Reported Decision : (2004) Aust Torts Reports 81-772 New South Wales Supreme Court CITATION : PAREEZER v COCA-COLA AMATIL [2004] NSWSC 825 HEARING DATE(S) : 03.09.03-19.09.03; 1.12.03 JUDGMENT DATE : 10 September 2004 JUDGMENT OF : Hulme J at 1 DECISION : Orders deferred Plaintiff: Craig Douglas Pareezer PARTIES : Suzanne Joy Pareezer Scott Craig Pareezer Defendant: Coca-Cola Amatil (NSW) Pty Ltd FILE NUMBER(S) : SC 20018/00 Plaintiff: J Rowe; J Darvall Defendant: MA Elkaim SC; A Bowen COUNSEL : TAFE Commission: AC Bridge SC; A Ventura Pareezer Transport P/L: M Cochrane GIO: R Ferrari Heazlewoods Henry Davis York SOLICITORS : Hicksons Kevin O'Kane Thompson Cooper - 27 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HULME J Friday 10 September 2004 20018/2000 CRAIG DOUGLAS PAREEZER v COCA-COLA AMATIL (NSW) PTY LIMITED JUDGMENT 1 HULME J: The evidence and issues which arise have been considered under the following headings:- Para 1. Outline 1 2. Events preceding to the Plaintiff going to TAFE on 17/2/1997. 28 3. The Shooting itself and the Assailants Movements 42 4. The Relationship between Plaintiff and Defendant 51 5. Workers Compensation Claims 87 6. Risks, Prior Problems and the Defendant's Knowledge 88 7. The "Gang" and Mr Adriano Manna 111 8. Expert Evidence – Liability 120 9. Findings - Mr Manna and the Shooting 137 10. Findings – The Relationship between the Plaintiff, Defendant 148 and Pareezer Transport Pty Ltd 11. Foreseeability, Duty & Negligence 164 12. The Second and Third Plaintiffs. 194 13. Impact on the Plaintiff 199 14. Impact on the Second and Third Plaintiffs 237 15. General Damages & Interest thereon 246 16. Out-of-Pocket Expenses 249 17. Fox v Wood 251 18. Care 252 19. Economic Loss 257 20. Claims of Second and Third Plaintiffs. 258 21. Cross-Claims – Summary 263 22. The Second Cross-Claim 269 23. The Fifth Cross-Claim 273 24. The Sixth Cross-Claim 285 Outline 2 There are 3 plaintiffs in these proceedings, Mr Craig Pareezer, his wife and one of their children, Scott Pareezer. Given the length of these reasons, it is sufficient for the moment to refer to Mr Pareezer simply as "the Plaintiff". 3 On and for some years prior to 17 February 1997 the Plaintiff's employment activities involved him in collecting monies from soft drink vending machines, placing the monies in a safe installed in the truck he was using, refilling such machines with further cans of soft drink he had previously obtained from the Defendant and conveying the monies recovered from the machines to the Defendant. To enable him to obtain access to the vending machines which seem to have been owned by the Defendant, the Defendant had provided the Plaintiff with keys to them. 4 Among the machines the Plaintiff attended to on that day was one situate at Werrington TAFE. Towards the end of the afternoon, probably shortly after 4pm, the Plaintiff collected the moneys from that machine, placed them in the safe and partly refilled the machine. He returned to the truck to collect some more soft drinks and while he was on the back of the truck was accosted by a man with a pistol who in the course of the next few minutes shot the Plaintiff 5 times causing, as might be expected, serious injury. 5 In evidence, the Plaintiff provided further details of what occurred. In evidence I accept the Plaintiff said that the offender, subsequently identified as Adriano Manna, made two demands for money and, after being told that the Plaintiff could not provide it as he could not open the safe, demanded keys to the machines. The Plaintiff said words to the effect of, "Okay, no problem" and reached into his pocket for the keys. While he was doing so Mr Manna shot him in the chest and the Plaintiff fell from the tray of the truck where he was then standing onto the ground. There he was next shot in the back of the neck, that shot damaging the Plaintiff's tongue and passing out through the Plaintiff's jaw. The Plaintiff has little memory of detail thereafter although he does remember one of his children, who was nearby, screaming. The child was Scott. 6 The Plaintiff's claim is that his injury was due to negligence on the part of the Defendant and in support of that claim, there was a deal of evidence to which I refer below as to the relationship between them. 7 In the second half of 1994 the Defendant had placed the Plaintiff on a two week trial in the sorts of activities in which he was engaged in February 1997. Presumably the Plaintiff proved satisfactory for in October 1994 the two entered into a written contract whereunder the Defendant engaged the Plaintiff to provide the services of servicing the Defendant's vending machines for a period of 5 years or until terminated pursuant to the terms of the agreement. Included in the provisions in that regard was a clause entitling each party to terminate the agreement at any time by one month's notice to the other. The Plaintiff was required to provide a truck of a type approved by the Defendant which would be painted as required by the Defendant and at the Defendant's expense, to provide a safe and to take out certain insurances. Subject to the Defendant's consent which could not be unreasonably withheld, the Plaintiff was entitled to provide his services by employees or agents and the agreement specified that the relationship between the parties was that of Principal and Contractor. The Plaintiff's remuneration was on a "per case" basis. If and while the truck was used for any other purpose, the company's logos, trade marks and other identifying art-work had to be covered. There were indemnity clauses to which it may be necessary to refer when dealing with a number of cross-claims. 8 (I should record that the written agreement is, in its terms between the Plaintiff and CCA Beverages (Sydney) Pty Limited, a previous name for the Defendant.) 9 Prior to entering into the contract the Plaintiff had been advised that the Defendant would provide a uniform and identity card which was to be worn at all times. This occurred and, in evidence, the Plaintiff acknowledged that both the items were useful. The Defendant also provided the Plaintiff with a fax machine in order that it could transmit daily information or instructions to the Plaintiff on a daily basis. The Plaintiff was required to have a mobile phone. 10 After, for what I infer was a short time, renting a vehicle from the Defendant, the Plaintiff entered into a hire purchase agreement in respect of an Isuzu truck. It had a safe in it or installed, access to the safe being obtained by unlocking a padlock for which a key was supplied to the Plaintiff, I infer by the Defendant. 11 The vending machines themselves seem to have had the capacity to transmit to the Defendant their stock situation. Presumably on the basis of information so obtained – known as the "Harvest System" - the Defendant would send early each day to the Plaintiff a fax which provided an indication of what machines needed to be restocked in the near future, and of the extent of stock required. The fax might indicate that some machines had to be refilled that day. Sometimes an employee of the Defendant would also ring during the day advising of one or more machines that were required to be replenished urgently. Otherwise, the Plaintiff had a discretion as to which machines he restocked in any day. Commonly the number of machines serviced by the Plaintiff during a day was 20 to 25 although there were in all some 250 machines on what I may call the Plaintiff's run. There were a number of such "runs" looked after by different contractors. Some machines were looked after by employees of the Defendant. 12 Based on the information in a morning's fax and knowledge of what stock he had on his truck, the Plaintiff would make a decision whether to attend the Defendant's premises to re-stock his truck before commencing his run of attending to vending machines. In summer he would usually restock each day. In winter he would restock about every second day. When he attended on the Defendant's premises the safe on the truck was emptied of cash the Plaintiff had collected. It might total something of the order of $7,000. 13 Towards the end of the period he was servicing the vending machines, the Plaintiff had, or had use of, a one tonne van and instead of always taking his truck back to the Defendant's premises he had an employee pick up stock in the van and bring it to the truck. 14 Following an attack on the Plaintiff in August 1995, and at a time when the Plaintiff was still off work, the Defendant installed a different safe – one that could be opened only by the Defendant at its premises and from which the contents could not otherwise be readily removed - in the Plaintiff's vehicle. In evidence in chief the Plaintiff said that he had no prior notice of this. However, it was the subject of a letter of 4 September 1995 which became Exhibit 6 and in which the Defendant informed the Plaintiff, while he was still off work, that the installation had occurred. The somewhat peremptory terms of the letter suggest that there had been no consultation on the topic. 15 The August 1995 attack on the Plaintiff also occurred at the Werrington TAFE though in a different location to that being serviced in 1997. As this earlier occurrence was also relied on in the case some further reference to it and its consequences are appropriate. 16 When the Plaintiff was bending down to get the cash out of a machine he was attacked from behind and rendered unconscious. In the attack the Plaintiff suffered serious injuries to his face, right shoulder, back, left knee, right eye, teeth and head. He was hospitalised for a time and unfit for work for a period he estimated at about 3 months. Claiming that he was employed by the Defendant, he made a Workers' Compensation claim on AMP Workers' Compensation Services (NSW) Pty Limited which was apparently the Defendant's Workers' Compensation insurer. After some investigation, the claim was accepted. 17 Mrs Pareezer also gave an account of the 1995 incident and its aftermath. She rang her husband who, after a period answered the phone with "Help me". Knowing he was at the TAFE, she attended, saw his truck and eventually found him lying on the ground in a pool of blood. She gave evidence that the Plaintiff had a couple of counselling sessions with a Dr Woodford following the incident. She said that after the incident, she hated the place, did not want the Plaintiff going there and he did not want to go there either. I accept this evidence even though Mrs Pareezer conceded that her dislike was not based on any particular attribute of the place other than that it was where her husband had been hurt. 18 One matter upon which counsel for the Plaintiff relied were statements made to the Plaintiff after the 1995 bashing by Mr Ings, then the Manager of the Defendant's TSV unit, to the effect that the attack had been a "one off" or "once off" incident and that it would never happen again. Mrs Pareezer asked what if someone was held up at gun point and Mr Ings said that it would never happen. She believed this assurance. She said that she had not wanted the Plaintiff to go back to work for the Defendant at all. 19 According to 2 witnesses, Messrs Palmer and Bowman, Mr Orr or other representative of the Defendant made similar statements to the drivers generally. Mr Ings' evidence was that after the bashing he visited Mr Pareezer on one occasion in hospital and on one occasion at home. On that latter visit he said to Mr Pareezer that in his experience the bashing that occurred was rare in vending and that it was an isolated incident. Mr Ings agreed he had said that it was a "once off" but denied saying that it would never happen again. Mr Ings said that at the time of this conversation the Plaintiff was considering his future options. 20 The Plaintiff said that after the bashing he had meetings with Messrs Ings, McBurney and Mansfield of the Defendant. At that time he did not want to go back to work for the Defendant because he did not want the same thing to happen again. As a result of those meetings he changed his mind. He was asked whether there was a condition he wanted in order to return. He replied in the affirmative indicating that it was that he could have a different run and was not asked to return to the Werrington TAFE. According to the Plaintiff he was then allocated a different run and one that did not include that institution. Mr Ings put the matter somewhat differently in his evidence but agreed that the arrangement was that the Plaintiff was not to return to Werrington TAFE. 21 In the way the evidence was sought and given, I do not draw any adverse inference from the fact that the Plaintiff made no mention of the "one off" conversation or of reliance on such an assurance that these matters did not occur. However the Plaintiff's silence on these topics must be recognised. 22 In further examination in chief the Plaintiff was asked a series of questions inspired by a memo Mr Ings had written and to which I refer in detail below. The questions were whether at any time Mr Ings had informed him that thefts then being experienced by the vending machine operation were the work of a dedicated or organised gang, that the gang was operating in the same geographical area, that the gang was highly informed about the TSV operation and as to vender placements, that the gang was becoming increasingly more brazen in their attacks, that there were heightened fears by both the company employed and contract TSV fillers about personal security. To all of these questions the plaintiff answered "no". The Plaintiff also said that if he had been given this information, he would not have gone back to work. 23 In about mid 1996, there were discussions between the Plaintiff and Mr Ings about the former taking on a second run and truck. The Plaintiff said that he again stipulated that Werrington TAFE should not be part of the run. That and other matters were agreed. A second truck was leased and Mark Smallwood was employed to do the run. The Defendant provided similar items as had been provided to the Plaintiff in about late 1994 although the truck was painted, or left, white whereas the truck the Plaintiff drove was red. This run also involved about 250 machines. 24 At the time Mr Smallwood commenced, the vending machines at the Werrington TAFE were being looked after by one of the Defendant's employees. However the Defendant then placed it on Mr Smallwood's run. The Plaintiff said in evidence that I am disposed to accept that he protested about this but was told, probably by Mark Pearce who had taken over from Mr Ings, that he was to service the TAFE or would lose the run. 25 It is clear that the Plaintiff and his wife remained concerned about the TAFE. Mr Smallwood was instructed that he was not to go alone and he and another employee who often accompanied him were told by the Plaintiff or his wife that whenever they went to Werrington TAFE they were to let Mrs Pareezer know, she would go to and wait around the area and they were to let her know when they left. Mrs Pareezer said that on the occasions they rang she would drive to and park nearby, the institution being only about 5 to 10 minutes from her home. 26 Mr Smallwood confirmed receiving these instructions. He said that he did not always let her know but confirmed Mrs Pareezer's attendance on at least some occasions. Mr Smallwood said that there were about 5 vending machines which dispensed cans at the TAFE. On average, he went there every 3 or 4 weeks and 90% of the time, he was accompanied by Michael Tobin who was also employed by the Plaintiff or his company. On this topic of the frequency of visits, I prefer the evidence of Mr Smallwood to that of the Plaintiff and his wife. 27 Although the Plaintiff said that after the attack in 1995, he did not return to the TAFE until 17 February 1997, under cross-examination he did not deny the possibility that he might have gone there with another driver. Given the other evidence, this possibility and further evidence to which I shall come, particularly by a Mr Bowman, in no wise causes me to doubt that the Plaintiff was very reluctant to visit or have any of his employees visit the TAFE. Events preceding the Plaintiff going to TAFE on 17/2/1997. 28 On the weekend of 15 and 16 February 1997 Mr Smallwood received an injury playing football. On the night of the 16th he telephoned Mrs Pareezer. She said that he advised her that he would be unable to work the next day due to an injured knee. His statement to the police of 18 February 1997 tends to agree with this account, Mr Smallwood's evidence was to the effect that he then told her of the injury but at that stage did not mention not going to work. He said it was only next morning when he attempted to drive the truck that it became apparent that he could not and it was then he informed her to that effect. Both agree there was a phone call that morning and the difference in these accounts probably does not matter. During the course of the 17 February Mrs Pareezer made efforts of obtain a replacement driver. 