Caltex Refineries (Qld) Pty Limited v Stavar  NSWCA 258
Court of Appeal1
- The Court of Appeal considered the relationship between an employer's common law duty of care and the "Asbestos Rule" made under s38(1) of the Factories and Shops Act 1960 (Qld), finding that conduct which contravenes the statutory duty under the Asbestos Rule does not necessarily amount to a breach of the common law duty of care owed by the employer.
- However, the Asbestos Rule supported the finding that an occupier of a refinery ought to have known of the risk of injury to members of a worker's household.
- The Court of Appeal affirmed that in determining whether a duty of care arises in a novel circumstance or category, it is necessary to undertake a multi-factorial approach and analyse the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the "salient features" affecting the appropriateness of imputing a legal duty to take reasonable care to avoid a risk of injury.
Mrs Stavar (plaintiff) developed malignant mesothelioma as a result of her exposure to asbestos from laundering her husband's work clothes which were impregnated with asbestos dust and fibre from his workplace.
The Plaintiff's husband (employee) was employed for three consecutive periods by different employers from 1964 to 1991 but all work was undertaken at the Lytton oil refinery, owned and occupied by Ampol (Qld). Ampol (Qld) was the employee's last relevant employer in time, being the period 1974 to 1991.
The liabilities of Ampol (Qld) were assumed by Caltex Refineries (Qld) Pty Limited (Caltex).
An extempore judgment was delivered by O'Meally P of the Dust Diseases Tribunal of New South Wales on 29 July 2008 who awarded a verdict in favour of the plaintiff against a number of defendants including Caltex in the sum of $339,000 plus costs.
The Trial judge's decision was based primarily on the "Asbestos Rule" which came into effect on 11 July 1971 and was made under s38(1) of the Factories and Shops Act 1960 (Qld), which Ampol (Qld) was required to observe.
The duties of occupiers were set out in Part II of the Asbestos Rule which included 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 was liable to escape.
The Asbestos Rule also required an occupier 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. The relevant literature recognised the type of exposure suffered by the plaintiff constituted a real risk of injury. The Rule required that steps be taken to prevent domestic exposure by adopting reasonable measures to prevent workers returning home in a contaminated state.
It was not disputed that Ampol (Qld) failed to comply with its obligations under the Asbestos Rule.
The Trial judge found that as a company bound by the Asbestos Rule, Ampol (Qld) knew that people in the class of which the plaintiff was a member, were at risk of injury by exposure to small quantities of asbestos.
The Trial judge held, inter alia, that there was a foreseeable risk of injury to members of the employee's household from the mid 1960s even from exposure to small amounts of asbestos.
In respect to the employee's exposure to asbestos prior to 1974, when Caltex was sued as an occupier of the premises only, the trial judge stated:
"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  in ACQ v Cook  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."2
Caltex was therefore held not liable in respect to the pre-1974 exposure when Caltex was inculpated as an owner and occupier of the premises where the employee worked.
In respect to the period when the plaintiff's husband was employed by Caltex (1974 onwards) the trial judge stated:
"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."3
Caltex was therefore held liable to the plaintiff in respect to the period from 1974 onwards, being the period during which Ampol (Qld) employed the plaintiff's husband.
Court Of Appeal
Caltex appealed against the Tribunal's decision alleging that the Trial judge used the wrong test to assess the existence of a duty of care and erred in finding that there was a breach of the common law duty by concluding that Caltex failed to comply with its statutory obligations under the Asbestos Rule.
Caltex argued that the Trial judge's finding that it failed to provide protective clothing to the employee and by failing to ensure compliance with the Asbestos Rule (both statutory breaches) should not have justified a finding that Caltex breached a common law duty owed to the plaintiff.
The leading judgment was delivered by Allsop, P with whom Basten JA substantially agreed, although he delivered a separate judgment. Simpson, J agreed with both judgments.
Whilst Allsop P was of the view that the Asbestos Rule was not intended to cover people at home in the plaintiff's position, it was open for the trial judge to conclude that the risk of harm to persons in the plaintiff's class was reasonably foreseeable by Ampol (Qld).
