Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 (31 August 2009)

Last Updated: 2 September 2009

NEW SOUTH WALES COURT OF APPEAL

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


FILE NUMBER(S):
40360/08

HEARING DATE(S):
19 & 20 May 2009

JUDGMENT DATE:
31 August 2009

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)

JUDGMENT OF:
Allsop P Basten JA Simpson J

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

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)

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 [1977] UKHL 4; [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] UKHL 2; [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 [1931] UKHL 3; [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] UKPC 1; [1961] AC 388
Overseas Tankship (UK) Ltd v Miller Steamship Co Pt y Ltd ("Wagon Mound [No 2]") [1966] UKPC 1; [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

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.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

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].

In relation to issue (vii):

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
OF NEW SOUTH WALES
COURT OF APPEAL

40360/2008

ALLSOP P

BASTEN JA

SIMPSON J

Monday 31 August 2009

CALTEX REFINERIES (QLD) PTY LIMITED v STAVAR

Judgment

1 ALLSOP P: 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:

“32 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.

(2) The Supreme Court may, on the hearing of any appeal under this section, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit.

(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:

(a) His Honour is said to have used the wrong test to assess the existence of a duty of care by:

(i) using a case dealing with breach of duty, Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 to assess whether a duty existed;

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

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

(iv) misapplying the question of foreseeability of injury; and

(v) conflating statutory duty and common law duty of care by concluding that the existence of a statutory duty in the statutory instrument called the Asbestos Rule and promulgated under the Factories and Shops Act 1960 (Qld), established such a common law duty.

(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.

(c) His Honour is said to have erred in finding a private statutory right at the suit of Mrs Stavar in 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

(e) complaints as to the failure of the President to make findings as to the qualification of exposure.

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

(e) failing to consider whether Ampol (Qld) ought to have known that McDonald Constructions had not taken steps to alleviate the risk of asbestos disease to its employees or Mrs Stavar.

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.

(b) Mrs Stavar suffers from malignant mesothelioma, which she contracted as a result of coming into contact with asbestos dust and fibres on her husband’s working clothes and deposited in homes in which they lived and in the motor cars in which from time to time they travelled.

(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.

(f) Ampol (Qld) is and was at all material times a large corporation (referred to by the President as a multinational corporation). At all relevant times, it had a paid up capital of millions of dollars and reserves of millions of dollars. It employed thousands of people. The refinery at Lytton occupied a large area of land and was a large construction. One of Ampol’s annual reports disclosed that 85 Australian subcontractors worked on the construction of the refinery under the supervision of the Bechtel Pacific Corporation Ltd (Bechtel). The refinery contained 82 miles of piping, 28,420 feet of copper tubing, 15,735 feet of tubing for instruments, 2,000 tons of steel for vessels and 600 tons of structural steel. There were 89 columns and vessels, 69 heat exchanges, 197 pumps, seven substations and 9,479 valves. On many of these installations asbestos lagging and rope were applied.

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.

(d) When Mr Stavar was employed by McDonald Constructions between 1965 and 1974, Ampol (Qld) did not direct the manner of the performance of Mr Stavar’s work. He was told where maintenance work was required. He was not directed how to do that work. While employed by McDonald Constructions, Mr Stavar’s work did not require the co-ordination of different contractors.

(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.

(k) It was open to Ampol (Qld) to provide respirators and protective clothing of the type worn by Bells’ employees in the mid-1980s to Mr Stavar and it failed to do so.

(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.

(c) Mr Stavar’s practice, when he came home from work, was to approach his wife and kiss and hug her. It was not always that he removed his work clothing in the laundry of the home; sometimes he would sit in the house and have a drink of water, a beer or a cup of tea before entering the bathroom or laundry to remove his overalls, or other work clothes if he was not wearing overalls.

(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.

(e) In 1976, Mr and Mrs Stavar moved to a house in Dianthus Street, Wakerley, where they remained for a period of about ten years. This house had a laundry whose dimensions were approximately two metres by two metres. Dust was liberated from work clothes and pockets in this home in the same way as before.

(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.

(j) Mrs Stavar’s exposure continued as it was prior to 1974 up to 1983, when it lessened.

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

(c) Bells’ employees, from the mid-1980s wore full protective clothing and were supplied with respirators, which ought to have made Ampol (Qld) aware that there was a foreseeable risk of injury against which means were available to obviate or minimise it.

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.

(l) a 1976 article by Becklake and others in the American Review of Respiratory Diseases – This article identified the time at which associations between asbestos exposure and mesothelioma (as distinct from asbestosis) was established to the point of scientific certainty as the early 1960s. The article stated that exposure to asbestos fibre is not confined to the place of work and a search for exposure in the background of patients with mesothelioma had brought to light several forms of indirect non-occupational exposure including exposure of family members of asbestos workers to asbestos in the domestic context being presumed to be the dust brought home in overalls.

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:

(i) sanitary and washing conveniences;
(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

(g) duties.

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:

“References in this Rule to asbestos dust shall be taken to be references to dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of persons and shall include any particles given off by means of any spraying process.”

(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.

(2) Such cleaning shall be carried out within the factory:

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:

“[78] In Gala and Ors v Preston ... at 253 the majority of the High Court (Mason CJ, Deane, Gaudron and McHugh JJ) said:

‘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.’

[79] If I may say so, a helpful test for determining whether a duty of care is established is provided in the judgment of Mason J in Wyong Council v Shirt ... Though the introductory words are directed to breach, those following relate to the existence of a duty. His Honour said at 47:

‘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:

“[80] In Seltsam Pty Ltd v McNeil [sic] ... Bryson JA observed at [36] that while the test of foreseeability was undemanding, it was not real or reasonable or just, to adopt one broad class of end users to whom the risk of exposure to asbestos was foreseeable.”

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 v Shirt were raised in Tame, this Court is still bound by Wyong Shire Council v Shirt. 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 v Shirt 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 v Shirt, 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:

“In my opinion 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. It is not real, reasonable or just to adopt one broad class of end users to whom risks of exposure to asbestos were foreseeable. Persons whose exposure to asbestos was reasonably foreseeable include many whose exposure occurred in circumstances altogether different from those of the respondent. Workers who handled asbestos in mining, manufacturing or other industrial operations cannot on a reasonable or just basis be included in the same class as the respondent for purposes of deciding foreseeability. Their exposure was to undiluted asbestos and, as reasonably foreseen, extended to exposure for hours in the course of working days, and to continuous exposure over periods of months or years in a working career. Information which is known or ought to have been known to the appellant with respect to risks to them would be misapplied if it were treated as showing or tending to show some risk of injury relevant to the respondent’s position.”

(emphasis added)

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

“In considering whether a reasonable person in the appellant’s position would foresee that carelessness on his part may be likely to cause injury to the respondent, and whether there was a duty of care to the respondent, the position of the respondent must necessarily be considered at a high level of abstraction; the appellant of course could have no actual knowledge of the respondent himself or of the actual circumstances in which his association with the product exposed him to risk. 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. It would be an error, a legal error, to bring to bear considerations relating to the foreseeability of risk of injury to classes of persons with higher degrees of exposure, either in intensity of involvement in working on the product, or in number of occasions and length of time for which the product was worked on, or otherwise with greater intensity. The respondent is not entitled to rely on conduct which was negligent in the sense that there was a breach of a duty of care to some other persons the reasonable foreseeability of risk of injury to whom was different to foreseeability related to the respondent. In my opinion it would be a legal error to treat all end-users of a manufacturered product uniformly for the purpose of considering the existence of the duty of care to them unless in reasonable foreseeability of risk of injury their circumstances placed them in the same class.”

(emphasis added)

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:

“[92] If that duty [that is the duty to control work of its contractors] is not to arise in all cases involving independent contractors additional elements, as in Crimmins, must be established. These appear to be that:

(a) the principal had knowledge of the risks which was not shared by the employer, or

(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. ...

[98] 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:

(a) the principal directs the manner of performance of the work;

(b) the work requires the co-ordination of the activities of different contractors;

(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;

(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;

(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.”

75 It can be seen that in the slightly more elaborate statement in [98] (compared to [92]), Basten JA used the word “knowledge” in the last line of (e) in [98], whereas in [92] he said “knew or at least ought to have known.” There is nothing in Basten JA’s reasons between [92] and [98], or elsewhere in his judgment, that would found a conclusion that his Honour was confining “knowledge” in a manner more narrowly than expressed in [92]. Nor do I read what his Honour said at [98] to be intended to be a comprehensive test. These considerations are relevant to the cross-appeal.

76 At [89], [92] and [93], the President made findings of fact favourable to Caltex. At [89] of his reasons the President found by reference to what Basten JA had said at [92] in Abramovic that Mrs Stavar had not established, as a matter of fact, that (a) Ampol (Qld) had knowledge of the risks which was not shared by McDonald Constructions, or (b) that Ampol (Qld) created the risk through directions given to McDonald Constructions, or (c) that Ampol (Qld) knew or ought to have known that McDonald Constructions was not or was not capable of instituting a safe system of work.

77 At [92] and [93] of his reasons, the President said the following:

“[92] The evidence demonstrates that when he was employed by McDonald Constructions between 1964 and 1974, Caltex did not direct the manner of the performance of Mr Stavar’s work. He was told where maintenance work was required. He was not directed how to do that work. While employed by McDonald Constructions, Mr Stavar’s work did not require the co-ordination of different contractors. It has not been shown that in this period [Ampol (Qld)] had, or ought to have had, knowledge which McDonald Constructions did not have and could not reasonably be expected to have had. Even though McDonald Constructions should have had knowledge of dangers of asbestos exposure and could reasonably have been expected to take steps to alleviate the risk of asbestos disease to its employees, it is not established that to the knowledge of Caltex it failed to do so.”

[93] In the 18 month period between 1964 and 1965 and between 1965 and January 1974 none of the criteria referred to in [92] of the judgment of Basten JA in Abramovic was satisfied.”

