Caltex Refineries (Qld) Pty Ltd v Stavar - [2009] NSWCA 258

No judgment structure available for this case.

Reported Decision: 75 NSWLR 649259 ALR 616[2010] ALMD 2037

New South Wales

Court of Appeal

CITATION: Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258

HEARING DATE(S): 19 & 20 May 2009

JUDGMENT DATE:
31 August 2009

JUDGMENT OF: Allsop P at 1; Basten JA at 149; Simpson J at 242

DECISION: 1. Appeal dismissed.
2. Grant leave to cross-appeal.
3. Cross-appeal allowed.
4. Set aside that part of the order for costs made by the Tribunal refusing to award costs to the plaintiff in respect of the period before 1974 and remit that issue together with any attendant questions of the duty of care and breach thereof in the period prior to 1974 to the Tribunal for rehearing.
5. The appellant pay the respondent's costs of the appeal and cross-appeal.
6. The parties have leave to file written submissions about the form of the orders and any variation thereof. Any application to vary these orders to be made by notice of motion filed within 14 days.

CATCHWORDS: DUST DISEASES TRIBUNAL – appeal to Court of Appeal - appeal in point of law – error identified not operative - remittal to the Dust Diseases Tribunal - Dust Diseases Tribunal Act 1989 (NSW), s 32 - TORTS – negligence – duty of care – novel categories – multifactorial approach to establishing existence of duty - salient features – proximity no longer general determinant of duty – asbestos - domestic exposure – liability of employer where employee brings home contaminated work clothes into domestic environment – foreseeability of harm – whether indeterminate class – class identified conformed with the available medical and occupational health and safety material – foreseeability of harm – required abstraction of consideration of foreseeability - knowledge of risk – available medical evidence identified as at risk a class of persons in a domestic environment with contaminated workers – Asbestos Rule 1971 under Factories and Shops Act 1960 (Qld) – Asbestos Rule required knowledge of the medical and occupational health and safety knowledge - TORTS – negligence –statutory duty – Factories and Shops Act 1960 (Qld) s38(1) – Asbestos Rule 1971 – construction of width of statutory duty – width of duty established in enabling act – rule not extend to protection of non workers in domestic environment - statutory duty did not extend to those in the position of plaintiff – no private right to those outside the statutory duty of care - TORTS – negligence – duty of care – independent subcontractor – duty of care of principal to third party– asbestos - domestic exposure – liability of principal where third party brings home contaminated work clothes into domestic environment – duty of care to third party in carrying on of hazardous activities or handling toxic materials– no self contained test – failure to apply multifactorial approach – failure to address all relevant factual issues – knowledge of principal – steps taken by contractor – toxicity and hazard of asbestos – degree of control of principal – degree of direction and control of subcontractor - Dust Diseases Tribunal Act 1989 (NSW) - s 32 - Factories and Shops Act 1960 (Qld) - s38(1) – Asbestos Rule 1971

LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Factories and Shops Act 1960 (Qld)
Asbestos Rule 1971 (Qld) (regulation)
Uniform Civil Procedures Rules 2005 (NSW)

CATEGORY: Principal judgment

CASES CITED: ACQ v Cook [2008] NSWCA 161; 72 NSWLR 318
ACQ Pty Ltd v Cook [2009] HCA 28
Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498
Amaca Pty Ltd v AB & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Rep 81-910; 5 DDCR 543
Anns v Merton London Borough Council [1978] AC 728
Bale v Seltsam Pty Ltd [1996] QCA 288
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187
BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Burnie Port Authority Limited v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA 65; 136 CLR 529
Caparo Industries Plc v Dickman [1990] 2 AC 605
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202
Cooper v Hobart (2001) 206 DLR (4th) 193
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469
CSR Ltd v Young (1998) 16 NSWCCR 56
Donoghue v Stevenson [1932] AC 562
Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111
Gala v Preston [1991] HCA 18; 172 CLR 243
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540
Hill v Van Erp [1997] HCA 9; 188 CLR 159
ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257
Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647
John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218
Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Julia Farr Services Inc v Hayes [2003] NSWCA 37; 25 NSWCCR 138
Leigh Sillilvan Ltd v Aliakmon Shipping Co Ltd [1985] QB 350
McPherson’s Limited v Eaton [2005] NSWCA 435; 65 NSWLR 187
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341
North Broken Hill Ltd v Tumes [1999] NSWCA 309; 18 NSWCCR 412
Northern Sandblasting Pty Limited v Harris [1997] HCA 39; 188 CLR 313
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (“Wagon Mound [No 1]”) [1961] AC 388
Overseas Tankship (UK) Ltd v Miller Steamship Co Pt y Ltd ("Wagon Mound [No 2]") [1967] 1 AC 617
Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142; 68 NSWLR 131
Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180
Roads and Traffic Authority v Dereder [2007] HCA 42; 234 CLR 330
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 2008; 3 DDCR 1
Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2007) 4 DDCR 1
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Sibley v Kais [1967] HCA 43; 118 CLR 424
Stavar v Caltex Refineries (Qld) Pty Ltd (No 2) [2008] NSWDDT 26
Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; 160 CLR 16
Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424
Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; 226 CLR 161
Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570
Talbot-Price v Jacobs [2008] NSWCA 189
Tame v New South Wales [2002] HCA 35; 211 CLR 317
Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234
Transfield Services (Australia) v Hall [2008] NSWCA 294
Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40

TEXTS CITED: Fleming, The Law of Torts (LBC 1957)
Handsley E, Sullivan v Moody: Foreseeability of injury is not enough to found a duty of care in negligence – but should it be?” (2003) 11 Torts LJ 1
Markesinis and Deakin’s Tort Law (6th ed, OUP, 2008)
Mustill, “Negligence in the World of Finance” (1992) 5 The Supreme Court Journal 1
Weinrib E, “The Disintegration of Duty” in Exploring Tort Law (Madden, ed, Camb UP, 2005)
Witting C, Duty of Care: An Analytical Approach (2005) 25 Oxford J Leg Studies 33
Witting C, “Tort Law, Policy and the High Court of Australia” (2007) 31 Melb UL Rev 569

PARTIES: Caltex Refineries (Qld) Pty Limited (Appellant)
Beverley Dawn Stavar (First Respondent)
Amaca Pty Ltd (formerly James Hardie Co Pty Ltd) (Second Respondent)
Wallaby Grip Ltd (formerly Bells Asbestos) (Third Respondent)
Wallaby Grip (BAE) Pty Ltd (Fourth Respondent)
Wallaby Grip (NSW) Pty Ltd (Fifth Respondent)

FILE NUMBER(S): CA 40360/08

COUNSEL: A J Sullivan QC, P W Flynn (Appellant)
J McIntyre SC, S Tzouganatos (Respondent)
Second to fifth respondents gave submitting appearances

SOLICITORS: HWL Ebsworth (Appellant)
Turner Freeman Lawyers (First Respondent)
DLA Phillips Fox (Second Respondent)
Middletons Lawyers (Third, Fourth & Fifth Respondent)

LOWER COURT JURISDICTION: Dust Diseases Tribunal of NSW

LOWER COURT FILE NUMBER(S): 7349/07

LOWER COURT JUDICIAL OFFICER: O'Meally P

LOWER COURT DATE OF DECISION: 29 July 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22

40360/2008

ALLSOP P
BASTEN JA
SIMPSON J
Monday 31 August 2009

CALTEX REFINERIES (QLD) PTY LIMITED v STAVAR

Headnote

Mr Stavar worked at an oil refinery in Queensland from 1964 to 1991 in various capacities, being employed first by a subcontractor during construction of the refinery (1964 – 1965) then by a subcontractor as a maintenance worker (1965 – 1974) and finally directly by the owner and occupier of the refinery, Ampol Pty Ltd (Qld) (1974- 1991). Mr Stavar used and applied asbestos materials to parts of the refinery on a daily basis and would wear asbestos contaminated clothing home from work where Mrs Stavar (the plaintiff) would wash throughout the time he worked at the refinery. Mrs Stavar (the plaintiff) washed his contaminated clothes.

In 1971 the Asbestos Rule made under the Factories and Shops Act 1960 (Qld), s38(1) came into effect in Queensland. The Asbestos Rule required, amongst other things, the provision of protective clothing to those working with asbestos and that contaminated clothing be cleaned on site (or removed safely for cleaning off site).

Mrs Stavar now suffers from malignant mesothelioma contracted as a result of coming into contact with asbestos dust and fibres on her husband’s work clothes in the family home and car.

Mrs Stavar brought proceedings in the Dust Diseases Tribunal of NSW (DDT) for damages against five defendants, including Caltex Refineries Pty Ltd who took over Ampol (Qld) after Mr Stavar’s employment had ended. The President of the DDT gave judgment for the plaintiff against the five defendants for the employment period after 1974 but found no duty of care in the pre-employment period prior to 1974 when Mr Stavar was working for companies subcontracted by Ampol (Qld). Costs were ordered against Mrs Stavar in relation to the period prior to 1974 for which no duty of care was found.

Under the Dust Diseases Tribunal Act 1989 (NSW) s 32, Caltex appealed to the Court of Appeal being dissatisfied in point of law with the finding of its liability in the employment period. There was no appeal against the assessment of damages. The other defendants did not appeal any aspect of the decision. Mrs Stavar sought leave to cross appeal against the costs ordered against her.

The issues on appeal were:

i) using principles dealing with breach of duty to assess the existence of a duty of care;
ii) using the general determinant of proximity to assess the existence of a duty of care;
iii) identifying an overly narrow class of plaintiffs;
iv) misapplying the question of foreseeability of injury to assess the existence of a duty of care;
v) conflating a statutory duty and common law duty of care;
vi) finding breach of common law duty by a conclusion that there had been a failure to comply with the statutory duty under the Asbestos Rule ;
vii) finding a private statutory right at the suit of Mrs Stavar in the Asbestos Rule.

The issue on the cross appeal was whether the primary judge erred in holding that Caltex did not owe Mrs Stavar a duty of care in the period her husband was employed by subcontractors.

Held dismissing the appeal, granting leave to cross appeal, allowing the cross appeal and remitting questions relating to that issue to the Dust Diseases Tribunal of NSW.

per Allsop P (Simpson J agreeing):

1) If the posited duty is a novel one the proper approach is to undertake a close analysis of the facts bearing on the relationship between the parties by reference to the salient features or factors affecting the appropriateness of imputing a legal duty to take reasonable care: [102] – [109].

