Forseeability, Duty and Negligence
164 There can be no doubt that an assault on, and injury to, the vending machine fillers was, at all relevant times, reasonably foreseeable. Quite apart from what might be in the safes of their trucks, their activities involving the carriage of some hundreds of dollars at a time from the vending machines to their truck rendered them a target for persons disposed to robbery. And that there are such persons who, for example, rob service stations, corner stores, and people in the street for such or lesser sums has been for many years notorious. And if there were any doubt about the matter, the attack on the Plaintiff in 1995 would have removed that doubt even if the principal object of that attack may have been keys to vending machines.
165 Furthermore it seems to me 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. The contract between them involved some appreciable investment by the Plaintiff in the provision of a truck which because of its colour and the fact that the Defendant had an option over the tray body was not immediately available for alternate tasks. The contract between them was, in practical terms, terminable only on notice, and the Plaintiff could not use the truck for other purposes without covering or obscuring the company's logos, etc. The Defendant's allocation of the run and number of machines to be serviced - a number which, according to the evidence, it would threaten to reduce, effectively meant that it had a large degree of control over the Plaintiff's hours of work. The risks involved in the collection of the Defendant's money from the vending machines were liable to be influenced to some degree by the actions of the Defendant in the siting of machines. See as to the existence of the duty Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 at [79-92].
166 Added reasons for concluding that there was a duty lie in what was, because of the Defendant's size, standing, and reputation, its greater capacity for knowledge of risks to its operations and those engaged in furthering them, its greater knowledge in fact as exemplified by its internal memos and the Plaintiff's vulnerability and lesser knowledge in the areas to which I have just referred.
167 More difficult is the extent or content of that duty. In the Statement of Claim it is asserted to be:-
"11. … a duty to the First Plaintiff to take reasonable care for his safety by providing a safe place of work for him and proper and safe plant and equipment for carrying out its operations and a proper and safe system of conducting its operations and provide a proper and efficient supervision of the same, and
13. Alternatively, the Defendant owed the Plaintiffs a duty to exercise reasonable care for their safety and not to expose them to an unreasonable risk of injury."
168 The 20 particulars of negligence allege in effect that in a variety of ways the Defendant failed to take steps directed to assuring or enhancing the Plaintiff's safety and required him to collect money without adequate provision for his safety and when the Defendant knew or ought to have known there was an unreasonable risk to him.
169 I would unhesitatingly say that the Defendant's duty was not of the nature alleged in paragraph 11 of the Statement of Claim. As has been said, the Plaintiff was not an employee. So far as the evidence reveals the places where the Plaintiff was required to go were place of a public nature in the sense that many members of the public, albeit as University students, persons with railway tickets, shop customers and the like were freely able to resort to them. That there was some risk to the Plaintiff involved in the collection or possession of hundreds of dollars, even in the form of coins, may be accepted. However, these sorts of matters were obvious and as obvious to persons in the position of the Plaintiff as they were to the Defendant. The 2 weeks trial which the Plaintiff had prior to entering into his contact in 1994 provided opportunity to him to assess them. Such assessment no doubt continued over the ensuing years. The Plaintiff entered into his original contract and, putting aside for the moment the complication of Pareezer Transport Pty Ltd, continued with it for the next 2 or so years for the benefits he saw as available under it. In these circumstances, I see no basis for concluding the Defendant's duty was of the nature claimed in paragraph 11.
170 In his submissions, counsel for the Plaintiff conceded, correctly, that the Plaintiff was not an employee but asserted that the Defendant's obligation to the Plaintiff was similar to the non-delegable duty that exists between a master and servant. In support he submitted that the Defendant exercised a deal of control over the way in which the Plaintiff operated and referred to the requirements of the Defendant as to the wearing of uniforms and identification tags, the type of truck, its colour, the safe in it, how money was to be dealt with, how the security of keys was to be effected, as to the location of the vending machines and in requiring, both directly and by threats of reducing the size of runs, when machines were to be refilled. This degree of control and direction, so it was argued, and the fact that the Plaintiff's duties were similar to those of an employee, meant that the Defendant was under an obligation of provide a safe system of work. Reliance was placed on remarks of Mason J in Stevens v Brodribb Sawmilling Co (1985-1986) 160 CLR 16 at 31 and 47.