(emphasis added)

78 Thus, using the relevant paragraphs of Basten JA in Abramovic, the President can be taken to have found:

(a) Ampol (Qld) did not direct the manner of performance of Mr Stavar’s work.

(b) Mr Stavar’s work did not require the co-ordination of activities of different contractors.

(c) Ampol (Qld) did not have, nor ought it to have had, knowledge of a risk which McDonald Constructions did not have and could not reasonably be expected to have had;

(d) This was not a circumstance where Ampol (Qld) had the means to alleviate the risk and McDonald Constructions could not reasonably be expected to do so.

(e) Although McDonald Constructions had or should have had the relevant knowledge and could be expected reasonably to take such steps to alleviate the risk it did not, to the knowledge of Ampol (Qld) do so.

79 One of the complaints in the cross-appeal is that the President failed to address in the finding set out in [78(e)] above what Ampol (Qld) ought to have known about the practices of McDonald Constructions.

80 In the context of the above findings, the President concluded at [95] of his reasons that before 1974 Ampol (Qld) owed no duty of care to Mrs Stavar, saying:

“[95] It is my view that during the first two periods of Mr Stavar’s work at the refinery, there was no relationship of proximity between the first defendant and the plaintiff. Notwithstanding that, as recent decisions of the High Court of Australia show, the notion of proximity is no longer a safe guide for determining whether a duty of care exists. One must look to the nature of the relationship between Caltex and the plaintiff. Applying the principles cited in the cases referred to at [100] in ACQ v Cook [2008] NSWCA 161 (16 July 2008) and the other cases referred to above, to the facts of this case, I am of the view that no duty was owed to the plaintiff in either of the two periods under consideration.”

81 The President then (at [96]-[114]) turned to the period after 1974, being the employment period.

82 After noting (at [97]) that Mrs Stavar’s exposure remained substantially the same, the President turned to the Asbestos Rule and concluded (at [102]), contrary to the submission by Caltex, that it was intended for the protection of people outside the factory who might otherwise come in contact with asbestos dust on clothing of on-site workers such as Mr Stavar.

83 As to cl 4(2) of the Asbestos Rule, the President, at [103], recorded what he saw to be agreement between the parties that “the provisions of cl 4(2) are to be considered subjectively.” The meaning of this agreement, as recorded, was explained on the appeal by Mr McIntyre SC who appeared before the Tribunal and on appeal for Mrs Stavar. Mr McIntyre said (at T p30 of the first day of the appeal) that “liable to cause danger” in cl 4(2) was to be taken to be a reference to be liable to cause danger by reference to the state of general knowledge (not limited to Ampol (Qld)) in existence at the relevant time.

84 The President then dealt with the arguments of Caltex that the asbestos dust attaching to Mr Stavar’s clothes and person was not regarded at the relevant time as “liable to cause danger to the health of” Mr or Mrs Stavar. In doing so, his Honour discussed a draft of “model asbestos regulations” which were never promulgated nationally, but some of which paragraphs were identical to clauses in the Asbestos Rule. The President saw these regulations and associated documents as a guide. By reference to them, Caltex submitted that it had complied with the recommended guidelines at the time. This was rejected as a matter of fact by the President at [107] where his Honour said:

“[107] ...There is no evidence to suggest it consulted Occupational Health Authorities, nor was a mask provided to Mr Stavar effective to prevent the inhalation of dust. I readily accept that the first defendant was unaware of the draft “Model Asbestos Regulations” and of the NH and MRC guide, but had it made enquiry of the relevant government departments, as it could and should have done, it would have received advice which conformed with the guide. It would have been reminded of its obligations under the Asbestos Rule and informed that its terms were mandatory. The “Model Asbestos Regulations” and the guide confirmed what were and had been safe practices.”

85 The President then referred to the evidence of the late Professor Gandevia, which was tendered by Mrs Stavar, to the effect that exposure by washing clothes if it extended over a long period of time could reach levels of one hundred fibres per ml. By reference to that evidence the President said at [109]:

“[109] That evidence supports the conclusion that exposures from washing clothes sufficient to cause mesothelioma were small by comparison with exposures capable of causing asbestosis, that is they were small by comparison, not small of themselves. I do not accept Mr Rogers’ suggestion that exposure to the quantity to which the plaintiff was subject was small and not then regarded as “liable to cause danger to the health of persons”. Studies showed that some, whose only exposure was from washing clothes, had contracted asbestosis. Washing work clothes did not always produce a small exposure, but in any event, from at least the mid 1960s it was well known to Queensland Government Departments responsible for industrial health and to the medical scientific community at large that exposure to lesser quantities of dust, and in particular to dust from contact with the clothes of those who worked with asbestos, was capable of causing mesothelioma. It should have been known to Caltex.”

86 The President then (at [110]) dealt with not only duty of care, but also breach, saying the following:

“[110] 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. Moreover, I think it significant that in Bale, Helman J said at p 23 of 26 of the decision published by Austlii:

Had Mrs Bale been successful in establishing that physical injury to a class of persons of which she was one might reasonably have been foreseen as a possible consequence of the respondent’s acts or omissions, there could be little doubt that the requirement of proximity as it has been explained in a number of decisions of the High Court would have been satisfied.”

87 The President continued in relation to duty of care and breach (at [111]) saying the following:

“[111] I have remarked that the duty, in my view, was not owed to an indeterminate class. The duty upon the first defendant was not to safeguard those in Mr Stavar’s company on public transport or in hotels or who came into casual contact with him. The duty was, however, owed not only to employees and others who worked at the refinery, but also to members of their households. 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.”

88 In a second judgment as to costs, the President clarified his approach as to breach of duty, saying at [29] of these reasons:

“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.”

89 Putting to one side the second reasons, it is implicit in [110] and [111] that the President was making a finding of breach of the found common law duty. It is somewhat difficult to apprehend precisely what the basis of that conclusion was. It might have involved a conclusion that because the statutory duty was breached, necessarily a breach of the common law duty occurred. This was what Caltex said that his Honour did. If this is what he did, there may have been error. Alternatively, these paragraphs can be seen to encapsulate a finding (albeit somewhat cryptically expressed) that the facts that amounted to a breach of the statutory duty (as interpreted in its scope by the President) were sufficient to substantiate a factual conclusion as to breach of duty. The President’s reasons at [111] are not pellucid. That is not said critically; his Honour was seeking to produce a timely extempore judgment. The last two sentences can be seen to carry a conclusion as to breach of both common law and statutory duties by the found failure to provide protective clothing to Mr Stavar that was not to be worn home to be washed. Those facts were found in the context of a failure to warn. These were findings of fact which were considered by his Honour to amount to a breach of the duty of care. This is how the paragraphs should be understood. As such, there was no legal error of the kind asserted by the appellant.

90 The President then concluded at [112] that Mrs Stavar was entitled to a verdict against Caltex.

Causation and damages

91 At [115]-[117] the President found that causation was established. The President accepted the evidence of Professor Henderson and Dr Leigh and the President expressed the view that all exposure to asbestos in an acceptable latency period (as was the case here) makes a material contribution to the disease. He found that this was view that was now beyond controversy. No appeal was brought in relation to this conclusion.

92 The President then (at [118]-[128]) dealt with damages, concluding that Mrs Stavar was entitled to $339,000. No appeal was brought in relation to this conclusion.

The appeal

The complaints as to duty of care

93 I will deal first with the oral submissions. The primary attack by the appellant was that the President misstated the test at [78] and [79] of his reasons (see [63] above) by (a) employing the determinant of proximity in relying on Gala v Preston at 253 and (b) using what was said by Mason J in Shirt at 47 on breach of duty to ascertain the appropriate test for identifying the duty of care.

94 Mr Sullivan QC on behalf of the appellant submitted that:

(a) proximity is no longer the general determinant of the categories of case in which the common law recognises a duty of care; and

(b) that the place of foreseeability in the ascertainment of whether a duty of care exists is not the same as its place in the determination of breach.

95 The proposition in [94(a)] is supported by what was said in: Hill v Van Erp [1997] HCA 9; 188 CLR 159 at 210 per McHugh J, at 237-239 per Gummow J; Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at 193-194 [7]- [10] per Gleeson CJ, at 197-198 [25]-[27] per Gaudron J, at 208-212 [70]-[82] per McHugh J, at 251 [191] per Gummow J, 268-270 [245]-[247], 273 [255], 275 [259], 277-278 [267], 283-286 [279]-[287], 288-289 [292]-[296] per Kirby J, at 300-303 [330]-[335] per Hayne J, at 318-319 [389], 321-322 [393], 323-324 [398]-[400], 326 [406] per Callinan J; Crimmins at 13 [3] per Gleeson CJ, at 32-33 [73], 33-34 [77] per McHugh J, at 56 [149] per Gummow J, at 80 [222] per Kirby J, at 96-97 [270]-[274] per Hayne J; Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at 630-631 [316] per Hayne J; Sullivan v Moody [2001] HCA 59; 207 CLR 562 at 578-579 [48] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; Tame at 355-356 [104]- [107] per McHugh J, at 405 [257], 409 [266]-[268] per Hayne J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 583 [99] per McHugh J, 624-625 [234]-[236] per Kirby J; Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at 564 [30] per McHugh J; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at 528-529 [18] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Vairy at 433 [28] per McHugh J, at 444-445 [66] -[68] per Gummow J; Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647 at 658 [41] [42] per Gummow, Hayne, Kiefel JJ, at 681 [141], 690 [181] per Kirby J; and Stuart v Kirkland-Veenstra [2009] HCA 15 at [132] per Crennan and Kiefel JJ.

96 The proposition in [94(b)] is supported by what was said in: Tame at 331 [12] per Gleeson CJ; Vairy at 433 [28] per McHugh J, at 446-447 [72]-[73] per Gummow J and by the cases discussed by Bryson JA in Seltsam v McNeill, including Shirt in this Court.