2) While the primary judge did not enunciate the required multifactorial approach in assessing whether a duty of care existed, his Honour did not fundamentally misunderstand his task in determining an existence of a duty of care and dealt with the relevant salient features put before: [110] and [143].

per Basten JA (Simpson J agreeing):

3) The multifactorial approach should not be treated as a list of factors, all of which must have application in a particular case. Rather, it provides a list of factors that should be considered, as potentially relevant, depending on the kind of case before the Court: [172].

In relation to issue (i):

per Allsop P and Basten JA (Simpson J agreeing):

4) The interrelationship between the factors relevant to both duty and breach has long been recognised. The primary judge appreciated the correct place of foreseeability in the determination of whether a duty of care exists and the required level of abstraction at which foreseeability should be considered in relation to duty: [62] – [70], [99], [193].

In relation to issue (ii):

per Allsop P and Basten JA (Simpson J agreeing):

5) Reference to proximity will not demonstrate an error of law, unless the underlying concept is misunderstood and therefore misapplied. The primary judge understood that proximity was no longer a general determinant of duty of care: [97], [101], [106], [170], [191].

In relation to issue (iii):

per Allsop P and Basten JA (Simpson J agreeing):

6) Given the medical and occupational health and safety knowledge available at the time and the nature of the risk, there was no impermissible indeterminacy of the class of plaintiffs: [111]-[114], [196] – [200].

In relation to (iv):

per Allsop P (Simpson J agreeing):

7) The Asbestos Rule 1971 gave a firm legal foundation to conclude that the occupier of the refinery ought to have known of the risk of harm to those people in the position of Mrs Stavar. The existence of the Rule implicitly required the occupier of the refinery to have familiarity with the relevant medical and OH & S knowledge, including the risk posed to members of a contaminated worker's domestic household: [117] – [118], [32] – [34].

In relation to issue (v):

per Allsop P and Basten JA (Simpson J agreeing):

8) Whilst the existence of a statutory regulation is not determinative of the existence of a co-ordinate duty, it may provide a valid basis for inferences as to a state of actual or constructive knowledge. There was accordingly no error in describing the Asbestos Rule as establishing a duty to the plaintiff: [120], [216].

In relation to issue (vi):

per Allsop P (Simpson J agreeing):

9) The primary judge found that the failure to provide protective clothing washed on the premises or at least not worn home to be washed, in the context of a found absence of warning, was a breach of the common law duty. This constituted a rationally founded finding of breach, and the primary judge accordingly did not conflate breach of the Asbestos Rule 1971 and breach of the common law duty: [89], [120], [129].

per Basten JA (Simpson J agreeing):

10) There is a difference between finding that the common law duty was breached by conduct that contravened the statutory duty and finding that the common law duty was breached because the conduct contravened the statutory duty. The trial judge did not adopt the latter approach and thus committed no error of law: [221] – [222].

per Allsop P (Simpson J agreeing):

11) The Asbestos Rule was not wide enough to encompass a duty to non-workers who were exposed to Asbestos in the domestic environment. The primary judge accordingly erred in concluding that the Rule founded a private right to the plaintiff to sue, although such error was of no consequence on appeal: [116], [131].

In relation to the cross appeal:

per Allsop P and Basten JA (Simpson J agreeing):

12) The primary judge erred in applying a discrete test to determine if there was a duty of care owed by a principal to a third party in the carrying on of hazardous activities or handling toxic materials. There is no exhaustive set of criteria or factors to be applied in determining such a question: [74]-[80], [135], [231] – [234].

further per Allsop P (Simpson J agreeing):

13) The multifactorial approach must be applied in determining whether the principal using a subcontractor owes a duty of care to a third party: [136].

further per Basten JA (Simpson J agreeing):

14) There are circumstances in which a duty to prevent the escape of a dangerous material from premises occupied by the defendant may be discharged by the engagement of a reasonably competent contractor: [236].

15) The imposition of a duty of care on either or both an independent contractor or principal for negligence in allowing dangerous material to escape from premises does not flow either from a doctrine of non-delegable duty or vicarious liability. Each duty will arise independently from circumstances that satisfy the requirements for the imposition of a general duty of care: [234] – [237].

IN THE SUPREME COURT

40360/2008

ALLSOP P
BASTEN JA
SIMPSON J
Monday 31 August 2009

CALTEX REFINERIES (QLD) PTY LIMITED v STAVAR

Judgment

This is an appeal and a cross-appeal from orders made by the President of the Dust Diseases Tribunal of New South Wales (O’Meally P) in an action for damages brought by Mrs Beverley Stavar against five defendants, Caltex Refineries (NSW) Pty Limited, formerly Ampol Refineries Limited (as first defendant), Amaca Pty Ltd, formerly James Hardie & Coy Pty Ltd (as second defendant), Wallaby Grip Ltd, formerly Bells Asbestos (as third defendant), Wallaby Grip (BAE) Pty Ltd (as fourth defendant) and Wallaby Grip (NSW) Pty Ltd (as fifth defendant).

Background

2 Mrs Stavar suffers from malignant mesothelioma contracted as a result of coming into contact with asbestos dust and fibres on her husband’s work clothes, in the family home and in the family car. Mr Stavar worked at the Lytton oil refinery outside Brisbane, initially in its construction in 1964 and 1965 and, later, as a maintenance worker from 1965 to 1991.

3 The proceedings were heard over 14 days in June and July 2008. The President delivered an extempore judgment on 29 July 2008, ordering that there be a verdict for the plaintiff, Mrs Stavar, against each defendant and judgment in the sum of $339,000 plus costs. There has been no appeal by any of the second to fifth defendants. The first defendant has appealed on the question of liability, but not damages.

4 The President found the appellant liable in respect of a period from 1974 to 1991 during which Mr Stavar was employed by the appellant. (I will refer to the appellant when discussing contemporaneous events as “Ampol (Qld)” so as to identify it as the company within the Ampol group of companies which occupied and operated the refinery. In the mid-1990s the Ampol group was taken over by companies in the Caltex group.)

5 Mr Stavar had been on the site of the refinery during its construction in 1964 and 1965 when he worked for a company called Associated Insulations. After the refinery became operational, Mr Stavar worked at the refinery as a maintenance worker dealing with the insulation of pipes. From 1965 to 1974 he undertook this work as an employee of an entity called McDonald Constructions. From 1974, he was employed directly by Ampol (Qld).

6 The appeal by Caltex is from the orders holding it liable and concerns the findings of duty of care and breach of duty made in respect of the period from 1974 to 1991.

7 The cross-appeal by Mrs Stavar concerns the findings by the President that Ampol (Qld) did not owe her a relevant duty of care before 1974. The order against which this cross-appeal was directed could only be the costs order made. In a separate judgment delivered on 30 October 2008, the President refused to order costs in favour of Mrs Stavar against Caltex in respect of litigating the portion of the case concerning the period 1964 to 1974. Leave is required for an appeal on costs.

8 One aspect of the current circumstances should be noted. The second to fifth defendants have not appealed against their liability to pay Mrs Stavar. It is more than possible (though the matter was not agitated before us) that the interests lying behind the cross-appeal are not limited to those of Mrs Stavar as to her costs. Nevertheless, the costs order gives her clear standing to seek leave to cross-appeal. As will be clear in due course, the cross appeal raises difficult and important legal questions justifying the grant of leave.

Disposition of the Appeal and Cross-Appeal

9 For the reasons that follow, in my view, the appeal should be dismissed, leave should be granted to Mrs Stavar to cross-appeal, the cross-appeal should be allowed, and the matters raised in the cross-appeal should be remitted to the Tribunal for further hearing and determination.

10 It is unfortunate that some aspects of the matter must be remitted. That is not said critically of the President who laboured to produce an extempore judgment at the end of a long hearing. The authority of this Court to interfere with the orders of the Tribunal is contained in the Dust Diseases Tribunal Act 1989 (NSW) (the “DDT Act”), s 32, which is in the following terms:

Right of appeal to Supreme Court

(1) A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court.

(3) A decision of the Supreme Court on an appeal under this section is binding on the Tribunal and on all parties to the proceedings in respect of which the appeal was made.

(4) The following appeals under this section may be made only by leave of the Supreme Court:

(a) an appeal from an interlocutory decision,

(b) an appeal from a decision as to costs only,

(c) an appeal from a final decision, other than an appeal that involves (directly or indirectly) a claim for, or a question relating to, an amount of $20,000 or more,

(d) an appeal from a decision made with the consent of the parties.”

11 As can be seen from the DDT Act, s 32(1) the appeal to this Court arises from a party being dissatisfied with a decision of the Tribunal (relevantly here, given the abandonment of the appeal grounds on the admission of evidence) “in point of law”. The consequence of this is that the task of this Court (prior to consideration of relief) is limited to the assessment of a question of law dealt with by the Tribunal, and, in practical terms, whether there is an error of law: North Broken Hill Ltd v Tumes [1999] NSWCA 309; 18 NSWCCR 412 at 421 [24]-[25]; ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 at [19]; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 2008; 3 DDCR 1 at 49-57 [148]-[166]; Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142; 68 NSWLR 131 at 142-146 [39]-[59]; and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187.

The issues on appeal

12 In the oral submissions of Mr Sullivan QC, with whom Mr P W Flynn appeared, the appellant enunciated seven errors in the President’s reasons, which can be analysed in three groups, as follows:

Wyong Shire Council v Shirt

(ii) using the (now rejected) general determinant of proximity to assess whether a duty existed;

(iii) positing an overly narrow class of potential plaintiffs;

Factories and Shops Act 1960

(b) His Honour is said to have found breach of the common law duty by, without more, a conclusion that there had been a failure to comply with the statutory duty under the Asbestos Rule.

13 If found, these three groups of error would go, respectively, to (1) the President’s finding of a common law duty of care owed to Mrs Stavar, (2) the finding of a breach of that duty and (3) the finding of the existence and breach of a statutory duty under the Asbestos Rule, which, the President found, conferred a private right on Mrs Stavar.

