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23
Dec 04
Thu

Man Sues Coke – Trial Judgment

Over a year ago I posted about a man who sued Coke after being shot while refilling a vending machine. As a fresh-faced first-year law student studying torts at the time, I was convinced there was no way Coke would lose and argued at length about it. The trial judgment outcome was reported in the news yesterday. The claimant, Mr Pareezer, was awarded $2.8 million by Justice Hulme. Coke’s going to appeal, of course. Trial judgment is here, will read it soon.

Update: The judgment has over a hundred paragraphs of facts, which shows that’s there’s a lot going on that newspapers don’t and can’t report. The relevant findings on breach of duty were (emphasis is added):

[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.

This is saying pretty strongly, “stay away from Penrith”.