29 Of more potential importance is when and how it came about that the Plaintiff came to be at Werrington TAFE on the 17 February. His evidence was that on the afternoon of 17 February he received a phone call from Michelle who worked in the Defendant's office. Other records indicate there was such a person. According to the Plaintiff, she said that someone from Werrington TAFE had rung and complained that the Coca Cola machine there needed to be filled urgently. Despite misgivings which he detailed, the Plaintiff who was going to be nearby in any event agreed to attend to the machine. 30 After becoming aware that he would be going to the TAFE the Plaintiff spoke to his wife about the fact and it would seem made arrangements for her to be there too. She (with their 2 sons) arrived after the Plaintiff, met him at the time he was placing the money in the truck, went with him back to the vending machine and remaining there while he returned to the truck prior to being shot. 31 Mrs Pareezer said that she spoke to the Plaintiff during the day and during the mid-afternoon he told her he was going to the TAFE. After trying to persuade him not to and, according to he being told by her husband that he had to "because Coke was spewing", Mrs Pareezer said she would go there also. The Plaintiff's truck was there when she arrived. 32 In some respects the evidence to which I have just referred is at odds, or at least not supported by, statements Mr Pareezer made to the police on 12 March 1997 and with evidence given by a Mr Bowman. In Mr Pareezer's statement he said, implicitly, that in the morning at or at about the time he was refilling his truck at the Defendant's depot he noticed the TAFE was on his run for the day. Furthermore in that statement he made no mention of a phone call from Michelle. Mrs Pareezer's statement to the police, made on 24 February 1997 is silent on these topics but seems to indicate that the first she knew of the Plaintiff having to attend on TAFE that day was during a phone call during the day. In that statement she made no reference to any phone calls during the day to her husband from the Defendant. 33 Mr Bowman was a vending machine filler employed by the Defendant. He was retrenched in May 1997. He gave evidence that he had seen the Plaintiff on the morning of 17 February 1997 at the Defendant's depot. He was not sure whether Mrs Pareezer was with the Plaintiff. He himself went to the TAFE that day to fill vending machines that dispensed bottles. At the Defendant's depot there was some discussion about the TAFE. The tenor of some of his evidence is that he would have told Mr Pareezer that he was going. 34 Mr Bowman had on 14 October 1998 apparently gave a statement concerning the events of that morning to an investigator, a Mr Gregory. He was cross-examined at some length as to what it was suggested he had said to Mr Gregory but the tenor of many of his answers was that he could not remember. Later, at T610, Mr Elkaim, counsel for the Defendant sought to tender from Mr Gregory's statement, question 17 and the answer to it. There was objection. Asked the purpose of the tender, Mr Elkaim replied that "if it is accepted that I read out fairly the content of the question and answer, then I don't need it". Later remarks of counsel indicate that fairness and accuracy on the part of Mr Elkaim was accepted and there the matter was left. However it is not clear what was encompassed within "question 17" and its answer or whether Mr Elkaim was referring to more. On that page Mr Elkaim also used the expression "his statement". 35 I can accept that the tenor of what occurred at T610 is that portion of Mr Gregory's statement containing some account of what Mr Bowman said to him should be regarded as being in evidence. However, I do not know how much of what was put to Mr Bowman as having been said to Mr Gregory comes into that category. 36 Insofar as the notional tender was directed to Mr Bowman's credibility, that is not a problem for during the course of the cross-examination directed to what he had told Mr Gregory, I noted that he was being evasive. A review of the transcript confirms that impression, strongly. Some difficulty does however arise if it is suggested that what Mr Bowman told Mr Gregory should be regarded as evidence of the truth of the facts. 37 From the tenor of his evidence I would draw the inference that Mr Bowman's inclinations were not adverse to the Plaintiff. In that situation, and in the light of the terms of the Plaintiff's statement to the police, I am disposed to accept that part of Mr Bowman's evidence to which I have referred before I mentioned Mr Gregory. Although the Plaintiff denied that on that morning at the Coca Cola premises he had informed Mr Bowman that he would be going to the TAFE, I think the probability is that he did and that the two did discuss their intended visits. 38 Whether the discussion included a suggestion or agreement that they meet there, I am unable to say. There is no evidence of that except insofar as it is contained in the questions put to Mr Bowman combined with the implications arising from what was said at page 610 of the transcript. But even if the result of this is that it should be inferred that Mr Bowman made statements to Mr Gregory in accordance with all of Mr Elkaim's questions which appear to have been based on Mr Gregory's statement, there is the problem that the source of the statements is a witness who I regard as unreliable. I do not forget that I perceived a particular bias in that unreliability but nevertheless, I am not prepared to positively find that there was an arrangement to meet at the TAFE. A logical inference from what I have found is that there was some discussion going to the possibility of meeting there, but it must be borne in mind that an arrangement to meet at a particular place in the middle of the day was liable to interfere, perhaps substantially, with whatever route was calculated to minimise the Plaintiff's driving and make the most efficient use of the day. Whether there was any such interference it is impossible to determine given the absence of evidence as to what other machines were serviced that day. Given the passage of time, I would not draw inferences against either party from the absence of such evidence. 39 I accept that the Plaintiff had grave reservations about going to the Werrington TAFE but it must also be borne in mind that logic would suggest that there was little chance that on one particular visit he would be attacked. The fact that the machine needed filling meant that persons did use it and were not unlikely to be nearby. Neither the Defendant's employees nor Mr Smallwood had been attacked over some period since August 1995. In these circumstances, it would be hard for anyone, including the Plaintiff, to think or to say that he needed Mr Bowman that day. In these circumstances, I do not regard any possibility that Mr Bowman may, to the knowledge of the Plaintiff, have been available to be met at the TAFE, as bearing on the reasonableness of the Plaintiff's actions or as providing any ground for arguing that the Plaintiff was not very hesitant about going there. 40 It was put to the Plaintiff in cross-examination that he would not have suggested his wife go to the TAFE if he had thought the place was dangerous. His answers, which I am disposed to accept, were that he just didn't want to be there and either didn't give danger any thought or didn't know what he had been thinking. In this connection I may add that I accept that Mrs Pareezer's presence there or nearby, during any visit by the Plaintiff or Mr Smallwood, would provide no practical protection. While they may not have been as analytical, I suspect that presence was really just a comfort but one which both Mr and Mrs Pareezer wished. 41 Before I leave this area of evidence, there are 2 matters to which I should refer. There was some suggestion that Mrs Pareezer had been with the Plaintiff at the depot that morning and had been seen by Mr Bowman there. She denied that she had been there and I accept that evidence. Secondly although, as I have found, Mr Pareezer became aware early in the day that the Werrington TAFE was or was likely to be, on his run for the day, and did not mention in his statement to the police any phone call from Michelle, I accept his evidence that there was one. Although not decisive in this connection, there is no doubt that Mr Pareezer's memory suffered in some respects in consequence of his injuries – see my later remarks about identification of the assailant: A phone call from the Defendant to make certain rather than probable that he would replenish a particular machine that day is not unlikely: Mr Pareezer's account of the call is not something which in its nature I think likely to have arisen unless the call occurred or he deliberately manufactured the evidence and I do not regard Mr Pareezer as a witness who would or did do so. The Shooting itself and the Assailant's Movements 42 I should say something more about the circumstances of and surrounding the shooting itself. The TAFE is on the south-western corner of the Great Western Highway and O'Connell St at Werrington, just west of Penrith. The Plaintiff drove into the institution from O'Connell St along a roadway at least 2 vehicles wide through a gateway marked as Gate 2. The gate was open and unguarded. A photograph, Exhibit 11, which the Plaintiff said depicted the place where his truck was parked on the day he was shot shows that position to be in clear view through gate 2 and, on my estimation, less than 50 metres from it. 43 Further evidence as to the circumstances of the shooting was provided in Exhibit AE. A Mr Burgess said that as he drove south along O'Connell St he saw a man run into the TAFE along the driveway. Mr Burgess then heard 2 shots. As he arrived adjacent to the gate he saw the man push his hand forward and heard 3 shots and then saw a man lying on the ground beside the Coca-Cola truck. He then saw the first man running off. 44 The statement of one, Anousone Sychampanakhone, said that she (or he) was sitting under a tree on the western side of O'Connell Street opposite Gate 2 to the TAFE. She saw the Plaintiff's vehicle just inside the gate, saw the shooting and saw the offender run towards the gate and then down O'Connell Street. 45 There was also evidence from a Detective Sergeant McGee that a large number of witnesses had seen the person who shot the Plaintiff and said that that person was not disguised. 46 In evidence which, subject to one reservation I accept, the Plaintiff said that the person who shot him was not disguised in any way and that, prior to the shooting, he had no knowledge of the offender. My reservation concerns some identification of the offender as an attacker in August 1995, a matter to which I refer below. 47 According to a statement of Detective Senior Constable Adams which became Exhibit V, Adriano Manna was arrested on 19 February 1997. In due course he pleaded guilty to having shot the Plaintiff and it was common ground that he had done so. In an ERISP which came into evidence, Mr Manna said that he thought he was on drugs at the time. Although that may well have been the situation, Mr Manna is not the type of person in whose credibility one can place reliance. 48 Evidence was tendered by the Plaintiff's counsel which was said to support an inference of deliberate robbery by Mr Manna in circumstances indicating that actions or omissions of the Defendant had contributed to the shooting. There is a Caltex 7-11 store on the Great Western Highway to the west of the TAFE. On my scaling from exhibit A it is about 840 metres away. There was evidence that from outside the store one can see vehicles turning from the Great Western Highway into O' Connell Street. A statement of Ms McKnight, someone who worked in the store said that between 1 and 4 pm on the day of the shooting Adriano Manna came into the store, obtained a drink and paid for it. He was said to have looked calm, just like any other day and when he left, to have walked towards the Highway rather than in the direction of the flats where he lived. These were north. The highway was south. 49 The Plaintiff's evidence was to the effect that his route to the TAFE was west along the Pacific Highway, turning right into O'Connell Street. This would have involved him in passing the Caltex Service Station and 7-11 store. 50 The submission on behalf of the Plaintiff was that the distinctive colouring and painting of the Plaintiff's vehicle, required by the Defendant pursuant to the terms of the written contract, made it obvious and that it must also have been obvious to anyone seeing it that the vehicle contained only one person. The Relationship between Plaintiff and Defendant 51 In support of his claim as to the nature of the duty said to be owed by the Defendant and that his injury was due to negligence on the part of the Defendant, there was evidence adduced on the part of the Plaintiff directed to showing, if not that the Plaintiff was an employee, his relationship with the Defendant was not far removed from that. The Defendant's contention was that the Plaintiff was but an employee of a corporate contractor to the Defendant, that corporate contractor being under the control of the Plaintiff and his wife. As I have indicated a deal of evidence was directed to the nature of this relationship. 52 After his 2 week trial period, the Plaintiff started off, as has been said, under an agreement of October 1994, Exhibit L, which described him as "a Contractor". In about early 1995 the Plaintiff was informed by the Defendant, probably in the person of Mr Ings, that the Defendant wanted all of the contractors to become companies. The reasons for this do not matter but would seem to have included workers' compensation issues. The Plaintiff said that he agreed on the condition that the contractual arrangements in the original contract stayed the same. According to the Plaintiff, the Defendant agreed they would but the conditions didn't; the Plaintiff did not sign up; Mr Ings moved on and nothing happened. Certainly, there is no evidence of formal termination of the agreement of October 1994. A revised form of contract proposed by the Defendant became Exhibit M. Although most of the provisions therein are the same as those in the document signed by the parties in October 1994, there are also material differences. Neither it nor any other agreement was ever executed. There is disputed evidence suggesting that the October 1994 agreement had been assigned but it is preferable to defer this until some more objective evidence is mentioned. 53 The Plaintiff did acquire a company, Pareezer Transport Pty Ltd. It was incorporated on 21 April 1995 and Mr and Mrs Pareezer became its directors and Mr Pareezer its secretary on 24 April 1995. 54 A bank account in the name of "The Secretary Pareezer Transport Pty Ltd" seems to have been opened with the State Bank of NSW in about early May 1995. During the period from 15 May to 21 August 1995, payments made by the Defendant were banked into that account. The invoices the subject of these payments had handwritten on them beside the description "Trading Name", the notation "Pareezer Transport". Earlier invoices bore beside the notation, "Craig Pareezer". Both groups bore at the end, above the description "Operator Signature" the signature of Mr Pareezer. 55 As has been said, in August 1995 the Plaintiff was injured and was off work for a period. The invoice dated 20/11/95 for the period 9/11/95 to 10/11/95 took the same form as those for the period from 15 May to 21 August 1995. It was in an amount of $784. On 25 November 1995 an amount of $784 was banked into account 001 588 934 in the name of CD and SJ Pareezer. A deposit on 9 December 1995 also accords with an amount recorded on an invoice of 6 December. However there is no record of this account for the period after 21 December 1995 and prior to 22 November 1996 and the other deposits prior to 21 December 1995 are not readily reconcilable with the amounts on invoices. 56 Invoices covering the period from 14 November 1995 to 6 April 1996 also took the same form as those for the period from 15 May to 21 August 1995 save and except for invoices of 6 and 20 December 1995 which bore as the "Trading Name" the handwritten notation "Pareezer Transport Pty Ltd". 57 On and after 22 May 1996 the invoices were on a printed letterhead "Pareezer Transport". The Plaintiff said, and I accept, that the Defendant gave him this form of invoice. These invoices also, for the first time, omitted the reference "Operator's Signature" and included at the bottom the typed notation "Filler: Craig Pareezer", above which the Plaintiff signed. 