14 The appellant also filed written submissions which expressed the appellant’s complaints somewhat differently. These submissions were prepared by different counsel and were not addressed separately by Mr Sullivan in his oral submissions. Nevertheless, they remained pressed (with the exception of those parts supporting the complaints which were abandoned as to the admission of evidence). The appellant’s complaints in the written submissions in support of the appeal were as follows:

(a) complaints as to the use and interpretation of the Asbestos Rule of the kind made orally by Mr Sullivan;

(b) complaints as to the President’s approach to foreseeability and the adequacy (as a matter of law) of the evidential foundations for his conclusions as to foreseeability and duty of care;

(c) complaints as to content of the duty and breach of duty found, of a kind made orally by Mr Sullivan;

(d) complaints about evidential aspects of the President’s findings (though not as to issues of admissibility); and

15 Mrs Stavar filed a notice of contention which also raised the construction and effect of the Asbestos Rule.

16 To the extent that it may be found that the reasoning of the President displayed one or more errors of law that may not lead to the conclusion that relief should be given under the DDT Act, s 32(2). In relation to the question of duty of care, it may not matter that some legal error was displayed by the President’s reasoning, if, on the facts found by him, unaffected by any such legal error, this Court is not persuaded that any such error is operative or this Court can conclude that there was a duty of care, the conclusion as to the existence of a duty of care being a question of law: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at 443 [62] per Gummow J. The appellant, however, submitted that because the correct multifactorial analysis had not been undertaken, facts had not been found necessary for the correct undertaking of the analysis and the matter should thereby be remitted to the Tribunal for rehearing. The position may be different as to breach, the conclusion of breach of duty being a question of fact: Vairy at 425 [2] per Gleeson CJ and Kirby J; Patrick Operations v Comcare at 147-148 [64]. I will return to this more fully in the section entitled “Relief”, below.

The issues on the cross-appeal

17 The cross-appeal contained five grounds of appeal:

(a) failing to find a duty of care prior to 1974;

(b) the finding of no sufficient relationship between Mrs Stavar and Ampol (Qld) sufficient to support the existence of duty of care prior to 1974;

(c) failing to find that such duty was of a non-delegable character;

(d) failing to find that the duty required Ampol (Qld) to institute a safe system of work for the performance of maintenance work using asbestos; and

The approach of the Tribunal

18 It is first necessary to understand the approach of the President. At [1]-[8] of his reasons, his Honour set out the background facts, at [9]-[16] the facts concerning the exposure of Mr Stavar and at [17]-[24] the facts concerning the exposure of Mrs Stavar. At [25]-[34] his Honour then dealt with the question of the required level of exposure to asbestos for the contraction of mesothelioma, at [35]-[76] with the question of foreseeability and the knowledge (actual and otherwise) of Ampol (Qld), at [77]-[95] with duty of care, both generally and in the pre-employment period, at [96]-[114] with duty of care, breach and statutory duty in the employment period, at [115]-[117] with causation and at [118]-[129] with damages.

19 In a later judgment on costs, the President sought to clarify how he dealt with negligence and breach of statutory duty.

Background facts

20 I will set out the facts by using the language of the President, though some textual variation is necessary to aid comprehension and flow. The following facts were found in [1]-[8] of the President’s reasons:

(a) Mrs Stavar was born on 5 December 1938. She married her husband, Frank Stavar, on 1 August 1959.

(c) Mr Stavar was, at all relevant times, employed to work at the Ampol Refinery at Lytton in the State of Queensland.

(d) Mr Stavar was employed at the Lytton refinery in three periods. The first was for a period of about 18 months, commencing in 1964 when he was employed by Associated Insulations as a lagger and sheetmetal worker in the construction of the refinery. The second relevant period was between 1965 and 14 January 1974 when Mr Stavar was employed by McDonald Constructions as one of a number of maintenance workers at the refinery. The third period was from 14 January 1974 to 1 March 1991, when Mr Stavar was employed by Ampol (Qld).

(e) Ampol (Qld) was the owner and occupier of the refinery during all three of Mr Stavar’s employment periods.

21 It was common ground at the appeal that the owner and occupier of the refinery at all relevant times was not a Caltex company but Ampol (Qld) (a take-over having occurred in the mid-1990s). Thus, to the extent that the reference of the President to a “multinational” corporation was intended to refer to a company in the Caltex group, his Honour was in error and there was no evidence of that fact. The parties’ agreement suffices to permit a conclusion that Ampol (Qld) (the company which owned and occupied the refinery) was a member of a substantial Australian oil and refinery group. Nothing turns on this error.

The exposure of Mr Stavar

22 The exposure of Mr Stavar and how he worked was dealt with at [9]-[16] and [92] of the President’s reasons. In parts of his reasons, the President recited evidence of Mr Stavar in a manner and in terms which reflected findings in terms of that evidence. Working on that basis, relevantly from those paragraphs, the following findings were made:

(a) Throughout the greater part of his work at the refinery, Mr Stavar was employed as a lagger and sheetmetal worker. During the first two periods and for much of the third, 50 per cent of his time was spent in lagging work and 50 per cent in sheetmetal work. Nevertheless, he was exposed to asbestos daily.

(b) Mr Stavar used and applied asbestos materials to parts of the refinery on a daily basis between eight and ten hours each day and each day he was covered in asbestos dust and fibre. When he returned home he would remove his work clothes, more often in the laundries of the three houses in which they lived during the relevant periods. He would embrace his wife. She would, once a week, sometimes more, shake out and wash the soiled clothing. This was done close to her face, that is her breathing zone, and as a consequence she inhaled asbestos dust and fibre.

(c) During his employment by McDonald Constructions, Mr Stavar was given instructions by Ampol (Qld) personnel - by a maintenance insulation foreman, one Jack Barr, or by a superintendent, Ian Wilson. They would direct him to parts of the refinery where heat insulation was to be repaired or removed and replaced. It was necessary, for safety reasons, to obtain a written authority to permit his presence and work at particular places and times. He was, therefore, told what to do, but not how to do it. It would not be necessary for a maintenance worker to be told how to carry out his work. The task of removing and replacing asbestos lagging was not of such a nature that it required instructions on the means of carrying it out.

(e) Ampol (Qld) personnel knew where, and what, work was to be carried out and thus would identify its location.

(f) Sometimes during the period of his employment by McDonald Constructions, Mr Stavar’s work was inspected. McDonald Constructions did not, however, provide a foreman or supervisor, and inspections, when carried out, were carried out by employees of Ampol (Qld).

(g) When Mr Stavar began employment by Ampol (Qld) he was again engaged as a maintenance lagger and sheetmetal worker. He carried out the same types of work as before.

(h) Mr Stavar was the only maintenance lagger and sheetmetal worker at Ampol (Qld) (which I take to be at the refinery) after it employed him, and by reason of that fact, he was the only lagger responsible for the maintenance of insulation throughout the whole refinery. He said he was working full-time in an endeavour to keep up with the volume of repair and replacement of lagging. In due course, however, laggers from one of the Bells’ companies, now part of the Wallaby Grip group, were engaged to assist in the maintenance work.

(i) Mr Stavar’s work with, and exposure to, asbestos occurred probably on a daily basis until the mid-1980s. From the mid-1980s, however, until he retired, he continued to work in environments contaminated with asbestos, but only on a couple of days a week.

(j) The unchallenged evidence of Mr Stavar is that he was exposed to asbestos dust and fibre on a substantial basis every day he worked at the refinery until he was promoted; that is from 1964 to 1983, and on a reduced basis thereafter.

(l) In 1983, Mr Stavar received a promotion to leading hand or acting foreman. Thereafter, his contact with asbestos was not as intense as it had been before, but he did carry out the same type of work.

(m) Mr Stavar was exposed to asbestos throughout each period, though the quantity diminished after he became a leading hand or acting foreman.

The exposure of Mrs Stavar

23 The exposure of Mrs Stavar was dealt with at [17]-[24] and [97] of the President’s reasons. Again, in parts of his reasons, the President recited evidence of Mrs Stavar in a manner and in terms which reflected findings in terms of that evidence. On that basis, relevantly, the following finding were made:

(a) Mr Stavar’s work clothes, shirts and flannel singlet were covered in dust each day he worked at the refinery.

(b) Mrs Stavar washed her husband’s work clothes separately from the rest of the laundry load for the reason that those clothes were always dusty and it was her wish not to mix those clothes with the rest. She separated his clothes before washing into different coloured piles and there was always a separate pile for the work clothes. She shook out his clothing and emptied the pockets because they also contained dust. She had a Pope washing machine with a central agitator and to prevent the clothes from becoming tangled in the machine she shook them out to ensure they were not “bundled up” and spread them then into the washing machine.

(d) When Mr Stavar was first employed by Associated Insulations he and Mrs Stavar lived at Ingleston Street, Wynnum West. Soon afterwards, they moved to Crown Street, Wynnum where they lived for a period of nine years. In each place, the laundries were small, about eight feet by eight feet and seven feet in height. In one residence, the laundry was partly enclosed beneath the house. Sometimes Mr Stavar’s work clothing was left downstairs in the laundry and sometimes it was left upstairs. When it was left upstairs, Mrs Stavar would gather the clothing in her arms and carry it downstairs to the laundry. Each time she shook out her husband’s work clothes and emptied the pockets she saw dust floating in the air.

(f) Neither Mr Stavar nor Mrs Stavar was ever warned about the dangers of exposure to asbestos. The evidence is that neither Mr Stavar nor the plaintiff was exposed to asbestos other than that brought home on his work clothes from the Ampol (Qld) refinery.

(g) Neither Mr Stavar nor Mrs Stavar would knowingly have exposed themselves to the risks of contracting an asbestos disease.

(h) The asbestos material to which the plaintiff and her husband were exposed contained both amosite and chrysotile. Amosite is an amphibole and chrysotile is a serpentine. Chrysotile is less potent in causing asbestos disease than amosite, but it is the case that the exposure of Mr Stavar to asbestos from lagging must have been significant, he having said that during the course of his work at the refinery he had applied kilometres of asbestos rope.

(i) At a later stage in his employment by Ampol (Qld), Mr Stavar was provided with overalls and upon promotion was supplied with a uniform. Sometimes his overalls were left for laundering at the refinery, but his wife continued to launder his uniform and sometimes his overalls.