97 If [78] and [79] were the only exposition, expressly or inferentially, of principle guiding the approach to the ascertainment of the duty of care, and is scope and content, there might be seen to be error of law by the President. It is clear, however, from [95] of his Honour’s reasons that his Honour understood that proximity was no longer a general determinant. The President’s reference to ACQ v Cook can be taken to reflect an appreciation by him that proximity is to be rejected as a general determinant and that (as Campbell JA made clear in ACQ v Cook) it is necessary to examine closely the facts relating to the relationship in which the plaintiff and the putative tortfeasor stood.

98 The President referred, between [77] and [95] of his reasons, to a number of cases (relevant both to the appeal and cross-appeal) on the question of the existence of a duty of care, they being: Seltsam v McNeill; Abramovic; and Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111.

99 Further, the complaints about the President’s use of Mason J’s judgment in Shirt and the asserted lack of appreciation by the President that the place of foreseeability in the analysis as to whether a duty of care exists is of a different level of abstraction to its place in the analysis of breach of duty are both answered when one appreciates the full context of [36] of Bryson JA’s judgment in Seltsam v McNeill. The President, by his reference to [36] of Bryson JA’s reasons in Seltsam v McNeill, can be seen to be adopting what Bryson JA said about foreseeability and duty of care in that case. This was an extempore judgment. These complaints about his approach are therefore without substance.

100 It can be accepted, however, that the President did not enunciate the required multi-factorial approach in assessing whether a duty of care arose in a novel circumstance or category. This approach recognises what has been said to be the use of foreseeability at a higher level of generality and the involvement of normative considerations of judgment and policy. This approach requires not only an assessment of foreseeability, but also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity.

101 The High Court has rejected its previously enunciated general determinant of proximity, the two stage approach in Anns v Merton London Borough Council [1977] UKHL 4; [1978] AC 728 based on reasonably foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC 605 and any reformulation of the latter two, such as in Canada in Cooper v Hobart (2001) 206 DLR (4^th) 193. See by way of example: Perre v Apand at 193-194 [9]-[10] per Gleeson CJ, at 210-212 [77]- [82], 212-213 [83], 216 [93] per McHugh J, at 300-302 [330]-[333] per Hayne J; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 288-289 [101] per Hayne J; Crimmins at 97 [272] per Hayne J; Brodie v Singleton Shire Council at 630-631 [316] per Hayne J; Sullivan v Moody at 577-580 [43]-[53] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; Tame at 402 [250] per Hayne J; Vairy at 444 [66] per Gummow J; Imbree v McNeilly at 658 [40]-[41] per Gummow, Hayne and Kiefel JJ.

102 This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, 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 plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

103 These salient features include:

(a) the foreseeability of harm;

(b) the nature of the harm alleged;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

104 There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.

105 The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment.

106 I have described “foreseeability” as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as “proximity” or “fairness” do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility.

107 The above statement of approach can be seen in: Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA 65; 136 CLR 529 at 576-577 per Stephen J; Perre v Apand at 192 [5], 194 -195 [11]-[15] per Gleeson CJ, at 218-231 [100]-[133] per McHugh J, at 252-261, [196]-[221] per Gummow J, 300-307 [330]-[348] per Hayne J, at 326-327 [406]-[413] per Callinan J; Crimmins at 13 [3] per Gleeson CJ (agreeing with McHugh J), at 23-24 [42]-[43] per Gaudron J, at 39-51 [93]-[133], per McHugh J, at 96-97 [270]-[272] per Hayne J, at 113-117 [343]-[360] per Callinan J; Modbury Triangle at 262-267 [13]-[30] per Gleeson CJ, at 288 [98], 291-294 [108]-[118] per Hayne J; Sullivan v Moody at 577-583 [43]-[63] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; Tame at 329-335 [6]-[28] per Gleeson CJ, at 341 [54] per Gaudron J, at 361-362 [123]-[125] per McHugh J, at 397-399 [237]-[241] per Gummow and Kirby JJ, at 425-431 [323]-[336] per Callinan J; Graham Barclay Oysters at 555-564 [9]-[40] per Gleeson CJ, at 570 [58] per Gaudron J (agreeing with Gummow and Hayne JJ), at 577- 583 [84]-[99] per McHugh J, at 596-610 [145]-[186] per Gummow and Hayne JJ, at 617 [213], 629-631 [245]-[251] per Kirby J, at 663-664 [320]-[321] per Callinan J; Woolcock Investments at 529-533 [19]-[33] per Gleeson CJ, Gummow, Hayne and Heydon JJ, at 547-560 [74]-[116] per McHugh J; Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234 at 243 [24] per Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ; Vairy at 442-448 [58]-[78] per Gummow J; Roads and Traffic Authority v Dereder [2007] HCA 42; 234 CLR 330 at 345 [44] per Gummow J; Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at 248-254 [87]- [114] per Gummow, Hayne and Heydon JJ, at 259-262 [130]-[138] per Crennan and Kiefel JJ.

108 A relevant category of analysis within the above framework of approach is one which considers the place and effect of the employment relationship and independent subcontracting. The employment relationship brings with it the well-known duty to exercise care in the provision of a safe system of work. The use of an independent contractor by a principal, rather than the direct engagement of employees, is a significant factor in the existence or not of responsibility of the principal arising from the conduct or activity of the subcontractor and its employees or agents: Sweeney v Boylan Nominees. Circumstances will arise, however, where the principal remains subject to a duty of care in respect of damage or harm that may arise from, or in connection with, the conduct of the independent contractor. An example of such is the liability (based on a duty of care) in certain circumstances of a principal or third party for injury to employees of an independent contractor: Stevens; Northern Sandblasting; Crimmins; and Abramovic. Another example is the liability of a party for damage caused by its independent contractor in connection with the control of a dangerous substances or the carrying on of a dangerous activity: Burnie Port Authority Limited v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520; cf Transfield Services (Australia) v Hall [2008] NSWCA 294.

109 During the argument, this last group of cases (Sweeney, Stevens, Northern Sandblasting, Crimmins, Abramovic and Burnie Port Authority) was the focus of attention under the cross-appeal, but not under the appeal. That occurred in part through the choice of approach to the argument made by counsel and in part because of the importance placed by the President on the existence of the employment relationship with McDonald Constructions in negating the duty of care of Ampol (Qld) to Mrs Stavar before 1974. Hence, in argument on the cross-appeal, focus came to be placed on these cases as relevant to a distinct and separate argument of “non-delegability” of duty somehow relevant if the appeal were successful in respect of the employment period. It is important to remember, however, that the existence of the element of the employment of Mr Stavar by McDonald Constructions before 1974 does not lead to a conceptually distinct analysis. It introduces a factor, but the task remains the same for the whole period: determining whether Ampol (Qld) owed Mrs Stavar a duty of care and, if it did, the content or scope of that duty of care. The assessment whether or not the asbestos dust was a sufficiently dangerous substance, or Mr Stavar’s required duties comprised a sufficiently dangerous activity, to lead to the imposition of a duty of the character found in Burnie Port Authority, and which can be called “non-delegable”, is also part of that task.

110 Whilst the President did not enunciate this approach exhaustively, he did refer to ACQ v Cook in which Campbell JA stated that the question of duty required a close examination of the relevant facts. This, in effect, was the task undertaken by the President. He did not refer to each and every salient feature that has been stated by the High Court to be potentially relevant. He was, however, not asked to. He dealt with the factual and legal dispute as to duty that was put before him. Thus, I would reject the arguments of the appellants referred to at [13(a)(i), (ii) and (iv)] above. I will deal with one further aspect of “foreseeability” referable to the argument stated at [13(a)(iv)] after I have dealt with the Asbestos Rule.

111 The next complaint of the appellant concerned the class of persons into which Mrs Stavar fell in the ascertainment of the duty. The President dealt with this at [111] of his reasons. It was said that there was an indeterminacy built into this class fatal to the imposition of the duty.

112 There is no doubt that questions of indeterminacy are relevant to the imposition of a duty of care (and its scope and content). That question will, however, be intimately related to the risk of harm and the reasonable methods of avoidance of risk of that harm. Here, the Asbestos Rule (which was conceded in argument to have existed in some form by the 1970s in all States and Territories) applied to Ampol (Qld) from 1971. This required an occupier of land such as the refinery, by a party such as Ampol (Qld), to be aware of the state of knowledge of a medical and OH & S character to be able to form a judgment about what was “liable to cause danger to the health of persons” for the operation of cl 4(2). That medical and OH & S knowledge recognised exposure in the domestic environment of the kind experienced by Mrs Stavar as a real risk in the contraction of serious disease. The method of dealing with that risk did not require warning an indeterminate class. Rather, it required steps to prevent the domestic exposure (of the kind identified by the medical literature to be a ready category of potential vulnerability) by taking reasonable and appropriate steps to prevent workers returning home in a contaminated state. These steps would involve, but not be limited to, warnings of risk of wearing such contaminated clothes home.

113 On the knowledge available at the relevant time and given the nature of the risk and the means of its alleviation, there was no impermissible indeterminacy in the class identified by the President. It conformed with the available medical and OH & S material.

114 The appellant also complained that what was on their submission an indeterminate class was artificially narrowed by an emphasis upon the Asbestos Rule which was not justified. To the extent that there is legitimacy in the appellant’s complaint as to the President’s interpretation of the Asbestos Rule (to which I will come shortly) it may be that too much was drawn from the Asbestos Rule as to the formulation of the class. Nevertheless, even if (as I think to be the case) the Asbestos Rule was not intended to cover people at home in Ms Stavar’s position, that does not vitiate the President’s identification of the class. The available medical and OH & S knowledge identified as at risk a class of persons in a domestic environment with contaminated workers. The Asbestos Rule was a response to this for the safety of those intended to be covered. Even without the broad reading given to the Asbestos Rule by the President, I would find no error in his identification of the relevant class of which he found Mrs Stavar formed part.

