A landmark retail crime ruling by NSW’s District Court has found the operator of a Vodafone store in Sydney to be liable for civil negligence after one of its workers was attacked by a member of the public wielding a makeshift flamethrower.

The decision comes after Damir Lepan, 45, was subject to an attack on November 22, 2019. The court heard that Lepan dealt with an aggressive customer in the Campbelltown Macarthur Square store before the customer left the premises.

“Several hours later, the customer returned and confronted the plaintiff [Lepan] in a similarly hostile and abusive manner before producing a deodorant can and cigarette lighter,” the court said.

“The deodorant can was sprayed, and its contents ignited in the direction of the plaintiff’s head, creating a blowtorch and a fireball directed towards the plaintiff’s face. The plaintiff suffered superficial injuries to his arm and head as well as a significant psychiatric injury.”

Lepan claimed that, under the terms of the Workers Compensation Act 1997, he was unable to return to work as a result of the psychiatric damage, an issue that could create future economic loss. He also argued that his employer, TPG Telecom, was negligent, and that this negligence led to the incident in which the injuries occurred. 

Michael Jackson, the national security manager at TPG Telecom, said that the store in question was fitted with a duress alarm. Once activated, the alarm would contact TPG’s national security centre to request a response; allow access to live in-store CCTV cameras; contact the store while deploying security; and help escalate the matter to the police.

Judge Paul Fitzsimmons argued that a uniformed security guard would be a greater deterrent to potential bad actors than a remote CCTV monitoring centre. Jackson agreed to this point.

The judge then pointed to an incident in the same store in 2017, in which a customer told an employee “he should slit his throat to make her do the return”. The court heard that it took security 10 to 15 minutes to respond to this incident from the security centre.

Jackson said that, immediately after the incident involving Lepan, the company moved to install a security guard on the premises for two days in one week and two days in the following week.

“However, he accepted that if the customer returned on any day apart from the four days when a guard was allocated, there would be no in-store security,” the court heard.

In its determination, Judge Fitzsimmons said: “The evidence overwhelmingly establishes that the Macarthur store was an outlier from the national network of Vodafone stores as it related to the characteristics and behaviour of customers attending the store.

“The statistics support this finding. On the defendant’s own analysis, the Macarthur store had over five times the national average of customer aggression incidents in 2019.”

Fitzsimmons said that he is “overwhelmingly satisfied” that a reasonable employer would have foreseen the risks posed to its staff at a store with such a track record of violence.

“Not only were the plaintiff and his colleagues required to work in these conditions, being a fact well known to the defendant, but they were hopelessly ill-equipped to deal with the types of customers visiting the store and with whom they were required to interact,” he added.

After reviewing losses to Lepan’s earnings past and present, including superannuation and tax paid on compensation, the defendant was ordered to pay $1,006,996.29 in damages.

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