Coca-Cola Amatil (NSW) Pty Ltd v Pareezer - [2006] NSWCA 45

NEW SOUTH WALES COURT OF APPEAL

CITATION: Coca Cola Amatil (NSW) Pty Ltd v Pareezer & Ors [2006] NSWCA 45

FILE NUMBER(S):
40086/05

HEARING DATE(S): 13 September 2005

DECISION DATE: 15/03/2006

PARTIES:
Coca Cola Amatil (NSW) Pty Limited (Appellant)
Craig Pareezer (1st Respondent)
Suzanne Pareezer (2nd Respondent)
Scott Pareezer (3rd Respondent)
Pareezer Transport Pty Limited (4th Respondent)
GIO Workers Compensation (NSW) Limited (5th Respondent)

JUDGMENT OF: Mason P Tobias JA Young CJ in Eq

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20018/00

LOWER COURT JUDICIAL OFFICER: Hulme J

COUNSEL:
P W Taylor SC and A Bowen (Appellant)
P R Garling SC (1st, 2nd & 3rd Respondents)
D J Cochrane (4th Respondent)
J L Sharpe (5th Respondent)

SOLICITORS:
Moray & Agnew (Appellant)
Heazlewoods Bushby International (1st, 2nd & 3rd Respondents)
Kevin O'Kane (4th Respondent)
Thompson Cooper (5th Respondent)

CATCHWORDS:
TORT- Personal injury- Contractor shot while delivering appellant's products to vending machine- Duty of care- Whether there exists a special relationship which creates duty to protect against violence- Causation- Whether there exists a practicable and reasonable alternative system- Gunman irrational- Alternative system would not have prevented injury.

LEGISLATION CITED:

DECISION:
(1) Appeal allowed against the first three repondents
(2) Orders of Hulme J against the appellant in favour of the first three respondents be set aside
(3) In lieu order that the proceedings be dismissed with costs
(4) Order that the first, second and third respondents pay the appellant's costs of the appeal, but they are to have a certificate under the Suitors Fund Act if so qualified
(5) Dismiss appeal against fourth and fifth respondents with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40086/05
SC 20018/00
MASON P
TOBIAS JA
YOUNG CJ in EQ
Wednesday 15 March 2006