115 This deals with the complaint set out at [13(a) (iii)] above.

116 The width of the Asbestos Rule is to be governed by the enabling provision in the Factories and Shops Act, s 38(1). The Asbestos Rule was for the better securing of the safety and health and improving the welfare of persons employed in, or employed in connection with, the business of factories or shops or in constructing same. As such those whose safety, health and welfare the Asbestos Rule was to secure were people such as Mr Stavar who was so employed. That other people outside the source of contamination could benefit can be accepted. Some of those were also in factories and shops – such as the persons who might clean the clothes off-site. In my view, the President construed the Asbestos Rule too widely at [102] of his reasons.

117 That said, the existence of the Asbestos Rule and its place in the law requiring Ampol (Qld) not only to obey it for the intended safety benefits of people such as Mr Stavar, but also implicitly requiring the company to have familiarity with the relevant medical and OH & S knowledge in order to see it applied, should all be considered in the factual framework of the relationship of Mrs Stavar and Ampol (Qld). To the extent that the President’s reasons reflect this, as they do, no complaint can be made.

118 In the complaints as to the use of foreseeability in the President’s reasons, the appellant submitted that he made no finding of actual knowledge by Ampol (Qld) of the relevant medical and OH & S knowledge. The lack of this finding can be accepted, as can some of the difficulties with [57] and [69] of his reasons discussed above. Nevertheless from at least 1971, and thus during the employment period from 1974, there can be no doubt that Ampol (Qld) ought (as a consequence of the Asbestos Rule) to have known and been familiar with the medical and OH & S knowledge on asbestos, including the risk posed by contaminated workers to those in such a worker’s domestic environment. I have set out, and will not repeat, the medical and OH & S literature that was before the President. If conclusions consistent with this material should have been known by Ampol (Qld) from 1971, the conclusion that the risk of harm to persons in the plaintiff’s class was reasonably foreseeable by Ampol (Qld), in accordance with the findings at [69], was open to the President.

119 The final complaint made orally about the President’s conclusion as to duty of care was his conclusion at [110] of his reasons. It was submitted that there were two errors in the approach of the President: first as to the width of the Asbestos Rule encompassing Mrs Stavar (with which I have dealt) and, secondly, the implicit conclusion that the existence of the statutory duty, without more substantiated or created the common law duty.

120 As to the second error, it can be accepted that the existence of the regulation and its breach is not determinative either of the existence of a co-ordinate common law duty or of its breach: Sibley v Kais [1967] HCA 43; 118 CLR 424 at 427-428. However, I have already expressed my view that the President made a finding of fact as to breach and did not merely (and impermissibly) conclude that common law breach flowed from statutory breach.

121 As to the written submissions and the question of duty of care, there was complaint that the President did not examine foreseeability from the perspective of the reasonable person in the position of Ampol (Qld). To the extent that some of the President’s conclusions can be seen to be disconnected from either Ampol (Qld)’s actual knowledge or what it ought to have known by reference to some legally identified and required standard, in particular in the period before 1971, I agree. (I have already discussed some of the difficulties in [57] and [69] of the President’s reasons.) That, however, is answered by the clear basis in the Asbestos Rule for Ampol (Qld) to be required to know, from 1971, of the medical and OH & S material. The Asbestos Rule therefore gave the President a firm legal foundation to conclude that Ampol (Qld) ought to have known of the medical and OH & S material on asbestos and its risks including to people in the position of Mrs Stavar.

122 Complaint was made that the President in [111] expressed the duty in absolute terms “protect” from “coming into contact”. The duty of care is not absolute, it is to act reasonably: Vairy at 459 [118] and Roads and Traffic Authority v Dederer at 348 [51]. Reading the President’s reasons as a whole, I do not understand him to have been expressing himself otherwise that by reference to the taking of reasonable care to avoid harm to persons in Mrs Stavar’s position.

123 The written submissions also made complaint as to the adequacy of evidential foundations for certain conclusions in the President’s reasons. In particular, the submissions addressed the reliance upon Mr Stewart, Dr Leigh and Professor Henderson as to the conclusions of “reasonable foreseeability”. I have addressed these complaints in substance earlier in these reasons. If the Asbestos Rule had not existed there would have been serious doubts as to the legitimacy of the fact finding process of the learned President as a matter of law. Nowhere in his reasons is there a finding as to the state of actual knowledge of Ampol (Qld). The ability of Mr Stewart to give that evidence is legally doubtful. The assertion of what Ampol (Qld) ought to have known requires an assessment of facts which could legitimately be seen to give rise to that duty to know without a presupposition of the existence of a duty of care: see McPherson’s Limited v Eaton [2005] NSWCA 435; 65 NSWLR 187 at 203-204 [92]- [96] per Ipp JA. What Ampol (Qld) should have known or ought to have known would have to be identified by reference to their existing state of knowledge, and some standard requiring them to be abreast of the medical and OH & S material to which I have referred. It is to be recalled that Ampol (Qld) was not a miner or miller of asbestos but an end user, albeit on a large industrial scale.

124 The answer to all these difficulties is, as I have already said, the existence of the Asbestos Rule. It can be accepted that the rule did not extend in its terms to specifically protecting Mrs Stavar. Nevertheless, it created an obligation in relation to the use of asbestos for Ampol (Qld) to be aware of medical and OH & S material directed to its operation. In that context Ampol (Qld) ought to have known of the medical and OH & S material of the kind that the President dealt with. In these circumstances, the findings of foreseeability are amply founded on the evidence.

125 There was also a complaint in the written submissions as to the failure of the President to quantify exposure. It was submitted that the rejection of the evidence of Mr Rogers could not fill an evidential gap that was required to be filled by quantitative assessments as to the degree of exposure to asbestos fibre experienced by Mrs Stavar. The answer to this complaint can be found in the reasons of the President. As I have indicated above, one aspect of the acceptance of Dr Leigh was of his conclusion that a quantitative assessment of the asbestos exposure of Mrs Stavar was not required if Mrs Stavar’s history were to be accepted, as it was. This was a factual conclusion ending this matter.

The complaints as to breach of duty

126 I have discussed earlier my understanding of the President’s conclusion as to breach. This was a finding of fact.

127 The written submissions made the complaint made orally by Mr Sullivan about equating breach of the Asbestos Rule with breach of the common law duty. I have already concluded that this is not the proper interpretation of the President’s reasons. The written submissions elaborated upon this complaint by noting that the finding of breach of duty was made without considering what was submitted to have been adequate steps in fact taken by Ampol (Qld) to satisfy and discharge their duty of care. The measures which had been emphasised by Ampol (Qld) to the President were the provision of change rooms and lockers for street clothes, bathing facilities, laundering facilities and overalls. It was asserted that the President did not find that there was an obligation on the appellant to mandate bathing on the premises. It was submitted that given the duty that he did find, the measures taken by Ampol (Qld) were said to have discharged the duty of care.

128 To the extent that the President found a duty to warn as part of the duty of care it was asserted that the President was required to deal with the contents of the warning in relation to the question of breach. It was also asserted that other issues in the context of the breach should have been addressed: the absence of a line of direct communication between Ampol (Qld) and Mrs Stavar; the provision of laundering and showering facilities to Mr Stavar who chose not to use them; what warnings, if any, were given to Ampol (Qld) by the suppliers of the products being used; the timing of any particular warning; and other matters.

129 I am not persuaded that these submissions justify any conclusion of legal error. The President’s conclusion was cryptic but present: 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. There was a rational foundation for these conclusions of fact of breach of duty.

130 Even if I am wrong in that conclusion and that there was some legal error, I am not persuaded that it was operative. The facts identified by the President that gave rise to his conclusion of both breach of statutory duty and common law duty were an ample foundation for the latter conclusion. The risk was letting Mr Stavar go home day after day, year after year with clothing laden with asbestos dust. The obvious precaution was the provision of protective clothing, not to be worn home and washed at home. This was not done. These are not findings of fact (which this Court cannot make). Rather, they are reasons why the underlying conclusion of fact of the President that there was a breach of the common law duty, if attended with some legal error, has not been demonstrated to be operatively wrong.

The complaints as to statutory duty

131 I have already indicated my view that the President’s conclusion as to the width of the Asbestos Rule was in error. This view makes it unnecessary to discuss any further conclusion that there was a breach of statutory duty providing a private right to Mrs Stavar. This error has been made out.

132 This conclusion also puts an end to the notice of contention.

The cross-appeal

133 If I had been of the view that Caltex was correct in its fundamental submissions as to the misapprehension by the President of the correct approach to assessing duty of care this would, of itself, have led to the necessary allowing of the cross-appeal, in circumstances where the President refused to find a duty prior to 1974. To the extent that I have come to the view in dealing with the appeal that the President did not fundamentally misdirect himself as to the test to be applied in the ascertainment of the duty of care, the success of the cross-appeal must rest upon particular complaints of specific error in the President’s approach to duty in respect of the pre-employment period.

134 There are two reasons why, in my view, the President’s approach to the question of duty of care in this pre-employment period was flawed.

135 First, the President appears to have proceeded on the basis that what was said in Abramovic, by Basten JA at 591-593 [92]-[98] was a self contained test for the ascertainment of the existence of a duty by a principal to a third party in the carrying on of hazardous activities or handling toxic material. As I said earlier in these reasons, I do not understand Basten JA to have been laying down a comprehensive statement of principle. Nor do I understand his Honour to have been seeking to restrict in any way what he had said in [92] by what he said at [98]. The phrase “knowledge of the principal” used in [98(e)] should not be read strictly as a statement of actual knowledge. Nor should the matters contained in Basten JA’s discussion be seen as any intended template for the ascertainment of a duty of care between a principal and a third party. His Honour was, if I may respectfully say so, seeking to extract from Crimmins and other cases, the kinds of considerations which would in particular factual circumstances be of assistance in identifying a duty of care.

136 Secondly, the President did not apply the multi-factorial approach. The President has made certain findings of fact which may tend against the conclusion that in the period prior to 1974 there was a duty of care. However, he has not, in accordance with the required multi-factorial approach addressed all relevant factual issues including the question of what Ampol (Qld) ought reasonably to have known about what steps McDonald Constructions were or were not taking in relation to the alleviation of the risk.