Exposure levels

24 In dealing with the subject of levels of exposure at [25]-[34] of his reasons, the President discussed the evidence of four witnesses: Mr Rogers, called by Caltex, an industrial hygienist; Dr Leigh, called by Mrs Stavar, a multi-qualified medical practitioner; Professor Henderson, called by Mrs Stavar, an eminent pathologist and Mr Stewart, also called by Mrs Stavar, an industrial hygienist. The President rejected Mr Rogers’ evidence and accepted the evidence of the three witnesses called by Mrs Stavar. Their opinions can thereby be accepted as factual findings where relevant.

25 One aspect of the acceptance of Dr Leigh, Professor Henderson and Mr Stewart and the rejection of Mr Rogers was the finding that Mr Rogers’ estimates of cumulative asbestos exposure were unreliable.

26 A second aspect of the acceptance of Dr Leigh was of his conclusion that an estimate of the asbestos exposure (that is a quantitative assessment) was not required if Mrs Stavar’s history were accepted (as it was).

Foreseeability and knowledge of Ampol (Qld)

27 The President dealt with the question of foreseeability at [35]-[76] of his reasons. The President posed the following question for himself (at [35]):

“… whether, during the whole of the period, that is from 1964 to 1991, exposure to small quantities of asbestos constituted a foreseeable risk of injury to people in the class of which the plaintiff was a member.”

28 The President eschewed hindsight: see [35] of his reasons.

29 After examining (at [36]-[69]) the evidence of what was known in the medical community, what was written in medical journals and what was known by the Victorian and Queensland Departments of Health and after considering Mr Stewart’s evidence, I would understand the President to have found the following facts:

(a) at least by reference to contemporary medical evidence from the mid-1960s it was reasonably foreseeable that there was a risk of injury to people in the position of Mrs Stavar, from exposure to small amounts of asbestos;

(b) Ampol (Qld) could have become aware of this foreseeable risk had it made enquiries, including enquiries of the Queensland Department of Health which would have given advice on the dangers of the use of asbestos and the means which should have been adopted to limit exposure and avoid injury; and

30 The question which the President posed for himself at [35] masked at least four important factual questions closely related to, and to a degree bound up with, foreseeability and which were also relevant to duty of care. These questions were: (a) the state of knowledge of Ampol (Qld) at any relevant time of the existing body of medical and occupational health and safety (“OH & S”) opinion; (b) the degree of appreciation in the medical and OH & S “communities” of the degree of danger of any particular amount or exposure load of asbestos and of what type of asbestos; (c) the state of knowledge of Ampol (Qld) at any relevant time of the degree of danger referred to in (b); and (d) if Ampol (Qld) did not actually know matters about the risks of asbestos, what was the legal basis, if any, for imputing such knowledge to Ampol (Qld) or for saying that it “ought” to have known.

31 The President did not have regard to historical evidence and general medical evidence concerning dust exposure and dust diseases admitted in other proceedings which may have been available to him by reason of the operation of the DDT Act, s 25(3). He took this course because of considerations of conflict of laws as to the application of the section given that the lex loci delicti was Queensland: cf BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400 at 491 [253] and see the President’s reasons at [38]. Because he took this course, his Honour only considered the evidence tendered before him. This material was recognised by the witnesses to be a less than complete history of the medical understanding of the problem.

32 The President then examined a number of important journal articles, as follows:

(a) a 1960 article by Wagner and others in the British Journal of Industrial Medicine - This was the first article to confirm the connection between asbestos and mesothelioma. This article referred to patients from an asbestos mining area who had no connection with the mine.

(b) a 1961 article by Sleggs and others in the South African Medical Journal - This article also contained reference to patients who had contracted mesothelioma with evidence of only exposure of a transitory nature.

(c) a 1965 article by Newhouse and Thompson in the British Journal of Industrial Medicine - This article dealt with domestic exposure of 76 patients with mesothelioma who gave full occupational and residential histories. Forty of the 76 had occupational or domestic exposure (the latter meaning living in the same house as an asbestos worker). The article made clear in its discussion the risk of mesothelioma from domestic exposure to asbestos on the clothes or person of a household member working with asbestos.

(d) a 1965 report of a working group convened under an organisation called the Geographical Pathology Committee of the International Union Against Cancer published in the Archives of Environmental Health – This report identified the urgent need to establish the degree of risk related to the type of fibre inhaled. In the case of mesothelioma it was noted that evidence suggested that exposure to crocidolite may be of particular importance.

(e) a 1965 article by Elmes and others in the British Medical Journal – This article noted the long lead time between first exposure to asbestos and discovery of the tumour and that exposure may be light and in some instances transient.

(f) a 1965 article by Selikoff and others in the New England Journal of Medicine – This article noted that mesothelioma may be contracted from exposure which was relatively light and intermittent. It discussed the contraction of mesothelioma by a person who had worked in a dry cleaning plant and others who had indirect occupational exposure. It raised the question whether mesothelioma would be found to be a community problem in addition to a problem with industrial exposure.

(g) a 1967 leading article in the British Medical Journal – This article dealt with the association between mesothelioma and asbestos. It noted that there was growing evidence that residents in asbestos mining or manufacturing districts were at risk by brushing and washing of contaminated work clothes.

(h) a 1968 article by Mortimer and Campbell in the Medical Journal of Australia – The authors were from the Department of Pathology at the Royal Brisbane Hospital and the Department of Medicine at the University of Queensland. This articled stated that the association of mesothelioma with asbestos exposure was now widely recognised. The article noted that mesothelioma was different from asbestosis, the latter being fibrosis of the lungs due to inhalation of asbestos dust. It was noted that the incidents of pleural neoplasms may be present in people with relatively little asbestos exposure and that this development of mesothelioma after minor exposure had recently caused widespread concern.

(i) a 1971 article by Wagner and others in the British Medical Bulletin – This article discussed the different types of asbestos fibre and risk and, in dealing with threshold limit values, stated that work had begun dealing with threshold limit values and that there was a need to plan the supervision of asbestos exposed individuals.

(j) a 1971 article by Wagner published in the Journal of the National Cancer Institute – This article stated that mesothelioma appeared to occur after slight exposures, particularly to crocidolite.

(k) a 1974 article by Greenberg and others in the British Journal of Industrial Medicine – This article dealt with domestic exposure and stated that domestic exposure was considered as positive when a history was taken that members of a subject’s family had come home visibly contaminated by asbestos. It stated that even brief exposure to asbestos could not be assumed to be safe.

33 The President then noted that all these papers were available in Australia “during the periods with which we are concerned here and became available soon after publication.” His Honour said at [55]:

“[55] … They demonstrate a growing awareness of the dangers of exposure to asbestos with the effluxion of time, and in particular, a knowledge of the fact that exposure to small doses of asbestos was capable of causing mesothelioma.”

34 It could also be said that these papers demonstrated an appreciation in the medical community of the risk of domestic exposure. That is the risk of exposure to those who lived with workers who carried home asbestos dust on their clothes and persons.

35 The President then turned to the evidence of Mr Stewart who identified an additional paper by McNulty in 1962 published in the Medical Journal of Australia which identified what appeared to be a relationship between exposure to blue asbestos and the development of mesothelioma. The article indicated that these tumours may arise after transitory exposure to crocidolite in susceptible persons.

36 At this point, the President noted that in answer to interrogatories “the first defendant indicated that it did maintain a library, but there is no evidence that it subscribed to any relevant medical journal.” The President continued at [57]:

“[57] … One might think that an enterprise as large as the first defendant, with its resources and whose activities were, or ought to have been, known to carry risks, would gather relevant literature and observe relevant recommendations and act on relevant knowledge.”

37 This paragraph has its difficulties. First, there is no basis, yet identified by his Honour, upon which to conclude that Ampol (Qld) knew of the risk of asbestos, of the existence of these medical journals or of the state of medical knowledge expressed within them. Nor was there any foundation expressed, as yet, for any conclusion that Ampol (Qld) ought to have known of these matters or any of them. Further, the President did not distinguish between any periods of time in relation to these conclusions.

38 The President then turned to the question of the Departments of Governments in the States in Australia concerned with OH & S issues. He noted that Mr Stewart had been an employee of the Victorian Department of Health where he was concerned with matters of the type under discussion. Mr Stewart had also been employed at a mine in Mt Isa and became familiar with material available to those conducting industrial operations in Queensland “during the periods with which we are here concerned”: [58]. The President found that while at Mt Isa, Mr Stewart had consulted, from time to time, at least one departmental medical officer on the use and dangers of asbestos. He had retained copies of correspondence in this regard including internal memoranda from officers in the Queensland Department of Health. At [59] the President said the following as to Mr Stewart’s evidence:

“[59] The effect of Mr Stewart’s evidence is that the officers of those Departments were available and willing to give advice to enterprises where asbestos was used and who were moved to inquire of them concerning the use of asbestos. They would give advice on the dangers of its use and the means which should be adopted to limit exposure and avoid injury.”

39 At [60]-[68] of his reasons, the President dealt with the correspondence and memoranda of the relevant departments. He referred to memoranda of a Dr Rathus who was the Director of Industrial Medicine to the Director General of Health and Medical Services. These memoranda revealed that Dr Rathus was familiar with the literature on the problem of asbestosis and mesothelioma. The President also concluded that the memoranda revealed that Dr Rathus was willing and available to give information to those who sought it.

40 A memorandum of Dr Rathus of 1969 recognised the risks of asbestos in the whole chain of use from mining through milling and processing to the ultimate use of it in various industries. It also recognised that people not directly connected with work may be involved with asbestos exposure such as labourers and cleaners who follow up the job and sweep away spent fibre.

41 In another memorandum of 1969 Dr Rathus recognised that long term exposure to even low concentrations had been shown to be associated with mesothelioma.

42 The President also made reference to a memorandum of a Mr Hilless in the Queensland Department of Labour and Industry and Tourism which recommended inclusion in the proposed Queensland Asbestos Rule a requirement that protective clothing be worn and be put on and taken off in accommodation provided. Some short time earlier, in July 1968, a Mr Swain, the acting Chief Industrial Inspector, forwarded a memorandum to the Under Secretary of the Department of Labour and Industry and Tourism and said that it was clear that hazards associated with the use of asbestos were well known to the medical field.