58 Another bank account in the name of "Pareezer Transport Pty Ltd" seems to have been opened with the St George Bank in April 1996. During the period from 11 May to 20 July 1996, payments in the amounts of invoices rendered to the Defendant were banked into that account. The same seems to have occurred during the period from 28 November to 6 February 1997. It may be the same occurred during the period between 20 July and 28 November 1996 but the amounts on the invoices are not as readily reconciled with the deposits during that period. 59 According to Mr Pareezer, he was told that the cheques would only be paid to a company and that at some time the Defendant commenced to make out cheques in favour of Pareezer Transport rather than in favour of the Plaintiff. The Plaintiff said that for a period he would not bank these but eventually the necessity to make lease payments led him to doing so. The Plaintiff's resistance did not last long. The amount of an invoice of 24 April 1995, $2,838.10 is the same as a deposit to account 001 588 934 on 29 April or 5 May. The amount of the next invoice, dated 8 May 1995, $2,966.97 accords with a deposit to the State Bank account on 15 May 1995. 60 Mr Ings denied that it was his decision to start paying cheques in the name of Pareezer Transport rather than in the Plaintiff's own name. 61 As I have said an issue which arose in the trial was whether the contract between the Plaintiff and the Defendant had been "assigned" to Pareezer Transport Pty Ltd. Even putting aside any legal requirements for such a transaction the evidence was on the topic was not left in a very satisfactory state. 62 The Plaintiff denied conversation along the lines "Can this contract we've already signed instead of being a contract between me and Coca-Cola now be a contract between Pareezer Transport and Coca-Cola. He maintained that denial in the face of a letter of 30 November 1995 (Exhibit 8) from the Defendant that said, inter alia, that in May he had requested that the Defendant agree to an assignment of his contract to Pareezer Transport Pty Ltd and that (at some time) the Defendant did consent. The Plaintiff did not recall speaking after receipt of the letter to Mr Ings or Mr Buxton. 63 Counsel appearing for Pareezer Transport Pty Ltd (instructed by the Directors) cross-examined Mr Ings on the topic and the latter's evidence included the following:- "Q. The contract that Mr Pareezer made in 1994 was never assigned, was it? A. It was my understanding the contract was assigned. Q. So the highest you can put it is, it was your understanding, is that so? A. No, the contract was assigned. Q. You said "It was my understanding it was assigned", didn't you? A. I did, yes. Q. Your understanding did not exhibit itself in any way with a written assignment document, did it? A. I don't recall there was a written document, no. …….. Q. There was no other person in the organisation of Coca-Cola Amatil (New South Wales) Pty Limited that sought another contract from Mr Craig Pareezer in 1995 other than yourself, was there? A. I was the representative of Coca-Cola Amatil, yes. Q. And you were the vending machine manager? A. I was the TSV -- Q. For New South Wales? A. That's correct, yes. Q. There was no other person within your organisation at that time who sought a contract in writing from Craig Pareezer, is that not so? A. That is my recollection, yes, that's correct. Q. And the only conversations in relation to any other contract that might be brought into existence in 1995 involving Mr Pareezer or Mr Pareezer as director of Pareezer Transport Pty Limited was yourself, is that not so? A. My recollection is the only discussions between CCA and Mr Pareezer were through myself, that's correct. Q. You say that Mr Pareezer was asked to supply invoices in the name of Pareezer Transport; is that correct? A. That is correct, yes. Q. It was not Pareezer Transport Pty Limited, was it? A. I am sorry I do not recall the specifics. 64 Mr Ings' evidence in chief on the topic was that the Plaintiff had said that he wanted to expand his business relationship with the Defendant and Mr Ings had said that he could if the relationship was with his entity as a company. Otherwise, Mr Ings gave no evidence of any conversation in which agreement to any assignment was sought or given, or of any document or documents to that effect. 65 The relationship between the Plaintiff and the Defendant was also the subject of a deal of correspondence. On 9 October 1995, the Plaintiff wrote to the Defendant saying (Ex P);- " Re: Contractual Payments My accountant has seeked independent advice, and advice from the Taxation Department to the effective that I am still trading with Coca-Cola as a sole trader. The contractual arrangement has been signed in my individual name so therefore I am contracting as an individual and not as a company." (sic) 66 On 6 November 1995, a Mr Glossop who seems to have been an accountant for, and adviser to, a number of the vending machine fillers, wrote to the Defendant (Ex AF):- "My taxation clients "McBurney, Pareezer and Palmer have been actings as sole traders, whilst their companies MJ McBurney Transport Pty Ltd, Pareezer Transport Pty Ltd and Exvette Pty Ltd, have been acting as their agents in the collection of money. No transfer of business ever took place for the above clients as stated in your letter (of 2 November). We have written two letters asking for a transfer of contractual arrangements, together with many verbal requests. Coca Cola had not transferred the business from the sole trader to the companies above. We have subsequently withdrawn our offer so (sic) time ago. … We have not received any written communication whereby Coca Cola has consented to a transfer of business from sole trader to a company." 67 On 14 November 1995, Mr Glossop wrote again (Ex AF):- "The prescribed payments system summary supplied to the above taxpayer for the year ending has been made out to the person providing the service, Craig Pareezer and not his agent collecting fortnightly payments, Pareezer Transport Pty Ltd. This is the correct PPS summary for this person. Please make all other PPS summaries out in the name of Craig Pareezer and not his company." 68 A letter from Mr Buxton described as the "CCA (NSW) Pty Ltd Senior Manager) of 15 November 1995 took a contrary stance (Ex AF):- "I was surprised to receive a letter dated 10 November 1995 from Iye Shall Management Pty Ltd in which is claimed that Pareezer Transport Pty Ltd has been acting as an agent for the collection of money for services provided to CCA by Craig Pareezer. On or about May 1995 Craig Pareezer sought CCA's consent to the assignment of the Vending Machine Filling Agreement from Craig Pareezer to Pareezer Transport. That consent was given on behalf of CCA by Richard Ings. Since that time vending machine filling services had been provided by Pareezer Transport… Since May 1995, PPS deductions have been made by CCA on the basis that the fees were being derived by Pareezer Transport." 69 The letter of 10 November referred to was not in evidence although extracts from it are contained in the letter of 30 November 1995 (Ex 8) to Pareezer Transport Pty Ltd also by Mr Buxton. In that letter Mr Buxton says that CCA had no record of 2 letters to which Mr Glossop had referred, repeated his stance that assignment of the contract to Pareezer Transport Pty Ltd had been sought and consented to, and saying also that the business relationship since May had been between CCA and Pareezer Transport Pty Ltd and this was evidenced by invoices, correspondence since May having been with and to Pareezer Transport, and by a "PPS Payee Declaration dated 22 May 1995 authoris(ing) CCA to make varied rate deductions of 20% on behalf of the business trading name of Pareezer Transport Pty Ltd". It is a clear inference from the terms of Mr Buxton's letter – and one I draw - that there had been no simple written consent by the Defendant to the assignment. Mr Ings' evidence was that he was still working for the Defendant in November 1995. 70 Other parts of Mr Buxton's letter refer to the topic of whether the Defendant was liable to provide superannuation under the Superannuation Guarantee (Administration) Act 1992 and provide ground for thinking that this may well have been the, or at least a, cause of the disagreement. 71 No "PPS Payee Declaration dated 22 May 1995" was in evidence. 72 There was also in evidence as Exhibit 5, a letter dated 5 December 1996 from Mr Glossop to the Plaintiff which asserted that the person receiving the income from the Defendant was the individual, and not the company even though the latter owned the truck and other assets and that if the Plaintiff were to injure himself at work, he could make a claim against the Defendant's Workers' Compensation Policy. Another letter possibly bearing on the issue was Exhibit 19, sent by Mr Glossop to the Defendant on or about 11 March 1997. In it Mr Glossop said:- "Mr and Mrs Pareezer have expressed a desire to sell their vehicles currently performing contracts of carriage on behalf of Pareezer Transport Pty Ltd which in turn is contracting to CCA. CCA has expressed an opinion that Pareezer Transport Pty Ltd cannot sell its vehicles to a third party under the proviso that work will be forthcoming from CCA as a result of entering into this transaction. Pareezer Transport Pty Ltd acknowledges that under clause 6.1 of their Agreement with CCA that the contract between Pareezer Transport Pty Ltd and CCA cannot be assigned to a third party without the consent of CCA… Pareezer Transport will at all times continue to perform its current obligations under the contract of carriage that it maintains with CCA. The current shareholders and directors of Pareezer Transport Pty Ltd will be selling their interest in the company to a third party… Pareezer Transport Pty Ltd will therefore continue to perform contacts of carriage for CCA in accordance with its contractual arrangement." 73 When asked whether, in connection with issues that arose in relation to whether or not the Defendant was contracting with her husband personally, Mr Glossop had "represented you", Mrs Pareezer answered in the affirmative. However, taken to the first paragraph of the letter just quoted, Mrs Pareezer said it was wrong although she also said that she had never told Mr Glossop so. 74 Other correspondence from Mr Glossop was in evidence although he was not called. In that situation I should say no more than is necessary but I must record that my impression from his correspondence is that Mr Glossop would say anything which seemed to suit him or the interests of those he represented. 75 I should acknowledge that a deal of the documentation to which I have referred in was allowed in over objection upon the basis that it tended to rebut any suggestion of admission by conduct on this issue of the relationship between the Plaintiff and Defendant. 76 I should also record that in evidence the Plaintiff was concerned to deny or limit the significance to his relationship with the Defendant of Pareezer Transport Pty Ltd. Thus, asked if in May 1995 he stopped trading as Craig Pareezer and switch to trading as Pareezer Transport he said, "only in regard to the cheques". Insofar as this may be thought to be relevant, it should also be borne in mind that the liability to the Plaintiff has been denied by all possible insurers despite, as he must know, arguments that he was or may have been an employee – matters calculated to make him very careful about giving anything away. 77 Other evidence relied on on the question of the relationships between the Plaintiff, Pareezer Transport Pty Ltd and the Defendant included the Plaintiff's Income Tax Returns for the years 1/7/95 to 30/6/96 and 1/7/96 to 30/6/9. These appear to have been signed on, respectively, 9 August 1996 and 26 September 1997. They record the Plaintiff as the owner of a business from which his income was derived. Attached to the 1996 return, is a prescribed payment certificate from the Defendant showing a list of monthly payments and amounts deducted for tax. In the space provided for the name of the payee there is written:- " CRAIG PAREEZER " 78 Written above that space are the words" PAREEZER TRANSPORT" 79 The Prescribed Payment Certificate attached to the 1997 return shows the payee as "Pareezer Transport". No tax return for 1995 was in evidence - both certificates which were bear the tax file number of the Plaintiff. 80 In the face of this evidence I am not disposed to accept the assertion in the letter of 30 November 1995 that there was a "PPS Payee Declaration dated 22 May 1995". Had there been, it is extremely unlikely that the Defendant would have produced or used the ones attached to the Plaintiff's 1996 and 1997 returns in the form they took. 81 There can be no doubt that Pareezer Transport Pty Ltd did conduct some business. At some time it acquired, or perhaps more correctly, leased at least 2 vehicles. In evidence the Plaintiff agreed with a question suggesting this was in about May 1995 but I do not accept that it was so early. Answers to interrogatories suggest that this occurred in 1996, a time which better accords with Mr Smallwood's evidence as to the commencement of his employment, the dates of insurance policies or cover, other evidence from the Plaintiff and his wife as to when the van or other employees were used and other evidence as to when the Plaintiff (or his company) acquired the second run.. 82 In answers to interrogatories, verified by the Plaintiff, Pareezer Transport Pty Ltd acknowledged that it had had employees. Mrs Pareezer gave evidence to similar effect. In his police statement of February 1997 Mr Smallwood asserted he was employed by Pareezer Transport. Mrs Pareezer said that once the company started operating the money went into the company account and she paid everything, including personal expenses from it. In addition to the words referred to in the next paragraph, there are other documents showing the company had employees. 83 The annual accounts and other very extensive financial records of Pareezer Transport Pty Ltd became exhibits. It is clear that not all of the moneys paid by the Defendant were regarded as income of the company, a fact which accords to some extent with the Plaintiff's evidence that out of the moneys he received from the Defendant he paid Pareezer Transport Pty Ltd a management fee. Those accounts also do not show the company as paying any wages. The cash book or spread sheet fulfilling that role does show the payment of some wages but also indicates a great mixing of the personal affairs of the Plaintiff with those of the company. The Plaintiff's own tax returns show substantial expenses – over $100,000 in 1996-1997 so it is not unlikely that the wages paid are reflected in those expenses. 84 That said, I should add that I do not regard Mr Glossop's treatment of the various items in tax returns or the accounts no doubt prepared with taxation liabilities and possibly other factors in mind as of any weight on the issue of the relationship between the Plaintiff and the Defendant. 85 Records and a letter from the GIO show that organisation issued policies to or in the name of Pareezer Transport Pty Ltd as follows:- Workers Compensation Policy No. 266827 for the period 29/5/1996 to 30/6/97; Commercial Motor Policy No SB2115524 for the period 7/5/96 to 30/4/97 covering a 91 Isuzu Pantech; Business Insurance Policy No SB2115525 for the period 7/5/96 to 30/4/97 covering money and goods in transit; Commercial Motor Policy No SB2117107 for the period 15/11/96 to 30/11/97 covering a L300 van; and Business Insurance Policy No SB2117108 for the period 15/11/96 to 30/11/97 covering money, goods in transit and public liability. 