COCA COLA AMATIL (NSW) PTY LTD v CRAIG PAREEZER & ORS

Judgment

MASON P: I have had the benefit of reading in draft the reasons of Young CJ in Equity.
As Young CJ in Eq points out, the only particular of negligence found established by the learned trial judge was that the appellant had required the plaintiff to collect money from a site that the appellant knew or ought to have known had an unreasonable risk of the plaintiff being assaulted or robbed. This finding is barely explained and is inherently ambiguous for the reasons developed by senior counsel for the appellant in his written submissions. It also contains implicit assumptions about the collection system.
Senior counsel for the plaintiff, Mr Garling SC, sought to meet the difficulty by pressing the notice of contention. This in turn encountered the need to address issues that were not always clearly fought at trial, including that of the reasonable practicality of taking the particular steps that were not taken. In a case of breach by omission the plaintiff must clearly identify what should have been done and prove that it was unreasonable in the circumstances not to do it (cf Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319). A breach inquiry is not satisfied merely by positing, with the benefit of hindsight, that something more might have been done.
Mr Garling submitted that the conclusions of the security expert, Mr Rowe, demonstrated why the appellant was in breach of its duty of care. The matters identified were:
•Coca-Cola should have provided non-marked vehicles for all deliveries and collections in the Penrith area, including Werrington TAFE;
•Coca Cola should have provided practical or competency based training to drivers in the Penrith/Werrington area in armed robbery awareness and its Security Manager should have monitored the implementation of those security procedures by the drivers;
•Coca-Cola should have provided for two persons in each vehicle delivering in the subject area or alternatively security guards meeting all drivers at the TAFE;
•Coca-Cola should have provided the plaintiff with a "personal security alarm";
•Coca-Cola should have regularly updated all drivers of the situation regarding the activities of the gang targeting their drivers;
•Coca-Cola should have liaised with TAFE security at Werrington to provide assistance to drivers delivering at the TAFE.
Young C J in Eq points out the flaws in these contention points, before proceeding to a finding of breach based in whole or in part on the absence of training as to how to minimise the risks.
I am not persuaded that the plaintiff established negligence in all or any of the matters identified by Mr Garling. And I am troubled about adopting the generalised finding of Young CJ in Eq. However, I refrain from addressing the issue of breach in any further detail. Instead, assuming breach as found by Young CJ in Eq, I move to the causation issue, observing that the court must decide whether the negligently omitted conduct would probably have made a difference in the particular circumstances. Of course, the plaintiff need only establish that the negligent omission materially contributed to his injury.
In Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070 Mason JA said (at 1086):
The injury which the plaintiff sustained, although occasioned by deliberate human intervention, was the outcome of the very risk against which it was the duty of the defendants to safeguard the plaintiff as their employee. If, as was the case, it was the existence of that risk of injury which called for the exercise of care and the taking of precautions by the defendants, then the defendants’ failure to take care may properly be regarded as the cause of the injury which occurred when the risk became an actuality.
This type of reasoning reflects that of Dixon J in the well-known passage in Betts v Whitlingslowe (1945) 71 CLR 637 at 649. There is more than a hint of circularity in this approach especially when it is recognised that the plaintiff retains the onus of persuasion albeit that the court may (not must) infer causation (see generally TC by his tutor Sabatino v State of New South Wales [2001] NSWCA 380, Forbes v Selleys Pty Ltd [2004] NSWCA 149).
Sadly for the respondent, I am not persuaded that the extra steps that the appellant could have (and let it be assumed should have) taken would have saved the respondent from being shot. Extra training about risk minimisation is unlikely to have avoided the shooting that took place in daylight and the presence of witnesses.
There would still be difficulty if one considered the breaches urged in the notice of contention. I am prepared to concede that a differently coloured truck might have fooled some would-be robbers, but I am not persuaded that it would have deceived or deterred Mr Manna. A different cash collection system might also have led others to think that the rewards of a armed hold-up were not great enough prepared to the risks of being caught and gaoled. However, the conduct of Mr Manna strikes me as particularly opportunistic and random in its viciousness. The putative measures that the appellant might or should have adopted, including a higher level of training for drivers, do not appear to me as things that would probably have averted the unfortunate shooting of Mr Pareezer.
I agree with the orders proposed by Young CJ in Eq.
TOBIAS JA: I agree with Mason P.
YOUNG CJ in EQ: This is an appeal from a decision of Hulme J who found a verdict against the appellant Coca Cola Amatil (NSW) Pty Ltd ("Coca Cola") for the first respondent for $2.893 million and the other plaintiffs of almost $100,000 in respect of negligence which caused personal injury arising out of an incident that occurred on 17 February 1997.
In what follows I will refer to the first respondent, Craig Pareezer, as the plaintiff because this is less confusing than using some other description. The claims of the other plaintiffs must succeed or fail in the same way as that of the first respondent.
The plaintiff, by himself or his company, the 4th respondent, Pareezer Transport Pty Ltd ("Pareezer Transport") was a contractor to the appellant. The contract involved the refilling of machines dispensing soft drinks distributed by the appellant.
The brief facts were that on the day in question the plaintiff, when delivering Coca Cola products, was held up and shot by a person not involved in the present litigation, one Adriano Manna.
The pleadings, however, were not simple. By the first cross claim, the appellant sued the TAFE Commission and, by the second cross claim, it sued Pareezer Transport. By the third cross claim the TAFE Commission sued the appellant and by the fourth cross claim it sued Pareezer Transport. By the fifth cross claim the appellant sued GIO Workers Compensation (NSW) Ltd, and by the sixth cross claim Pareezer Transport sued GIO Workers Compensation.
The trial took place before Hulme J in September 2003. His Honour heard evidence for 12 days and there were various other days spent on submissions both before and after the principal judgment, which his Honour delivered on 10 September 2004.
As I have said, the plaintiff was successful. Most of the cross claims fell away.
This appeal challenges the decision on liability: there is no challenge to the quantum of the verdict.
The appeal was heard on 13 September 2005. Mr PW Taylor SC and Mr A Bowen appeared for the appellant (Coca Cola), Mr P Garling SC appeared for the plaintiff, his wife and child, Mr DJ Cochrane appeared for Pareezer Transport and Mr JL Sharpe appeared for GIO insurance Workers Compensation.
The basal facts are that Coca Cola owns a large number of vending machines which are scattered throughout the State naturally enough mainly in places where persons are likely to wish to purchase quantities of soft drink. The appellant's system known as "TSV" (Totally Serviced Vending) utilises the services of a series of contractors each of whom has a run. That run may involve the obligation to service a large number of machines in a specified geographic area.
Amongst other places, the appellant has machines at the Werrington TAFE.
Either the machine by its computer sends to the appellant a message that it needs restocking, or else that information is otherwise acquired by the appellant which then sends a message to the plaintiff that he should attend to a particular machine as a matter of priority.
In 1995, the Werrington TAFE was part of the plaintiff's run. However, in that year he was mugged while servicing a machine at that location. The plaintiff was seriously injured and his keys were stolen.
After this incident the plaintiff asked for his run to be adjusted to delete the Werrington TAFE and this occurred.
I will need to return to this incident in due course. However, to keep the outline simple, I will continue with the recitation of the essential facts of the current incident.
