Occupational hazards

The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Geoffrey Valenzia and Mr Justice Giannino Caruana Demajo, in the case “Victor and Saverina Cassar vs HSBC Bank Malta plc et” held, among other things, that once the bank had adopted sufficient security measures in place, it was not held liable for damages.

The facts in this case were as follows:

The van would not have come in the line of fire if Victor Cassar had instructed the driver to leave the scene of the robbery

On July 12, 1999 at approximately 10.15 a.m. Victor Cassar, an employee of HSBC Bank, was involved in a hold-up outside the HSBC Cospicua branch, while carrying out his escort duties in the security van. HSBC employees with police escort were tasked to deliver the cash to the Cospicua branch.

Armed robbers attempted to steal the money bags containing Lm80,000 and Lm6,000 in foreign currency from the bank employee, carrying the cash from the van to the branch.

At the time, Victor Cassar was in the security van, witnessing the armed robbery. The security van was equipped with bulletproof glass windows and armour plating.

There was an exchange of gunfire. One robber was fatally hit.

Instead of instructing the van driver to leave instantly, Mr Cassar remained on the scene of the robbery. Shots were also fired at the van.

Although no one inside the van was physically wounded, after the incident, Mr Cassar complained of suffering severe mental stress, to the extent that he was unable to continue his employment with HSBC Bank. On medical advice, he claimed that he had to opt for early retirement.

Faced with this situation, Mr Cassar proceeded by filing legal proceedings against the bank for damages.

He said that the bank as employer was legally obliged to provide a safe working environment.

He claimed that HSBC Bank failed to take all necessary precautions, to provide a workplace which was safe and secure, free from all danger. It was stated that the bank should be held liable for its failures.

For these reasons, he requested the court:

To declare that the bank was solely responsible for the psychological pain which he suffered; that it failed to take all necessary precautions, to provide a place of work that was free of all danger to its employees; to liquidate the damages; and to condemn the bank to pay the damages.

In reply, HSBC Bank contested the legal action.

In the first place, it pleaded lack of integrity of these legal proceedings without the presence of the robbers or their heirs, as defendants.

As regards the merits, the bank denied all responsibility for the robbery and for the harm suffered by Mr Cassar. It maintained that it had taken all safety measures to protect its employees. It refused to accept that Mr Cassar suffered any permanent disability. The bank said that it offered Mr Cassar an alternative job, not involving cash, but he declined without any valid reason.

The Court of First Instance on March 3, 2009 rejected Mr Cassar’s requests for damages from the HSBC Bank.

Integrity of the proceedings: The presence of the robbers as defendants was not necessary. The court considered Mr Cassar’s claims against the bank, and in this respect, the robbers could not be held responsible to provide a safe working environment.

Responsibility for damages: The First Hall of the Civil Court found that the bank adopted a safe system of work. It felt that, even in this day and age and despite significant progress in technology, it was still necessary for the bank to collect and deposit cash from its branches.

The court said that the bank made use of the most secure form of transport to deliver/collect cash: a security van, with bulletproof windows and armour plating. In addition, HSBC branches were equipped with security features.

The court noted that if Mr Cassar had followed his instructions and had left the scene of robbery, the robbers would not have shot at the van.

Aggrieved by the decision of the Court of First Instance, Mr Cassar entered an appeal calling for its revocation.

On November 11, 2011, the Court of Appeal gave judgements by confirming the decision of the First Court and by dismissing Mr Cassar’s appeal. It was not satisfied that Mr Cassar had proven that HSBC Bank failed to act as a diligent employer and as a good father (bonus pater familias). On the contrary, it appeared that the bank had adopted adequate security measures. Criminal acts could still occur, despite the security systems in place.

The following reasons were given for its decision: The court said Mr Cassar’s legal action was based on negligence (culpa) Article 1032 of the Civil Code as well as on Act 7 of 1994, Article 2(2) and Article 8(1)(c).

It noted that the bank as employer was duty bound to do what was reasonably necessary to remove or to mitigate the risk of an occupational hazard at the place of work.

Reference was made to the jurist Carrara on the definition of “culpa”.

“The test to determine culpa (negligence) was:

• Whether the act was freely done,

• Not foreseeing the harm,

• The possibility of foreseeing the consequences.”

The incident had to be reasonably foreseeable. The standard of diligence to avoid responsibility was that of a prudent person.

The court said that the responsibility of the bank was not excluded, because of the criminal act perpetuated by third parties.

The court had to examine whether the bank had taken protective measures for its employees.

There was no doubt that the bank had taken security measures, both at its branches and in the form of transportation to deliver and collect cash from its branches.

The bank had applied for reserved parking in front of its branch in Cospicua, but it was not to blame that this had not been obtained at the time of the incident.

The fact that the security van had stopped at some distance from the door of the branch was not the reason for the robbery pointed the court.

The court took into consideration the security measures taken by HSBC bank. The police escort was crucial in foiling the robbery and in saving lives.

It said that the van would not have come in the line of fire if Mr Cassar had instructed the driver to leave the scene of the robbery.

Dr Grech Orr is a partner at Ganado & Associates.