86 Those documents show that the GIO issued other policies also:- Workers Compensation Policy No.254484 to "Pareezer" for the period 24/11/1995 to 30/6/1996; Business Insurance Policy No SB2114125 in the name of Craig Pareezer and Pareezer Transport P/L for the period 30/11/96 to 20/11/97 covering money, goods in transit and public liability – Ex 37, 30 Workers' Compensation Claims 87 There were also a series of documents being or relating to Workers' Compensation Claims made by the Plaintiff in connection with the incidents of August 1995 and February 1997. Exhibits N, O and Q, a Workers' Compensation Claim of September 1995 by the Plaintiff on the Defendant's Workers' Compensation insurer and other 1995 documents relating to that claim. Exhibit 7, a letter of 21 March 1997 from the Defendant to the Claims Officer of AMP Workers' Compensation enclosing a claim for workers compensation "incorrectly forwarded to CCA" and asserting that the relevant employer is Pareezer Transport Pty Ltd, the Workers Compensation insurer the GIO and the policy number WC266827. The Employee's Compensation Claim attached was by Mr Pareezer on AMP Workers' Compensation Services (NSW) Limited and asserted that his employer was "Coca Cola". It related to the 1997 incident. Exhibit S, a photocopy of a Workers' Compensation claim by the Plaintiff on GIO dated 21 March 1997 and in connection with the 1997 incident. The "Employer's Report of Injury" apparently attached or forming part of the original document refers to the Plaintiff as an employee of Pareezer Transport Pty Ltd and was signed by Mrs Pareezer. Exhibit 3, a letter from GIO Workers' Compensation accepting liability for a recurrence of injury arising from the incident of 17 February 1997 under claim number TIM01/WN018695, Exhibit 4, an affidavit to which is annexed a list of payments from 17/2/1997 to 24/10/02 made under claim number A2193153, the heading to which list names the injured worker as the Plaintiff and the employer as Pareezer Transport Pty Ltd; Risks, Prior Problems and the Defendant's Knowledge 88 A number of documents were tendered which showed that there had been security problems associated with the vending machine operations. In exhibit AK, it is recorded that when Mr Pareezer attended the Meadowbank Railway station in February 1995, he saw a number of Vietnamese youths taking coins from one of the Defendant's machine. He also reported having his mobile phone stolen from his truck on 9 April 1995 89 A memo from Brian Orr, the Defendant's head of security at its Northmead premises, of 11 May 1995 in Exhibit AF refers to 2 robberies of cash from vending vehicle(s) in April or May 1995 in the Rooty Hill and Penrith areas and 2 further robberies when vehicles were parked outside drivers' homes at night. There was another attempted night-time robbery from Mr Pareezer's vehicle but an alarm on the vehicle activated. Mr Orr indicated that vehicle safes, alarms and locks should be upgraded, vehicles should return to the depot each night and deposit their monies and "Security Co-ordinator to audit all TSV security systems and procedures". Police COPS reports in exhibit AK tend seem to provide further information about 2 of these robberies, said to have occurred from the one truck on 27 and 28 April 1995 90 A later document in that exhibit, dated 7 July 1995 – a date which must be a mistake as the document refers to the assault on the Plaintiff, said:- "A consequence of this action (the assault) will be a request for double manning of TSV trucks by the employees and it is understood that some Contractors and employees are thinking of leaving the job because of the risks involved." 91 In a memo of 7 August 1995 to Messrs Gareth Jones, Gordon Buxton and Peter Davies, respectively the Defendant's General Sales Manager, and sometime Personnel Managers, Mr Ings recorded that "the stakes were however substantially increased" following a recent mugging – obviously that of Mr Pareezer. Mr Ings continued that the main object of the theft was the vender keys and the Defendant was forced to re-think its entire delivery operation system. In another memo dated 10 August (but probably not completed till some days later as there is a reference in it to the Plaintiff being released from hospital on 15 August) Mr Ings observed, inter alia:- "Craig has expressed a desire to return to contracting for CCA though his fragile mental state may render such a return difficult for him. On his return, Craig will be moved directly into a safer route area should my request for the transfer of company employer TSV fillers to canvassing roles be approved. Whilst every effort was made to ensure that all appropriate locks were individually changed, the large number of machines involved made completing such a task difficult given the resources available. As a result 10 venders at Bankstown TAFE were hit Wednesday … . A further 2 venders at the State Aquatic Centre were also hit Wednesday. It is apparent that that thefts experienced by TSV over the past several months are the work of a dedicated and organised gang as all incidents have occurred in the same geographical area. This gang is highly informed about our TSV operations and vender placements and based on recent events increasingly more brazen in their attacks. Whilst substantial improvements have been made in the up-grading of safes and alarms in all Sydney TSV trucks this year, this latest incident has heightened fears by both the company employed and contract TSV fillers about personal security. As an immediate response to these events, the following actions have been instigated." 92 There followed a list to which I refer below. In the memo Mr Ings also discussed the topic of operating 2 people per TSV vehicle, and the effects on cost and productivity. His remarks included the following: "This would clearly be viewed as a last ditch solution given the major financial impact on the business. Contract TSV route area fillers presently have sufficient additional money incorporated into their case rate to fund the employment of a casual youth offsider at their own discretion and still maintain the level of profit anticipated at the commencement of their contract. Any reduction in their existing case rate would threaten this financial position." 93 A further memo of 14 August 1995, addressed to, inter alia, TSV Company and Contract Fillers set out matters apparently decided or given as instructions in the monthly sales meeting of 9 August and contained the observation:- "As outlined by Det. McGee, the assault on Craig was not an event isolated to Coca Cola TSV but a reflection of the changing state of society in general. The measures outlined above will go a long way towards increasing security in the workplace however the fact remains that regardless of whether we are at work or at home changes in society have made being aware an extremely important aspect of modern living." 94 Neither this document or any other apparently given to the fillers referred to a gang or revealed the extent of concerns expressed in the earlier memos. Nor, it would seem from the evidence of Messrs Palmer Bowman and Ings were the fillers otherwise informed of them. 95 The list of "actions instigated" referred to in the memo of 10 August was, in summary:- (i) the removal of some "risk" venders in each driver's area, (ii) the removal of vender-related decaling from TSV trucks and serious consideration being given to the removal (at a cost of $5,000 each for 24 vehicles) of all Coca Cola colours and insignia, (iii) the carriage by TSV fillers of personal security alarms, (iv) the supply of carry bags for the money from machines, directed to making such carriage as inconspicuous as possible. (v) "TSV fillers have been instructed to follow the following guidelines when filling venders: (a) Fill venders during times of the day when people will be around the vender. Large numbers of people promote security. Keep away from quiet periods when you could possibly be alone. (b) Check in with reception or security when visiting the site. Inform them of your activities and how long you will be around. Check out on leaving so people are aware of and expect your movements. (c) Conduct a visual check of the area surrounding the vending machine… (d) Utilise the supplied Coca Cola bag for carrying all cash and keys… (e) Keep Team Leaders constantly updated on the changing security needs of the fillers' area." (vi) 1000 electronic locks for the venders had been ordered for placement in high risk locations (vii) Each TSV filler had the option of parking their truck and storing their keys at Northmead each night. (viii) Other vending operators (e.g. Smiths, Pepsi and Rothmans) had been contacted to obtain an overall view of security. 96 The memo of 14 August recorded that "a range of measures have or are in the process of being implemented to improve field operations security. Those measures include:" There followed a list which for present purposes largely covered the same ground as that in the memo of 10 August. It did however refer to 2 further items, the maintenance of dialogue with the Detective McGee, and that TSV canvassing representatives had been instructed to consider security issues when considering new placements. Also, though referring to the removal of vender related decaling, it made no mention of the possibility of removal of Coca Cola colours and insignia. Nor did the memo of 14 August refer to the possibility of having 2 persons per TSV vehicle. 97 Asked what action was taken in relation to the matters on the list of 10 August, Mr Ings said that some venders were removed, decaling was removed although it seems to have remained optional, personal alarms and carry bags were provided, fillers were given the instructions referred ot in (v), the locks envisaged were tried, found unsuccessful and not ordered, the option referred to in paragraph (vii) was given and other operators were contacted as envisaged in paragraph (viii). Mr Ings said, in evidence not admitted as evidence of the truth of the facts, that the other vending companies he spoke to had no experience of assaults on drivers. He also was not aware, in August 1995, of any driver or contractor, other than Mr Pareezer, being assaulted or bashed. Mr Ings said also that there was a relaxation of the requirement for drivers to wear Coca Cola uniforms. 98 Mr Ings did say that during the meeting in which he told the Plaintiff that the bashing was a one-off incident he filled Mr Pareezer in with the contents, and provided him with a copy of, the memo of 14 August. His evidence was that he recalled discussing with the Plaintiff at that time the matters of the gang being highly informed about the TSV operations and vender placement and was becoming increasingly more brazen in their attacks. Mr Ings also said that he discussed with the Plaintiff the guidelines set out in paragraph (v) of the above list at about the time of the latter's return to work. 99 I have already referred, in paragraph 21 above, to evidence from the Plaintiff to the effect that the gang, its activities, its knowledge and its attitude and the existence of heightened fears were not brought to his attention. On these matters I prefer the evidence of the Plaintiff. It is to some degree supported by the evidence of his wife and perhaps the attitude of the 2 of them to the TAFE. Furthermore, the obvious omission from the memo of 14 August of matters referred to in the memo of 10 August and which may well have had an influence on the fillers adverse to the interests of the Defendant makes it inherently unlikely that Mr Ings would have disclosed them to the Plaintiff. It is to my mind obvious that there was a deliberate decision to omit from the memo which went to the fillers items which had been referred to in the earlier one. Furthermore, the tenor of the earlier one is difficult, if not impossible to reconcile with the Mr Ings' references to a "one-off" event unless – and I doubt this was the intention – that expression was intended to do no more than refer to matters of history. 100 I also accept the Plaintiff's evidence that had he been informed of the matters referred to in the first sentence of the immediately preceding paragraph, he would not have returned to work. 101 Taken to the 14 August memo, Mr Pareezer said that he was not at work at that time, when he returned to work there was not a copy of it in his pigeon hole, and he could not remember seeing it. Neither in cross-examination nor when he returned to the witness box was he asked whether its contents had been discussed with Mr Ings. 102 Other documents in the exhibit indicate that among the steps the Defendant took in relation to security was to hold 2 TSV workshops In June 1994 and August 1995. Of course the Plaintiff was not working with the Defendant at the time of the first of these and was off work at the time of the second. The Plaintiff said that prior to August 1995 he had been present at some meetings between contractors and Messrs Ings and McBurney of the Defendant where security was discussed but never attended courses or seminars with the Defendant on the topic. 103 It appears (from a letter of April 1997, Exhibit AC), that in 1994 some Armed Robbery Procedure was issued by the Defendant and some Personal Safety Guidelines issued in August 1995. A copy of the former is attached to the letter and part of the latter seems to be. I do not need to refer to the Procedure further beyond saying that Mr Pareezer's actions on the occasion he was shot seem to have fully conformed with the Procedure whether or not he ever received it. 104 The Guidelines seems to contain nothing of present significance beyond an emphasis on fillers making the presence of cash and keys as inconspicuous as possible and repetition of the instructions contained in paragraphs (v)(a) and (b) above. 105 In evidence I accept the Plaintiff said he was not in fact given a personal alarm although Mr Smallwood's evidence is that he, Mr Smallwood, was. The alarms would seem to have had problems but the Defendant, according to Mr Bowman did nothing to rectify these. Records of steps taken by the Defendant after the shooting of the Plaintiff also indicate that other of the steps suggested in August 1995 may not have been pursued - It is clear that the Coca Cola colour and insignia were not removed although it seems that Mr Smallwood's vehicle was allowed to remain white. 106 A number of other documents followed over the ensuing year of so, showing the Defendant remained concerned. However almost wholly the documents tendered seem to have been directed to attacks on or the security or integrity of the vending machines themselves, particularly in Sydney and South Australia. Although the documents do not indicate the numbers of machines subject to attack, the impression created by the documents is that the Defendant found the number of such attacks a significant problem. 107 A memorandum from Mr Orr of 21 November 1996 in exhibit AF is of more significance. It records that vending machine keys had been stolen from a service technician's van at Blaxland and another service technician had apparently been recalled to a site by a hoax call. The memo continues:- "As you are will aware there is a gang of youths in the Penrith area concentrating on the theft of coins from CCA (NSW) owned vending machines using keys stolen from drivers and service technicians over the past three years. We have had two TSV drivers bashed and keys stolen, two incidents of large sums of money stolen from TSV delivery vehicles, numerous vending machines broken into using keys and two service technicians' keys stolen, one technician assaulted, all in the Penrith area. As you can see these people shall stop at nothing …" 108 There was no other evidence of a driver, other than Mr Pareezer, being bashed. 109 Following the shooting of the Plaintiff, a number of changes to the method of operation were discussed between the Defendant and other contractors and within the Defendant's operation itself. A full scale security audit by an outside consultant was decided upon. Among other matters decided, according to an internal memo from Mark Daniel of 18 February 1997, were the suspension of the requirement for the wearing of uniforms and a change of the colour of vehicles from red to white as soon as practical at the Defendant's expense, and the flexible use of magnetised rather than fixed decals. In the memo attention was also given to manning levels although the terms in which this topic was dealt with are such that it is not easy to draw any presently relevant conclusions from what was said. Minutes of a meeting on the following day also referred to these issues. It appears that almost immediately all drink vending machines were removed from Werrington TAFE. For a time security personnel were available to meet fillers when called for. 110 In or about March 1997 a Vending Operations, Security and Safety Audit was carried out by Business Risks International Pty Limited apparently on the instructions of the Defendant. I have not found in the report of that audit anything which is of material assistance in the resolution of the issues which, in light of the circumstances of the attack on the Plaintiff, seem to me important and not either obvious or the subject of other evidence. The report does suggest that the provision of 2 persons on each vehicle would be uneconomic but, having regard to the lack of primary material or evidence as to qualifications of the author of the report to express such views I do not intend to take them into account. The "Gang" and Mr Adriano Manna 111 Part of the case sought to be made on behalf of the Plaintiff was that Mr Adriano Manna was part of, or had some association with, the gang referred to in Mr Orr's memo. It was submitted that there was a reasonable inference that Mr Adriano Manna knew of the successful robbery of the Plaintiff in 1995. 