137 Further, the absence of the explicit application of the multi-factorial approach has meant that there is no consideration by the President of the questions of the toxicity and hazard of asbestos, what Ampol (Qld) knew or ought reasonably to have known of such toxicity or hazard, both before and after the introduction of the Asbestos Rule and the degree of control that Ampol (Qld) had over the site and over the hazard itself.

138 The reasons of the President can be seen to address the circumstances of the employment by McDonald Constructions as of central importance. In the overall multi-factorial approach, one answer to the influence of the employment relationship with McDonald Constructions would be the consideration of the degree of toxicity or hazard attributable to asbestos, what Ampol (Qld) knew or ought to have known of it and the power of control of Ampol (Qld), as occupier, in limiting the danger from the substance. These matters have not been addressed. They appear to be necessary factual inquiries underpinning the ultimate legal question as to whether a duty should be imposed. In my view, they reflect a misdirection of the relevant analysis from the multi-factorial assessment of all factors bearing upon the relationship between Mrs Stavar and Ampol (Qld) to an enquiry as to the satisfaction of what was seen to be a test in Abramovic.

139 In an application of the multi-factorial approach, it will be important to assess the direction and control exercised by Ampol (Qld) in the undertaking by Mr Stavar of his work whoever employed him.

140 It will also be important to understand the proper basis for any attribution of knowledge of Ampol (Qld) to the risks involved in asbestos. I have discussed this matter in dealing with the appeal. There is a clear foundation from 1971 for a conclusion that Ampol (Qld) had an obligation to understand the medical and OH & S consideration of asbestos. The consideration of these matters prior to 1971 would require either the finding of actual knowledge by Ampol (Qld) (which was not made) or a coherent foundation, by reference to some identified standard, for a conclusion that Ampol (Qld) ought to have known of these matters.

141 The parties appear to have approached the matter before the President by reference to the time periods bounded by the various employment relationships. It is not clear to me that that is the only necessary division of time. As I have sought to indicate, the introduction of the Asbestos Rule in 1971 played an important part in the foundation of any duty of care by reason of its implicit requirement on Ampol (Qld) to understand the risk proposed by asbestos in order that the Asbestos Rule could be complied with. That Asbestos Rule was capable of bearing upon the duty of care prior to 1974.

142 For the above reasons, in relation to the period dealt with in the cross-appeal, the President addressed the question of duty of care in a way which betrayed an error of legal approach.

Relief

143 As to the appeal, I am of the view that whilst the President did not expressly apply the multifactorial approach, his Honour did not fundamentally misunderstand his task in the ways asserted in the submissions on the appeal.

144 Even if the President could be seen to have made some legal error in his approach to duty of care, I am not persuaded that any such error is operative. The Asbestos Rule meant that as a matter of legal obligation from 1971 (and certainly from 1974) Ampol (Qld) ought to have known from the medical and OH & S material the risks of asbestos to a person such as Mrs Stavar. That material would, from the material before the President, have put Ampol (Qld) clearly on notice of the risks to domestic partners such as Mrs Stavar of workers carrying asbestos dust home on their clothes and person. In circumstances after 1974, considering the control able to be exercised by an employer such as Ampol (Qld), considering Ampol (Qld)’s knowledge of the requirements under the Asbestos Rule (although not directed for the express benefit of Mrs Stavar), considering the nature of the possible risk of asbestos related disease and considering the apparent undemanding nature of the steps to be taken by way of procedures at the refinery which could be reasonably taken to prevent the carrying home of serious hazardous contaminants I do not have any difficulty with the conclusion of the President that a duty of care upon Ampol (Qld) arose after 1974, to exercise reasonable care to prevent or avoid possible injury to people such as Mrs Stavar from exposure to asbestos dust from workers at the refinery brought home to a domestic environment shared with such persons. As I have said earlier, the President’s conclusion was not reached by an express application of the multi-factorial approach. However, looking at the way the matter was approached before him, he dealt with the question of duty of care in a manner reflective of the dispute as fought. In these circumstances, I am not prepared to conclude that the learned President was in error in any operative way in concluding that there was a duty of care from 1974. In these circumstances, I would not remit that question for the re-consideration of the Tribunal.

145 As to breach of duty, for the reasons I have given I am not persuaded that there was any legal error when one understands the President’s reasons in the way I have identified. Further, even if I am wrong about that I am not persuaded that there was any operative legal error in any conclusion made by him that the circumstances revealed a breach of the common law duty.

146 As to the cross-appeal, I would grant leave to cross-appeal. I would allow the cross-appeal because of the errors that I have identified in the approach to the ascertainment of duty of care in the pre-employment period. The errors which I have identified in the approach in duty of care in relation to a period prior to 1974 indicate that the failure to address the issue expressly by way of a multi-factorial approach might be of importance. I am not confident from the approach of the President that a duty did not arise, at least from 1971. What the position was before 1971 might well be open to debate. I would remit the whole of the cross-appeal.

147 I would give the parties an opportunity to address the court on the precise form of these orders. I would do this because the questions of the duty of care and breach thereof in the period prior to 1974 only arise in relation to the question of costs. That question may in some fashion be appropriate to incorporate in any remitter order. The nature of any hearing on remitter will be a matter for the Tribunal. There is no reason why it should not be on the basis of the existing material and be undertaken by the President.

148 In these circumstances I would make the following orders:

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 above orders and any variation thereof. Any application to vary these orders to be made by notice of motion filed within 14 days.

149 BASTEN JA: The primary issue in this appeal concerned the liability of a major industrial user of asbestos lagging for mesothelioma contracted by the wife of a worker who carried asbestos dust on his work clothes into his car and home over a period from 1964 until 1991. The Dust Diseases Tribunal held the appellant liable to Mrs Stavar (“the plaintiff”) for the personal injury she suffered due to exposure over part of the period.

150 The subject matter of an appeal from the Dust Diseases Tribunal (“the Tribunal”) must, relevantly for present purposes, be “a decision of the Tribunal in point of law”: Dust Diseases Tribunal Act 1989 (NSW) (“the DDT Act”), s 32(1). Neither the notice of appeal as originally filed, nor as amended, paid sufficient attention to the need to identify an erroneous decision of the Tribunal in point of law. Senior counsel for the appellant, however, sought to remedy that deficiency at the commencement of oral argument and it is appropriate to set out the issues in the appeal by reference to seven errors identified orally. They were:

(1) the Tribunal erred (at [79]) in identifying the test for determining whether a duty of care is established by reference to the judgment of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47, being a passage directed to identification of breach, rather than duty;

(2) the Tribunal erred (at [78]) in treating “proximity” as a general determinant of the existence of a duty, in reliance upon a passage in the judgment of the High Court in Gala v Preston [1991] HCA 18; 172 CLR 243 at 253, that no longer being the correct approach in law;

(3) the Tribunal erred (at [111]) in identifying the class to whom the duty was owed as members of the households of employees and others who worked at the refinery, whereas logically the class was not so confined and was indeterminate;

(4) the Tribunal erred “in the application of the reasonable foreseeability test”;

(5) the Tribunal erred (at [110]) in finding that “the Asbestos Rule” established the existence of a duty of care owed to the plaintiff;

(6) the Tribunal erred (also at [110]) in finding that a breach of the Asbestos Rule by itself constituted a breach of the common law duty of care, and

(7) the Tribunal erred in finding, perhaps implicitly, that the Asbestos Rule gave rise to a private right of action in the plaintiff for breach of statutory duty.

151 The references to “the Asbestos Rule” require explanation. The relevant legislative provisions in question were those in force in Queensland, the premises occupied by the appellant, and at which the plaintiff’s husband worked, being an oil refinery situated at Lytton, in Brisbane. The Factories and Shops Act 1960 (Qld) conferred on the Governor in Council power to make regulations and rules “for better securing the safety and health, and improving the welfare of persons employed in, or in connection with,” activities to which the Act applied: ss 97, 38(1) and Sch 2. The Asbestos Rule was promulgated on 11 July 1971. It required, in substance, that the occupier of factory premises within which asbestos dust may be released “to such an extent as is liable to cause danger to the health of persons” provide respiratory protective equipment and protective clothing to persons on the premises and ensure that the protective clothing was cleaned within the factory or otherwise in controlled conditions: cll 4, 8 and 18 at [55] and [56] above.

152 Because the issues addressed at the hearing of the appeal did not correlate precisely with the issues identified in the notice of appeal, or those dealt with in the written submissions, there was room for imprecision in the manner in which the errors were identified. In retrospect it is unfortunate that the appellant was not required to file an amended notice of appeal. However, its own failure to do so will make it difficult for it to rely upon any omission or misunderstanding resulting from the manner in which the appeal was conducted.

Duty of care

153 The first five issues identified by the appellant concerned the decision of the Tribunal as to the correct manner, in point of law, to determine whether the appellant owed a duty of care to Mrs Stavar. In order to address those questions, it is necessary to identify first the correct approach as a matter of law, and then to determine whether his Honour departed from that approach. To the extent that his Honour articulated the approach he followed, that may be treated as a decision of the Tribunal in point of law.

154 The history of the common law in this respect is fraught. Writing in 1992, six decades after the decision in the House of Lords in Donoghue v Stevenson [1931] UKHL 3; [1932] AC 562, Lord Mustill said:

“We can thus see that in the space of 60 years the courts have successively embraced six mutually inconsistent doctrines in a field of great theoretical and practical importance .... It involves no disloyalty on my part to the legal system in which I have spent my working life, or to past, present and future colleagues, to say that the picture thus painted is not one of unqualified success.”

155 His Lordship’s comments, to be found in a paper entitled “Negligence in the World of Finance” (1992) 5 The Supreme Court Journal 1, 23 (published by the Malaysian Supreme Court) are apposite in relation to this country, as much as to the UK. Some of the changes in approach might better be described as changes in emphasis rather than novel “doctrine”, some being properly understood as corrections to the use made of earlier statements taken out of their immediate context. Nevertheless, a description of the history as one of “doctrinal tergiversations” is not entirely without foundation: see Markesinis and Deakin’s Tort Law (6^th ed, OUP, 2008) at 125.

156 It is arguable that the heart of the problem lies in the acceptance of “negligence” as a unitary concept. To identify criteria at a sufficient level of generality to allow for their application across the indefinite categories of relationships, circumstances, risks and consequences which may arise is a recipe for confusion and misunderstanding. A risk of physical harm to an identifiable and discrete class of individuals, arising from the positive act of another individual, is a far cry from the failure of a statutory authority to take steps to protect one person from a risk of economic loss caused by another. An example of this danger was identified by McHugh J in Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [100]- [101]. As his Honour suggested, the remarks of Lord Reid in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound [No 2]) [1966] UKPC 1; [1967] 1 AC 617 at 643-644, that a real risk which would not be brushed aside as farfetched might be sufficient to give rise to a duty of care, were not unreasonable in the circumstances of the case, namely the risk of furnace oil being ignited by welding sparks. However, this proposition permitted a large expansion of the scope of negligence when treated as one of universal application.

157 A second difficulty arises from the standard formulations of the concept of “negligence”. Thus, a duty to take reasonable steps to avoid foreseeable risks of harm is not merely an essential characteristic of the tort; it identifies a concept of duty which is largely self-defining, subject to the imposition of extraneous constraints. The content of the duty must be defined by reference to the steps which a reasonable person would take to eliminate or reduce the risk, an element which is inherent in the concept of “reasonable care”.

158 As explained by Gleeson CJ in Tame, “reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed” is a necessary, but not sufficient condition of the existence of a legal duty of care: at [12]. As the scope of the duty has expanded to encompass risks not merely of personal injury, but of psychological harm and economic loss, and the kinds of conduct have expanded to include not merely actions, but words and failures to act, different mechanisms have been sought to place boundaries on the scope of the tort.

159 It is usual to explain that the existence (or absence) of a duty is a question of law. However, that is an oversimplification. The existence of a duty depends in part on findings of fact and part on value judgments and legal policy. McHugh J stated in Tame that “it is arguable that the notion of reasonable foresight in Lord Atkin’s speech in Donoghue v Stevenson is, and was intended to be, a compound conception of fact and value”: at [105]. His Honour continued:

“At least in some situations, policy issues may be relevant to the issue of reasonable foresight because reasonableness requires a value judgment.”

160 It may similarly be said that the “multi-factorial” approach now favoured in this country requires consideration of a congeries of disparate elements, some of which are entirely factual in nature, others of which require value judgment and others an infusion of legal policy. There was always a degree of irony in maintaining that the existence of a duty involved a question of law (and thus not for determination by a jury) when the concept of reasonableness itself invoked consideration of community standards. Thus Gleeson CJ at [14] in Tame invoked the remarks of Lord Macmillan in Donoghue v Stevenson (at 619) to the effect that “"conception[s] of legal responsibility ... adap[t] to ... social conditions and standards", as did McHugh J at [97] stating that a risk “was regarded as unreasonable and one to be prevented only if reasonable members of the community would think it sufficiently great to require preventative action”, obtaining support from Fleming, The Law of Torts (LBC 1957) pp 131-132.

161 These are not novel propositions: in Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202 at 220, Dixon CJ, McTiernan, Kitto and Taylor JJ explained:

“It has been contended before us that it was for the judge to decide as a matter of law whether the appellant was under any duty of care, and if so what that duty was. It was, of course, for the judge to tell the jury what conclusions of fact they must reach before they could be entitled to treat the appellant as under a duty of care to users of the level crossing, and to describe in abstract terms the standard of that duty if it existed. This his Honour did; and in the circumstances of the case the rest was for the jury.”

162 In Caledonian Collieries, the joint judgment affirmed (at 221) the correctness of a statement of the function of judge and jury in respect of questions of duty expressed in similar terms by Jordan CJ in Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 at 501-502. To similar effect, Gleeson CJ stated in Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341, a case involving the liability of an occupier of premises, that the abandonment of specific categories of duty had resulted in “a generalised standard of care, described as what a reasonable person would, in the circumstances, do by way of response to a foreseeable risk”: at [8]. His Honour continued at [10]:

“The jury system had the advantage of committing a judgment on reasonableness to the collective wisdom of a group of citizens chosen at random from the community.”

163 Once it is accepted that the existence of a duty depends in part on matters of fact and evaluative judgment, it becomes necessary for the appellant to define with a greater degree of precision the legal error which is said to infect the approach taken by the Tribunal; it is not sufficient merely to allege error in determining that a duty existed. It may also become necessary to inquire whether particular factual determinations went to the existence of the duty or to questions of breach.

164 The conceptual distinction between the existence of a duty and its breach is well-understood, but will depend in a particular case upon the degree of precision with which the duty is identified. In Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639, in a passage cited with approval by Gummow J in Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [71], Glass JA stated:

“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.”

165 A number of further propositions should be identified at this stage. First, the rejection, in recent case law, of tests adopted in earlier times does not necessarily involve the Court in turning its back on the principle underlying that which had formerly been thought an appropriate formulation of a test. Thus, the rejection of “proximity” as a comprehensive test for determining whether the relationship between two parties gives rise to a duty of care, was based upon the inutility of the concept: see Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [272] (Hayne J) and Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [48] (Gleeson CJ, Gaudron, and McHugh, Hayne and Callinan JJ). This concern was not novel. In Leigh Sillivan Ltd v Aliakmon Shipping Co Ltd [1985] QB 350 at 395, Robert Goff LJ had described the general notion of proximity as question begging because once “proximity is no longer treated as expressing a relationship founded simply on foreseeability of damage, it ceases to have an ascertainable meaning; and it cannot therefore provide a criterion for liability”. This passage was cited by Deane J in Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 496-497. However, his Honour considered that the concept had both “substance and true function”:

“The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff.”

166 Given more recent developments, it is not necessary to set out the full passage from his Honour’s judgment which concluded that “in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction”: at 498. The relevance of that discussion is to demonstrate that the current position adopted by the High Court is one which has evolved over time. What would now be described as relevant or salient features, have long been appreciated as elements within the broader notion of “proximity”.

167 The test adopted by the House of Lords in Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC 605 was rejected for reasons explained in Sullivan at [49]:

“There is a danger that judges and practitioners, confronted by a novel problem, will seek to give the Caparo approach a utility beyond that claimed for it by its original author [Lord Bridge of Harwich]. There is also a danger that, the matter of foreseeability (which is often incontestable) having been determined, the succeeding questions will be reduced to a discretionary judgment based upon a sense of what is fair, and just and reasonable as an outcome in the particular case. ... The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle.”

168 The distinction between formulation of policy and application of principle may be understood as a reflection of the remarks of Stephen J in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA 65; 136 CLR 529 at 567, dealing with a case of economic loss. His Honour commenced by referring to “that uncertainty that appears necessarily to affect this area of the law if entitlement to damages is to depend upon case-by-case application of a general policy, itself flexible and ill-defined and dependent upon a survey of a quite variable group of considerations, many of which will be susceptible of the production of differing, subjective judicial reactions”. (Those remarks, it may be noted, have cogency with respect to a “multi-factorial approach” unless guidance is available as to how a range of potentially relevant factors should be considered.) Stephen J continued:

“Policy considerations must no doubt play a very significant part in any judicial definition of liability and entitlement in new areas of the law; the policy considerations to which their Lordships paid regard in Hedley Byrne are an instance of just such a process and to seek to conceal those considerations may be undesirable. That process should however result in some definition of rights and duties, which can then be applied to the case in hand, and to subsequent cases, with relative certainty. To apply generalized policy considerations directly, in each case, instead of formulating principles from policy and applying those principles, derived from policy, to the case in hand, is, in my view, to invite uncertainty and judicial diversity.”

169 This passage was referred to and relied upon by Gleeson CJ in Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627 at [28], in a case involving principles of causation. His Honour continued at [29]:

“To acknowledge that, in appropriate circumstances, normative considerations have a role to play in judgments about issues of causation is not to invite judges to engage in value judgments at large. The relevant norms must be derived from legal principle.”

170 The tests rejected in Sullivan were not erroneous in the sense of being based on irrelevant matters, but were either unhelpful or capable of being misunderstood and misapplied or (in the case of Caparo) both. It follows that reference to proximity will not demonstrate an error of law, unless the underlying concept is misunderstood and therefore misapplied. As explained by Gummow J in Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [198], a case involving a claim for economic loss:

“The question in the present case is whether the salient features of the matter gave rise to a duty of care owed by Apand. In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties.”

171 Secondly, the rejection of earlier tests has involved an express recognition that the statements of law had overstepped their mark in their search “for a unifying principle”: Sullivan at [47]. The Court was at pains to emphasise in Sullivan that:

“Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care.”

172 Given this warning, as a reflection of the primary problem noted above, it would be misguided to seek a new unifying formulation or approach. Even the “multi-factorial” or “salient features” approach should not be treated in this way. Like the remarks in the judgment of Mason J in Wyong Shire Council v Shirt, the purpose of the multi-factorial approach is to remind those seeking to determine whether a duty exists of the scope of the considerations which must be taken into account. It is intended to overcome the very real risk that a principle stated as an aphorism will be circular or at least risk being so, because the principle “is stated in terms which conceal the fact that the process of deciding on liability begins with an answer which is largely intuitive, and reasons backward from it”: Lord Mustill, op cit, p 10. The multi-factorial approach should not, therefore, be treated as a shopping list, all the items of which must have application in a particular case. Rather, it provides a list of considerations which should be considered, as potentially relevant, depending on the kind of case before the Court. Further, it is necessary to distinguish between those considerations which are essentially factual, those which require value judgments and those which may require the application of legal policy.

173 Thirdly, it is necessary to understand the comments in Sullivan with respect to the distinction between “policy” and “principle”. As noted above, the judgment of the Court sought to identify a distinction between “an invitation to formulate policy”, and “to search for principle”. The judgment stated at [49]:

“The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases.”

174 The concept of “policy” was being used to identify that which had earlier been referred to as “a discretionary judgment based upon a sense of what is fair, and just and reasonable as an outcome in the particular case”. Such language might be described as inviting an unprincipled approach. It was not suggested that Caparo envisaged such an approach, or that such an approach has been adopted subsequently in English case law: see, eg, Witting C, Duty of Care: An Analytical Approach (2005) 25 Oxford J Leg Studies 33 at 36-38. The Court’s purpose was clearly not to exclude questions involving normative elements nor the need for coherence between different parts of the general law: Sullivan at [42]; The Dredge “Willemstad” above at [168].

175 Fourthly, in considering the various factors which have been identified as salient features , it is important to distinguish between those which are necessary but not sufficient, those which constitute constraints (whether absolutely or as matters of weight) and those factors which are appropriate matters to be considered. It is also necessary, as noted above, to distinguish factual considerations from normative considerations, although both may be involved in a particular factor. To identify error on the part of the Tribunal in deciding a point of law, it may be necessary to find that the Tribunal has treated a particular condition as sufficient, as opposed to merely necessary, or has treated an absolute constraint as a factor to be weighed in the balance or has erroneously identified a relevant legal principle.

176 Fifthly, there is no doubt that factors which are relevant in determining the existence of a duty, may also be relevant to questions of breach and even causation of loss. The three concepts are inter-related: see remarks of Brennan J in John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218 at 241-242, reiterated in Sutherland Shire Council v Heyman 157 CLR at 487.

177 To the extent that similar factors are relevant in determining both duty and breach thereof, a critical distinction is the position from which each is to be assessed. Duty requires an objective prospective assessment of the risks foreseeable as possible, but not farfetched or fanciful, to the reasonable person in the position of the defendant. In order to give content to the duty, it would be necessary to consider the steps which might be available to such a person, and his or her capacity to take such steps as might mitigate or avoid the risk. The assessment of breach involves an examination of the actual conduct of the defendant and the options available in the circumstances of the case. This distinction is valid, but the inter-relationship is clear. The defendant’s conduct will be judged against a standard set by the content of the duty.

178 It has also been suggested that a determination as to duty is undertaken at a higher level of abstraction or generalisation than is the determination of breach. In a sense, that is to say no more than that one is a prospective (albeit conducted retrospectively) assessment of the circumstances as they arose prior to the conduct in question: Vairy at [124] (Hayne J). Nonetheless, such statements appear to encourage the consideration of duty at a relatively high level of abstraction. That approach has been said to have been appropriate “by and large”: see Neindorf[2005] HCA 75; , 80 ALJR 341 at [50] (Kirby J). The reason for such an approach is to avoid mixing questions of duty with questions of breach: see, eg, Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [309] (Hayne J); Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [106] (McHugh J). This theme was picked up again in Vairy, where Gummow J, referring to the reasoning of Hayne J, stated:

“60 The determination of the existence and content of a duty is not assisted by looking first to the damage sustained by the plaintiff and the alleged want of care in that regard by the defendant. There is a particular danger in doing so in a case such as the present. The focus on consideration of the issue of breach necessarily is upon the fate that befell the particular plaintiff. In that sense analysis is retrospective rather than prospective.

61 In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover, an assessment of what ought to have been done, but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue.”

179 On the other hand, the higher the level of abstraction at which the duty is identified, the less likely it is to provide any useful role in determining the outcome of the case: Vairy at [73] (Gummow J); see also Amaca Pty Ltd v AB & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Rep 81-910; 5 DDCR 543 at [137]. In other circumstances, the High Court has emphasised the desirability of having regard to the harm suffered by the plaintiff in considering the scope of the relevant duty, if any: see also Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (“Wagon Mound [No 1]”) [1961] UKPC 1; [1961] AC 388 at 425 (PC – Viscount Simonds). As explained by Gummow and Hayne JJ, in Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469:

“81 In these circumstances it is neither necessary nor appropriate to decide any question about the existence of a duty of care. ... It is not appropriate to do so because any duty identified would necessarily be articulated in a form divorced from facts said to enliven it. And, as the present case demonstrates, the articulation of a duty of care at a high level of abstraction either presents more questions than it answers, or is apt to mislead.”

82 Here, as in so many other areas of the law of negligence, it is necessary to keep well in mind that the critical question is whether the negligence of the defendant was a cause of the plaintiff's injuries. The duty that must be found to have been broken is a duty to take reasonable care to avoid what did happen, not to avoid ‘damage’ in some abstract and unformed sense.”

180 The diminishing need for reliance on the concept of duty to control decision-making by juries, the difficulty in formulating the level at which the duty should be identified, the lack of clarity as to how a court should approach novel cases and the possibility that a focus on duty will marginalise important factual questions, have led both to calls for the abandonment of reliance upon any such concept (beyond the test of foreseeability) and to fears that an important element in the law of negligence is disintegrating: for an example of the former, see 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; as an example of the latter, see Weinrib E, “The Disintegration of Duty” in Exploring Tort Law (Madden, ed, Camb UP, 2005) and Witting C, “Tort Law, Policy and the High Court of Australia” (2007) 31 Melb UL Rev 569. As pithily expressed by Professor Weinrib (p 149):

“The disintegration of duty is the consequence of thinking that duty is a matter of policy, and that policy, in turn, refers to the various independent goals that liability might serve. On this view, each particular kind of duty represents the balance of goals, in themselves diverse and competing, that is peculiar to it. However, another notion of policy refers to the exercise of practical judgment in elucidating what the general conception of duty might mean in particular circumstances. The general conception provides not (as has often been assumed) a test of duty, but a structure of thinking that is actualized in legal reasoning through the casuistic assessment of facts or comparison of cases or through the elucidation of its particular normative features in the overall context of a legal system that values coherence.”

181 On one view, the attempt by Lord Atkin in Donoghue v Stevenson to set out a “general conception” identified as the “neighbour” principle was an exercise which ran counter to the methodology of the common law, at least as understood by the American realists. On the other hand, it has been remarkably successful over more than half a century in supplying a touchstone for coherence within the tort of negligence, providing a basis for rationalising existing areas of duty, whilst providing some guidance in the development of the concept in novel areas.

Challenge to determination of Tribunal

182 As explained above, many features of the present case were not novel. Of the features which required attention the following were critical:

(a) the nature of the harm suffered by the plaintiff;

(b) the conduct of the defendant said to have caused the harm suffered by the plaintiff, and

(c) the relationship between the plaintiff and the defendant, in respect of the risk of harm.

183 As already noted, the harm suffered by the plaintiff was physical injury. It was thus a consequence which is well-established as capable of giving rise to a duty of care.

184 In relation to the second matter, the conduct of the defendant (in this case the appellant), involved the failure to contain a dangerous substance within its refinery. In this respect, the key factual question was whether the appellant knew or ought to have known of the extent of the risk which materialised.

185 The third element involved a consideration of the relationship between the appellant and the plaintiff. That relationship was neither direct, nor remote. If the risk of harm from exposure to asbestos dust in circumstances where protective clothing was not worn, was a matter within the actual or constructive knowledge of the appellant, then the critical element in the relationship involved the actions of the third party intermediary, namely the plaintiff’s husband. To the extent that his acts were neither criminal, nor unforeseeable, nor in any sense remote from the operation of the appellant’s premises, the circumstances were, again, capable of giving rise to a duty of care. The plaintiff was vulnerable to the risk which materialised. Whether that vulnerability could have been avoided by an appropriate warning was not a relevant question in relation to duty and, in any event, did not arise. The plaintiff’s exposure to asbestos dust arose both in relation to the period when her husband was a contractor working at the premises occupied by the appellant and during the period when he was an employee of the appellant. Questions of control may arise in relation to the former period, but will readily be satisfied in relation to the latter.

186 In order of appearance, the first passage in the judgment of the Tribunal (the subject of the second ground identified at [150] above) challenged on appeal was the extraction from Gala v Preston of a statement that 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”: at [78], quoting the remarks of Mason CJ, Deane, Gaudron and McHugh JJ in Gala v Preston at 253.

187 His Honour continued in the next passage (being the subject of the first ground), identifying as a helpful test for determining whether a duty of care was established, the remarks of Mason J in Wyong Shire Council v Shirt at 47 stating:

“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.”

188 In relation to the former, the complaint made was that “proximity” no longer plays the role ascribed in Gala v Preston in 1991. In relation to the latter passage, the complaint was that Mason J was there in express terms addressing an element in the approach to the factual determination of breach, rather than the establishment of a duty.

189 Neither of these complaints demonstrates error of law in the manner required for the appellant to succeed.

190 First, there is some irony in attributing legal error to the use of the label “proximity”. Departure from that language, as explained in Sullivan v Moody, was based on the premise, not that it was in its terms erroneous, but rather that it was conclusory and unhelpful. What was sought to be put in its place was a series of more specific considerations giving content to the concept. To establish legal error, it was necessary for the appellant to show that the Tribunal misunderstood the need to consider the nature of the relationship between the conduct of the defendant and the harm suffered by the plaintiff. In this context, there is some irony in the fact that the third challenge made by the appellant was that the Tribunal erred in identifying the class to whom the duty was owed as one including the plaintiff as a member of the household of employees. There was no basis for concluding that the Tribunal treated proximity as involving some irrelevant consideration, or as excluding some relevant inquiry. The complaint misapprehends the nature of the change in approach articulated in Sullivan v Moody and related authorities.

191 Error might have been established had the Tribunal treated an undefined notion of proximity as a “general determinant” of the existence of a duty in the present case. A reading of the reasons, taken as a whole, does not suggest such an error. In particular, at [95], having rejected the existence of a relationship of proximity in the first two periods of Mr Stavar’s work at the refinery, his Honour continued:

“Notwithstanding that, as recent decisions of the High Court of Australia show, the notion of proximity is no longer a safe guide for determining whether a duty of care of exists. One must look to the nature of the relationship between Caltex and the plaintiff. Applying the principles cited in the cases referred to at [100] in ACQ v Cook [2008] NSWCA 161 (16 July 2008) and the other cases referred to above, the facts of this case, I am of the view that no duty was owed ....”