Circumstances dictated that the plaintiff had to return to the Werrington TAFE on the day of the incident in 1997. He drove his large red painted Coca Cola truck from O'Connell Street, Werrington, through Gate 2 of the TAFE college and parked it close to Building M. He was to service a machine in Building B which is close to Building M. It was about 4 pm on a Monday.
The plaintiff had keys to unlock the machine and his duties involved both refilling the machine with product and also with emptying the coin container. Apparently, at the relevant time these machines dispensed the appellant's products for $1.20 a can and collected dollar coins and 20 cent coins. The plaintiff collected the money and went back to his truck and put the money in a safe which was so constructed that once the money was placed in it, it could only be removed by someone at the appellant's depot. The plaintiff collected some more soft drinks and while he was on the back of the truck doing this, he was accosted by a man with a pistol. The man with the pistol asked for money, the plaintiff said that he could not provide it since he could not open the safe. The man then demanded his keys and as the plaintiff reached into his pocket for the keys the man shot him in the chest and neck five times. The plaintiff was seriously injured.
The plaintiff's claim is that the appellant failed to take reasonable care for his safety in not providing a safe system for him to carry out his duties.
The plaintiff had been concerned about going to the Werrington TAFE site alone and had brought his wife and one of his children with him. They were caught up in what happened and became traumatised. They also sued the appellant in the present proceedings.
The plaintiff's statement of claim contained 20 heads of particulars of negligence including (f), (g), (j) and (k) as follows:
"It is alleged that the Defendant by its servants and agents was guilty of negligence in that it:
(f)required the First Plaintiff to collect money from a site which the Defendant knew or ought to have known had an unreasonable risk of the First Plaintiff being assaulted and robbed;
(g)required the First Plaintiff to collect money without providing protection for his safety;
(j)failed to provide an alternative system of collecting money from vending machines;
(k)failed to provide an escort to the First Plaintiff when collecting money."
There was an issue between the parties as to whether the contracting party with the appellant was the plaintiff personally or Pareezer Transport. On this issue his Honour appeared to find that the contractor was the plaintiff personally, though he said at [160] it did not really matter. He held that the plaintiff was not an employee of the appellant. He also held that he regarded the plaintiff and his wife as basically honest, though he had not always preferred the evidence of the plaintiff when there had been conflict with other witnesses.
His Honour held at [165] "that the relationship between the Plaintiff and the Defendant was such as to create a duty of care in the Defendant towards the Plaintiff. The work the plaintiff was engaged on was for the benefit of the Defendant." He also referred to the fact that it was the defendant (that is, the present appellant), that exercised a large degree of control over what the plaintiff did and the risks in collecting money from the machines was liable to be influenced by the actions of the appellant in siting the machines.
His Honour then said at [167] it was more difficult to work out the extent or content of the duty. He held that the duty was not of the nature referred to in para 11 of the statement of claim, that is, a duty to take reasonable care for the plaintiff's safety by providing a safe place of work for him and proper and safe plant and equipment for carrying out his operations.
His Honour said as to para 12 of the statement of claim at [172] that even though the appellant exercised a deal of control he did not consider that it got to the stage where any duty the defendant owed was of the extent or non-delegable nature as that which exists between a master and servant.
However, he found that the claim in para 13 of the statement of claim that the defendant owed the plaintiff a duty to exercise reasonable care for the plaintiff's safety and not to expose him to an unreasonable risk of injury was made out provided that there is added the qualification "which the defendant was (or perhaps ought to have been) aware" vide [173].
As to breach, his Honour said at [175]:
"I am also of the view that the duty so expressed was breached in circumstances constituting negligence on the part of the Defendant. Mr Ings’ memo of 10 August 1995 and that of Mr Orr of 21 November 1996 demonstrate knowledge on the part of the Defendant of the existence of a gang in the Penrith area (and which included the Werrington TAFE) operating during that period and at least up to 30 October 1996 and apparently prepared to resort to violence. While it must be accepted that the nature of the Plaintiff's activities necessarily exposed him to some risks of robbery and violence, the further matters referred to in the memos to which I have referred take the risks to which he was subject out of the normal into what I would characterise as 'unreasonable'. A fortiori is this so when regard is had, as I think one may, to the representations Mr Ings made to the Plaintiff."
[I will return to the memoranda referred to by his Honour in due course].
In para [176] his Honour noted that he did not ignore the fact that the number of both attacks and incidents was a very small proportion by comparison with the number of times vending machines in the Penrith area must have been attended to. However he thought that was not determinative and that the risks to persons servicing machines in the Penrith area are appreciably greater than normal.
At [179] the learned Judge said that of the 20 particulars of negligence almost all seem not to be made out.
[184] is a key passage in his Honour’s reasons. It considers particulars (g), (j) and (k). I will set it out in full:
"Although the Werrington TAFE was where the plaintiff was attacked previously, neither that nor any other evidence showed it was inherently more dangerous than other locations in the Penrith area. There was no persuasive evidence that the provision of protection or an escort – which logically would have to be provided in the case of all servicing in the Penrith area – was economic. The same might be said of the complaint about the failure to provide an alternate [sic] system. Indeed, that suggestion involves a significant change to the contractual duties undertaken by the plaintiff (and presumably other fillers) and again, there was no evidence of its practicability. The site did not belong to the defendant and there was no persuasive evidence as to the cost or practicability of making the site safe and providing adequate security patrols. There was no evidence of what the attitude of the TAFE authorities would have been to these proposals on any long term basis. There was also evidence that for fillers to meet security personnel on an ad hoc basis interfered with the efficiency of their operations. There was no evidence of crimes at that TAFE other than the bashing of the plaintiff."
His Honour held that particular (f) of negligence was made out. However, in paragraph [185], his Honour merely said:
"I have said enough to indicate that I regard this particular of negligence as being made out."
Mr Taylor SC stringently criticised this passage. He noted that his Honour did not say what conduct was the relevant conduct on which he based the statement, and in any event, it was quite inconsistent with what he had said in [184].
Mr Taylor put in para 14 of his written submissions (Orange 26):
"The judge's elliptically expressed acceptance of paragraph 15(f) is incongruous in the light of his earlier findings.
14.1        In so far as particular 15(f) refers to a 'site': the finding is inconsistent with the earlier finding that there is nothing about the Werrington TAFE itself which characterised it as an unreasonable danger.
14.2        In so far as the judge interpreted particular 15(f) as referring to the Penrith area generally: he was not justified in doing so – especially in view of his finding that reasonable care did not require Coca Cola to alter its Penrith area delivery practices.
14.3        In so far as the judge interpreted particular 15(f) as referring to the collection of money – as distinct from merely attending machines to fill them – his finding is irreconcilable with his (a) explicit rejection of the particulars complaining of Coca Cola's failure to implement an alternative collection system; (b) finding that the 'unreasonable risk' related to the gang's interest in the theft of machine keys and applied to anyone 'servicing' the machines."