43 After this review of departmental memoranda to which Mr Stewart had made reference, the President returned to Mr Stewart’s evidence. At [69] the President said as follows:

“[69] At p 2 of his report of 20 May 2008 Mr Stewart said that, in his opinion, in the period from 1964 to 1985, it was foreseeable to Caltex that the plaintiff was at risk of contracting mesothelioma as a result of contact with, and shaking out, her husband’s work clothing. He based this opinion on his experience as an industrial hygiene engineer, as well as the documents to which he referred. At p 5 of his report he indicated the measures which could have been taken to obviate or minimise the risk of exposure to Mrs Stavar. The opinions of Dr Leigh and Professor Henderson also are that it was reasonably foreseeable that there was a risk of injury to persons in the class of whom the plaintiff was one at all relevant times. In my view, those opinions are justified by the evidence.”

44 It is necessary to say something as to what was said in [69]. Various attacks are made on it by the appellant. A number of comments at this point are appropriate. First, there was no objection taken on appeal to the admissibility of the evidence of Mr Stewart. Secondly, it is not clear that the foreseeability referred to in the first sentence was based upon what Mr Stewart said Ampol (Qld) knew or what they should have known. It is hard to see how his opinion could be based upon any evidence by him as to what Caltex knew. Therefore, his opinion based on the experience referred to in the second sentence was a form of expert opinion. As such, it is unclear by reference to what standard he was giving this opinion. Thirdly, the reasonable foreseeability referred to in the opinions of Dr Leigh and Professor Henderson is not linked to any particular person; that is, it is not an opinion by them that it was reasonably foreseeable by Ampol (Qld) of the matters there identified. To the extent that these two witnesses were referring to prevailing medical opinion, the evidence is understandable and can be seen to provoke no debate.

45 The President then referred at [70] to Bale v Seltsam Pty Ltd [1996] QCA 288 where the majority of the Queensland Court of Appeal rejected the claim of a plaintiff in a similar situation being of the view that she had not established that her injury was foreseeable. In that case, the husband had been exposed at work at an asbestos mine between June 1962 and August 1965. At [71] the President referred to a paragraph number in the judgment of Giles AJA (as his Honour then was) in the decision of this Court in CSR Ltd v Young (1998) 16 NSWCCR 56 which commented upon Bale v Seltsam. Giles AJA expressed agreement with the approach of the dissentient in Bale (Fitzgerald P) in that the question of reasonable foreseeability was not as to mesothelioma, but rather as to personal injury in general and that the relevant state of scientific knowledge did not require a positive foresight of harm, rather a foresight that given the uncertain state of knowledge there might be harm. Giles AJA also agreed with the approach of Fitzgerald P who considered that “the known toxicity” of asbestos dust and “the known uncertainty” as to the effects of exposure to asbestos dust, together with knowledge that injury or illness might not emerge for many years, gave rise to a risk which “could not be dismissed as ‘remote’, ‘slight’, ‘far-fetched’ or ‘fanciful’”.

46 The President then referred at [73] to two newspaper articles published in March 1969 and November 1973 about the dangers of asbestos and its potential to cause mesothelioma. He said:

“[73] …Of themselves, I doubt that they would be sufficient to cause the first defendant to foresee there was a risk of injury to people in the class of which the plaintiff was a member, but they indicate that there was such an awareness in the medical scientific community. The first defendant could have become aware had it made inquiries.”

47 Left hanging at the end of this paragraph were the questions whether Ampol (Qld) should have made enquiries, and, if so, by reference to what legal standard should it be judged that such enquiries were necessary.

48 At [74] of his reasons, the President described the precautions that asbestos contractors at the refinery took from the mid-1980s, as follows:

“[74] There is another factor also which is relevant on the issue of foreseeability. The evidence is that from the mid 1980s, the refinery engaged contractors from the Bells companies or from one of the Bells companies to assist in lagging, which involved not only the placing of new asbestos material, but the removal of old. The evidence is that the Bells employees, certainly from the mid 1980s, wore full protective clothing and were supplied with respirators. The plaintiff’s husband was not, and, of course, for some years before he was made redundant, he was still removing lagging without effective protection. The fact that Bells employees were wearing protective clothing ought to have made Caltex aware that there was a foreseeable risk of injury against which means were available to obviate or minimise it.”

49 Implicit in this paragraph is a finding that Ampol (Qld) was aware that Bells took these precautions. Explicit is the finding that from that knowledge Ampol (Qld) should have been aware of foreseeable risk from asbestos.

50 At [75] of his reasons, the President said the following:

“[75] I find that it was reasonably foreseeable from at least the mid 1960s that exposure to small amounts of asbestos was capable of causing injury to people in the class of which Mrs Stavar was a member.”

51 Looked at in isolation, this paragraph immediately provokes the question: “By whom was it reasonably foreseeable?” When one places that paragraph in the context of this part of the President’s reasons, it may, perhaps, be understood as a finding of the restricted character identified in [30(a)] above or, in the light of [69] of his Honour’s reasons, it may, perhaps, be a wider finding that it was reasonably foreseeable to Ampol (Qld).

52 The President then turned to the Asbestos Rule, which came into effect on 11 July 1971. The Asbestos Rule was made under the Factories and Shops Act, s 38(1) which was in the following terms:

“38(1) Power to make rules. Without limiting the general power to make rules conferred by section ninety-seven of this Act, rules may be made under that section for better securing the safety and health, and improving the welfare of persons employed in, or in connection with the business of, factories and shops, or, in the case of any buildings and other premises under construction for the purpose of being used whether in whole or in part as factories or shops, of persons employed in or in connection with the work of the construction of those buildings and other premises, or, in the case of any buildings and other places, to and with respect to which the provisions of this Part are applied by Order in Council under subsection two of section thirty-seven of this Act, of persons employed in or in connection with the business of those buildings and other places, and containing such provisions, requirements, conditions, and restrictions, whether general or to meet particular cases, as appear to the Governor in Council to be necessary, desirable, or convenient for the purpose.

Second Schedule. Without limiting the generality of the foregoing provisions of this subsection, rules may be made with respect to all or any of the matters and things set forth in the Second Schedule to this Act.”

53 The Second Schedule of the Act contained some subjects for the rules under s 38, being:

(a) provision and maintenance of suitable accommodation etc, including:

(ii) baths;

(iii) drinking water supplies;
(iv) lighting;
(v) ventilation;
(vi) dressing accommodation etc;
(vii) first aid;
(viii) fire; and
(viv) temperature;

(b) construction of factories and of shops;

(c) unsafe places;

(d) unsatisfactory premises;

(e) accidents;

(f) use of material; and

54 In the definitions found in cl 4(1) of the Asbestos Rule, asbestos was defined as meaning “any of the following minerals, that is to say crocidolite, amosite, chrysolite, fibrous anthophyllite and any mixture containing any of the said minerals.”

55 Clause 4(2) of the Asbestos Rule stated that:

liable to cause danger to the health of persons

(emphasis added)

56 The duties of occupiers were set out in Part II of the Asbestos Rule. These duties included, in cl 8, the duty to provide protective clothing for the use of each person engaged in the process or work or employed in any part of the factory, shop or place into which asbestos dust from the process or work is liable to escape. By cl 18, entitled “Cleaning of protective clothing”, it was provided that:

“(1) The occupier shall cause all protective clothing provided in pursuance of this Rule to be cleaned when necessary and maintained in good order and condition.

Provided that this requirement shall not apply in the case of protective clothing which before despatch from the factory for cleaning is properly packed in suitable containers which prevent the escape of asbestos dust therefrom and the containers in which it is packed are clearly marked with the words ‘Asbestos contaminated clothing’.”

57 It was not in issue that Ampol (Qld) did not comply with either cl 8 and cl 18, or cl 18 alone.

58 In relation to the Asbestos Rule, the President found at [76] of his reasons:

“[76] … It was … made apparent to those bound by [the Asbestos Rule] that people in the class of which the plaintiff was a member were at risk of injury by exposure to small quantities of asbestos.”

59 Thus, whatever was the position before 11 July 1971, from that date, the President expressed the view that Ampol (Qld), as a company bound by the Asbestos Rule, knew or can be taken to have known, that people in the class of which Mrs Stavar was a member were at risk of injury by exposure to small quantities of asbestos.

60 Later in his reasons the Presidet made the finding of fact that Ampol (Qld) was aware of the existence of Mrs Stavar by reason of a form that Mr Stavar had completed and lodged with Ampol (Qld) in which Mrs Stavar was identified.

Duty of care

61 The President then turned to duty of care. At [77]-[95] of his reasons his Honour dealt with the question as to the approach to duty of care and whether that duty existed in the period up to 1974, in which year Mr Stavar began to be employed by Ampol (Qld). I will refer to this period as the pre-employment period (and the period from 1974 to 1991 as the employment period). As is made clear in the recital of the facts found by the President, there were in fact three employment periods, the period before 1974 being divisible into two periods: Mr Stavar’s employment with Associated Insulations for 18 months from 1964 during construction of the refinery; and from 1965 to 1974 his employment with “McDonald Constructions” as a maintenance worker. The President dealt with whether a duty existed in the period after 1974 at [96]-[110] of his reasons.

62 The President commenced his analysis at [78] and [79] by reference to Gala v Preston [1991] HCA 18; 172 CLR 243 and Wyong Shire Council v Shirt as follows:

Gala and Ors v Preston

‘The requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury.’

Wyong Council v Shirt

‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.’”

63 At [80] the President referred to a comment by Bryson JA in Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2007) 4 DDCR 1 at 17 [36], as follows:

Seltsam Pty Ltd v McNeil

64 Because of the arguments of the appellant it is important, at this point, to diverge a little in the analysis of the President’s reasons and to note the context of [36] in Seltsam v McNeill. The paragraph finds its place in a discussion by Bryson JA (with whose reasons Handley and Tobias JJA agreed) at 11-19 [25]-[40] of foreseeability and its place in the duty of care. At [30], Bryson JA referred to Wyong Shire Council v Shirt (in the manner the President did at [79]), saying:

“[30] The test by which the existence of a duty of care is to be established in this case, as it generally is except in classes of cases where judicial authority has established its existence, is found in the judgment of Mason J in Wyong Shire Council v Shirt… The introductory words of the passage suggest that it is directed to decision on breach of duty, but its actual application has been wider. As the existence of a duty of care was conceded in Shirt's case, Mason J’s judgment is an unlikely source for the authoritative statement on the circumstances in which a duty of care exists which it has come to be treated as. Mason J. said:

‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.’”

