Pareezer & Ors v Coca-Cola Amatil & Ors [2001] NSWSC 1097

Pareezer & Ors v Coca-Cola Amatil & Ors [2001] NSWSC 1097

The plaintiffs failed to discharge the onus of showing entitlement to the proposed amendment because the Further Amended Statement of Claim pleaded the alleged duty of care only on the basis that NSW Tafe Commission was the occupier of the premises, while the alleged earlier assault appeared only in particulars and not as pleaded material facts supporting special circumstances. In light of Modbury, the proposed occupier's liability claim was futile. The First Cross-Claim, pleaded in a similar way and dependent on negligence by the proposed second defendant as occupier, was likewise untenable and was struck out.

Jurisdiction
Australia
Judgment Date
29 November 2001
Procedural Posture
Negligence Proceedings and Cross Claim for Contribution And/or Indemnity / Notices of Motion Seeking Leave to File a Further Amended Statement of Claim and to Strike Out the First Cross Claim
Outcome
Plaintiffs' Notice of Motion dismissed; First Cross-Claim struck out.
Legal Topics
["occupier's Liability" 'duty of Care for Criminal Acts of Third Parties' 'special Circumstances' 'amendment of Pleadings' 'extension of Limitation Period' 'striking Out Cross Claim' 'contribution and Indemnity Between Tortfeasors']
['tort Law' 'negligence' 'civil Procedure'] ["occupier's Liability" 'duty of Care for Criminal Acts of Third Parties' 'special Circumstances' 'amendment of Pleadings' 'extension of Limitation Period' 'striking Out Cross Claim' 'contribution and Indemnity Between Tortfeasors']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Negligence Proceedings and Cross Claim for Contribution And/or Indemnity / Notices of Motion Seeking Leave to File a Further Amended Statement of Claim and to Strike Out the First Cross Claim

Legal Issues

  1. 1 ['Whether NSW Tafe Commission, as occupier of the premises, owed a duty of care to prevent injury resulting from the criminal behaviour of third parties on the land.' "Whether the plaintiffs' proposed Further Amended Statement of Claim would be futile because it disclosed no viable duty of care against the proposed second defendant." 'Whether an earlier assault in 1995 could support special circumstances sufficient to make the proposed claim arguable.' "Whether the First Cross-Claim against NSW Tafe Commission should be struck out if the plaintiffs' application failed."]

Ratio Decidendi

The plaintiffs failed to discharge the onus of showing entitlement to the proposed amendment because the Further Amended Statement of Claim pleaded the alleged duty of care only on the basis that NSW Tafe Commission was the occupier of the premises, while the alleged earlier assault appeared only in particulars and not as pleaded material facts supporting special circumstances. In light of Modbury, the proposed occupier's liability claim was futile. The First Cross-Claim, pleaded in a similar way and dependent on negligence by the proposed second defendant as occupier, was likewise untenable and was struck out.

Court Disposition

Plaintiffs' Notice of Motion dismissed; First Cross-Claim struck out.

Orders

  • ['The Notice of Motion filed by the plaintiffs on 1 August 2001 is dismissed.' 'The plaintiffs are to pay the costs of that Notice of Motion.' 'The First Cross-Claim is struck out.' 'The first cross-claimant is to pay the costs of the Notice of Motion filed on 15 November 2001.']