There is a great deal of force in what Mr Taylor puts. Indeed, the notice of contention was filed by the first respondent/plaintiff in order to overcome some of these problems. Unfortunately, not even a notice of contention can overcome any problem of lack of evidence of a practicable alternative that might reasonably minimise the risk.
Mr Garling said that it is to be noted that the particulars in para (f) refer not to attending the site but about collecting money from the site. The Coca Cola company could easily have had a system under which someone else collected the money and in fact they already had a system about contacting the security guard, but they never actually communicated it to the plaintiff.
Indeed, one could even say that it is strange that in this case the evidence suggests that the Coca Cola company had in its possession material which suggested to it that it was likely that the risk was even greater than it in fact was. In a memo dated 10 August 1995 (Blue 821-4), Mr Ings wrote:
"Whilst substantial improvements have been made in the up-grading of safes and alarms in all Sydney TSV trucks this year, this latest incident (ie the mugging of Mr Pareezer in 1995) has heightened fears by both the company employed and contract TSV fillers about personal security."
In the same memo it was noted that messages had been sent through the head office of Coca Cola in Atlanta to bottling operations in high crime areas of the USA in an effort to identify additional work practices that can be used to secure both staff and cash in vending operations. The memo indicated that two-man teams would increase the cost by 75% and mean that a filler who currently made a living by selling 90 cases per year would have to sell 120 cases.
On 14 August Mr Ings sent a second message, this time to the fillers. It noted that the mugging of Craig Pareezer had heightened concerns about personal security, it outlined a series of measures (of a rather minor nature) which had been taken to improve the matter and pointed out that the mugging was not an isolated event and that people other than Coca Cola fillers also got mugged.
There is also material to show that Mr Ings visited the plaintiff in hospital and at his home and assured him that things would be safer when he returned to the job and that without that sort of assurance the plaintiff would not have returned. The learned judge’s summary of this evidence does not make it clear how much of this material he accepted, but, on any version of it, some such scenario occurred.
Mr Orr, the Director of Security at Coca Cola wrote a memorandum on 21 November 1996, about three months before the present incident in which he referred to a gang in the Penrith area who would stop at nothing and who had stolen keys from fillers, bashed two fillers and robbed numerous machines.
I am content to accept the proposition that when the Court is considering whether the employer ought reasonably to have foreseen a risk, it takes into account the fact that the employer did in fact foresee a risk which was even greater than what might be expected by a person who had not done research into the matter.
The trial judge was clearly influenced by these matters, particularly the assurance given to the plaintiff in hospital after the 1995 mugging by a senior executive of the appellant that in his experience the bashing that occurred was rare in the vending industry and it was an isolated incident.
The judge said at [189] that having given the reassurance he did to the plaintiff (to use Mr Ings’ words, that it was a "one-off"), Mr Ings should not have allowed that remark to remain uncorrected and that he was under a duty to fairly and accurately inform the plaintiff of his real view, and not to do so was both negligent and grossly misleading. Had the plaintiff been accurately informed of Mr Ings' view or of the appellant's knowledge, he would not have returned to work for the appellant. However, he noted in [191] that in light of the way the case was pleaded it was debateable whether he could have given expression to those views.
The notice of appeal raised ten grounds. The principal submissions were that:
(1)          The judge's finding of breach of duty in respect of para (f) of the particulars was wrong and fundamentally inconsistent with his reasoning that required rejection of all the other 19 particulars of breach;
(2)          His Honour's duty of care finding was based on an erroneous characterisation of theft related injury "in the Penrith area" as "appreciably greater" than "normal" and therefore "unreasonable";
(3)          The judge's duty of care finding was erroneous because it failed to differentiate between the risk that the judge characterised as "unreasonable" and the risk that actually eventuated;
(4)          Alternatively, the judge's causation finding was erroneous because of the matter set out in (3) above;
(5)          The judge erred in failing to find the Pareezer company liable to the plaintiff and thus to apportion liability.
The plaintiff filed a notice of contention alleging that his Honour ought to have found that the relationship between the plaintiff and the appellant was one closely akin to employer/employee, that the appellant owed the plaintiff a non-delegable duty of care and ought to have provided the plaintiff with a proper and safe system of work and further that his Honour ought to have found that the appellant was in breach of its duty of care by failing to provide for the collection of cash by a security service and not by operators of delivery trucks.
Mr Garling’s submissions made it clear that the basal reasons why the plaintiff should succeed were that in light of the knowledge or supposed knowledge of the appellant of the risks of a filler being robbed of money or keys especially in the Penrith area, the appellant was negligent in not sufficiently providing for the fillers’ safety.
The evidence showed that the appellant knew that the fillers’ keys were a target for criminals. Usually the key issued to the filler would work either all the machines on the run or alternatively, at least where one had a site like Werrington TAFE, all the machines at that TAFE and perhaps other TAFEs as well. When a filler unlocked a machine, he or she exposed the space for new cans to be inserted. It also exposed the cash box which could be emptied by the same key.
Criminals would be expected to know this, and indeed, keys had been stolen previously after holding up fillers and other machines raided before the locks could be changed though this had not happened to any great extent. However, the documents discovered by the appellant showed that raiding or smashing machines had cost it millions of dollars.
Mr Garling put that after Mr Pareezer was bashed in 1995 the appellant had altered its system. It had installed a special type of safe in the trucks so that fillers did not have access to the money in the safe and so could not be robbed of it.
The appellant had acted to protect its money, recognizing the risk, but had done virtually nothing to secure the safety of the filler. It knew that criminals would rob or bash to obtain the keys which would give them access to the cash box in the machines. However, it had done nothing to make the filler more anonymous nor taken any steps to deal with what now must be the target of robbers, to rob the filler as he or she moved from an emptied cash box in a machine back to the truck to deposit the takings in the safe.
Generally speaking, although it is a melancholy matter to contemplate it, every citizen carries the inherent risk of being robbed or shot no matter where he or she is, or what he or she is or is not doing. Ordinarily, being mugged or shot will cause considerable pain and damage and apart from what might be obtained under legislation providing for a fund to compensate for criminal assault, there will be no action available to the person injured that is likely to produce any monies.
Thus in Skuse v Commonwealth of Australia (1985) 62 ALR 108, a tenant who had lost a tenancy case wrote to the Federal Attorney General that he intended to kill the magistrate and at least two lawyers. No-one took any notice of this, and the tenant later entered Alice Springs court and shot a barrister who was acting in another case in no way connected with the gunman. The barrister sued the Commonwealth but lost at all levels.
In Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222, a company selling pizzas was held liable to a delivery person when that person was attacked by a criminal because it had sent the delivery person to an address which, had it been sufficiently careful, it should have realised was a trap.
The cases where a person who is shot and may be able to sue are relatively small. One circumstance is where it is part of the duties of an employee to bank large sums of cash late at night at least in circumstances where there is a foreseeable risk of robbery; see eg Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070. But see Kozjak v Fairfax Community Newspapers [2001] NSWCA 37, when an employer sent a female employee to canvass for advertising in a dangerous part of Western Sydney and she was raped.