112 Detective Sergeant McGee had been in charge of the investigation into Mr Pareezer's bashing in 1995 and had assisted in the investigation of the shooting in 1997. He said that during the course of his 1995 investigations he became aware that on or about 25 April 1995, an alarm on a Coke machine at Wee Waa hospital had gone off. In consequence, a number of persons in a car were pulled over and found in the car was some $498 in coins and a set of keys. The persons involved included a Neil Hulinshnow and Benito Manna, Mr Adriano Manna's brother. 113 Detective McGee also gave evidence that the Coca Cola machine at Bankstown TAFE was opened and emptied. One may infer that he was referring to the occasion also referred to in Mr Ings' memo and which was one day after the first attack on the Plaintiff. Investigation revealed 4 persons as persons of interest. The fingerprint of one person was obtained from the TAFE and it was of Neil Hulinshnow who was charged with stealing. Detective McGee said that the Defendant's records were not sufficient to unable the key used at Bankstown to be linked with one of those stolen from the Plaintiff. 114 Other matters about which Detective McGee gave evidence were of ascertaining a meeting place of Mr Hulinshnow and Messrs Adriano and Benito Manna and to the effect that Messrs Adriano and Benito Manna both lived at the same two addresses between August 1995 and February 1997. Both addresses are fairly close to the Werrington TAFE. 115 Benito Manna's antecedent report, exhibit AJ, contained 3 entries, goods in custody, possession of a prohibited drug and possession of housebreaking implements in respect of which, in April 1995 in the Wee Waa Local Court, he was charged and in due course convicted, and one charge of stealing in October 1996. 116 Evidence was given of Mr Adriano Manna's criminal record. It included offences of robbery with arms and wounding, burglary and numerous other offences of dishonesty, assault, and escaping from lawful custody. He was found in possession of a shortened firearm in or about May 1996. I allowed into evidence also a COPS report, exhibit AK, taking the view that, at least in relation to some of its contents, it was admissible under s82 of the Supreme Court Act. That admissibility extends so far as to suggest that Mr Manna was unusually and perhaps irrationally aggressive. 117 I should add that much of the other evidence to which I have referred was in this section of my reasons also admitted pursuant to s82 of the Supreme Court Act. 118 In this section should be mentioned also that while he was in hospital after the shooting the Plaintiff, then unable to speak, wrote notes to his wife. What were referred to as 2 notes were admitted. They are in terms (as best as I can decipher some of the words):- "I am going to sell the truck and when I better have year off we can go fishing. The police are coming back next week. I'll talked to Cifford about the man being the same man." And, "One this time. 6 Before. he was one of the six. Cifford said he will be jail for 12 years. He will go 20 but get out 12." 119 The Plaintiff's evidence as to the 1995 attack was to the effect that he was struck from behind and did not see who attacked him. Detective McGee gave evidence tending to corroborate that account. Thus the suggestion in these notes that Mr Adriano Manna was involved in the 1995 attack is contrary to the Plaintiff's conscious recollection of that event. Expert Evidence - Liability 120 There were tendered on behalf of the Plaintiff, 2 reports by a Mr Rowe, a Security Industry Consultant. Mr Rowe made what he referred to as "a long list of suggestions to enhance the security of delivery drivers" and said that in his opinion "if all of the suggested actions had been instigated, training implemented and monitoring of the implementation by say the Security Manager, the chances of the shooting robbery occurring would have been substantially reduced". 121 After seeing, inter alia, the memo of 10 August from Mr Ings, Mr Rowe in a second report placed particular emphasis on a lesser number of matters. He opined that decals should have been removed and trucks without Coca Cola logos or other marking used in the Penrith area. He said that the Defendant should have advised drivers to have a second person in the vehicle and that the chances of the plaintiff being targeted would have been substantially reduced if such a person, his wife, son or casual off-sider had been in the vehicle. 122 Later in that report he said that the Defendant should have provided for two persons in each vehicle in the Penrith area or alternatively had security guards meeting all drivers at the TAFE. Mr Rowe also referred to the statements in Mr Ings' memorandum to TSV fillers having been instructed to fill venders at times when people would be present, to check with reception or security when visiting a site, to conduct visual check of surrounds, increase awareness and carry a bag with the money inside, saying that "Had these measures been undertaken. I believe the chances of the shooting robbery would have been substantially reduced". 123 In cross-examination Mr Rowe agreed that to a substantial extent Mr Manna had been acting irrationally. However he maintained his view that the presence of the Mrs Pareezer (or some other off-sider) may well have acted as a deterrent in the early stages of the incident. He rejected the proposition that what happened on the day of the shooting was totally unpreventable by any reasonable security measure. He did not agree that the only conclusion was that the actions of Mr Manna were those of a completely unpredictable man. 124 Mr Rowe also said that, given the prior assault on Mr Pareezer, he would have expected him to have a belief that there was a need for something to be done by way of security for his own drivers. He also said that the existence of security alarms, had it been known, may have contributed to reducing the chance of robbery. 125 The Defendant tendered a lengthy discursive report by another Security Consultant, a Mr Jennings. The more relevant of Mr Jenning's conclusions were the following:- "81. This was a tragic crime with undoubtedly very serious consequences, particularly for the first Plaintiff, however it is my opinion that this Defendant, even with the best advice available, could not have reasonably predicted a crime of this type and certainly not the outcome. 82. A crime of this type could not have been predicted using any of the accepted analytical processes used in 1997 (and now), which may have been used to analyse the risks and reasonably determine practical preventative schemes of management. 84. This crime was a complete aberration… and not within the predictable behaviour patterns of the many hundreds of robbers that I have known over my 40 years in the security field. 86. In conclusion, based upon the evidence before me at this time, I do not agree with the allegations that this Defendant has failed to provide this first Plaintiff with a safe means of carrying out his machine servicing duties. All of their practices appear to me to be in accordance with accepted commercial practice in security risk management and crime preventative tents (sic) relative to security and safety of the Plaintiffs as existed in 1997." 126 Earlier, Mr Jennings had said that: "If there were serious concerns with the Plaintiffs about the risks of carrying out the Werrington TAFE call, then the most sensible and cost free solutions would be to have consulted the police and sought their advice on the safer methodology, and/or discuss the problem with the administration and security management of the TAFE college/university and requested that one or their staff be permitted to wait in the area of the service call. I would think that such a security presence would be willingly given as it would have the secondary benefit of lessening the chance of a violent crime involving college staff, students or others as well damage to college property and assets." 127 Mr Jennings drew attention to the fact that there were "other security risk sites on the campus" which had a cash flow, including a bookshop and coffee shop, a staff canteen, a restaurant and bookshop and that within 4 kilometres of the TAFE there were 8 significant shopping malls or centres, clubs and bars, credit unions and banks. He discussed criminal behaviour patterns and said that there were problems in regarding Mr Manna as an opportunistic thief, particularly given the other cash carrying businesses in the locality. He pointed out that the weight of some hundreds of dollars of coins would hamper a criminal getaway, particularly on foot. After referring to Mr Mann's criminal history, he said that "all of this data seems to indicate that Mr Manna was a highly unstable and vicious criminal" and, "It is my experience that attempting to predict the actions and re-actions of such an individual is almost impossible and is not the sort of risk reason that could have been reasonably predicted by the Defendant or Plaintiffs in this matter and remediation planned. I believe it would not be unreasonable to assume that Mr Manner was on the college grounds looking for an opportunity to steel and raise cash for a drug purchase (or possibly to make such a drug deal on site) on the day in question and decided on the spur of the moment to steal the takings from this Plaintiff. When the theft was frustrated by the Plaintiff's inability to give him the money, he passed into some state of no reasoning and shot the Plaintiff." 128 Mr Jennings also commented on most of paragraphs (a) to (l) of the Plaintiff's particulars of negligence concluding, in respect to those on which he felt able to comment, no fault on the part of the Defendant or that any failure did not contribute to the attack on the Plaintiff. 129 In cross-examination, Mr Jennings was taken to the circumstances of the 1995 assault, asked to assume that the Defendant had formed the view that there was a gang targeting Coca Cola machines, that the gang had a knowledge of Coca Cola activities, that the gang's activity was located in the western area of Sydney and had a specific target being keys and asked what actions would be relevant for the Defendant to take to protect the people attending the machines against that specific threat. Mr Jennings replied that, bearing in mind the necessity for the filler of the machine to have keys for the vehicle and machine, he did not believe there were any physical measures that could be taken unless one had security guards or the like following the filler around. Mr Jennings opined that a second person in the truck would have very little deterrent effect. Asked to assume that Mr Manner had seen the Plaintiff's truck on the Great Western Highway and seen only one person in it, Mr Jennings said that the presence of a second person would not have been sufficient to put off Mr Manna given the latter's willingness to use a firearm. Later Mr Jennings seemed to say the presence of a second person would have had "a very small deterrent" effect. 130 Mr Jennings agreed that a dedicated collection service, two men in an appropriate vehicle, perhaps armed would be a much safer method of collecting the money. He agreed also that the Defendant's knowledge of there being dedicated an organised gang acting in the western Sydney area, highly informed about the TSV operation and vendor placements and becoming increasingly more brazen in their attacks was information which should have been shared with the fillers at least if it affected them because they would then be in a state of heightened alert. He opined that the practice of a Coke truck being met by Werrington TAFE security staff would have been a very significant deterrent. 131 It is fair to say that I found a number of propositions advanced by Mr Jennings unconvincing and contrary to common experience - at least of persons practising in the criminal courts - of the number of robberies from service stations and corner stores and the like involving small amounts of money. 132 On behalf of the Defendant there was also tendered a report of Dr Milton, a psychiatrist, containing, inter alia, a diagnosis of Mr Manna. In evidence also was a large bundle of documents upon which Dr Milton had relied in arriving at the opinions expressed in his report. At the time of admission of these documents I indicated limitations as to their use which it is unnecessary to repeat. Despite these limitations, I am satisfied that the opinions to which I refer below are properly to be taken into account by me. 133 In arriving at that conclusion, I have hesitated to rely on evidence in Exhibit 29 which is dependent on the accuracy of anything Mr Manna said. There are, for example inconsistencies between what he has said and his father has said. Dr Milton's own assessment and those of other psychiatrists and psychologists provide grounds for doubting Mr Mann's reliability and I am not persuaded that some of Mr Mann's statements to the various health authorities were not by way of manipulation to serve what he perceived to be his then interests or desires. One thing which does stand out is Mr Manna's father's evidence given to Judge Nield and a number of the instances of feelings, if limited conduct, in goal consistent with some of the matters about which Mr Manna senior spoke. I am satisfied from Mr Manna senior's evidence that Mr Manna has had from youth a history of unreasonable and irrational violence, difficulty, if not incapacity, in dealing appropriately with anger and other emotions, that he attempted suicide on at least one occasion and threatened to do so on at least one other. He also has taken a variety of drugs. 134 I have also been conscious of the fact that, despite the terms of s69 of the Evidence Act, there are many statements in the hundreds of pages relied on by Dr Milton which, on account of form or otherwise, I would not regard as admissible. 135 Dr Milton's opinions and summaries of the material made available properly to be taken into account by me include the following:- (i) That there are persons who have mental illnesses or who show extreme criminal aggression with no regard for human life. Such persons are unpredictable and irrational in their behaviour. They may be prepared to take extreme risks for negligible financial gain and when ostensibly carrying out an armed robbery may be driven by factors other than a wish to obtain money. (ii) Mr Manna falls within the category of such persons. (iii) Mr Manna showed aggressive disturbed behaviour as a child and used steroid drugs which are likely to increase aggression. (iv) Mr Manna was on a number of occasions abusive to nursing and medical staff. (v) There was no definite evidence of him having a mental illness but he does have a severe personality disorder and may be paranoid. (vi) The material which Dr Milton saw indicated that the shooting could have involved such motives as dominating another person and obtaining satisfaction from committing wanton homicidal violence. (vii) Mr Manna's state of mind in the period leading up to the shooting was probably such that he sought to engage in some form of criminal activity in which he proved to himself that he was a force to be reckoned with, a man of consequences that others would fear or admire. (viii) Mr Manna is a restless, hostile, aggressive, suspicious, violent man untroubled by pangs of conscious or concern for others. (ix) Robbery appears to have been of relatively minor importance in motivating the crime. (x) The material in the file establishes that Mr Manna has an anti-social personality. He showed impulsiveness, irrational violence, drug use, suicide attempts, frequent criminal behaviour, unfounded suspicion and inability to learn from experience. He had no remorse for his victim. Such individuals habitually act in violent ways and cause harm to others. 136 Under cross-examination and on assumptions put to him, Dr Milton retreated from the ninth of these propositions. Findings – Mr Manna and the Shooting 137 It is clear from what he said to the Plaintiff that Mr Adriano Manna was aware of the fact that persons such as the Plaintiff driving the truck he was and servicing the Defendant's vending machines had access to the cash received by those machines and keys to them. Although the evidence does not permit of the inference that Mr Adriano Manna was himself a member of any gang, the evidence of the association(s) between himself, his brother and Neil Hulinshnow and common experience would lead to the conclusion that he was aware of the circumstances of the Wee Waa incident and that keys to the machines were potentially useful as enabling illegal access to the funds in a vending machine. I would infer also from the extent of association between the 3 persons mentioned that Mr Adriano Manna was aware of Mr Neil Hulinshnow being charged with theft from the Defendant's machines at the Bankstown TAFE. 138 From the timing of that event and the robbery of the machines at the Bankstown TAFE, I would infer that Neil Hulinshnow was involved in the bashing of the Plaintiff. Were it important to do so – and I think it is not – I would also infer that Mr Adriano Manna knew of that involvement and of the bashing. 139 Arguing in a similar direction are the note(s) the Plaintiff wrote in hospital. Although I regard my conclusion doubtful, having reflected on them and the other evidence concerning the Plaintiff's recognition, I am not disposed to infer that the Plaintiff did recognise Mr Manna as one of his previous attackers as distinct from querying, on his own account or under prompting from "Cifford", that that was the situation. 140 Although the evidence is not all one way, it seems to me clear that the most probable motive for Mr Manna's approach to the Plaintiff was robbery. After all, money and keys were the subject of 3 demands on the Plaintiff. The evidence as to Mr Manna's manner of approach to the Plaintiff and the TAFE, although sparse, makes it probable also that he saw the Plaintiff's vehicle some time earlier. This may well have been while he was in the vicinity of the 7-11 store or while Mr Manna was near the Highway. The directness of his approach to the vehicle seems to indicate that he had it in mind prior to entering the TAFE. The Plaintiff had by that time been at the TAFE for some little while. It is probable that the fact that the Plaintiff's truck was painted as it was, rather than being a somewhat nondescript or anonymous vehicle, contributed to recognition of it by Mr Manna. 141 Although I do not put robbery itself in this category, there can be no doubt that there was a deal of irrationality in Mr Manna's conduct at about the time he shot the Plaintiff. Whether or not he intended from the outset to shoot the Plaintiff, Mr Manna's failure to disguise himself in any way or, apparently, to take any steps in that regard prior to at least trying rob the Plaintiff was irrational. To anyone who had traversed O'Connell St and entered gate 2, it must have been obvious that there were many other people around and who were liable to notice someone running and to become aware quickly of any robbery or shooting. The relative proximity of these people to the Plaintiff's vehicle must have been obvious from the area adjacent to gate 2. To contemplate escaping in that situation while laden down with some hundreds of dollars of coins also has something of the illogical about it. 142 It may be that the first shot was not irrational, and it was an instinctive response to a mistaken – possibly unreasonably mistaken - view that in moving his hand towards or into his pocket, the Plaintiff was going to resist in some way. Notwithstanding that I accept that compliance with the demand for the keys and not resistance was what the Plaintiff had in mind, his manner or speed of movement may well, to someone possibly drug affected and in a highly charged state, have appeared differently. However, there was no rationality to the second and subsequent shots after the Plaintiff had fallen from the truck. Such shots could not reasonably have been regarded as necessary to handicap the Plaintiff or, at that time, to further the robbery. 143 In this connection I should refer to a submission made on behalf of the Plaintiff to the effect that Mr Manna probably detected recognition of him by the Plaintiff and (on that account) decided to kill the Plaintiff. I regard this as sheer speculation and do not accept the submission. 144 It is also sheer speculation whether, when Mr Manna saw the vehicle, he observed that there was only one person in it. That would depend, for example, on where he was relative to the vehicle when he was observing it. Thus had Mr Manna been facing the same way as the vehicle was travelling, he may well have been unable to see into the cab by the time his attention was directed to the vehicle. On the other hand, the general method of operation of fillers seems to have been to operate alone. In these circumstances, and given what I infer to have been some interest in or knowledge of their operations by Mr Manna, I would infer he would have been aware of that. 145 There was evidence that Mr Benito Manna was a student at the Werrington TAFE. It was submitted on behalf of the Plaintiff that if arrangements had existed whereby TAFE security staff met the Plaintiff (or perhaps all fillers on visits to the TAFE) it is likely that those arrangements would have been known to Mr Adriano Manna, hardened the target and dissuaded him from the robbery. Again, I regard this as speculation and not an inference to be drawn. 146 Lest there be any doubt about the matter, I should say that in drawing the conclusions or inferences I have, I have proceeded on the basis of the balance of probabilities and a consciousness that the scales have to be tilted only ever so slightly. 147 It will be apparent from what I have said that I have not accepted many of the conclusions expressed by the 2 security consultants and Dr Milton. I confess that I found nearly all of the evidence of the security consultants as unhelpful as either unpersuasive, wrong or obvious. As between them, I regarded Mr Rowe as appreciably the more impressive witness although in saying that I do not intend to reflect in any way on Mr Jenning's honesty. I accept Dr Milton's general diagnosis of Mr Manna and of persons of his type and the conclusions set out in the numbered sub-paragraphs I have set out above when referring to Dr Milton's evidence but I am not persuaded of the accuracy of the doctor's conclusions as to Mr Manna's state of mind or actions at the time of the attack on the Plaintiff or shortly prior thereto. Findings - The Relationship between the Plaintiff, the Defendant and Pareezer Transport Pty Ltd. 148 That the relationship between the Plaintiff and the Defendant was not that of employer and employee or analogous thereto is established by the terms of the Contract originally entered into between them. I do not need to analyse the terms of that document. It is clear that, at least under the general law, it established the Plaintiff's position as an independent contractor. The relationship never became closer. (I deal with below the question of whether under the Workers' Compensation Act the Plaintiff was a "deemed" worker or employee.) 149 In arriving at the conclusion that the Plaintiff was not an employee, I do not ignore the decision of the High Court in Hollis v Vabu Pty Ltd [2001] 207 CLR 21. However the investment by the Plaintiff in his vehicle, his right to employ others and the discretion he had as to when he serviced machines, even though not unlimited, distinguishes this case from that one. 150 Whether that relationship of contractor ceased, whether Pareezer Transport Pty Ltd took over that role and whether the Plaintiff became nothing more than an employee, servant or officer of Pareezer Transport Pty Ltd are more difficult questions. Ultimately I have arrived at the view that the answer to these three questions is "no". 151 The principal factors which lead me to this view are as follows. Firstly, although the Defendant could easily have put an end to the Plaintiff's original contract, simply by giving notice under clause 13.3 thereof, the Defendant adduced no evidence that it had and consequently it seems clear that the Defendant did not. Furthermore, if there had been any express agreement by the Defendant to the assignment (or novation) of that contract, again I would have expected evidence to that effect to have been given. It was not. I do not ignore Mr Ings's evidence that "the contract was assigned" but when regard is had to his earlier reference to his "understanding" in that regard and to the fact that he gave no direct evidence of the assignment or that he – being apparently the person who, if anyone, would have done so - had expressed approval or consent to the assignment, I do not find his assertion as to what had occurred persuasive. I would have expected appreciably more positive evidence. 152 I am left with the impression that while the Defendant wished to have the fillers operating by medium of private companies, the Defendant did not push the issue. It was content, for example, if it could make its cheques and other documents out that way, leaving the future to take care of itself. The Defendant's continued use of Mr Pareezer's tax file number in the PPS forms is eloquent in this regard. 153 So far in this connection I have not referred to the Plaintiff's evidence and in particular that Mr Ings "moved on and then nothing happens". I accept the substance of this evidence insofar as it indicates that Mr Ings did not express any consent or agreement to the assignment or novation of the Plaintiff's 1994 contract. 154 The Plaintiff felt he had no option but to go along with what the Defendant required, at least so far as invoices and payments were concerned. Furthermore, given the termination provisions in the contact between them, he was not in a position to insist too openly or firmly on any other course. 155 I do not ignore the correspondence. I think the statements by Mr Buxton in November 1995 are entitled to some weight but that is overshadowed by what I regard as the silence of Mr Ings. I am not disposed to place any weight on the other assertions contained in the correspondence although I regard as significant the absence in the Defendant's correspondence of any detail of the suggested consent. 156 Nor do I place weight on the way monies were dealt with in the books of Pareezer Transport Pty Ltd or in Mr Pareezer's tax returns. Those matters reflect what Mr Glossop saw as in the interests of his clients (and possibly what Mr and Mrs Pareezer, who I have no doubt were content to accept advice) thought also. However, it is clear from Mr Pareezer's evidence that he was, and regarded himself as a vending machine filler and not an accountant or the like. Equally, for reasons indicated in the following paragraph, I do not regard the fact that the Plaintiff sought and obtained Worker's Compensation payments from the Workers Compensation insurer of Pareezer Transport Pty Ltd as significant. 157 Nor do I regard the letter from Mr Glossop of 11 March 1997 as an admission entitled to any weight. I have already stated my impression of him. Furthermore, by March 1997 I have no doubt the Plaintiff and Mr Glossop were willing to do almost anything to make the best of a bad, indeed very bad, situation. The Plaintiff's earning capacity was gone. Trucks were under lease. The Plaintiff's wife had allowed an insurance policy to lapse and whether he was covered by any Worker's Compensation or in any other way for the injury he had suffered was doubtful. The Plaintiff had also sought Workers Compensation from the Defendant's insurer and was told he was not covered there – see Exhibit 7. 158 I accept the Defendant's submission that "a novation of a contract can be implied or inferred by conduct. In Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 437 the court held that when searching for an intention that there be a novation of contract, a pedantic approach is not warranted, particularly in commercial arrangements. A novation may be inferred from evidence in formal (and I would add informal) conversations and subsequent systems or patterns of conduct between the parties". 159 However, as the submissions also concede, for a novation to occur there must be an intention that the obligations of the original contract be extinguished". I am not satisfied that this was ever the intention of the Plaintiff or of Pareezer Transport Pty Ltd, except on conditions which were not met. IN saying so, I acknowledge that the fact that invoices ceased to be rendered in the name of the Plaintiff and commenced to be rendered in the name of Pareezer Transport argues in the direction of an intention to change the situation but, in light of all of the evidence it does not persuade me. 160 I also take the view that, whether the contractor with the Defendant was the Plaintiff or Pareezer Transport Pty Ltd, the Plaintiff was not an employee of Pareezer Transport Pty Ltd. He was a director although that I regard that fact as, or at least almost, irrelevant to the issue. I base my conclusion on the fact that I see no persuasive evidence that he ever intended to work for the company or that it ever intended to employ him. 161 Before I leave this section of my reasons, I should express my views of the principal witnesses. I regard the Plaintiff and his wife as basically honest, and this notwithstanding what I see as falsity in their attempts to obtain and obtaining Worker's Compensation in respect of the shooting and the fact that I have not always preferred the evidence of the Plaintiff where there has been conflict with other witnesses, e.g Mr Smallwood. Although more relevant later, I add that I am satisfied that the Plaintiff did not exaggerate his symptoms. 162 Although it does not qualify what I have just said it is appropriate to record that I had the impression, when Mrs Pareezer was recalled to the witness box, that she was resentful of being questioned at that time. 163 Mr Smallwood also struck me as doing his best to tell the truth. So did Mr Ings although where he is in conflict with the Plaintiff, I prefer the latter. I have commented above on Mr Bowman. Mr Palmer also gave me the impression of being partisan towards the Plaintiff at times 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. The Second and Third Plaintiffs 194 The Second Plaintiff is Mrs Pareezer and the Third Plaintiff is Scott Pareezer, one of the children of Mr and Mrs Pareezer. Mrs Pareezer and Scott claim against the Defendant for nervous shock. 195 Scott was born on 22 May 1989. On 17 February 1997 he had gone with his mother and younger brother to the Werrington TAFE. When they arrived he saw Mr Pareezer's truck. Mr Pareezer was not in the vicinity of it. The three found him in a building filling a vending machine. Mr Pareezer needed another case, asked the three to stay with the machine and, it may be inferred, departed. After a short time Scott asked his mother if he could go with his father. She agreed and Scott ran outside in time to see his father fall to the ground. Scott ran back to his mother who then went outside herself. 196 Mrs Pareezer gave evidence to like effect. She added that when Scott returned to her he was screaming and looked terrified. When she went outside, she saw her husband lying in a pool of blood, not moving. She did not know whether he was alive or dead. Others were around. Mrs Pareezer returned to her children, then left them with 2 adults and returned to her husband. The paramedics tried to prevent her getting close but she must have for she was covered in blood. She went in the ambulance with her husband to the hospital. She would seem to have fainted there at some stage when told of her husband's injuries. She was told that the doctor did not know if Mr Pareezer would survive. 197 On the next day she saw Mr Pareezer in intensive care. He looked horrible and Mrs Pareezer ran out of the hospital crying. She fell to the ground screaming. Her sister comforted her and she returned. 198 It is unnecessary at this stage for me to detail the impact of events on Mrs Pareezer and Scott. It is sufficient to say that I am satisfied that the ingredients of the cause of action relied on have been made out. Indeed, subject to Mr Pareezer succeeding, the Defendant did not contend the contrary. Impact on the Plaintiff. 199 There was relatively little dispute in this area of the case except on the topics of economic loss and care. Indeed, Mr Elkaim said that there was no dispute about the Plaintiff's medical condition. To a very large degree, and by agreement, much of the evidence concerning the impact on the Plaintiff's person of the shooting was given by doctors or in medical and quasi-medical reports. The Plaintiff had seen at least some 11 doctors and other experts on behalf of the Defendant. None gave evidence and a report from only one was tendered. 200 As has been said the Plaintiff was shot 5 times. One bullet went into the Plaintiff's left leg. It was in due course removed and, so far as the evidence goes, seems to have caused no residual disability other than pain. Asked to rate the pain on a scale of zero to 5, the Plaintiff said that it varied between 2 and 4. 201 A second bullet passed though the palm of the Plaintiff's right hand. The hand is pain free at times but at other times the pain can reach a level of 4. The Plaintiff said that opening jars sends pain up his forearm. Professor Jones noticed a 40% reduction in power. 202 A third bullet entered the left forearm and exited beside the bicep. From this wound the Plaintiff suffers pain from time to time. His main problem however is that he has no feeling from his wrists to just past his elbow. 203 A fourth bullet entered the Plaintiff's chest, went through a lung and exited or was removed from near his hip. The plaintiff is never really pain free in the area of the exit wound. He said that this pain can go to 5. He also suffers discomfort when walking for periods. 