(a) employers;
(b) schools;
(c) bailees of chattels;
(d) parents; and
(e) gaolers.
70 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.
71 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.
72 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.
73 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.
74 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 ."
75 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.
76 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.
77 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.
78 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
79 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."
80 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.
81 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.
82 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.
83 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.
84 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.
85 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."
86 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."
87 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.
88 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.
89 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.
90 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)
91 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."
92 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.
93 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.
94 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.
95 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.
96 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.
97 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.
98 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.
99 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.
100 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.
101 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.
102 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.
103 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].
104 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.
105 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.
106 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.
107 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.
108 I turn now to the four suggestions made by Mr Garling in answer to the President's question.
109 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.
110 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].
111 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.
112 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.
113 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.
114 Mr Palmer gave the impression that these precautions, at least before the present incident, did not impress the appellant's management.
115 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.
116 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.
117 The final suggestion was that a second person should accompany the filler, at least in a high risk area.
118 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.
119 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.
120 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.
121 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.
122 In English v Rogers, Mason P said at [93]: