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 2009JUDGMENT 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…
Keep reading for free
Create a free CaseChat account to read Caltex Refineries (Qld) Pty Ltd v Stavar and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2009] NSWCA 258
- Decision Date
CaseChat Overview and Summary
The Court of Appeal of New South Wales heard an appeal from a decision of the Dust Diseases Tribunal concerning a claim for damages arising from asbestos exposure. The appellant, Caltex Refineries (Qld) Pty Ltd, sought to appeal a decision that found it liable to the respondent, Mr. Stavar, for negligence. The dispute centred on whether Caltex owed a duty of care to Mr. Stavar, who contracted an asbestos-related disease due to his wife, a former employee of Caltex, bringing home contaminated work clothes.
The primary legal issues before the Court of Appeal were whether the Dust Diseases Tribunal erred in law in finding that Caltex owed a duty of care to Mr. Stavar, and whether the Tribunal correctly interpreted and applied the relevant Queensland legislation, specifically the *Factories and Shops Act 1960* (Qld) and the Asbestos Rule 1971, in relation to statutory duties. The court also considered whether the Tribunal erred in its assessment of the duty of care owed by a principal to a third party in relation to the activities of an independent subcontractor.
The Court of Appeal, in dismissing the appeal, affirmed that the multifactorial approach, rather than a singular focus on proximity, is the correct method for determining the existence of a novel duty of care. The court reasoned that the class of persons at risk, including those in a domestic environment exposed to asbestos dust brought home on work clothes, was sufficiently identified and foreseeable, aligning with available medical and occupational health and safety knowledge. Regarding the statutory duty under the *Factories and Shops Act 1960* (Qld), the court found that the Asbestos Rule 1971 did not extend to protecting individuals in the domestic environment, thus the statutory duty did not encompass the plaintiff's situation. However, the court allowed the cross-appeal, finding that the Tribunal had failed to adequately address all relevant factual issues concerning the duty of care owed by Caltex as a principal to a third party in relation to the hazardous activities of its contractor, particularly concerning the knowledge of the risk and the degree of control exercised.
Consequently, the Court of Appeal dismissed the appeal, granted leave to cross-appeal, and allowed the cross-appeal. The court set aside the part of the Tribunal's costs order that refused costs to the plaintiff for the period before 1974 and remitted that issue, along with attendant questions of duty of care and breach for the period prior to 1974, to the Tribunal for rehearing. Caltex was ordered to pay Mr. Stavar's costs of the appeal and cross-appeal.
The primary legal issues before the Court of Appeal were whether the Dust Diseases Tribunal erred in law in finding that Caltex owed a duty of care to Mr. Stavar, and whether the Tribunal correctly interpreted and applied the relevant Queensland legislation, specifically the *Factories and Shops Act 1960* (Qld) and the Asbestos Rule 1971, in relation to statutory duties. The court also considered whether the Tribunal erred in its assessment of the duty of care owed by a principal to a third party in relation to the activities of an independent subcontractor.
The Court of Appeal, in dismissing the appeal, affirmed that the multifactorial approach, rather than a singular focus on proximity, is the correct method for determining the existence of a novel duty of care. The court reasoned that the class of persons at risk, including those in a domestic environment exposed to asbestos dust brought home on work clothes, was sufficiently identified and foreseeable, aligning with available medical and occupational health and safety knowledge. Regarding the statutory duty under the *Factories and Shops Act 1960* (Qld), the court found that the Asbestos Rule 1971 did not extend to protecting individuals in the domestic environment, thus the statutory duty did not encompass the plaintiff's situation. However, the court allowed the cross-appeal, finding that the Tribunal had failed to adequately address all relevant factual issues concerning the duty of care owed by Caltex as a principal to a third party in relation to the hazardous activities of its contractor, particularly concerning the knowledge of the risk and the degree of control exercised.
Consequently, the Court of Appeal dismissed the appeal, granted leave to cross-appeal, and allowed the cross-appeal. The court set aside the part of the Tribunal's costs order that refused costs to the plaintiff for the period before 1974 and remitted that issue, along with attendant questions of duty of care and breach for the period prior to 1974, to the Tribunal for rehearing. Caltex was ordered to pay Mr. Stavar's costs of the appeal and cross-appeal.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.