171 However the circumstances here were substantially different from those under consideration in that case. In the case of the Plaintiff here, there was not the degree of interdependence of activities, need for co-ordination nor the risk of injury which there was in that case and which led to the conclusion that the duty there was of the nature held to exist.
172 Undoubtedly the Defendant did exercise a deal of control in all or virtually all of the respects relied upon. However, when one has regard to the degree of latitude there remained in the Plaintiff as to the time and manner in which he went about his activities and to the fact that the Defendant did not control those sites (even though it had selected them), I do not see in the aspects or extent of control referred to, any reason to conclude that any duty the Defendant owed was of the extent or non-delegable nature as that which exists between a master and servant.
173 I turn then to paragraph 13 of the Statement of Claim. I agree that the Defendant did owe the Plaintiff a duty "not to expose him to an unreasonable risk of injury" provided there is added the qualification "of which the Defendant was (or perhaps ought to have been) aware" - an expression similar to that in the paragraph (f) of the Plaintiff's particulars of negligence. To take an example some distance removed from the facts here, had the Defendant received apparently reliable information that Mr Manna was, on 17 February 1997, lying in wait for the Plaintiff while the Plaintiff was engaged on his duties under the contract with the Defendant, it might fairly be said that the Defendant's duty encompassed not exposing the Plaintiff to an unreasonable risk of injury and to have been breached not only by instructing him to service the relevant machine but also by not seeking to stop him doing so. The former situation would, of course, be encompassed by a duty which rather was not to impose on the Plaintiff an unreasonable risk of injury. However, it would seem to me that there would also exist a duty in the latter situation notwithstanding the usual rule that one person has no obligation to protect another from actions of third parties.
174 The factors to which I have referred in concluding that there was some duty owed by the Defendant to the Plaintiff argue for the duty being at least as great as that which I have enunciated.
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.
176 I do not ignore the fact that during the period the number of both attacks and incidents was but a very small proportion by comparison with the number of times vending machines in the Penrith area must have been attended to. However, that is not determinative of the matter and its significance pales once one recognises, as it seems to me one must, that the risks to persons servicing machines in the Penrith area are appreciably greater than what one might regard as the normal background of risk necessarily inherent in the activity of attending to the machines. Once there is a significant increase in risk over that normal background, it is appropriate to characterise the risk as unreasonable, certainly in the case of anyone who has been led to believe it does not exist.
177 Paragraph 13 also alleges that "the Defendant owed the Plaintiffs a duty to exercise reasonable care for their safety". As is clear from a consideration of the remarks in Modbury Triangle Shopping Centre v Anzil [2000] 205 CLR 254, to state the duty in such general terms says little about the extent or nature of the duty of significance in the particular case. Here, as in that case where the Plaintiff lost, the nature of the harm suffered was physical injury inflicted by a third party over whose actions the Defendant had no control. Furthermore, again as in that case, the Defendant had no knowledge or forewarning of what the particular assailant planned to do.
178 However it does not seem to me that there is anything in the decision in that case or in Proprietors of Strata Plan 17226 v Drakulic [2002] 55 NSWLR 659 to require that the same result follow here. There is it sems to me sufficient difference in the relationship between the parties and the Defendants' knowledge and, although I do not regard this as essential, the representations of Mr Ings to justify a different conclusion.
179 In the Statement of Claim, the Plaintiff relied on 20 particulars of negligence. Almost all seem to me to be not made out. I shall say why briefly.
180 The first 2 are so vague that I need not refer to them. The same applies to particular (l). There is no evidence Mr Manna was waving his gun around in a fashion such that any better look out would have seen anything amiss in sufficient time to prevent the attack - paragraphs (c) and (d). There is nothing to suggest that supervision of the Plaintiff or his or more training would have made any difference - paragraphs (e) and (i). Having regard to Mr Manna's disregard of identification, I am not persuaded that any security cameras would have done any good - paragraphs (m) and (n).
181 Paragraphs (o) and (p) allege a failure to position the vending machine in a more exposed location and with clearer access. These matters had no causal relationship with the Plaintiff's injuries. Indeed, where he was injured could hardly have been more exposed.
