Home

 

 

 
 

Legal / Court Rulings

The content of available articles is intended to provide a general guide to the subject matter. You should seek specialist advice about your specific circumstances.


August 2010
Australia: Danger! Peligro! Publicity Order in Five Languages.
Article courtesy of Norton Rose Group.
Read Article

Curwoods Lawyers
Australia: Queensland Employer Held Liable To An Employee´s Spouse By Virtue Of The "Asbestos Rule"

07 February 2010
Australia: High Court of Australia overturns NSW safety laws

Introduction

In a landmark judgment, the High Court of Australia has overturned a long standing line of authority on the scope of the duty of care under New South Wales OHS legislation. The case has brought New South Wales more into line with other Australian jurisdictions and has paved the way for greater avenues of defending prosecutions in New South Wales.
Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Limited V WorkCover Authority of New South Wales (Inspector Childs) (2010) HCA 1 was an appeal from a decision of the NSW Court of Appeal dismissing an appeal from the Full Bench of the New South Wales Industrial Relations Commission which had upheld the conviction of a farming company and its managing director in relation to a farm fatality in 2001.
The case related to an accident on Kirk Group's farm near Picton, New South Wales, where a part time farm manager, who had been employed by the company to manage the hobby farm, was killed when his All Terrain Vehicle (ATV) overturned. He had driven down a steep slope with a load attached to the ATV, rather than drive along a road purpose built to avoid having to drive down the slope.
The Company and Mr Kirk were found guilty of breaching their respective duties under the NSW OHS Act. They were convicted and fined $110,000 and $11,000 respectively.
In upholding the appeal, the High Court held that a statement of an offence must identify the act or omission said to constitute a contravention of the duty. The duty is contravened only where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. The High Court held that it is those measures which must be specifically identified in the charge and it is those measures which the employer must address themselves in making out their defence of reasonable practicability.
As no specific act or omission was identified the offending conduct of the employer was not established but merely general breaches of the Act.
The High Court was also critical of the decision to call Mr Kirk as a witness for the prosecution despite the prohibition in the Evidence Act against defendants in criminal trials being called as witnesses for the prosecution.

What does this mean?

This judgment represents a significant shift in the approach to the interpretation of the duty of care and sets out a roadmap of how prosecutions will need to be brought in future.
Prosecutors need to be very specific as to not only the risk that the person was exposed to but also as to what the defendant was reasonably required to do about it. Prosecutors must not simply rely on what's been called the 'absolute' nature of the duty. The focus now is not simply on the risk to health and safety but rather on what it is alleged the defendant was required to do to address a specific risk.
This opens up greater avenues for defending prosecutions brought for breaches of the duty of care in NSW.
The decision also serves as a useful reminder in other jurisdictions of the need for better particulars in criminal charges so that defendants are on notice of the case they are facing.
Employers will welcome the decision as it represents a relaxation of the strict interpretation of the safety duty. Over time, the attention to the specific deficiency on the part of the employer will increase the transparency of the OHS legal system and provide greater learning opportunities as cases are brought and decisions are handed down.

 

11 September 2009
Article by David Chong and Andrew Spearritt

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

Court of Appeal1

In Brief

Background

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 [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."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."

Cross Appeal

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:

"[80] In Seltsam Pty Ltd v McNeill... 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."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 [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"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:

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.

Implications

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.

Footnotes

1. Allsop P, Basten JA, Simpson J
2. Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 at 95
3. Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 at 111
4. [1991] HCA 18
5. [1980] HCA 12
6. [2006] NSWCA 158
7. Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 at 80
8. Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 at 95
9. Allsop P at 113
10. [1996] QCA 288

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.