The general principle was laid down by Dixon J in the High Court in Smith v Leurs (1945) 70 CLR 256 at 262:
"It is … exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature."
In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, the High Court held that a shopping centre owner was under no duty to take reasonable care to prevent physical injury to employees of tenants as a result of criminal behaviour of third parties on its land.
However, courts have awarded damages to employees whose employers have not provided a safe system of work which has been a cause of the plaintiff suffering injury through the criminal action of a third person. The English cases are referred to in Munkman on Employers Liability 13th ed (Butterworths LexisNexis, London, 2001) paras 5.136 and following.
In Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Rep 81-636 at [64], Heydon JA, when giving a judgment in this Court with which Mason P and Handley JA agreed, set out five categories which illustrate the relationships in which a party has a duty to protect another from the criminal conduct of a third. In summary these were:
(a)          employers;
(b)          schools;
(c)          bailees of chattels;
(d)          parents; and
(e)          gaolers.
However, his Honour remarked at [66] that the High Court had made it plain in Modbury that special relationships do not constitute a closed list of categories nor are the boundaries of each particular category fixed.
One class of case which can involve a special relationship where the duty to protect against violence in the workplace will arise is where the injured person is not, strictly speaking, an employee, but is so under the control of another person that they take up a relationship that is extremely close to that of employer and employee.
Thus, in English v Rogers [2005] NSWCA 327, a hotel utilized the services of a cleaner through the medium of a cleaning company. As those lying in wait well knew, the cleaner needed to open the back door of the hotel to put out the rubbish in the wee small hours of the morning. When the cleaner did this he was held up and the thieves entered the hotel and lay in wait for the manager to arrive the next morning. The cleaner suffered shock and sued the hotel. Mason P said in his judgment (with which Santow JA and Brownie AJA concurred) at [82] and following that the plaintiff was entitled to succeed against both his employer and the hotel.
The Court held that the hotel owed a relevant duty of care on two overlapping bases: (a) the hotel exercised a coordinating role in a situation when its activities helped create the relevant risk, thereby attracting the principles in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; and (b) invoking TNT Australia Pty Ltd v Christie [2003] NSWCA 47 that the general relationship between the hotel and the plaintiff was analogous to that of an employee. The workplace was controlled by the hotel and the hotel must have known that the cleaners were in a particularly vulnerable situation.
Thus, as his Honour said in [87]:
"The relationship between the Hotel and the cleaners was, in my view, so closely analogous to that of an employer, at least as regards safety in the workplace, as to generate a duty of care that was not trumped by glib citation of Modbury."
I agree with the submissions that in the present case, the same sort of considerations as were focussed upon in English v Rogers apply here.
Although the Pareezer company was involved, the coordinating body was the appellant, it designated the insignia on the truck, instructed as to the uniform, owned the machines and instructed which machines were to be filled. Indeed, Mr Ings’ memorandum of 14 August 1995 was addressed to both employee fillers and contract fillers treating them exactly alike. Admittedly, the filler could choose within reason which machines he or she would fill and when and could take the day off without obtaining anyone’s consent, but the work was performed as part of the appellant’s grand plan.
Mr Taylor SC acknowledged that, although he was not giving up on any argument that there was no duty of the type pleaded, his client did owe the plaintiff some duty of some kind. However, he put that, even if there was a relevant duty, the evidence just failed to throw up any evidence of breach. Alternatively the plaintiff's injury was not caused by any such breach.
This is a very commonsense way of considering this case, and I will adopt it. However it is necessary to map out the extent of the duty both to ascertain whether it has been breached and also to see whether such breach caused the injury
Dealing first with breach, it is rather surprising that the learned judge did not explicitly refer to the approach adopted in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 where Mason J said that where a risk of injury is not far-fetched or fanciful, certain matters need to be balanced out to see whether there has been a breach of the duty of care. He said:
'"The tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
In the present case, the risk was foreseeable and the consequences of that risk becoming actuality were extremely grave. When risk turned to actuality, the plaintiff suffered catastrophic injury.
In assessing the result of the application of the principles in Shirt, it must be remembered that a person under a duty of care is most likely to be found liable where the scenario is that there is a good chance of a risk becoming an actuality which, if it occurs, may have catastrophic consequences and the person does little to avoid it.
In the present case, the plaintiff was obviously very seriously injured. I do not need to cause further grief by setting out his horrific injuries, but it is sufficient to note that the trial judge awarded damages of almost $2.9 million and there has been no appeal as to quantum.
One must accordingly closely examine the evidence in the present case as to what the Coca Cola Company could have done or should have done to prevent injury.
The main problem for the plaintiff in the present case is that he bears the onus to show that there are precautions which the defendant could and therefore, should have reasonably taken to protect him from the risk. Unless the plaintiff discharges this onus, he does not establish that there was a breach of duty.
Trindade and Cane, Law of Torts in Australia 3rd ed (Oxford University Press) p 594 says, excluding footnotes:
"Perhaps the most difficult problem that arises in actions in which failure to provide a safe system of work is alleged is that of proving some alternative was practicable and reasonable and that it would have prevented the injury. The onus, of course, rests on the plaintiff, and in some cases courts have been particularly harsh on plaintiffs in requiring a high standard of probative material on this issue. There is an element of risk in most industrial operations, even the simplest, and it is not enough for the plaintiff to show the existence of the risk. Plaintiff must also show that it was capable of reduction or elimination by some practicable precaution or safeguard without unduly impeding the employer's business."
In Swain v Waverley MC (2005) 79 ALJR 565 at 575, McHugh J said at [40]:
"The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there 'must be' a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk."
McHugh J went on to say, instancing Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362, that it was not enough to make suggestions of what might have minimised the risks; rather, evidence needs to be provided of the practicability of those suggestions and, in the absence of such evidence, it is merely a matter of conjecture whether the suggested precautions would have been practicable or not (see Swain at [42]). Although McHugh J dissented in the result, the passage I have extracted is not contrary to the majority reasoning. See also Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 319.
The High Court revisited the question in Laybutt v Glover Gibbs Pty Ltd (2005) 79 ALJR 1808.At [10], McHugh J repeated what he had said in Swain. However, he noted, at [13], that in the Laybutt case, a case heard by a jury, there was a failure by the plaintiff to tender evidence of the precautions which, if taken, would probably have avoided her injury. Such a defect led this Court to allow the appeal against her verdict. In restoring the verdict, McHugh J said that whilst this was a risky course of forensic conduct, nonetheless, a jury exercising its commonsense and knowledge of the world was entitled to find negligence.
Although Laybutt was an appeal from a case decided by a jury, the essential question on appeal was whether, without evidence of the precautions that ought to have been taken and the cost thereof, there was still sufficient material to go to the tribunal of fact to decide whether negligence had been established.
The plaintiff says there are many steps which could have been taken to improve the situation, some of which were taken after the shooting. In order to obtain definition, the President asked Mr Garling:
"What should have been done, which if it had been done would probably have prevented the shooting?" (T39)