204 By far the worst of the Plaintiff's wounds resulted from a bullet which entered his neck, entered his mouth and very substantially damaged his Jaw, teeth and tongue, a large portion of the latter being lost. Except at a great length to which, having regard to the absence of dispute it is unnecessary to go, it is not possible to adequately describe this damage or the very extensive reconstructive work which has been done in all of these areas. At least in part because the Plaintiff has not been able to afford it, a deal of work remains to be done particularly so far as his teeth are concerned. To some extent this is likely ot be ongoing throughout the Plaintiff's life. 205 This is also the worst injury for pain. Dr Blackler expects this to be ongoing. The plaintiff said that this is 3 to 5 all the time. The damage has also meant that the Plaintiff has had to undergo a great deal of retraining so far as speaking is concerned. His speech is still affected. He seems to talk with a lisp and tends at times to descend into speech which was both soft and lacking clarity in enunciation. Dr Coren described the Plaintiff's speech impediment as mild. I would have placed it a little higher. His speech intelligibility tends to deteriorate during the day. He is regarded by a speech pathologist as unfit for work requiring significant amount of verbal communication – an assessment with which, having heard the Plaintiff, I agree. 206 Dealing with food will continue to have problems. The plaintiff has difficulty in moving them in his mouth. He has only limited saliva so experiences difficulty with hard or dry foods. He had to keep sipping water, often during the night. He has reduced taste and sensations including in his bottom lip. As has happened a couple of times he can burn his mouth without realising. He suffers from occasional laryngeal penetration of thin fluids with strong reflexive coughing 207 Because of lack of sensation, particularly in the lower lip area, he can't kiss. To minimise the risk of infection he has to clean his mouth 8 to 10 times a day. 208 The effect of the injuries has also been felt in other areas. The Plaintiff suffers pain at a level of between 3 and 5 in his cervical spine which radiates to his shoulders. He has pain also in lumbar spine. Ms Andrew, a physiotherapist observed that the Plaintiff had poor posture and observed that the jaw damage placed strain on his cervical spine and contributed to migraines. She observed that with treatment these had reduced. 209 For his neck pain and restriction in movement in his neck and jaw, the Plaintiff has had treatment on numerous occasions from a chiropractor. 210 The Plaintiff has also had a severe reactivation of psoriasis which, according to Dr Cook, a dermatologist is a consequence of the shooting (or possibly the stress which has flowed). There is no cure and the best that can be achieved is to keep it under some control. 211 The Plaintiff said he was badly affected by headaches. He suffers from a dull ache nearly all the time and from migraines about twice a week. These may last 3 days and may cause vomiting. The level of pain varies from 1or 2 to 5. Dr Rail attributed these to the shooting. 212 The Plaintiff also said that the injuries had slowed him down a lot. One example he gave was that he used to help with changing the bed-linen but now his wife prefers that he not assist because he is so slow. 213 He used to mow the lawn, clean the gutters and carry out maintenance around the house. He would clean the pool and wash the car. He used to clean the shower recesses. He also did some cooking 214 Since the accident mowing makes his jaw rattle so he does not do it now. He cannot clean the gutters because he has problems with balance or dizziness and there is advice that he should not be on ladders. He can still clean the pool but more slowly. Because bending makes him dizzy and it hurts if he bends or moves the wrong way, the Plaintiff now limits his car washing to helping others. He no longer cleans the shower recesses because he now finds doing so uncomfortable. His wife does now them. 215 The plaintiff can still vacuum but does so more slowly than previously. He can also help with the shopping. He now makes the lunches, puts clothes on line, does some washing and weeding, in at least most of these respects doing things his wife used to do. He has recently commenced driving again albeit only locally. He hopes to extend this range. 216 One of his sons now cleans the gutters because he likes to help and for pocket money 217 The Plaintiff no longer needs assistance with personal care such as showering, toileting, shaving and dressing and applying cream to his scars except for limited periods after operations. A few times a week he still needs help from his wife to loosen neck by massage and heat packs. 218 He takes Meryndol Forte and tablets for stomach discomfort and, since a few months after the shooting, antidepressants 219 It is clear that the shooting and its consequences have had a major psychological effect on the Plaintiff. He first consulted Dr Subhas, a psychiatrist in October 1967. By June 2002 he was being seen by the doctor on a fortnightly basis and had visited him some 64 times. In Dr Subhas' view the Plaintiff suffers from chronic Post Traumatic Stress Disorder and TSD and has had periods where he displayed symptoms of major depression and suicidal thoughts. Some medications were tried, apparently unsuccessfully but his mood finally stabilised with Aropax. In a report of September 1998, Dr Subhas observed that the Plaintiff had reported suffering from, inter alia insomnia, nightmares, depression, being moody and irritable, difficulty concentrating, that he was in constant pain, has become very distant from people and had no interest in anything. 220 Dr Subhas opined that the Plaintiff had been permanently crippled, physically and psychologically from the incident and very unlikely he would be able to get back to any meaningful employment. The doctor recorded also that the Plaintiff was fearful that he would be in danger when Mr Manna is released. According to the Plaintiff, at the time of trial he was still seeing his psychiatrist once a fortnight. 221 To an appreciable degree Dr Subhas opinions were supported by the views of a psychologist Ms Humphreys, albeit she had not seen the Plaintiff since August 1998, and Dr Zaman, the Plaintiff family GP 222 Another handicap of significance is apparent in a series of reports from Dr Teychenne, a neurologist. He recorded that the Plaintiff does not look when he crosses road, cannot make decisions, takes a long time to work out how to do repairs, loses his balance and had reduced concentration. Dr Teychenne said that an MRI did not show cerebral ischaemic damage to brain, but that testing showed some memory deficit. He also said that the Plaintiff has suffered about 25% loss of his IQ (although the basis of this conclusion was not stated). Dr Teychenne said that there was clinical evidence of an executive frontal lobe deficit and suspected that the Plaintiff had suffered traumatic brain injury, possibly when he had fallen from the truck, and there was also the possibility of hypoxic encephalopathy. 223 Dr Teychenne also indicated the probability of damage to nerves causing numbness in the Plaintiff's left arm, suggesting however that parasthesiae in the left hand could be due to carpal tunnel syndrome, not something as I understand the doctor attributable to the shooting. Dr Teychenne opined that the Plaintiff had suffered a 22.5% loss of function of the left arm and 15% permanent brain damage. The doctor said that the Plaintiff was not suited for work on ladders or at heights or for occupations requiring normal use of the left hand or normal cognitive function. 224 I have referred to Dr Subhas's views on the Plaintiff's employability. Others who, at one time or other, expressed the view that the Plaintiff was unfit or would have difficulty in that regard were Ms Andrews, Mr Yue Chen, a chiropractor, and Dr Cook who said that severe psoriasis can incapacitate and hinder employment. Dr Rea, a plastic surgeon, said in November 2000 that the Plaintiff was then physically fit for work but because of his continued apprehension precipitated by the nature of the assault might be psychologically incapable in that regard. Sometime after 28 August 1997, Dr Coren said that Mr Pareezer was physically fit for any type of employment but there has been considerable psychological trauma. 225 The Plaintiff himself said he would like to work if he could but has not tried any further employment because he has many bad days. He doesn't know if he could manage part time work and doubts if he could manage a small business. 226 The plaintiff's relationship with his wife and children has been damaged. Mrs Pareezer said that before the shooting she and Mr Pareezer had a "fantastic relationship"; he was her best friend although she acknowledged they had their disputes. She also described their sex life as "fantastic". He got on well with the children 227 Since the accident Mr Pareezer is a totally different person. Their relationship is only just existing; she has difficulty in coping with his mood swings; They fight all the time; the cause is stress and he is always unwell and has migraines. Both suffer from frustration. Very rarely is there a sexual relationship. Mr Pareezer is cranky all the time. He and the children just fight. She and Mr Pareezer may have their "non-compatible days" lasting for a week. 228 Other evidence indicates that the Plaintiff has insufficient physical and psychological energy to interact with children. He said that he can't kick a football. He feels a failure as a father. 229 Whereas he used to have lots of friends and he got along with the people at the work, he now prefers his own company. His social life is non-existent or almost so. 230 Mrs Pareezer substantially confirmed her husband's account of what he did around the house before and after the shooting. After the shooting she and Mr Pareezer were on disability and carer's pensions for a time. Then she returned to work at first part time and then full time because they need the money. She said that 2 to 3 hours assistance a week would cover the things that her husband did before and can't do now. 231 She said she massaged him 2 to 3 times a week and sometimes cracks his back when he is pain. After he has had operations she has given more intensive assistance. She estimated that in a week she would massage for a bit more than an hour. Mr Pareezer's estimate was somewhat higher. I suspect the correct figure is somewhere in between. 232 The medical evidence also dealt with more minor, although I do not suggest insignificant matters. In 1998 and 2000 the Plaintiff has had liposuction to his chin and abdomen to remove a buildup of fat attributed to the shooting and its aftermath. In August 99 the plaintiff was suffering from abdominal adhesions and pain probably due to irritable bowel syndrome related to stress and tension. He was diagnosed as suffering from a hiatus hernia with marked reflux, probably due to the shooting and its consequences. 233 It should be mentioned that Mr Pareezer was seen by Professor Jones on behalf of the Defendant. The professor concluded, in June 2000, that "there are likely to be permanent physical impairments associated with his many injuries and some cosmetic effects will be permanent. His psychological difficulties will gradually resolve … but at this time Mr Pareezer continues to require psychological support". He concluded that Mr Pareezer was independent in personal care and to have the potential of being independent in most activities of daily living. Professor Jones said that the Plaintiff would need vocational rehabilitation; there may be various work roles he could perform and perhaps working as a courier. He may need vocational re-training. Professor Jones noticed some asymmetry in his facial features 234 The Plaintiff was in hospital initially for about 2 weeks. Between 7 March 1997 and 3 September 2001 he returned to hospital on about 23 occasions. About 9 of these were single day visits. Three were for 5 days or more. There was in addition an 8 week period in 1999 when the Plaintiff attended the Prince of Wales Hospital for daily hypobaric treatment. In evidence he said that he had had in excess of 30 operations. Certainly there have been a vast number. 235 In chambers I was also shown the extent of the scarring resulting from the incident. There about 14 areas of scarring. All are well healed. Most are less than 5 cm long and, while clearly visible, are not obvious. However there is one of the order of some 7-8 cm long extending from the Plaintiff's neck to his jaw and one in the region of his left ear which are obvious. 236 I have expressed the above largely in terms of the evidence given. I accept it. In particular I am satisfied that the impact of events on the Plaintiff psychologically has been severe. In light of his qualifications for work, the pain and physical disabilities he suffers, this psychological impact leads me to the conclusion that he is unlikely to ever obtain gainful employment albeit I propose to make some small or moderate allowance for the possibility. Impact on Second and Third Plaintiffs 237 Mrs Pareezer has had nightmares about the look on Scott's face, the incident and the operations. She does not sleep much. She now suffers depression quite a lot and did not before the shooting. Similarly with bouts of gastroreflux. She takes Zoloft for depression. She feels insecure about her financial future, their personal future and the kids future. The sight of blood brings back memories. 238 Mrs Pareezer has seen Dr Subhas regularly. Asked why, she said that it was because sometimes she can't handle the plaintiff and she needs to know how. 239 Dr Subhas reported first seeing Mrs pareezer in March 1998. She was depressed, complained that their family life had been shattered. She was having difficulty sleeping and having nightmares. She was angry and resentful towards Mr manna and finding it difficult to distract herself form seeing Mr Pareezxer lying in a pool of blood. Cleaning the house at one stage had apparently become an obsession. Dr Subhas prescribed Aurorix and diagnosed Mrs Pareezer as suffering from Post Traumatic Stress Disorder. 240 Before seeing Dr Subhas Mrs Pareezer attended on Dr Zaman regularly for what the doctor referred to as "depression and aggressive personality". He had known her as a teenager. The doctor said that she would cope well for a few months and then head for a nervous breakdown. She was on antidepressants and he diagnosed her as suffering from Post Traumatic Stress Disorder and "depression with alternate behaviors". He said that she would suffer from this for the rest of her life. 241 Asked how long it was that her injury prevented her from working, Mrs Pareezer said 2 to 3 years although in those answers she seems to have been influenced by the need to look after the plaintiff. 242 Most of the information concerning the impact of the incident on Scott is contained in 2 reports from a Psychologist who interviewed Scott and Mrs Pareezer in August 1998 following referral from the Victims Compensation Tribunal. The psychologist recommended 10 to 20 counselling sessions and Scott has had a number of these. According to the first report, Scott had had an adverse reaction to the 1995 bashing and after the 1997 one, his concentration, handwriting and school performance deteriorated and he had been physically aggressive of his siblings. Post Traumatic Stress Disorder was diagnosed. 243 A second report is more specific. It records that Scott suffered from recurrent frightening dreams, intense physical reactions in the form of sweaty palms and intense emotional upset when reminded of the trauma, efforts to avoid thoughts, feelings or conversations associated with his father's shooting, bed wetting as a result of an unwillingness to go to the bathroom by himself at night, fear of the dark, sleep problems, hypervigilence in the form of checking windows etc to signs of danger and in checking to see if his father is OK, anger outbursts and difficulties in concentration and with school work. 244 Scott was seen by Nick Cocco, the psychologist who was the author of the reports on twelve occasions the last of which was in July 1999 during which period there was improvement in some of his symptoms sufficient to lead Mr Cocco to say that while "Scott had ongoing emotional and behavioural problems, which appeared to be associated with his father's ongoing physical rehabilitation" and continued to experience some trauma symptoms, he no longer met criteria for a diagnosis of PTSD. 245 One needs to be conscious of the fact that a number of Mrs Pareezer's problems or complaints are undoubtedly due to the impact of the Plaintiff and his injuries and disabilities upon her as distinct from her own damage. Clearly there is no hard and fast dividing line in many areas but in assessing the damages to which she is entitled I have, so far as I have been able, allowed only for her own loss. General Damages and Interest thereon 246 I turn to the quantum of damages. Partly because of the time since trial and partly because the calculations done on each side do not fully reflect my findings, I intend to state the bases on which damages should be calculated and adjourn the proceedings to enable calculations reflecting those findings to be done. 247 Quite apart from economic factors, the shooting has had and I am satisfied will continue to have an enormous impact on all aspects of the Plaintiff's life. He is not in the situation of a paraplegic, quadraplegic or severely brain damaged person and an appropriate allowance for general damages is $300,000. 