Pareezer v Coca-Cola Amatil

[2001] NSWSC 1097

CITATION:	Pareezer & Ors v Coca-Cola Amatil & Ors [2001] NSWSC 1097
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20018 of 2000
HEARING DATE(S):	22 November 2001
JUDGMENT DATE:	29 November 2001
PARTIES :	Craig Douglas Pareezer (First Plaintiff) Suzanne Joy Pareezer (Second Plaintiff) Scott Craig Pareezer by his tutor Suzanne Joy Pareezer (Third Plaintiff) v Coca-Cola Amatil (NSW) Pty Limited (now trading as Beverage Bottlers (NSW) Pty Limited (In Liquidation) (First Defendant/First Cross-Claimant) NSW Tafe Commission (First Cross Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr J Darvall (Plaintiffs) Mr G M Watson (First Defendant/First Cross-Claimant) Mr A C Bridge SC (First Cross Defendant)
SOLICITORS:	Heazlewoods (Plaintiffs) Henry Davis York (First Defendant/First Cross-Claimant) Hicksons(First Cross Defendant)
CATCHWORDS:	Duty of care to prevent injury resulting from the criminal behaviour of third party owed by occupier of land upon which it takes place - special circumstances - amendment of Statement of Claim and striking out of Cross-Claim.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946, s 5.
CASES CITED:	Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] 176 ALR 411.
DECISION:	See Paragraphs 24 - 25.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

20018 of 2000
Master Malpass
THURSDAY 29 NOVEMBER 2001

Craig Douglas Pareezer & Ors v Coca-Cola Amatil (NSW) Pty Limited (now trading as Beverage Bottlers (NSW) Pty limited (In Liquidation) & Ors

Judgment

: The first plaintiff has a contractual relationship with either the defendant or Pareezer Transport Pty Limited to deliver the defendant’s product to vending machines in various locations in Sydney (and to recover money from the machines and deliver it the defendant).

2 On 17 February 1997, he attended Werrington Tafe premises for the purpose of placing product in a vending machine and collecting money from it.

3 The second plaintiff is his wife. The third plaintiff is their son. The son is a minor. On that day, the second and third plaintiffs accompanied him to the Tafe premises.

4 Whilst the first plaintiff was in the course of carrying out his contractual duties, there was an attempted robbery. The first plaintiff was shot five times with a handgun.

5 In the proceedings as they presently stand, the plaintiffs seek to recover damages from the defendant on a count framed in negligence.

6 There are presently two Notices of Motion before the court. One is brought by the plaintiffs. One is brought by the cross-defendant to the Amended First Cross-Claim (NSW Tafe Commission, which is a proposed second defendant).

7 I shall first deal with the Notice of Motion brought by the plaintiffs. The plaintiffs seek to file a Further Amended Statement of Claim. The proposed pleading joins NSW Tafe Commission as the second defendant. It is sued as the occupier of the premises upon which the shooting took place. The first and second plaintiffs need an extension of the limitation period to enable them to maintain the claim against the proposed second defendant.

8 The proposed second defendant resists the application. It does so on one ground only (i.e. that it would be futile to grant the relief sought by the plaintiffs). Accordingly, it is not necessary to look at any of the usual considerations of delay, explanation for delay or prejudice.

9 I now turn to the futility question. The proposed second defendant contends that no duty of care is owed by it to the plaintiffs in the circumstances pleaded in the Further Amended Statement of Claim. The contention is founded on what was said by the majority in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] 176 ALR 411.

10 The decision is authority for the proposition that save for where there is a special relationship or special circumstances, an occupier of land does not owe a duty of care to prevent injury resulting from the criminal behaviour of third parties on the land.

11 I now turn to the Further Amended Statement of Claim itself. Paragraph 7 alleges that the proposed second defendant was the occupier of the land. Paragraph 13A alleges the duty of care. Paragraph 13B alleges breach of that duty. Paragraph 16 sets out particulars of negligence. Sub-paragraphs (h) and (t) provide particulars which refer to previous history of assaults and other violent crimes which had occurred on the premises (including the 1995 bashing of the first plaintiff).

12 In response to the futility contention, the plaintiffs take the stance that the case they wish to propound against the proposed second defendant may be a hard one but that it is not hopeless.

13 It seems to be common ground that there is no relevant special relationship between the parties. However, the plaintiffs contend that arguably there are special circumstances. In support of that contention, they look to an earlier assault in 1995 suffered by the first plaintiff on the premises.

14 The principal difficulty for the plaintiffs is that the Further Amended Statement of Claim does not plead allegations of matters going to special circumstances. In its present form, the alleged duty of care rests on the allegation of the proposed second defendant being the occupier of the premises. The reference to the earlier assault is to be found only in particulars (as such it is not even an allegation of a material fact to which a defendant may plead).

15 Accordingly, whether or not the earlier assault can give rise to special circumstances is a matter which need not be considered in this application. However, in deference to the arguments put by the parties, I will make some observations.

16 The proposed second defendant contends that the assault does not assist the plaintiffs. Reference has been made to observations made by Gleeson CJ in Modbury. In that case, there had been a number of incidents of prior illegal behaviour. The Chief Justice did not see this as indicating a high level of recurrent, predictable criminal behaviour. He proceeded to say:

“It is unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour. It suffices to say two things: first, as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the situation postulated.”

17 In contrast, the plaintiffs and the first cross-claimant look to other dicta in that case which they say leaves the matter open for consideration having regard to the facts of the particular case. The court was referred inter alia to what was said in paragraphs 116 and 147. In paragraph 116, Hayne J observed that:-

“Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises. I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind. Further, like Gleeson CJ, I would wish to leave open for consideration the appropriate approach in cases where an occupier has a high degree of certainty that harm will follow from lack of action.”

18 For present purposes, it suffices to say that in the circumstances of this case, the pleading of an isolated assault is at best extremely unlikely to lend viability to an alleged duty of care relying on special circumstances.

19 The plaintiffs bear the onus of demonstrating an entitlement to the relief sought by them. In my view, that onus has not been discharged.

20 This now brings the court to the second Notice of Motion. It is brought by the proposed second defendant against the first cross-claimant. This action seeks to have the Cross-Claim brought against it struck out.

21 It is common ground that if the plaintiffs are unsuccessful in their application, then the proposed second defendant is entitled to relief in its application.

22 In the First Cross-Claim, the proposed second defendant claims contribution and/or indemnity as a joint tortfeasor pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. It is founded on negligence and is pleaded in a manner similar to that to be found in the Further Amended Statement of Claim (the alleged duty of care rests on the allegation of the proposed second defendant being an occupier and mentions a matter of previous history of assaults in particulars only). It was filed prior to the decision in Modbury.

23 In the circumstances, I take the view that, the proposed second defendant is entitled to the relief sought in its application.

24 The Notice of Motion filed by the plaintiffs on 1 August 2001 is dismissed. The plaintiffs are to pay the costs of that Notice of Motion.

25 The First Cross-Claim is struck out. The first cross-claimant is to pay the costs of the Notice of Motion filed on 15 November 2001.

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Last Modified: 12/04/2001