182 Paragraph (q) and (r) complain of failures to cause to be provided a less exposed access for the parking of the Plaintiff's lorry and adequate and secure parking. Details of what alternatives may have been practical were not explored and I am not satisfied that any less exposed access reasonably available would have made any difference.
183 Paragraph (g) and (k) refer to failing to provide protection or an escort. Paragraph (j) refers to failing to provide an alternative system of collecting money from vending machines. Paragraphs (h) and (s) allege a failure to make the site safe and cause to be provided adequate security patrols of the car park and area where the vending machine was located. Paragraph (t) alleges a failure to take or cause to be taken adequate security precautions in the light of past crimes at the Werrington TAFE including the bashing of the Plaintiff.
184 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 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.
185 Paragraph (f) refers to requiring the Plaintiff to collect moneys from a site which the Defendant knew or ought to have known to have an unreasonable risk of the First Plaintiff being assaulted and robbed. I have said enough to indicate that I regard this particular of negligence as made out.
186 It is also clear that the actions of the Defendant in this regard were causally related to the Plaintiff's injuries. It is nothing to the point that the person who actually attacked the Plaintiff has not been shown to be a member of the gang whose existence created the unreasonable risk. Thus Mr Pareezer is entitled to succeed against the Defendant.
187 I should add this. Although I have found that at the time of he was shot, Mr Pareezer and not Pareezer Transport was the contractor to the Plaintiff, I do not regard that view as essential to the conclusion at which I have arrived as to the Defendant's liability to Mr Pareezer. Given Mr Pareezer's continued involvement, I would take the same view even if there had been an assignment or novation of the contract.
188 I may perhaps refer to two further matters which, although not the subject of an express particular, in the way the case was fought, may have on their own entitled the Plaintiff to succeed. Firstly, there was the maintenance of the distinctive colour and markings on the Plaintiff's truck in the knowledge of the Defendant's operations being targeted. As I have indicated, I think it probable that the distinctiveness of the Plaintiff's vehicle attracted Mr Manna to it.
189 Secondly, there is much to be said for the view that, in light of his actual beliefs, Mr Ings' statement to the effect that the 1995 bashing of the Plaintiff was a "one off", on its own, provided the Plaintiff with an entitlement to succeed. While that remark may have been understandable as a reassurance to the Plaintiff, it should not have been made when Mr Ings held the view expressed in his memo of 10 August 1995. The timing of events suggests to me that when Mr Ings reassured the Plaintiff he had the view expressed in that memo. After all the Plaintiff's injury occurred on 4 August 1995, Mr Ings' memos were not long after and, although very imprecise on the topic of timing, Mrs Pareezer's evidence seems to suggest the statement was some time later. However, if in fact the reassurance had been given earlier than the view expressed in the memo, Mr Ings should not have allowed what he told the Plaintiff to remain uncorrected. Having chosen to speak on the topic, it seems to me that Mr Ings was under a duty, once his view was as recorded in his memo of 10 August, to fairly and accurately inform the Plaintiff of that view and not to do so was both negligent and indeed grossly misleading.
190 Furthermore, I am satisfied that, had the Plaintiff been accurately informed of Mr Ings' view or of the Defendant's knowledge, he would not have returned to work for the Defendant. Indeed there was no challenge by the Defendant's counsel to this evidence.
191 Whether, in light of the way the case was pleaded and particularised, I could have given expression to these views it is unnecessary to decide. The authorities permit a Court to depart from the particulars when the evidence otherwise establishes a cause of action pleaded - see Dare v Pulham [1982] 148 CLR658 at 664 where it was said:-
"But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party of a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed ( Mummery v Ervings Pty. Ltd. (1956) 96 CLR 99 at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a Plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence ( Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 at p 668)."
192 See also Katsilis v The Broken Hill Pty Co Ltd [1978] 52 ALJR 189; Douglas v John Fairfax & Sons Ltd (1983) 3 NSWLR 126 at 133.
193 Both of these further matters raise issues of negligence, albeit it must be recognised that in one case the negligence is in the making or failure to correct a statement rather than in actions of the nature particularised.