248 It is appropriate to apportion this half and half to the past and future and calculate interest at the 2% per annum as both counsel did in their suggested schedules of damages. Out of Pocket Expenses 249 Past out-of-pocket expenses were agreed at $268,659.76. They may need adjusting to reflect the passage of time. Alternatively, future out or pocket expenses will need to be calculated from the time of trial rather than now. 250 Nor was there any challenge to the future medical expenses claim as advance in the Plaintiffs' Schedule for chemist, medical or future surgery. Fox v Wood 251 Again there was no challenge to the figure advanced on behalf of the Plaintiff. Care 252 The claim as advanced was on the basis of a report from "Hands". The claim is grossly excessive, based on the particulars supplied, and bears no relationship to the evidence of the plaintiff or his wife. Mrs Pareezer prepared a summary of her assistance to the Plaintiff both in terms of domestic work and in connection with his medical condition. This was done on a monthly basis. In addition she listed on a daily basis doctor, physiotherapist and the like treatment. In the monthly summary there was an estimate of the number of hours spent. 253 Mrs Pareezer said that in large part the summary was prepared from diaries she had kept over the years but these diaries were not produced. Certainly at times the tenure of her evidence was such that it is impossible to conclude that the hours she has recorded are a contemporaneous, or a copy of a contemporaneous, record. In these circumstances I do not feel able to be satisfied that Mrs Pareezer spent the number of hours which are recorded on her summary. 254 Nevertheless, the evidence which was given as to the extent of the care which the Plaintiff needed in things such as massage, the washing out of his mouth, showering and dressing, the preparation of separate meals satisfies me that Mrs Pareezer must have devoted a very substantial number of hours over the years in consequence of the Plaintiff's injuries. I am also satisfied that she must have spent a considerable amount of time associated with the Plaintiff's attendance on doctors or hospitals. As has been indicated, for many years, he did not drive. This latter aspect is an area which, it seems to me, tended to be neglected in the Defendant' submissions in this area. 255 In these circumstances it seems to me I should make the best estimate I can of the time involved, albeit recognising that the onus of proof is on the Plaintiff. Undoubtedly the time spent will have varied from day to day and the most one can do is calculate some sort of average or averages. The figures at which I have arrived by way of such estimation are that during the following years the hours of care etc provided or to be provided for the Plaintiff are as follows:- 17.02.97-31.12.97 5 hours per day 01.01.98-31.12.98 4 hours per day 01.01.99-31.12.99 3 hours per day 01.01.00-31.12.00 2 hours per day 01.01.01-31.12.02 1 hour per day 01.01.03-date 1 hour per day Future 5 hours per week 256 So far as the future is concerned, I have taken account of the Plaintiff's continuing difficulty with eating, and the need for further treatment in addition to what may be referred to as the usual household chores. Economic Loss 257 This topic has been deferred. Claims of Second and Third Plaintiffs 258 I would assess Mrs Pareezer's general damages at $45,000. I would apportion this as to two-thirds to this time and one-third for the future. Interest should be calculated as I have indicated in the case of Mr Pareezer. 259 Mrs Pareezer's past out-of-pocket expenses were agreed at $2,436.95. It is likely that there will be some ongoing expenses in this regard although her continued consultation with her general practitioner and psychiatrist seems to me likely to be, in no insignificant extent, the result of her husband's condition. I think it appropriate to allow a simple lump sum of $1,250.00 on account of future out-of-pocket expenses. 260 A claim was made for economic loss. I propose to defer this as I have done in the case of Mr Pareezer. 261 I would assess Scott Pareezer's general damages at $35,000. I would apportion this as to two-thirds to this time and one-third for the future. Interest should be calculated as I have indicated in the case of Mr Pareezer. 262 Scott's out-of-pocket expenses have been agreed at $1,215.00 (although I note there seems to be some inconsistency between this total and some of the figures apparently included in its calculation. Cross-Claims - Summary 263 There were a number of these. The First, Third and Fourth have been resolved. The first was by the Defendant against the TAFE Commission. This alleged that TAFE owed a duty of care to Mr Pareezer which it had breached and sought indemnity or contribution. 264 The Third Cross-Claim was by the TAFE Commission against the Defendant. It simply repeated matters in earlier pleadings and claimed contribution or indemnity under s5 of the Law Reform (Miscellaneous Provisions) Act 1946. 265 The Fourth Cross-Claim was by the TAFE Commission against Pareezer Transport Pty Ltd. It did little more than repeat matters in earlier pleadings and claimed contribution or indemnity under s5 of the Law Reform (Miscellaneous Provisions) Act 1946. 266 The Second Cross-Claim was by the Defendant against Pareezer Transport Pty Ltd. In it the Defendant contended that the Plaintiff was employed by Pareezer Transport Pty Ltd, claimed pursuant to a contract it asserted it existed between it and Pareezer Transport Pty Ltd and also claimed contribution or indemnity under the Law Reform (Miscellaneous Provisions) Act 1946 upon the basis that the Plaintiff's injuries were caused or contributed to by negligent breach of duty on the part of Pareezer Transport Pty Ltd. 267 The Fifth Cross-Claim was by the Defendant against GIO Workers Compensation (NSW) Limited. In it the Defendant referred to the claim by the Plaintiff that he was employed by the Defendant, asserted the existence of a policy issued by GIO in the statutory form pursuant to the Workers Compensation Act to the Defendant and claimed to be entitled to indemnity under that policy. The only issued posed by the defence to this cross-claim was that "in breach of the terms of the policy… GIO had refused to indemnify" the Defendant. 268 The Sixth Cross-Claim was by Pareezer Transport Pty Ltd against GIO Workers Compensation (NSW) Limited. In this cross-claim Pareezer Transport Pty Ltd asserts it held a workers compensation policy with the GIO whereunder it was entitled to be indemnified in respect of workers compensation paid or payable to Pareezer Transport Pty Ltd's employees and claims arising out of the employment of persons carrying out work for Pareezer Transport Pty Ltd and asserts failure by GIO to provide such indemnity. In practical terms the issue posed by the defence to this cross-claim seems to be the issue of whether the Plaintiff was a worker or deemed worker of Pareezer Transport Pty Limited "under Schedule 1 clause 2 of the Workplace Injury Management Act 1998"or, more accurately, under the similar provisions of the earlier legislation. The Second Cross-Claim 269 The claim in contract by the Defendant against Pareezer Transport Pty Ltd is based on what are asserted to be three express contractual provisions and a number of implied terms. The three express provisions are:- (i) The Contractors (second cross defendant) shall indemnify and keep indemnified the Company (second cross claimant) against all risks and claims in relation to third party liability arising from or as a result of the performance of the Services, in which regard the Contractor shall obtain and maintain current during the Engagement all policies including without limitation public liability with an insurer and in such amount as the Company approves: and shall, whenever reasonably required to do so by the Company, produce evidence of the currency of such policy for inspection by the Company. (ii) The Contract shall be liable for and shall indemnify the Company against any liability whatsoever arising under statute or at common law imposed on or incurred by the Company due to or arising out of any act or omission by the Contractor or any of its employees, agents or subcontractors in the performance of the Services whether such acts or omission occur on the premises of the Company or elsewhere. (iii) The Contract (second cross defendant) shall be solely responsible for all salaries, sick leave, annual holidays… workers' compensation, insurance and entitlements whatsoever orf all servants, agents, employees, sub-contractors and any other persons engaged by the Contractor…" 270 The Defendant asserts that it is entitled to indemnity under the first two of these clauses and that Pareezer Transport breached the third by failing to obtain requisite workers compensation insurance. 271 The implied terms alleged are that Pareezer Transport Pty Ltd would:- (i) at all times take adequate precautions for the safety of the first, second and third plaintiffs. (ii) not expose the first, second and third plaintiffs to a risk of injury which could have been avoided by reasonable care. (iii) provide adequate security to protect the first, second and third plaintiffs. (iv) provide adequate warnings to the first, second and third plaintiffs. (v) take adequate precautions for the safety of the first, second and third plaintiffs. (vi) not expose the first, second and third plaintiffs to a risk of injury which could be avoided by reasonable care. (vii) instruct the first plaintiff in the appropriate procedures for defending himself or dealing with situations involving armed hold up or assault. 272 Having regard to my finding that there was no contract between the Defendant and Pareezer Transport Pty Limited, this cross claim must fail. The Fifth Cross-Claim 273 As has been indicated this cross-claim raises the issue of whether the Defendant is entitled to be indemnified by GIO in respect of its liability to the Plaintiff under the terms of the statutory form of Workers Compensation policy. 274 I have indicated above that the relationship between the Plaintiff and the Defendant was one whereby the Plaintiff was a contractor and not an employee in the strict sense. Was he someone who fulfilled the requirements of a "deemed worker" under the Workers Compensation Act. That was the relevant statute at the time although the Work Place Injury Management and Workers Compensation Act 1998 was, so far as is material, in similar terms. 275 The relevant provision was contained in Section 2 of Schedule 1 to the former Act and is in the following terms:- 2(1) Where a contract: (a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name); or (b) to perform any work as an outworker, is made with the contractor, who neither sublets the contract nor employs any worker, the contractor shall, for the purposes of this Act, be deemed to be a worker employed by the person who made the contract with the contractor. 276 Once one concludes, as I have, that the relevant contract at the time the Plaintiff was shot was between the Defendant and the Plaintiff and not between the Defendant and Pareezer Transport Pty Limited, there clearly was "a contract to perform any work exceeding $10 in value". That work was not "work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name". Hence the requirements of paragraph (a) were satisfied. 277 Was the arrangement between Mr Pareezer and Pareezer Transport Pty Limited one whereby the contact with the Defendant was sublet or did Mr Pareezer employ any worker? The answer to these questions is complicated by the lack of evidence, and I suspect also lack of attention given at the time to the nature of the legal arrangements Mr Pareezer made with the company and the other persons who assisted him or the company in the vender filling operations in which both engaged. It is also complicated by the fact that I suspect the financial transactions which occurred were characterised by Mr Glossop in the way which seemed to him to best suit Mr Pareezer's needs at the time. 278 Although the fact that the invoices since mid 1995 were in the name of Pareezer Transport, a name I understand as one for Pareezer Transport Pty Limited, argues for the conclusion that if not assigned or novated as I have held, the contract between the Plaintiff and Defendant had at least been sub-let, it does not seem to me that that was the situation. I am not persuaded that either Mr Pareezer or the company had any such intention. It seems to me that the situation is more aptly regarded as one where, as contemplated by clause 6.2 of the contract between the Plaintiff and Defendant, the Plaintiff in part used "its competent servants, agents, employees or sub-contractors … in providing the Services". In so describing the arrangement, I do not mean to suggest that at any relevant time the Plaintiff consciously followed the circumstances envisaged by the clause, nor that the consent of the Defendant, as envisaged by the clause, was sought. 279 Did the Plaintiff employ any worker? In the answers to interrogatories of Pareezer Transport Pty Limited, tendered by counsel for the Defendant, the various employees who worked in the business. Messrs Shane Burnie, Michael Toby, and Mark Smallwood and Mrs Pareezer were said to be employees of that company. These were tendered against the Sixth Cross-Defendant. At the time Mr Ferrari, its counsel said he did not think he could object. There was other evidence, for example from Mrs Pareezer, to like effect. 280 However, as has been said, the annual accounts of Pareezer Transport Pty Limited show no payment of wages and I have inferred that they are included in the expenses included in the Plaintiff's tax returns. 281 There was also in evidence a 1995-1996 Group Employers Payment Book issued by the Australian Tax Office. That showed Mr Pareezer as the employer, and "Mark" employed from about 3 May to about 28 June 1996. Stapled inside the front cover was a copy of Mr Smallwood's Group Certificate for the period 29 April to 30 June 1996. Also included in the book was a page showing that "Shane" had been employed week by week from 8 December 1995 to 14 June 1996. However, it is clear that that page was not in that place in the book originally and had been inserted at some later time. It itself contains no information as to the identity of Shane's employer. A later page, very incomplete, does provide some indication that Shane was an employee of the Plaintiff. 282 A similar book for the 1996-1997 year shows Pareezer Transport as an employer, indications of the remission of group tax to the Taxation Office in amounts totalling some $6,000 but no indication of who any employees may have been. 283 At the end of the day the conclusion at which I have arrived is that Mr Pareezer did employ one or more workers who were engaged in the performance of his contract with the Defendant. In this situation he was thus not a deemed worker. I should perhaps add that I regard this as so even if the only employment of workers was in the April to June 1996 period. He only had one contract with the Defendant. 284 Accordingly, this cross-claim also fails. The Sixth Cross-Claim 285 As has been indicated, in this cross-claim by Pareezer Transport Pty Ltd against GIO Workers Compensation (NSW) Limited, in practical terms the issue is whether the Plaintiff was a worker or deemed worker of Pareezer Transport Pty Limited under the Workers Compensation standard policy current at the time. 286 I have previously indicated that I see no persuasive evidence that the Plaintiff ever intended to work for the company or that it ever intended to employ him. There was never a contract between the Plaintiff and Pareezer Transport Pty limited whereby he was employed by, or was to perform any work for, the company. In this situation this cross-claim must also be dismissed. ********** Last Modified: 11/17/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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