not gain the impression that she had much experience in this type of assessment, notably for the express purposes of litigation. Dr McKinlay has a wealth of experience in this area and I preferred his evidence on that basis alone. Whilst not being too critical of Dr Calder, I gained the impression also that Dr McKinlay had applied his mind to a much greater extent in attempting to predict the future, especially on the employment front (see below).
The pursuer then has had a PTSD but her present problem is primarily a severe phobic anxiety. So far as that future is concerned, given that the pursuer is keen to get well and is clearly someone with a good health background, I am of the view that, with the course of therapy suggested, she will improve to a good level of functioning. There will be some residual lasting diminution in social functioning but, after a year or so, the lasting disability will be of a minor nature.
The pursuer submitted that a figure of between £30,000 and £50,000 was appropriate for solatium on the basis that the pursuer had a severe PTSD, a major depressive disorder, nervousness, anxiety and obsessive compulsive symptoms. She had also lost what had been a congenial employment. Reference was made to the [English] Judicial Studies Guide (5th ed). Under reference to McMahon v British Railways Board 1995 S.L.T. 590, the defenders submitted that £20,000 was appropriate, given Dr McKinlay's evidence. I agree broadly with the defenders' submission in this regard, given that I have accepted that evidence, but consider the amount suggested to be slightly too low. In any event, I do not think that the evidence supports the contention that the pursuer has a "severe" PTSD. Even Dr Calder referred to it as "moderate" to "severe". The pursuer obviously has major psychological problems and my assessment is on that basis. The assessment is that solatium is reasonably set at £24,000. Given that she ought to return to reasonable functioning after therapy, I will attribute two thirds of the award to the past. That will add interest of about £3,000 based upon 4% per annum upon the two thirds past figure for just over four and a half years.
(b) Loss of Earnings
The pursuer's employment ceased on 19 May 1999 [Pro 6/10]. She had been receiving the remuneration appropriate to a person on grade 22 [Pro 6/6]. This amount, £13,759 gross per annum, from 5 April 1998 was partly based on the shop's "margin" of £138,288 over a period of 52 weeks in the previous year. It is agreed in the Joint Minute that the pursuer's net wage loss between May 1999 and December 2002 is £42,915. This will now be about £44,000 to which interest at 4 per cent per annum should be added for something over three and a half years (about £6,000).
It is also agreed that, had the pursuer remained at the Slateford Road shop as manager, then she would now be earnings £14,195 net per annum. She said that Mr Minnes had offered to put her name forward for the promoted post of district manager. According to Mr Minnes, she was moved because she was a good manager and the Slateford Road store had not been being operated satisfactorily. He did not remember it involving any potential promotion. For the reasons given above, I am not at all convinced about Mr Minnes' evidence. However, even so, there were a very limited number of promoted posts and I am not persuaded upon the evidence that the pursuer would have obtained one, whether it had been promised to her or not.
The pursuer had tried to obtain work from home, but found that many of the jobs advertised were fraudulent schemes requiring an advance payment [Pro 6/19-19]. She had also applied for a number of other jobs during 1999 including to the Holiday Hypermarket at Craigleith Retail Park [Pro 6/14] and Jenners Store in Princes Street [6/15]. There had been many different types of job available at Jenners, some twenty six in total, nine of which the pursuer could have done, including switchboard operator and filing clerk. She did not get any of them, despite the fact that some remained unfilled at the point when she was turned down. She had been turned down also for the post of medical laboratory assistant [Pro 6/16]. The pursuer had told potential employers that she had been off work through ill health following upon a robbery. This had clearly led employers to question her ability to work. During 1999, the pursuer had attempted to embark on another career by starting an access course at Telford College, which would have enabled her to begin studying for a career in nursing. However, the crowds of students in boisterous and noisy mood had proved too much for her. She had been unable to deal with people running behind her or having to go home in the dark. She gave up after six months. At present, the pursuer is of the view that she could work but only from home.
Dr Calder was cautious about expressing a view on whether the pursuer would be able to resume employment, other than to note that she would not be able to achieve the same level of functioning as she was capable of before the robbery. She might undertake clerical or administrative work, if it did not involve contact with the public. With proper support and therapy, she might succeed with the college course she had previously attempted.
Dr McKinlay observed that it was important to note that the pursuer did not have any pre-existing problems and had been in a good job, which required "assertiveness". He did not think that returning to the access course and succeeding was beyond her. Were he the treating psychologist, he would aim for a return to that course next September, which he thought achievable. Indeed, he would be disappointed if that were not achieved. It could be, with the right preparation. Alternatively, by that date, the pursuer would have recovered to a stage when she would be able to undertake a clerical or administrative job, if there was no perceived threat involved. Dr McKinlay considered that the pursuer would achieve at least such work. He explained that it was not unusual for a person to have prolonged psychological difficulties after an incident of this sort. What was happening to the pursuer was not that much out of the ordinary. She was not someone with longstanding mental health problems of the type which would be included in the statistics in the care report [Pro 7/11 paragraphs 7.2-3 see below] (e.g. drug addiction, schizophrenia, alcoholism etc.). It was not appropriate to put the pursuer into the same category of females who were neither working nor coping with the demands of life. She is not typical of this group as she has a long history of employment and has a specific reason for her condition. Although Dr McKinlay agreed that there were problems with obtaining work because of her prolonged absence from employment, he thought that his views were realistic and that it was more likely than not that the pursuer would succeed with therapy, albeit that he was not "overwhelmingly confident". The pursuer would not reach her pre accident level of functioning, including the ability to deal with dangerous and alarming situations, but that was not to say that she would not be able to do lots of other things.