192 ACQ v Cook [2008] NSWCA 161; 72 NSWLR 318 (Campbell JA, Beazley and Giles JA agreeing) was upheld by the High Court in ACQ Pty Ltd v Cook [2009] HCA 28 (a judgment handed down after argument in the present case) without comment on the reference to duty, the case turning on questions of causation.

193 A similar conclusion should be reached with respect to the passage from Wyong Shire Council. Not only did the Tribunal expressly note that the introductory words were directed to breach, but correctly noted that the test of foreseeability was also relevant to the existence of a duty. The interrelationship between the factors relevant in each case has long been recognised. The different perspectives required in each case were not overlooked. The test identified was the objective test of reasonable foreseeability.

194 The critical issue in respect of exposure to asbestos in the period in issue in this case was the intensity of the exposure. That required a factual analysis of the particular circumstances in relation to the plaintiff. What has been held to constitute legal error in this context is to fail to recognise that criterion, so as to treat anyone exposed to asbestos dust in any circumstances as within the class of persons to whom a manufacturer or distributor owes a duty of care: see Seltsam Pty Ltd v McNeil [2006] NSWCA 158 at [28]- [38] (Bryson JA, Handley and Tobias JJA agreeing). His Honour did not commit that error.

195 The third ground was the reverse of the error identified in Seltsam. In other words, rather than identifying a specific class subject to the intensity of exposure to asbestos similar to that suffered by the plaintiff, the Tribunal was challenged for failing to include in the relevant class a far wider range of people. There was no suggestion in the submissions that the wider class was likely to be subject to the same level of intensity of exposure as those within the class identified by the Tribunal. The effect of widening the class, the appellant contended, was to render it indeterminate, in a sense which precluded the existence of a duty of care.

196 The identification of the class was addressed by his Honour at [111], set out at [87] above. The class was identified twice, once by reference to an expansion from employees and others who worked at the refinery to “members of their households” while, on the second occasion, it was expressed as a duty 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”. The first specific complaint was that the inclusion of the phrase “at risk of contracting asbestos diseases” gave rise to an indeterminate class, which the appellant could not be expected to identify.

197 This complaint approaches the language of the judgment as if it were a statute. Even then, the criticism is without substance. The mechanism by which members of the household became at risk of contracting asbestos diseases was identified in the following words in the very sentence complained of. When this was pointed out to counsel for the appellant, he responded (Tcpt, 19/05/09, p 19(45)):

“Yes and that poses part of the broader question which I was about to take the court to. If it’s persons who are at risk in coming into contact with work clothes why is it reasonable to so confine it and this comes back to the Sullivan v Moody point in para 50.”

198 One may infer (the matter was not greatly clarified by the discussion) that the reference to Sullivan at [50] was to the identification of a problem which can arise in some circumstances in determining the existence, nature and scope of a duty of care, namely “the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits”. Reference was made in that context to the decision in Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180, a case involving circumstances far removed from the present. At no stage was the supposed “need” for the Tribunal to define the class more broadly explained by reference to legal principle.

199 A “third problem” with respect to the issue of indeterminacy of the class, was identified in the following terms (Tcpt, p 21(5)):

“Now, the third problem and what we say, as I’ve said already, is that on the salient features approach the difficulty of confining the class of persons within reasonable limits is a significant factor. Now, it’s within reasonable limits and reasonable limits just doesn’t mean confining it narrowly, it means reasonably and if it’s too narrow to be reasonable then that’s a reason why you wouldn’t impose the duty and that comes out of not only Sullivan v Moody ....”

200 This appears to be an attempt to articulate the same point: the same answer applies. No legal error is identified and the challenge is rejected.

201 The Asbestos Rule, which was relied upon by the Tribunal as explaining the class to whom the duty was owed, required not merely that employers and occupiers provide protective clothing to workers exposed to asbestos dust, but also required that the clothes be laundered on the premises or, if laundered elsewhere, be transported in an enclosed, labelled container to prevent the dust escaping in transit. To the extent that the appellant knew or ought to have known of the requirements imposed by the Asbestos Rule, it was arguable that it should also have understood the policy with respect to laundering which was intended to avoid clothes being taken home to be laundered in domestic surroundings by persons unfamiliar with the risks. That approach provided a legitimate basis upon which the class could appropriately be identified in the terms adopted by the Tribunal.

202 The fourth challenge asserted that the Tribunal erred “in the application of the reasonable foreseeability test”. So expressed, no error of law is identified. Error in the application of a legal principle may involve a question of fact, or possibly a mixed question of fact and law. Generally, it is only if the application reveals a misunderstanding of the principle, or what may be described in truth as an application of a wrong principle, that a question of law arises.

203 As articulated in the oral submissions, the question of whether a particular risk of harm was foreseeable was said to be a question of law. The relevant assessment included a review of the medical and scientific literature prior to and including the years during which the plaintiff was exposed to asbestos dust to determine whether the risk to her was something which the appellant knew and should have known about. On the basis that no actual knowledge was established, it was submitted that the only issue was whether the appellant ought to have known about the risk, being a question of law. For that proposition, the appellant called in aid a passage in the judgment of McHugh J in Graham Barclay Oysters [2002] HCA 54; 211 CLR 540 at [87], in the following terms:

“Reasonable foreseeability involves more than a question of fact. It involves a value judgment. Would a reasonable person in the position of the defendant not only have foreseen that his or her conduct – including omissions – gave rise to a risk of injury, but regarded it as sufficiently serious to consider what steps should be taken to avoid or reduce it?”

204 This passage only takes the appellant part of the way in establishing an error in point of law. The extent to which the existence of a duty is a question of law has been discussed at [159]-[163] above. Whether the “value judgment” to which McHugh J referred necessarily involves a question of law or, relevantly for present purposes, is limited to a point of law may be doubted. These questions need not be resolved. The difficulty faced by the appellant was in demonstrating error. As already noted, his Honour placed significant weight, in determining the appropriate class, on the Asbestos Rule. In this sense, the legitimate scope of the fourth challenge depends on the fifth and final challenge with respect to duty.

205 The final basis of challenge to the finding that the appellant owed a duty of care to the plaintiff was based on the way in which his Honour made use of the Asbestos Rule: ground (5) identified at [150] above. In part, that challenge was based on the proposition that his Honour had found, perhaps implicitly, that the Asbestos Rule gave rise to a private right of action for breach of statutory duty: ground (7). There was a further complaint that his Honour concluded that breach of the Asbestos Rule by itself constituted a breach of the common law duty: ground (6). It is convenient to consider these three grounds together.

206 In order to understand how his Honour treated this matter, it is necessary to refer to the structure of his judgment. He commenced by noting that the substantial dispute was the lack of a “relationship of proximity” between the appellant and the plaintiff, with the consequence that it owed her no duty of care. Alternatively, it was said that her exposure was so slight that it did not constitute a foreseeable risk of injury: at [2]. His Honour then noted the background circumstances of the parties, including the manner in which the plaintiff was at risk, namely through her husband’s exposure to asbestos dust at work: [9]-[16] and (in relation to the plaintiff), [17]-[24]. His Honour then considered evidence as to the levels of exposure at [25]-[34], returning to the question of foreseeability at [35]. In addressing that question his Honour assessed the evidence before the Tribunal as to the history of understanding of the causes of mesothelioma, particularly in the medical literature prior to the period of the plaintiff’s exposure: at [36]-[69]. Part of that discussion concerned the knowledge of Dr Ian Rathus, who was, in the late 1960s, Director of Industrial Medicine in the Department of Health and Medical Services in Queensland: at [60]-[68]. His Honour noted that one consequence of the growing understanding that “long term exposure to even low concentrations” of asbestos dust “has been shown to be associated with the rare and uniformly fatal disease of the lining of the lungs known as mesothelioma” resulted in the preparation and promulgation in Queensland of the Asbestos Rule: at [67]-[68]. His Honour concluded at [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.”

207 Although not expressly stated in that passage, his Honour was addressing the question of foreseeability by the appellant, which had been expressly identified in the preceding paragraphs. Thus, addressing the reliance placed on two newspapers articles, his Honour had stated that the appellant “could have become aware had it made inquiries”: at [73]. Referring to the presence on the premises (from the mid-1980s) of employees of another company who were supplied with full protective clothing and respirators, his Honour concluded that such events “ought to have made Caltex aware that there was a foreseeable risk of injury against which means were available to obviate or minimise it”: at [74]. It was only after reaching those conclusions that his Honour referred again to the Asbestos Rule, which took effect from 11 July 1971. He stated at [76] that he would return to the Rule in due course but that “by reason of certain provisions, it was, in my view, made apparent to those bound by it, that people in the class of which the plaintiff was a member were at risk of injury by exposure to small quantities of asbestos”. (It was not in doubt that the appellant was a person to which the Rule, at least potentially, applied.)

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:

(a) the Rule only applied in respect of people employed to work within the refinery;

(b) in its terms, the Rule only applied to dust which was “liable to cause danger to the health of persons”, and thus did not demonstrate knowledge or a means of knowledge on the part of the appellant, and

(c) the appellant had complied with the rule in accordance with the degree of understanding and in accordance with practices applicable at the time.

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:

(a) the principal directs the manner of performance of the work;

(b) the work requires the coordination of the activities of different contractors;

(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;

(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;

(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.”

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:

“99 The operation of criteria (a) and (b) is reasonably clear, but they were not engaged in the present case. The operation of (c) to (e) is not so obvious, nor is it clear that there may not be additional criteria. For example, the degree of control which the principal retains over the workplace and the statutory responsibility with respect to safety at the workplace, both of which existed in Crimmins, may be critical considerations in relation to criterion (e).

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.

241 SIMPSON J: I agree with Allsop P. I also agree with the additional observations of Basten JA.

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LAST UPDATED:
1 September 2009