The answer was (as recorded in the transcript):
"(1)        No red truck which was done immediately after the shooting;
(2)          (Not) requiring the plaintiff to collect monies at all. This could have been done by a security service, it could have been done by someone else, you didn't have to give it to the unprotected man in the middle of the delivery operating system devised by Coca Cola;
(3)          The Werrington TAFE guard availability;
(4)          We would say a second person accompanying the driver."
There is, of course, a fifth possibility, and that is not to supply the people of Penrith with Coca Cola via vending machines at all, but we can leave that aside.
I will deal with those four points a little later. Mr Garling’s answer was not as full as his written submissions and concentrating only on the four points in the answer may lead to an inadequate appreciation of the plaintiff’s case. Mr Garling put in his written submissions at Orange 54 para 33 that the conclusions at Blue 1282-3 (Mr Rowe’s report) demonstrate beyond rational argument that the appellant was in breach of its duty of care.
At Orange 52 paras 32 and following, Mr Garling submitted that it was significant that immediately after the incident and on 18 February 1997 a memorandum was generated in which the following precautions were to be implemented:
* The obtaining of a full security audit
* Suspension of wearing of uniforms by fillers
               * Change of vehicle colour and removal of insignia
               * Issuing security cash handling procedures to fillers
               * Provision of an emergency call number in the event of hold up.
A report obtained by Coca Cola in March 1997 noted that fillers had not been given any security training and were carrying larger amounts of cash than most other contractors.
Mr Peter Rowe gave evidence for the plaintiff. His letterhead indicated he was a Queensland barrister and Security Industry Consultant. His reports are at Blue 1281 and following.
Mr Rowe reported that had the suggestion in a memorandum of Mr Ings been implemented, which suggestions were to the effect that fillers should fill machines when other people were present, that they should check in with reception or security when visiting sites, conduct visual checks of surrounds and the like, the chances of a shooting robbery would have been substantially reduced.
Mr Rowe further said that Coca Cola should have instituted competency based training similar to that given to the police and military. He noted that fillers could easily have $15,000 in their control with no training in safety or security.
Mr Rowe was cross examined at length. The main thrust of the cross examination was that Mr Rowe had assumed that protection in the present case was needed against a gang. However, the assault was committed by one, Manna, a person who acted illogically and irrationally, who did not even wear a balaclava to conduct his robbery and who shot the plaintiff without reason and who was not shown to be a member of any gang.
Mr Rowe admitted that once a filler had a gun trained on him, there was nothing that could be done; in particular, any movement towards pressing a panic button would be counterproductive.
Appellant’s counsel at the trial fairly criticised Mr Rowe’s evidence on the basis that he had made some wrong assumptions and that nothing that he suggested would have had any effect on the safety of the plaintiff once an irrational criminal had held him up in the Coca Cola truck.
A Mr Jennings gave expert evidence for the appellant that nothing could have been done to avert the incident in which an irrational man shot the plaintiff.
The learned judge did not accept Mr Jennings. He found a number of his propositions contrary to common experience [131]. He preferred Mr Rowe as an appreciably more impressive witness [147].
There is no doubt that the learned judge, properly on the evidence before him, rejected the theory that there was a gang at work. However, he found that the criminal’s motive was robbery, that the criminal acted irrationally, and that the plaintiff acted appropriately in response to the armed confrontation.
Mr Taylor submitted that, once the gang theory disappeared, the robbery risk that materialised was merely part of the inherent risk of the job of refilling the machines.
With respect, I disagree. When one looks at the whole of the evidence, one clearly sees that, at least after the plaintiff’s earlier mugging, Coca Cola took advice on security. It took precautions to guard its money as a result of that advice. It was advised as to what could be done to improve security for fillers. It did not do anything serious about protecting personnel. Instead, it advised its fillers, contrary to its own advice, that the mugging of the plaintiff was a one-off.
It may well be that each of the matters suggested by Mr Garling would in itself be insufficient to minimize materially the risk to fillers. However when put together with Mr Rowe’s evidence and the fact that Coca Cola had little difficulty in adjusting its work practices to preserve its property, there may be sufficient to warrant a finding on this issue for the plaintiff.
I turn now to the four suggestions made by Mr Garling in answer to the President’s question.
As to the first, the repainting of the truck, the learned trial judge at [188] thought it was probable that the distinctiveness of the plaintiff's vehicle attracted the criminal to it.
The question is whether the plaintiff has proved that this or this together with one or more of the other matters was a reasonable precaution to take to avoid the risk. The learned trial judge seemed to use the word "reasonable" in connection with the risk rather than the matters necessary to avoid the risk, vide [175].
However, one must assess the risk, the remoteness of it happening and the seriousness of its consequences and consider whether what was done or not done in response to it was reasonable or unreasonable in all the circumstances. In this connection, of course, it must be stressed that where there is a risk of extremely serious harm (as in the present case), then it is unreasonable not to take available precautions to prevent it that might otherwise be excused if the possible harm was less serious.
The second suggestion was that the system should have been changed by having two separate keys to the machines. The filler would have the key to open the machine to replenish it with product. However, the filler would not have a key to the cash box. Instead, an employee of a security firm experienced in collecting money from banks would perform this task. Thus, the risk of hold-up would have been greatly minimised.
The judge rejected this idea at [184]. However, it is useful to note that the first time it appeared to be raised was on the sixth day of the hearing when Mr Palmer, a former filler and, it would appear, a union delegate gave evidence that he had raised with management at meetings the need to replace the prominently signwritten red truck with a white truck without insignia, to discontinue the use by fillers of Coca Cola uniforms, to employ an escort and have someone other than the filler actually collect the cash from the machines.
Mr Palmer gave the impression that these precautions, at least before the present incident, did not impress the appellant’s management.
This second suggestion, probably because it only surfaced on Day 6 of the trial, also does not seem to have been explored in great detail at the trial. It would almost certainly mean that there would be extra cost to the appellant hiring the security guards. There is no evidence as to how much cost and time would be involved in altering the locks. One might think that there might also have to be some adjustment in the rate that was paid to fillers seeing that they would not thereafter be doing all the work that they are currently doing.
The third suggestion was that the appellant should have made an arrangement with TAFE to have the TAFE security people escort or accompany the fillers. Indeed there is some suggestion that some such arrangement may have been negotiated, but if it had been, the fillers were not told. Again, this was not explored in any great detail as to whether this would have amounted to an additional cost, whether the security men were generally available, or whatever.
The final suggestion was that a second person should accompany the filler, at least in a high risk area.
This suggestion takes in part of the second and was dealt with by the trial judge at [184] of his reasons where he rejected the suggestion on the ground that there was no persuasive evidence that it was economic to do so. Indeed, Mr Rowe in evidence at Blue 594 admitted that this would carry fairly significant cost.
It might be noted here that, in fact, the plaintiff had his wife with him in order to have some protection from a second person, but the precaution did not prevent the injury.
Even if one takes each of the four suggestions Mr Garling put forward separately and individually, one might say that there was no persuasive material to show that any of them was likely to minimise the risk or be economically feasible. However, when one looks at them all together as well as the suggestions made in Mr Rowe’s report, it is difficult to escape from the view that the plaintiff had tendered evidence which was accepted by the judge that a reasonable person in the position of the appellant would have adopted some of the suggestions which would have reduced the likelihood of the risk becoming actuality.
In view of the catastrophic consequences that might result if some precautions were not taken, the precautions that needed to be taken had to be implemented even though they might involve some financial cost.
In English v Rogers, Mason P said at [93]:
“The significant protective measures installed at the hotel after the arrival of the poker machines were eloquent testimony to the attractiveness of the premises to the criminally-minded. Those measures could well have been a reasonable response with respect to the general employees of the Hotel, but were inadequate to provide protection for the plaintiff and his wife. Many steps were taken to protect the money on the premises and the safety of the day staff. Unfortunately no one concerned themselves for the plaintiff who was in a specially vulnerable position.”
Factually, those remarks come close to the instant case. After the 1995 muggings and other incidents, the attractiveness of the money in the machines and the keys to the machines became well known and appreciated. The appellant took precautions to protect its money, by installing safes in every truck. The cost of this measure is unknown. However, as I noted earlier, this would have increased the risk of criminal attack against the filler while carrying money from machine to truck and the need for the criminal to obtain the filler’s keys. The appellant did nothing about this.
The plaintiff was assured after the first mugging that that sort of problem was an isolated one: this was untrue. Mr Palmer, and doubtless others, drew attention to ways of alleviating the risk and there is no evidence that on any occasion was there a response that the suggested precautions would be ineffective or uneconomic.
Although the evidence is slender, there is enough to justify the learned trial judge reaching the view that in requiring the plaintiff to collect moneys from this site, a reasonable person would do something if at all reasonably practicable to protect the filler as effectively as it was protecting its money. At the very least there should have been training as to how to minimise the risks, a precaution which would have cost very little as the appellant already had on staff ex police as superintending security officers.
Although the learned judge at [185] appears to be focussing on a particular site, the same would go for any site.
Thus, even though the evidence as to what precautions a reasonable person would take to avoid the risk is not that strong, it seems to me that there is sufficient there for the plaintiff to demonstrate breach of duty.
It is necessary, however, to identify the parameters of the duty.
From what I have said above, the content of the duty here was to provide sufficient training and, putting it broadly, use care to provide as much security as is reasonably practicable for the person handling the money as for the money itself. Of course the actual steps to be taken will differ because of the different nature of providing security for a person and security for money. However the "employer" must show equal concern and use reasonable care for both.
I must now pass to the question of causation.
There is little doubt on the facts that Manna, the person who attacked the plaintiff, was a person who had no regard for human life and was prepared to take extreme risks for negligible financial gain and when ostensibly carrying out an armed robbery may have been driven by factors other than a wish to obtain money. He was a restless, hostile, aggressive, suspicious, violent anti-social man untroubled by pangs of conscience or concern for others.
The learned judge said:
"[140] Although the evidence is not all one way, it seems to me clear that the most probable motive for Mr Manna's approach to the Plaintiff was robbery. After all, money and keys were the subject of 3 demands on the Plaintiff. The evidence as to Mr Manna's manner of approach to the Plaintiff and the TAFE, although sparse, makes it probable also that he saw the Plaintiff's vehicle some time earlier. This may well have been while he was in the vicinity of the 7-11 store or while Mr Manna was near the Highway. The directness of his approach to the vehicle seems to indicate that he had it in mind prior to entering the TAFE. The Plaintiff had by that time been at the TAFE for some little while. It is probable that the fact that the Plaintiff's truck was painted as it was, rather than being a somewhat nondescript or anonymous vehicle, contributed to recognition of it by Mr Manna.
[141] Although I do not put robbery itself in this category, there can be no doubt that there was a deal of irrationality in Mr Manna's conduct at about the time he shot the Plaintiff. Whether or not he intended from the outset to shoot the Plaintiff, Mr Manna's failure to disguise himself in any way or, apparently, to take any steps in that regard prior to at least trying to rob the Plaintiff was irrational. …
[142] It may be that the first shot was not irrational, and it was an instinctive response to a mistaken – possibly unreasonably mistaken – view that in moving his hand towards or into his pocket, the Plaintiff was going to resist in some way. Notwithstanding that I accept that compliance with the demand for the keys and not resistance was what the Plaintiff had in mind, his manner or speed of movement may well, to someone possibly drug affected and in a highly charged state, have appeared differently. However, there was no rationality to the second and subsequent shots after the Plaintiff had fallen from the truck. Such shots could not reasonably have been regarded as necessary to handicap the Plaintiff or, at that time, to further the robbery.
[146] Lest there be any doubt about the matter, I should say that in drawing the conclusions or inferences I have, I have proceeded on the basis of the balance of probabilities and a consciousness that the scales have to be tilted only ever so slightly."
Mr Taylor submits, of course correctly, that a plaintiff cannot sustain a claim for damages where the duty does not extend to loss of the kind suffered; see Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [28].
Mr Taylor further puts that a cause of action which involves a duty to exercise reasonable care not to expose a plaintiff to unreasonable danger cannot be completed by loss that does not materialize from the occurrence of the danger of the relevant kind. A plaintiff must always establish that the loss arose from breach of the actual duty owed: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 269.
Taking an analogy from the Modbury case, there the direct and immediate cause was the conduct of three attackers acting quite independently of the shopping centre. The failure to have the car park well lit, whilst it may have facilitated the assault, was not a cause of it. However, in that case it was held that there was no duty to light the car park in any event.
In the Modbury case at 302, Callinan J assumed a duty to illuminate the car park but said that there was no evidence that this had any consequence at all for the attack.
In Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 at 698, Heydon JA (with whom Hodgson JA agreed, Mason P not dealing with the point) held that assuming a duty on the body corporate of a block of home units to provide a lock on the front door, the plaintiff had not demonstrated that such a failure would, on the balance of probabilities, have prevented an attack on the plaintiff by a professional criminal.
Plaintiff's counsel took what these days may be a perilous course of submitting that causation is a matter of common sense. This proposition itself is correct, but, as Callinan J said in Modbury at [150] p 302, "Assumptions about dictates of common sense can often be dangerous." Common sense does not inspire my mind to the view that any failure of duty of the nature recently considered, caused the plaintiff's injury.
Mr Garling put:
"[41] In one sense, the irrationality of criminal conduct means that it is unpredictable and it may be difficult to assert with a high level of confidence that this incident or that incident would have been deterred in specific circumstances. But that is not to ask the right question. The question is whether, on the probabilities (which is not a high level of onus) and in a commonsense proposition, would the taking of precautions by Coca Cola have hindered or prevented armed robberies including this one: see Modbury at p 291 per Hayne J [109]. Clearly the Judge's finding that there was a causal connection was an open one and a rational one. The appellant's submissions on Ground 5 of the Appeal ought to be rejected.
[42] It is no different from a finding of the kind to be observed in Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070."
The reference to the reasons of Hayne J in Modbury may not actually assist the plaintiff. What his Honour said was that it is difficult to find that a duty is as wide as to encompass a duty to prevent any criminal attack as this would mean a person has taken on the burden of affecting the conduct of persons over whom it had no power to control.
As I have noted, the highest in favour of the plaintiff that one can put the duty is: (a) a duty to train; and (b) to provide as much security as is reasonably practicable for the person handling the money as for the money itself.
As to (a), the failure to train properly could not to my mind have been causative of the injury. Mr Pareezer in fact did everything that a properly trained person would have done, yet was still shot.
As to (b), to my mind, no provision of additional security would have prevented the actions of the irrational Mr Manna in the present case. Even if the appellant had taken all Mr Rowe’s advice and even implemented the four suggestions, the same incident and consequences to the plaintiff would still have occurred.
It is trite law that one may be guilty of negligence by not foreseeing or providing against risks which are of the same type as the accident which occurred, even though the exact facts of the incident which actually occurred might not have been foreseeable. Perhaps the most hard to justify example of this is the so called imaginary necktie rule (see Goodhart (1952) 68 LQR 514) found in Thurogood v Van Den Berghs & Jurgens Ltd [1951] 2 KB 537 at 551. Of course what I have just said is subject to limitations; see Fleming on Torts, 9th ed pp242-3 and see eg Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518.

