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Sep 03

Man Sues Coke

SMH Article: Mr Pareezer gets shot five times while loading a coke vending machine. He is therefore sueing Coke for negligence, because Coke purportedly knew that there was a gang operating around the area that was targeting vending machines and keys. They must have been a very thirsty gang. The plaintiff’s son saw the shooting, and the wife arrived afterwards at the scene, and they are both suing for nervous shock.

This is a bit of shocker – you get shot doing your job, which is loading Coke cans into Coke machines, so… you sue your employer. Coke probably does owe a general duty of care to ensure the safety of its employees, but I would find it extremely difficult to see that Coke would have breached that duty of care. I mean, sure they knew of the risk of a gang attack, but what sort of preventative measures could they have reasonably implemented? There’s nothing practicable that I can see that can be done. And then would any of those measures have prevented the injury anyway (the issue of causation)? Even if you gave the guy an armed security detail, they wouldn’t have necessarily been able to stop bullets.

Is it really reasonable to give your employees bullet proof vests on the off chance some psycho gang member is going to shoot you while you’re loading a Coke machine? That would really be saying something about society, wouldn’t it? I mean, what if you happen to have a job in a part of town that is by reputation rough? Say you work the night shift at Maccas in Cabramatta. What is McDonald’s meant to do to shield an employee from being shot at by some cashless drugged out lunatic with a midnight craving for Big Macs?

Turning now to pure nervous shock. Assuming that McDonalds was negligent (which is unlikely), Pareezer’s son and wife would definitely have a case for nervous shock, if they sustained some recognisable psychiatric illness. They’re close relatives and appear to have experienced the sudden sensory shock necessary to sustain a case for pure nervous shock. The problem though, is the breach of duty issue, as above.

Update – I got this on the comments section:

Stuart, I think your characterisation of the measures Coke could have taken misses the point of the claim. Based on what you say about it, it looks like his claim is that they breached their duty to provide a safe system of work by requiring him to go into a dangerous area. And what’s more, they knew about the particular danger. they meet their duty by not requiring him to go into danger without adequate safeguards. And in this case, they can just not put the machine there, and not put their profits ahead of the safety of their employees.

Even if I’m wrong about that and, as you say, their duty might have been to provide armed guards, then I say that *would* have been a way to prevent the injury, because in the face of possible armed resistance from apparently trained security guards, the gang would probably not have attacked. That is, the measure you dismiss as a means of Coke meeting their duty would arguably have been effective. Sure, they cant stop bullets, but they might prevent them being fired in the first place, just by their presence.

You may have guessed that I dont think that this man’s claim is so far fetched as you seem to think it is. His lawyers must agree with him to some extent, since they are obliged to only pursue cases that have reasonable prospects of success. (See the idiotic amendments to the Legal Practitioners Act (or whatever it is called in NSW) put in by Carr last year). But Coke (or rather their insurers) cannot just give in, because it is too far outside the currently accepted norms for negligence: so they didn’t agree to settle when he made his demand.

Incidentally, Maccas have the same options as Coke. If it’s really dangerous, it’s appropiate that there be adequate security, to deter said cashless drugged out lunatic with a midnight craving for Big Macs. Once you’ve taken reasonable steps to prevent injury, then you are in the clear.

As for nervous shock, how have the Courts responded to post traumatic stress disorder, which is what doctors now say all nervous shock cases have? It’s a recognised pysch illness …

… and decided I might as well write up a fuller analysis of the situation:

True, I probably did approach the issue of breach a bit too impulsively. Actual knowledge of the particular danger is not really a requirement under tort law – if Coke knew or ought to have knew of the danger, then that is sufficient. In my limited knowledge of torts (you sound like you have legal education of some sort, so I’m keeping it in mind you may know more about this than me!), a more formal legal analysis would seek to analyse the standard of care required by Coke. It would look at what the plaintiff alleged what measures Coke should have implemented in order to meet its duty of care. The Courts would then have to look at what Coke actually did, and then also at whether the measures the plaintiff proposed Coke should have taken were reasonable. Three factors are used to evaluate what is a reasonable standard of care. The measures the plaintiff proposed that Coke should have taken are then assessed in relation to this standard of care to determine if a breach occurred. The factors are gravity of harm, the probability of such harm occurring, and the practicability of preventing the harm.

The gravity is obviously very high, but the probability of this harm occurring is quite low, though not negligible. There is a provisor in the above arguments in that this particular group of gang members was particularly targeting Coke machines, but whether this specific targeting by the gang significantly raises the probability of a Coke refiller getting shots at is debatable. It may be more probable that the Coke machine refillers may get robbed, but not getting shot at?