65 Bryson JA noted at [31] that there had been expressions of dissatisfaction with Mason J’s test in Wyong Shire Council v Shirt such as by McHugh J and Callinan J in Tame v New South Wales [2002] HCA 35; 211 CLR 317 at 351-357 [96]-[108] and 429 [331] respectively. (To which the comments of Gleeson CJ at 331 [12] can, perhaps, be added.) Nevertheless, as Bryson JA pointed out, this Court in Julia Farr Services Inc v Hayes [2003] NSWCA 37; 25 NSWCCR 138 has concluded that whatever doubts about Wyong Shire Council vShirt were raised in Tame, this Court is still bound by Wyong Shire Council vShirt. See especially the comments of Spigelman CJ in Julia Farr at 142 [2]-[3].

66 At [32] of his reasons, Bryson JA said that it would be misreading Wyong Shire Council vShirt to ignore reasonableness as an aspect of foreseeability. At [34], Bryson JA referred to what Glass JA said in Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639-640. Because of the criticism made of the President for his treatment of foreseeability and his reference to what Mason J said in Wyong Shire Council vShirt, it is important to note what Glass JA said in Shirt v Wyong Shire Council in a passage quoted by Bryson JA in the section of the judgment in Seltsam v McNeill from which the President quoted. Glass JA had said at 639-640:

“In my opinion, the factual considerations which I have listed are entirely relevant to the breach question. They are, however, of only limited relevance to the duty question. This is because the existence or non-existence of a duty owed by the defendant council to the plaintiff falls to be considered upon a higher level of abstraction . The conduct relevant to the breach inquiry is the foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred. The inquiry to be made in relation to duty or no duty relates to the foreseeability of harm resulting to the plaintiff from the conduct of the defendant, considered quite generally as that of a party about to undertake the excavation of the bed of a lake frequented by the public.”
(emphasis added)

67 After quoting this passage, Bryson JA continued at [34] of his reasons:

“… The difficulties of this field of the law and its susceptibility to different interpretations are illustrated by the difficulty of discerning why the two lists of facts are relevant in different ways. An illustration of the higher level of abstraction at which the existence of duty of care is considered is the well-recognised possibility that there may be a reasonably foreseeable risk of injury, yet the response of a reasonable person to the foreseen risk may be to do nothing, so that a lack of response does not indicate breach of duty. This higher level of abstraction extends to defining the class of persons whose exposure to risk is foreseen .”
(emphasis added)

68 Then, at [36] (in the paragraph quoted by the President) Bryson JA said:

questions of reasonable foreseeability and existence of a duty of care are not correctly decided by applying, as if they express a syllogism, Mason J’s references to a risk which is remote, and to a risk which is not far-fetched or fanciful. The question of foreseeability must be looked at in the broad. The test of foreseeability is undemanding, but there is no basis for treating it as fictional or nominal, or for equating foreseeability with the limits of the imagination; it must be approached as a test which exists in reality and operates within the limits of the reasonable

69 After referring to foreseeability in employment cases, Bryson JA said at [38]:

the position of the respondent must necessarily be considered at a high level of abstraction;

Stepping from actuality into a higher level of abstraction, the person reasonable foreseeability of risk to whom must be considered is and must remain a home handyman who does not encounter the product in an industrial or commercial continuing situation, who works on the product for a few hours only on one handyman project, not as part of what is otherwise his working life.

70 I have interrupted the discussion of the President’s reasons at this point with a long recitation as to what Bryson JA said in Seltsam v McNeill because of the criticisms made of the President’s approach to foreseeability, with which I will deal in due course. Recognising that this was an extempore judgment, the condensed reference to [36] of Bryson JA’s judgment in Seltsam v McNeill can be seen (because of its content and its connection with surrounding paragraphs) to pick up the whole of the discussion by Bryson JA on foreseeability in this section of his judgment in Seltsam v McNeill.

71 At [81] of his reasons, the President, in rejecting the submission of Caltex that Mrs Stavar was a member of an indeterminate class, stated:

“[81] … That is a submission which I do not accept. It was foreseeable that employees of the refinery, those who worked there, and, as the literature earlier referred to shows, certainly from the mid 1960s, those who were members of the household of a person who worked at the refinery, were at risk of injury from exposure to even small amounts of asbestos.”

72 The President then turned to various authorities that were said to be relevant to the pre-employment period. His Honour discussed Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; 226 CLR 161; Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; 160 CLR 16; Northern Sandblasting Pty Limited v Harris [1997] HCA 39; 188 CLR 313. His Honour thought these cases to be relevant to any question of duty to Mr Stavar, rather than any duty to Mrs Stavar.

73 The President then turned to Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570. This was a decision in which Basten JA (with whom Mason P agreed) examined the circumstances in which a principal might owe a duty of care to an employee of a sub-contractor. In that case, Mr Abramovic was employed by independent contractors retained by Sydney Water to excavate trenches. The work involved drilling sandstone which, if carried on without water dampening equipment and respirators, could give rise to inhalation of silica dust by those drilling. In a careful discussion of Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1, Basten JA sought to distil what was said by the members of the Court in that case into a framework for application. Basten JA said at 591 [92] of his reasons, cited by the President at [88] of his reasons:

Crimmins

(b) the principal created the risk through directions given to the employer, or

(c) the principal knew or at least ought to have known that the employer was not, or was not capable of, instituting a safe system of work.”

74 A little later in his reasons in Abramovic in dealing with the possible release of toxic or hazardous material which might affect persons “in the vicinity of the activity”, Basten JA at 592-593 [96]-[98] (cited by the President at [90] of his reasons) stated relevantly, the following:

“[96] Where an activity required by a principal could result in a release of toxic or hazardous material which might affect people in the vicinity of the activity, the principal will have a duty to take reasonable care to protect people from the risk, which might require one of the following steps:

(i) not carrying out the activity;

(ii) warning those who may be affected of the risk, or
(iii) instituting controls to inhibit the release of the hazardous material.

Thus the initial question will be whether the duty is only satisfied by not carrying out the activity at all. …

[97] If the activity is to be carried out, it is clear that the principal will owe a duty to institute a safe system of work if it is the employer of the workers carrying out the activity. Where an independent contractor is interposed between the principal and the worker, that duty will rest upon the independent contractor as the employer of the worker. …

208 To that point in the reasoning, the Asbestos Rule had been treated as a part of the developing understanding of the dangers of asbestos dust, particularly in regard to mesothelioma, and as a factor of which the appellant should have been aware.

209 His Honour then turned to consider whether the appellant owed the plaintiff a duty of care. That matter was dealt with generally, without reference to the Asbestos Rule, at [77]-[95]. His Honour divided into three the periods of potential exposure, the first being the period of construction of the refinery, between 1964 and July 1965, during which the appellant was not in occupation of the site. In the second period, from 1965 until January 1974, Mr Stavar was employed to work on the site by McDonald Constructions. His Honour concluded that the appellant owed no duty to the plaintiff in either of those two periods: at [95]. (In relation to the latter period, that finding is challenged by way of cross-appeal.)

210 The final section of the Tribunal’s reasons dealing with duty and breach was headed “Duty in the employment period”, being the third period, from 14 January 1974 to 1 March 1991, during which period the plaintiff’s husband was employed by the appellant. In that part of the reasons, from [96]-[114], significant attention was given to the Asbestos Rule. So far as the plaintiff’s exposure during that period was concerned, his Honour treated it as similar to that in the preceding periods, at least until 1983, when her husband was promoted to a supervisory position, after which the level of exposure decreased: at [97].

211 The appellant appeared to take issue with reliance upon the Asbestos Rule in three ways, namely:

212 There was some degree of uncertainty in the language adopted by the Tribunal as to whether the Asbestos Rule “applied” in particular circumstances or whether it merely provided a basis for putting the appellant on inquiry. Thus, in rejecting a submission that the Rule “applied only in respect of people who were employed to work within a factory” his Honour said at [102]:

“The fact that asbestos contaminated clothing was to be cleaned within the factory, or, if removed for cleaning, to be packed in containers labelled ‘Asbestos contaminated clothing’, clearly indicates that it was intended for the protection of people outside the factory who might otherwise come in contact with asbestos dust on that clothing.”

213 The second and third bases of objection to reliance on the Rule were addressed by his Honour at [103]-[109]. The critical passage upon which reliance was placed by the appellant, as demonstrating error on a question of law, was [110] which stated:

“Whether the plaintiff needs to rely upon the statutory count alleging breach of the Asbestos Rule, or whether to establish negligence it is sufficient for the plaintiff to rely on the failure of the first defendant to observe its provisions, does not matter. The Asbestos Rule applied during the course of the plaintiff’s husband’s employment. He was employed by the first defendant for a period of seventeen years and for nine of those years he was subject to intense asbestos exposure and carried dust home. If I am wrong in the conclusion that there was no duty before Mr Stavar was employed, it is my view that the Asbestos Rule established a duty to the plaintiff by the first defendant upon Mr Stavar’s becoming employed.”

214 His Honour then referred to the class of those to whom he found the appellant owed a duty, namely “not only to employees and others who worked at the refinery, but also to members of their households”: at [111]. His Honour continued:

“The fact that the Asbestos Rule required special precautions to be taken to protect those laundering or coming into contact with the material, does not render the class indeterminate; on the contrary, it identified the class. The duty imposed on Caltex was to protect employees and those members of their households who were at risk of contracting asbestos diseases from coming into contact with asbestos contaminated work clothes or asbestos transported from the workplace to households. Caltex failed to comply with this duty. It breached its duty to the plaintiff by failing to provide protective work clothing to Mr Stavar and by failing to ensure compliance with those parts of the Asbestos Rule concerning laundering on site and by failing to warn.”