As Trindade and Cane say (3rd ed pp347-8) based on Chapman v Hearse (1961) 106 CLR 112, “not only does the law expect of defendants a high degree of foresight of general classes of events and persons abstractly defined, but it is also prepared to impose liability even when the details of what happened were quite bizarre.”
I appreciate that tort law merely requires the plaintiff to establish that the defendant's conduct is a cause of his injury. However, neither common sense nor any other rational process leads me to the view that the plaintiff has established that any reasonable precautions which the Coca Cola company might reasonably have taken to protect Mr Pareezer from armed robberies would have been likely to have prevented his injury.
Accordingly the appeal must be allowed and the plaintiff's proceedings dismissed with costs.
This conclusion means that all the cross-claims must also fail.
As to the fourth respondent Pareezer Transport, there was conflicting evidence as to whether the plaintiff was a contractor to Pareezer Transport or the Coca Cola company.
The learned trial judge found at [150] that the plaintiff was a contractor to the Coca Cola company.
I am not persuaded that the learned Judge misinterpreted the evidence of this aspect of the case and that he was fully entitled to find as he did.
Accordingly, in my view the appeal against the fourth respondent must be dismissed with costs.
For the same reasons the appeal against the fifth respondent must be dismissed with costs.
It must be a particular blow to this seriously injured plaintiff that after a trial in 2003, a wait for judgment of 12 months, an appeal heard in September 2005 and a wait of 6 months for the Court's judgment he "loses" $2,893,000.00. I hope he will accept that the delays in judgment indicate the deep consideration of this borderline case that has taken place.
The orders that I would propose are as follows:
(1)          Appeal allowed against the first three respondents.
(2)Orders of Hulme J against the appellant in favour of the first three respondents be set aside.
(3)          In lieu order that the proceedings be dismissed with costs.
(4)Order that the first, second and third respondents pay the appellant's costs of the appeal, but they are to have a certificate under the Suitors Fund Act if so qualified.
(5)          Dismiss appeal against fourth and fifth respondents with costs.
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LAST UPDATED: 15/03/2006