There are three main types of solutions you propose: (1) Not require the man to go there. (2) Not to put a machine there at all. (3) Not require the man to go there without adequate safeguards. [and (4) Warn the employee about the dangers.]

The first proposition implies that it is too dangerous to fill up the Coke machine, therefore employees shouldn’t do it. I would argue that this proposition is unrealistic and unreasonable on a few grounds. How would Coke fill up the machine? It would require a solution like a robot or similar, which is certainly not practicable. (Whereupon the argument would then progress to the second proposition.) The second ground is that employees are often sent into arguably more dangerous situations in order to do something that needs to be done. For example, it is conceivable that parking inspectors, due to their line of work are at an increased risk of physical assault (from irate motorists), or falling victim to a pedestrian-car accident. However, the job needs to be done, and it is not practicable to remove the human element from that job function.

The second proposition aims at removing the presence of Coke machines from “dangerous” areas. The practicability problems with this are obvious. What would be considered a reasonably dangerous area, such that it would justify the removal of a drink vending machine? If there are reports of gangs in the area? What about if the newspapers have reported a serial killer in the vicinity that has been terrorising the neighbourhood for a few weeks? It seems patently unreasonable to, especially in a country with a relatively low crime rate like ours, to impose a burden upon coroporations to make sure their drink vending machines are in gang-free areas. There is also a side-effect is depriving citizens of access to carbonated beverages, because the areas is perceived to be “too dangerous” for vending machines to be refilled in. I agree there are arguments both ways, but your argument seems in my opinion, more dubious.

The third proposition is much more contentious. It would not seem that Coke provided the man with any safeguards against being shot at. Prima facie, the probability of this happening, in the view of a reasonable person (ie, me :), would be so low as to be discountable, even if there is a gang known to be in the vicinity. I admit that this is not a terribly strong point, so in the alternative that the chance of being shot at is sufficiently probable as to warrant some sort of protective measure – what should that measure be? Bullet proof vests and security guards are options. With the latter, it seems excessive to assign a bodyguard to a guy who refills Coke machines. If this duty were to be imposed on Coke, imagine how many employees who conducted company business in public would require security personnel to accompany them! It is conceivable that the postman might get robbed. That the person on the night shift at a 7-11 store could get held up and shot. The costs would be prohibitive, and the fact that this is not the present case in society is a telling fact.

Regarding bulletproof vests. Again, it does not seem, on the face of the matter, that the probability of being shot at would warrant Coke purchasing for its vending machine refillers a bullet proof vest (by extension, many employees would then require bulletproof vests on the off chance that they are working in gangland). Then what about robbery with assault? A bulletproof vest is not going to stop a fist, or a well placed knife. And those types of assault are more likely than one with a gun.

Even if Coke did buy a bulletproof vest, there are causation issues. It cannot be said “but for” the bulletproof vest, the plaintiff would not have been shot and injured.

The fourth proposition that Kraz brought up in the comments section is that Coke should have warned the plaintiff. Setting aside the fact, as Bonhomme mentioned, that the plaintiff knew the area was dangerous, it probably can be said that Coke breached its duty in failing to warn the plaintiff. Breach of duty does not necessarily lead to negligence. In this case, a warning to the plaintiff to “be careful” would not have prevented him from being shot (because on the facts, the plaintiff was aware of the danger and was shot). Therefore, causation fails.

It would seem that the other measures above impose too great a burden on corporations, even though they may make obscene profits. What if a company is losing money and couldn’t afford to give their staff bulletproof vests? Just because a corporation makes more money, should it be obliged to meet a higher standard of care? Clearly not – it is the nature of the risk that determines the standard of care, not the financial capabilities of the organisation.

[In response to Bonhomme: The fact that Coke told the employee something along the lines of “tough luck about the assault, go back there” makes no difference. If it was another new employee that went on that refilling run, the same principles as above would apply. The fact that he was assaulted there five years earlier is evidence that Coke was aware of the danger of the area (although five years is a long time! Statistically, there are many places around city streets that have had assaults happen in over the last five years – but that doesn’t mean that the probability of assault recurring there is significantly higher.) The fact that Coke was aware of the danger changes nothing (actual knowledge is not a requisite to be liable for negligence). There was nothing special about this plaintiff that differentiated him from any other Coke employee that would have been in the same situation had they had the plaintiff’s delivery run.]

BTW, I agree with you in that there is virtually always a case for both sides in law. It just seems to me that one side is particularly stronger (though not all the arguments above are strong ones), and that’s what I’m arguing based on this opinion.

Regarding nervous shock, I believe that Courts use the DSM-IV to determine what is an acknowledged psychological illness.