Another substantial ground of appeal was that the trial judge erred in concluding that the existence of a statutory duty, without more, substantiated or created a common law duty.
Allsop, P believed that there was a rational foundation for the trial judge to reach the conclusion that there was a breach of a common law duty. Allsop P noted however, that even if there was some legal error, the facts identified by the trial judge that gave rise to his conclusion that both a statutory and common law duty were breached, were an ample foundation for the latter conclusion. At 131 Allsop P stated:
"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."
The plaintiff filed a cross-appeal containing five grounds of appeal, alleging that the Tribunal erred in failing to find that Caltex owed a duty of care prior to 1974.
At first instance, the trial judge referred to the High Court decisions of Gala v Preston4 and Wyong Shire Council v Shirt5 regarding the consideration whether a reasonable man in the defendant's position would have foreseen that his conduct created a risk of injury to a class of persons including the plaintiff.
The trial judge also referred to a comment by Bryson JA in Seltsam v McNeill6 as follows:
" In Seltsam Pty Ltd v McNeill... Bryson JA observed at  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."7
However, Allsop, P confirmed that Bryson JA also made reference to questions of reasonable foreseeability and existence of a duty of care not being determined as applying to a risk of injury which was remote, far fetched or fanciful. The Court of Appeal was not critical of the Trial judge in failing to refer to that aspect of Bryson JA's reasoning because the Court of Appeal acknowledged that the Trial judge was required to deliver a timely extempore judgment given the plaintiff's fatal disease.
Allsop, P determined that the reasoning expressed by the trial judge that "[a]pplying the principles cited in the cases referred to at  in ACQ v Cook  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"8 was insufficient.
Allsop, P and Basten, JA referred to the necessary multifactorial analysis that ought to have been undertaken in such a novel case to determine whether or not a duty of care existed between the plaintiff and the putative tortfeasor. The salient features that should be considered in such an approach included but are not limited to:
- The foreseeability of harm;
- The nature of the harm alleged;
- The degree and nature of control able to be exercised by the defendant;
- The degree of vulnerability of the plaintiff; and
- The existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff.
Whilst the Trial judge acknowledged that it is necessary to consider a broad range of issues in determining the existence of a duty of care, he did not address all relevant factual issues required by the multifactorial approach that was to be adopted.
The Court of Appeal remitted the whole of the cross-appeal back to the Trial judge for further consideration and reasoning. However, the Court of Appeal did point out that Ampol (Qld) were obliged to be familiar with the health risks associated with exposure to asbestos and its obligations under the Asbestos Rule from as early as 1971.
Whilst the decision has not changed the landscape to any great extent in respect to an employer's liability, there is scope for a potential further finding that an occupier's duty of care extends to the domestic household at least after the enactment of the Asbestos Rule which existed in some form by the 1970s in all States and Territories.9
The decision is also in contrast with the authority in Bale v Seltsam Pty Ltd10 in which the Queensland Court of Appeal rejected a claim by a plaintiff in a similar situation and held that she had not established that her injury was foreseeable.
It also confirmed that in novel cases, it is necessary to adopt a multifactorial approach in determining whether or not a duty of care exists between a plaintiff and a putative tortfeasor, having regard to a wide range of salient issues.
The question of whether an occupier owes a duty of care to the wife of a worker exposed to asbestos dust and fibre in the State of Queensland for the period 1964 to 1974 remains open, subject to further determination by the Tribunal.
1. Allsop P, Basten JA, Simpson J
2. Stavar v Caltex Refineries (NSW) Pty Ltd  NSWDDT 22 at 95
3. Stavar v Caltex Refineries (NSW) Pty Ltd  NSWDDT 22 at 111
4.  HCA 18
5.  HCA 12
6.  NSWCA 158
7. Stavar v Caltex Refineries (NSW) Pty Ltd  NSWDDT 22 at 80
8. Stavar v Caltex Refineries (NSW) Pty Ltd  NSWDDT 22 at 95
9. Allsop P at 113
10.  QCA 288
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