215 By an amendment to the statement of claim, filed on 24 June 2008, Mrs Stavar relied upon a failure to comply with the provisions of the Asbestos Rule, both as a particular of negligence and as a freestanding claim: amended statement of claim, pars 10(n) and 11. That explains his Honour’s reference to the “statutory count” at the beginning of [110]. However, having apparently disclaimed any intention to make a finding with respect to the statutory count, there is no reason to read what followed as contradicting that position. To say that the Asbestos Rule “established a duty” was entirely consistent with the proposition that the existence of such a Rule, which bound the appellant in its operation of the refinery, was sufficient to put the appellant on notice of risks to health extending beyond those who worked at the refinery, to those who might be required to clean contaminated work clothes, and particularly members of households of employees. That was the use which had been made of the Rule in the earlier passage at [76]. The reliance on the Asbestos Rule as identifying the class of those to whom the appellant owed a duty of care, should be understood in the same context. In circumstances where the case turned upon the appellant’s knowledge, or that which it ought to have known, of the risks of exposure to asbestos dust at the relevant time, and the question of whether any duty extended beyond those working at the refinery, this reading of his Honour’s reasons is consistent with determination of the key issues. Paragraph [110] does not demonstrate some implied finding as to breach of statutory duty, giving rise to a private action in damages, contrary to the opening words of that paragraph.

216 Further, there is no error in point of law in describing the Asbestos Rule as establishing a duty to the plaintiff. A significant part of the appellant’s case was that, whatever duty it may have owed to its employees, the duty did not extend to a person who neither worked at the refinery, nor came on to the site. Absent the clear indication contained within the Asbestos Rule that those who cleaned contaminated clothing might be at risk, the appellant might well have succeeded in limiting its duty in the manner proposed. The existence of the Asbestos Rule provided a basis upon which it was open to the Tribunal to reject that approach. The inferences to be drawn from the Rule, as to the appellant’s state of actual or constructive knowledge and the scope of the protected class, were matters of fact for the Tribunal. The reasoning in those respects demonstrated no error in point of law.

217 Before turning to the manner in which his Honour dealt with the question of breach, it is necessary to note that his Honour returned to the question now raised in a second judgment directed to costs: Stavar v Caltex Refineries (Qld) Pty Ltd (No 2) [2008] NSWDDT 26. In that judgment, handed down some two months after the principal judgment, his Honour referred to the amendment to the pleadings to include the statutory count based upon the Asbestos Rule and continued at [29]:

“In my reasons I did not specifically or separately deal with the plaintiff’s claim alleging negligence and breach of statutory duty, though without having to go through the divination of a soothsayer I think the reasons sufficiently disclose that the plaintiff had established a breach of a duty of care owed to her under the common law as well as a duty imposed by the Asbestos Rule.”

218 If his Honour did not in fact make a finding in his principal judgment based upon the statutory count, this statement (even were it not ambiguous in its terms) would be inadequate to do so. It would in effect be a revision of a judgment after delivery, the proper limits of which were discussed in this Court by Beazley JA (Powell JA and Sperling J agreeing) in Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463 at [41]-[50]. In substance, her Honour concluded that an alteration as to form, rather than substance, was permissible, but that an alteration which went to the substance of the findings or the orders would not be effective. The principles so stated were applied in Talbot-Price v Jacobs [2008] NSWCA 189 at [9]-[12] (Ipp JA). At some stage it may be necessary to consider how the principle, somewhat imprecisely stated, sits with the Uniform Civil Procedure Rules 2005 (NSW), rr 36.16 and 36.17. It is not necessary in this case.

219 There remains the complaint that his Honour concluded that the appellant was in breach of its duty under the general law simply because it had failed to comply with its statutory duty under the Asbestos Rule: ground (6).

220 The complaint in relation to the finding as to breach, as addressed in oral argument, was based on the assumption that his Honour had reasoned from a breach of statutory duty to a breach of common law duty. That, it was said, demonstrated the same error as that exposed in Sibley v Kais [1967] HCA 43; 118 CLR 424 at 427, where the High Court explained that a breach of duty giving rise to a traffic accident will not be answered solely by reference to which vehicle was required, under traffic regulations, to give way to the other. Their Honours stated:

“These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves.”

221 To say that a statutory obligation is neither definitive nor conclusive of breach of a common law duty is not to deny that the circumstances themselves may be relevant to breach. Nor is it to say that travelling at excessive speed may not constitute a breach of the common law duty of care, quite apart from the fact that it may also constitute a traffic offence. The error lies in reasoning simplistically from the existence of conduct constituting a traffic offence to a breach of duty.

222 In the present case, the Tribunal identified the conduct which was in fact a contravention of the statutory duty as the conduct which also constituted a breach of the general law duty of care. The duty of care included taking reasonable steps to prevent asbestos contaminated clothing being worn or taken home, at least in the absence of any warning as to the risks involved. There is a difference between finding that the common law duty was breached by conduct which contravened the statutory duty and finding that the common law duty was breached because the conduct contravened the statutory duty. The latter reasoning may have demonstrated error of law, but the impugned reasoning was not in those terms.

Contention: breach of statutory duty made out

223 Assuming that the appellant had established error in point of law, on grounds (5), (6) or (7), the plaintiff sought to uphold the decision of the Tribunal, not on the basis that it found a breach of statutory duty, but rather that, having found that the Rule imposed obligations on the appellant and that the Rule had been breached, it should have found further that the plaintiff had made good a cause of action for breach of statutory duty in respect of loss suffered from the date of commencement of the Rule.

224 The contention could only succeed if the question it raises is purely one of law, all the relevant facts having been found. The appellant did not contend that there were any further facts to be found and accepted that if it were otherwise successful on the appeal, this Court could determine whether there was a breach of statutory duty: Tcpt, 19/05/09, p 52(15).

225 To the extent that his Honour’s finding was limited to the period from 14 January 1974, it is not necessary to address this contention, his Honour’s findings having been upheld in any event. In relation to the period prior to 14 January 1974, the contention must be dealt with as part of the cross-appeal, if it be necessary. If the cross-appeal is upheld on other grounds, it may not be necessary.

226 The appeal should be dismissed.

Cross-appeal

227 For reasons which will need to be explained, the Tribunal found that, in respect of the period from 1965 to 1974, the appellant owed no duty of care to the plaintiff. That was a period during which her husband was employed, not by the appellant, but by an entity identified as “McDonald Constructions”, presumably a company, which carried out maintenance work at the refinery. The relationship of the plaintiff to the appellant during that period was therefore one of spouse of an employee of an independent contractor, rather than spouse of an employee. The other relevant circumstance was that the detail and spread of medical understanding during that period increased.

228 The latter factor can be put out of consideration for present purposes: his Honour found that the risk of harm to the plaintiff which materialised was reasonably foreseeable “from at least the mid 1960s”: at [75]. His Honour further concluded at [81]:

“It was foreseeable that employees of the refinery, those who worked there, and, as the literature earlier referred to shows, certainly from the mid 1960s, those who were members of the household of a person who worked at the refinery, were at risk of injury from exposure to even small amounts of asbestos.”

229 It follows that his Honour’s conclusion with respect to absence of liability on the part of the appellant during that period depended upon the interposition of an independent contractor between the appellant and the plaintiff’s husband.

230 In addressing this question, the Tribunal applied, as necessary criteria for the establishment of a duty, principles derived from my judgment in Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570 at [98]. That paragraph read as follows:

“However, the principal may also owe a duty to a worker who is an employee of an independent contractor. The legal question is to identify the criteria which must be satisfied to give rise to such a duty of care. The cases suggest that satisfaction of one of the following criteria may give rise to such a duty:

231 This list was not intended as a precise checklist, but rather as a guide to the criteria suggested by existing case law. The discussion continued:

Crimmins

100 There is a question as to the inter-relationship of (c) and (d). For example, criterion (c) may operate only in tandem with (d) or, if it is sufficient by itself, it may give rise only to a duty to warn, that is to pass on the relevant information to the employer. Criterion (d), on the other hand, may give rise to an obligation to require the institution of a particular system of work and, if necessary, to supply the necessary equipment to alleviate the risk.”

232 Two other matters affect the application of these criteria. First, the comment that they were not necessarily exhaustive is to be read in the context of the case, the circumstances of which were set out in summary form at [69] and need not be repeated. However, of particular importance was the fact that the plaintiff in that case was an employee of the independent contractor. As the facts of the present case illustrate, the nature of the duty owed to a worker engaged in the enterprise giving rise to the risk of injury, may be different from the nature of the duty owed to a third party. Thus, the relationship between a principal and the employee of an independent contractor may well focus on aspects of control. The proper allocation of responsibility for establishing a safe system of work on particular premises differs from the responsibility to prevent the escape of dangerous materials from those premises.

233 It is probably correct to say that criterion (e), dealing with the failure of the employer to take steps to alleviate a risk, could give rise to liability in circumstances where the failure is not actually known to the principal, but ought reasonably to have been known. The literal application of this criterion by the Tribunal may have been significant in the present case, depending upon what was understood by the term “knowledge”. Where the appellant itself did not have actual knowledge of the risks involved or the protection required, it cannot sensibly have been held to have had actual knowledge of the failure of the independent contractor to take reasonable steps to alleviate the risk. On the other hand, it could be said that the appellant “knew” that the contractor did not supply its staff with protective clothing, if that were the case, or require that the clothing be laundered on site. The significance of that knowledge depends in turn on what the appellant did not know, but ought to have known in relation to the risks.

234 More importantly, the Tribunal was in error in treating these criteria as an exclusive enunciation of the circumstances in which a principal could be held responsible for risks incurred by the activities of its independent contractor, where the person entitled to the exercise of reasonable care was not a worker and was not physically on the refinery site. Further, where there is a noxious substance on a site, the release of which may cause harm to third parties, there may be joint responsibility between the occupier of the site, for whose purposes the noxious material is present, and the independent contractors who deal with the substance, to ensure that it does not escape. Such a joint responsibility may be an example (if inaptly described) of what is known as a “non-delegable duty”, a point to which further attention is given below.

235 There are other aspects to the question of liability in these circumstances. For example, the appellant did not employ the independent contractor to contain the substance (namely asbestos dust) which escaped. Nor (it appears) was the independent contractor expert in handling and containing asbestos dust, in a way which was not true of the appellant. Further, it was the use by the appellant of asbestos lining and lagging which gave rise to the risk of dust being released when it was cut or replaced during maintenance work. Thus, the risk was not one created solely by the manner in which the maintenance work was carried out: the appellant’s use of asbestos as lagging necessarily involved the creation of such risks as maintenance work was carried out.

