Stavar v Caltex Refineries (NSW) Pty Ltd - [2008] NSWDDT 22

Dust Diseases Tribunal

of New South Wales

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

PARTIES: Beverley Dawn Stavar (Plaintiff)
Caltex Refineries (NSW) Pty Ltd (First Defendant)
Amaca Pty Ltd (Second Defendant)
Wallaby Grip Ltd (Third Defendant)
Wallaby Grip (BAE) Pty Ltd (Fourth Defendant)
Wallaby Grip (NSW) Pty Ltd (Fifth Defendant)

MATTER NUMBER(S): 7349 of 2007

JUDGMENT OF: O'Meally P

CATCHWORDS: DUST DISEASES TRIBUNAL :- mesothelioma - plaintiff exposed to asbestos from husband's work clothes - suppliers admit liability - husband worked at remaining defendant's refinery - three relevant periods - first on construction of refinery - then employed by subcontractor to contractor to defendant - second on maintence work - then employed by contractor to defendant - third as maintainence worker - then employed by defendant - whether injury to plaintiff foreseeable - whether duty of care owed by defendant during relevant periods - whether Asbestos Rule (Qld) created duty of care to plaintiff - whether exposure in each period causatitive of mesothelioma - Dust Diseases Tribunal Act Ss 25(3), 25 B - whether substantive or proceedural

LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Regulation 2007
Service and Execution of Process Act 1992
Jurisdiction of Courts (Cross-Vesting) Act 1987
Factories and Shops Act 1960 (Qld)
Asbestos Rule 1971 (Qld)

CASES CITED: Caltex Refineries (Qld) Pty Ltd v Stavar & Ors [2008] NSWSC 223
Bale v Seltsam Pty Ltd [1995] QSC 306; [1996] QCA 288 (23 August 1996)
Overseas Tank Ship (U.K.) Ltd v Morts Dock Engineering Co Ltd (The Wagon Mound) 1961 AC 388
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
CSR Ltd v Young (1998) 16 NSWCCR 56
Gala & Ors v Preston (1991) 172 CLR 243
Wyong Shire Council v Shirt (1980) 146 CLR 40
Seltsam Pty Ltd v McNeil (2006) 4 DDCR 1
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Stevens v Brodribb Saw Milling Company Pty Ltd (1986) 160 CLR 16
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Sydney Water Corporation v Abramovic & Anor [2007] NSWCA 248
Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111
ACQ v Cook [2008] NSWCA 161 (16 July 2008)
James Hardie & Coy Pty Ltd v Barry (2000) 21 NSWCCR 150

TEXTS CITED: LITERATURE CITED:
J C Wagner et al, "Diffuse Pleural Mesothelioma and Asbestos exposure in the North Western Cape Province" (1960) British Journal of Industrial Medicine 17, 260
C A Sleggs et al, "Diffuse Pleural Mesotheliomas in South Africia" (1961) South Africian Medical Journal 14 January 1961, 28
M L Newhouse and H Thompson, "Mesothelioma of Pleura and Peritoneum following Exposure to Asbestos in the London Area" (1965) British Journal of Industrial Medicine 14 January 1965, 22, 261
"Working Group on Asbestos and Cancer" (1965) Archives of Enviromental Health, Vol 11, 221
P C Elmes et al, "Diffuse Mesothelioma of the Pleura and Asbestos" (1965) British Medical Journal 1, 350
I J Selikoff, "Relation Between Exposure to Asbestos and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWDDT 22
Decision Date: 29 July 2008

CaseChat Overview and Summary

In this case, the plaintiff, Stavar, sought compensation for mesothelioma allegedly caused by exposure to asbestos from her husband's work clothes. The husband was employed by various parties, including the defendant, Caltex Refineries (NSW) Pty Ltd, at different times. The dispute arose from whether the defendant owed a duty of care to the plaintiff during the relevant periods of exposure and whether the exposure during these periods caused the mesothelioma.

The legal issues that the court had to decide included whether the injury to the plaintiff was foreseeable and whether a duty of care was owed by the defendant during the relevant periods. The court also had to determine whether the Asbestos Rule (Qld) created a duty of care to the plaintiff. Furthermore, the court examined whether the exposure in each period contributed to the mesothelioma. The Dust Diseases Tribunal Act sections 25(3) and 25 B were also considered to determine if the issues were substantive or procedural.

The court found that the injury to the plaintiff was foreseeable and that a duty of care was owed by the defendant during the relevant periods. The court determined that the Asbestos Rule (Qld) did not create a duty of care to the plaintiff. However, the court held that the exposure during the first and second periods did not cause the mesothelioma, but the exposure during the third period did. The court concluded that the issues were substantive rather than procedural. Therefore, the plaintiff's claim was partially successful.

The court ordered that the defendant pay compensation to the plaintiff for the mesothelioma caused by exposure during the third period. The plaintiff's claim for compensation for exposure during the first and second periods was dismissed. The court also ordered the plaintiff to pay the costs of the proceeding.

Orders