For the reasons given above, I prefer and accept the evidence of Dr McKinlay on the pursuer's future employment prospects. Having regard to her sound work record in the past and her keenness to return to work in the future, I think that she will obtain work having retrained through an access and university course. Having regard to the likely time that this will take, it is not unreasonable to allow a total of five years for the retraining and obtaining of such employment. Such retraining ought to return the pursuer to the level of her pre-accident employment, that is to say to the level which she would now be earning had she continued in her employment as manager, as I consider she would have. In effect then, in the future she will lose some five years at slightly less than £14,200 net per annum, that is to say about £71,000. That is the figure I consider to be a reasonable assessment of her future loss of earnings.
The alternative, were the pursuer to fail in her retraining is that she will still succeed in obtaining clerical or administrative work at the end of a period of about a year. Although, I reject that alternative as less likely, it provides a useful check on the figure I have selected. So far as the pursuer's likely earnings in such a limited job are concerned, the Joint Minute agreed that the Pro-Care report of 7 November 2002 [Pro 7/11] could be taken as the equivalent of the evidence of Gordon Cameron, a Rehabilitation Services Manager. This gives a median figure for earnings in clerical occupations of £14,669, which I take to be gross. This, I consider to be around the amount which the pursuer could expect to earn after about a year. Deducting a generous 20% figure for tax and other matters in broad terms would produce about £11,735, leaving the wage differential at around £2,500 net per annum. The pursuer's suggested multiplier for loss of earnings to the date of retirement was 19.77, which would produce something just short of £50,000 to which would have to be added the year lost from today at just over £14,000. The global figure under this method of calculation is less, but not substantially less than that produced when looking at what I consider to be the more likely future position.
(c) Pension Loss
The pursuer had been in a pension scheme [Pro 6/27] and her current deferred pension benefit was valued at £2,422.19 per annum, which, it is promised, will increase to at least £7,688.69 per annum upon reaching 65. The transfer value of her pension is £16,722.75. John Buchanan, an actuary with Hazell Carr Collins, gave evidence in terms of his report dated 15 December 2002. He valued the pursuer's loss, had she continued working until aged 65, at £108,710 net, on the assumption that she did not regain employment in the interim. This valuation included a spouse's element (£11,180) and death benefit (£4,690). It also made a number of assumptions including that: the value of wages would increase at the rate of 2% per annum above that of prices; the gross rate of return on investment would be 3% per annum, based on the 21/2% net figure in the Damages (Personal Injuries) (Scotland) Order 2002 (SSI No 46). I proceed on the assumption that the pursuer will regain employment at an equivalent level to that which she would have been earning at with the defenders had she continued as a shop manager. There is no reason to suppose that the employment she will secure, especially if it is within the nursing profession, will not provide a pension of equivalent type to that which she would have continued to benefit from by working for the defenders. However, by the time she regains equivalent employment, she will have lost almost ten years pensionable salary, out of the total of thirty two which she might have worked until the age of sixty five. It was not disputed that the spouse's benefit should be deducted from Mr Buchanan's total loss figure of £108,710 and, as the defenders submitted, the death benefit should be taken off too to leave a loss of about £93,000 based on the assumption that the pursuer would never work again. Although it is a rough and ready method, one which both parties seemed to consider had to be taken on this part of the claim, having regard to the portion of lost years against the potential total of those which might have been worked but for the accident, I will assess the pension loss at one third of the approximate total, that is to say at £31,000. In that regard, although I had reason to question some of Mr Buchanan's assumptions and was invited to reject those assumptions in submissions, the reality is that I have no contrary basis in evidence upon which to proceed. The defenders suggested a lump sum in the region of £15-20,000 but I do not consider that such a low figure represents what the pursuer will have lost over the years of her unemployment.
In tabular form then, the figures for damages are:
| Head of Claim | Award |
| | |
| Solatium | 24,000 |
| Interest on past element | 3,000 |
| Past loss of earnings | 44,000 |
| Interest | 6,000 |
| Future Loss of Earnings | 71,000 |
| Loss of Pension | 31,000 |
| Total | |
I will accordingly repel the defenders' first to third pleas-in-law, sustain the pursuer's first plea-in-law and grant decree for £179,000. I was invited by the pursuer to certify the witnesses Dr Calder and Mr Buchanan as skilled and I will also do that.