236 If the duty of the appellant were described as a duty to take reasonable care to prevent the escape of asbestos dust from its premises, the duty would not be dependent upon any specific means by which the dust was created or escaped. Disregarding the Asbestos Rule, that duty may have been delegable in the sense that the appellant might have employed an expert contractor to design and implement protective measures. To employ a reasonably competent contractor may have been a sufficient discharge of the duty, so that only the contractor was then liable for a negligent escape. (It is necessary to say “may” because no complete statement of the circumstances has been attempted.) But if dust escaped in circumstances where there had been no attempt to employ an independent contractor to carry out safety measures, the principal (the appellant) may have remained liable for a breach of its own duty not to allow escape, even though the risk was created by the work of the independent contractor.

237 To find the appellant liable in such circumstances would not be to impose vicarious liability on the appellant for the actions of the independent contractor. The production of asbestos dust was not caused by negligence of the independent contractor. There may indeed have been a duty to prevent the carriage of dust by workers to their homes, imposed on both the appellant and McDonald Constructions. If so, each duty would have been independent of the other. For the appellant, the actions of McDonald Constructions were merely the instrument by which the dust was created. Because the duty of the appellant extended to taking reasonable care to prevent that dust being carried home by those on the premises on a regular basis, it mattered not whether the dust was created by its own employees or by independent contractors. If McDonald Constructions also had a duty to prevent the dust being carried home by its employees, that duty may well have been concurrent with and possibly co-terminous with, that of the appellant, but each was independent of the other.

Relief

238 The Tribunal did not approach the issue of the appellant’s duty to the plaintiff during the earlier period in the way indicated above. That involved an erroneous legal decision on its part, for the purposes of s 32 of the Dust Diseases Tribunal Act. The cross-appeal should, accordingly, be allowed. The question is what relief should be granted by this Court.

239 It might be open to this Court to determine whether or not the duty imposed on the appellant under the general law (or, under the Asbestos Rule if it were held that the duty under that Rule extended to the protection of members of the households of workers) was a duty which could not be “delegated”. However, that may be a large question. If, for example, an occupier with no particular expertise in controlling particular risks on its premises employs competent experts to do so, there may be a real issue as to why, in particular circumstances, it would be found that the occupier was unable to delegate a duty of that kind, in that way. (More accurately, it might be a question of whether the occupier could satisfy its duty by engaging competent experts.) That question was not fully debated in the proceedings before this Court. Further, there would be a factual issue as to whether the appellant sought to fulfil such an obligation through McDonald Constructions. Given the finding that it had no actual knowledge of the risks involved in the levels of asbestos dust created by maintenance work, it seems quite unlikely that it sought to impose any obligation on McDonald Constructions to carry out safety measures to prevent the dust being carried out of the refinery. If it had, there would have been a question as to whether it was aware (or ought to have been aware) that McDonald Constructions was not taking adequate measures.

240 It may be that some questions are readily answered, on the basis of the factual findings already made. On the other hand, there may be other salient features which need to be addressed. Because these issues were not fully debated on the correct approach, and because the relevant findings have not been made in terms, it is necessary to remit the matter to the Tribunal so that the liability of the appellant for the period from 1965 to 1974 can be determined according to law.

I agree with Allsop P. I also agree with the additional observations of Basten JA.

**********

Citations

Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258

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North Broken Hill Ltd v Tumes [1999] NSWCA 309

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CITATION:	Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258
HEARING DATE(S):	19 & 20 May 2009
JUDGMENT DATE:	31 August 2009
JUDGMENT OF:	Allsop P at 1; Basten JA at 149; Simpson J at 242
DECISION:	1. Appeal dismissed. 2. Grant leave to cross-appeal. 3. Cross-appeal allowed. 4. Set aside that part of the order for costs made by the Tribunal refusing to award costs to the plaintiff in respect of the period before 1974 and remit that issue together with any attendant questions of the duty of care and breach thereof in the period prior to 1974 to the Tribunal for rehearing. 5. The appellant pay the respondent's costs of the appeal and cross-appeal. 6. The parties have leave to file written submissions about the form of the orders and any variation thereof. Any application to vary these orders to be made by notice of motion filed within 14 days.
CATCHWORDS:	DUST DISEASES TRIBUNAL – appeal to Court of Appeal - appeal in point of law – error identified not operative - remittal to the Dust Diseases Tribunal - Dust Diseases Tribunal Act 1989 (NSW), s 32 - TORTS – negligence – duty of care – novel categories – multifactorial approach to establishing existence of duty - salient features – proximity no longer general determinant of duty – asbestos - domestic exposure – liability of employer where employee brings home contaminated work clothes into domestic environment – foreseeability of harm – whether indeterminate class – class identified conformed with the available medical and occupational health and safety material – foreseeability of harm – required abstraction of consideration of foreseeability - knowledge of risk – available medical evidence identified as at risk a class of persons in a domestic environment with contaminated workers – Asbestos Rule 1971 under Factories and Shops Act 1960 (Qld) – Asbestos Rule required knowledge of the medical and occupational health and safety knowledge - TORTS – negligence –statutory duty – Factories and Shops Act 1960 (Qld) s38(1) – Asbestos Rule 1971 – construction of width of statutory duty – width of duty established in enabling act – rule not extend to protection of non workers in domestic environment - statutory duty did not extend to those in the position of plaintiff – no private right to those outside the statutory duty of care - TORTS – negligence – duty of care – independent subcontractor – duty of care of principal to third party– asbestos - domestic exposure – liability of principal where third party brings home contaminated work clothes into domestic environment – duty of care to third party in carrying on of hazardous activities or handling toxic materials– no self contained test – failure to apply multifactorial approach – failure to address all relevant factual issues – knowledge of principal – steps taken by contractor – toxicity and hazard of asbestos – degree of control of principal – degree of direction and control of subcontractor - Dust Diseases Tribunal Act 1989 (NSW) - s 32 - Factories and Shops Act 1960 (Qld) - s38(1) – Asbestos Rule 1971
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 Factories and Shops Act 1960 (Qld) Asbestos Rule 1971 (Qld) (regulation) Uniform Civil Procedures Rules 2005 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	ACQ v Cook [2008] NSWCA 161; 72 NSWLR 318 ACQ Pty Ltd v Cook [2009] HCA 28 Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 Amaca Pty Ltd v AB & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Rep 81-910; 5 DDCR 543 Anns v Merton London Borough Council [1978] AC 728 Bale v Seltsam Pty Ltd [1996] QCA 288 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Burnie Port Authority Limited v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520 Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA 65; 136 CLR 529 Caparo Industries Plc v Dickman [1990] 2 AC 605 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202 Cooper v Hobart (2001) 206 DLR (4th) 193 Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 CSR Ltd v Young (1998) 16 NSWCCR 56 Donoghue v Stevenson [1932] AC 562 Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111 Gala v Preston [1991] HCA 18; 172 CLR 243 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Hill v Van Erp [1997] HCA 9; 188 CLR 159 ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647 John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Julia Farr Services Inc v Hayes [2003] NSWCA 37; 25 NSWCCR 138 Leigh Sillilvan Ltd v Aliakmon Shipping Co Ltd [1985] QB 350 McPherson’s Limited v Eaton [2005] NSWCA 435; 65 NSWLR 187 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 North Broken Hill Ltd v Tumes [1999] NSWCA 309; 18 NSWCCR 412 Northern Sandblasting Pty Limited v Harris [1997] HCA 39; 188 CLR 313 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (“Wagon Mound [No 1]”) [1961] AC 388 Overseas Tankship (UK) Ltd v Miller Steamship Co Pt y Ltd ("Wagon Mound [No 2]") [1967] 1 AC 617 Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142; 68 NSWLR 131 Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 Roads and Traffic Authority v Dereder [2007] HCA 42; 234 CLR 330 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 2008; 3 DDCR 1 Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2007) 4 DDCR 1 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Sibley v Kais [1967] HCA 43; 118 CLR 424 Stavar v Caltex Refineries (Qld) Pty Ltd (No 2) [2008] NSWDDT 26 Stevens v Brodribb Sawmilling Company Pty Limited [1986] HCA 1; 160 CLR 16 Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; 226 CLR 161 Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570 Talbot-Price v Jacobs [2008] NSWCA 189 Tame v New South Wales [2002] HCA 35; 211 CLR 317 Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234 Transfield Services (Australia) v Hall [2008] NSWCA 294 Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
TEXTS CITED:	Fleming, The Law of Torts (LBC 1957) Handsley E, Sullivan v Moody: Foreseeability of injury is not enough to found a duty of care in negligence – but should it be?” (2003) 11 Torts LJ 1 Markesinis and Deakin’s Tort Law (6th ed, OUP, 2008) Mustill, “Negligence in the World of Finance” (1992) 5 The Supreme Court Journal 1 Weinrib E, “The Disintegration of Duty” in Exploring Tort Law (Madden, ed, Camb UP, 2005) Witting C, Duty of Care: An Analytical Approach (2005) 25 Oxford J Leg Studies 33 Witting C, “Tort Law, Policy and the High Court of Australia” (2007) 31 Melb UL Rev 569
PARTIES:	Caltex Refineries (Qld) Pty Limited (Appellant) Beverley Dawn Stavar (First Respondent) Amaca Pty Ltd (formerly James Hardie Co Pty Ltd) (Second Respondent) Wallaby Grip Ltd (formerly Bells Asbestos) (Third Respondent) Wallaby Grip (BAE) Pty Ltd (Fourth Respondent) Wallaby Grip (NSW) Pty Ltd (Fifth Respondent)
FILE NUMBER(S):	CA 40360/08
COUNSEL:	A J Sullivan QC, P W Flynn (Appellant) J McIntyre SC, S Tzouganatos (Respondent) Second to fifth respondents gave submitting appearances
SOLICITORS:	HWL Ebsworth (Appellant) Turner Freeman Lawyers (First Respondent) DLA Phillips Fox (Second Respondent) Middletons Lawyers (Third, Fourth & Fifth Respondent)
LOWER COURT JURISDICTION:	Dust Diseases Tribunal of NSW
LOWER COURT FILE NUMBER(S):	7349/07
LOWER COURT JUDICIAL OFFICER:	O'Meally P
LOWER COURT DATE OF DECISION:	29 July 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22