Conflicting duties

Although not a medical claim, a recent decision of the ACT Court of Appeal touches on conflicting duties: Roberts v Westpac Banking Corporation [2016] ACTCA 68.

Burns & Gilmour JJ discussed the potential for conflicting duties owed by the bank to its customers and its employees, in the event of an armed robbery. The issue revisits the High Court’s 2014 decision in Hunter New England LHD v McKenna.

At [94] – [95] Burns & Gilmour JJ  said:

94. This case is no different. Westpac arguably owed a duty to its employees to take reasonable steps to protect them, in the course of their employment from the actions of a criminal. Such a duty might well conflict with any supposed such duty to protect its customers. For example, an allegation of breach of duty might have been made by one of the tellers if there had been no screens or where they had been installed, whether by training or instruction, Westpac had prevented staff from activating them for their own protection in order to protect customers. Indeed that is the very kind of circumstance that might have occurred in this case.

95. Such conflicting duties are irreconcilable: see eg Hunter and New England Local Health District v McKenna [2014] HCA 44; 253 CLR 270 at [29]. Compliance with a duty to customers might put members of its staff at risk: see eg Electro Optic Systems Pty Ltd v State of New South Wales [2014] ACTCA 45; 10 ACTLR 1 at [340]. The foreseeability of such a conflict occurring in the circumstances of an attempted armed robbery at Westpac premises was acknowledged by Dr Zalewski. Where a suggested duty of care would give rise to conflicting obligations that will ordinarily be a reason for denying that the duty exists: Sullivan v Moody at 582 [60]. This is such a case.

The Court also dismissed the appeal on the basis that there was no breach of any purported duty and that factual causation was not established.

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