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

Reported Decision: 75 NSWLR 649259 ALR 616[2010] ALMD 2037

New South Wales Court of Appeal

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

HEARING DATE(S): 19 & 20 May 2009

JUDGMENT DATE: 31 August 2009

JUDGMENT OF: Allsop P at 1; Basten JA at 149; Simpson J at 242

1. Appeal dismissed. 2. Grant leave to cross-appeal. DECISION: 3. Cross-appeal allowed. 4. Set aside that part of the order for costs made by the Tribunal refusing to award costs to the plaintiff in respect of the period before 1974 and remit that issue together with any attendant questions of the duty of care and breach thereof in the period prior to 1974 to the Tribunal for rehearing. 5. The appellant pay the respondent's costs of the appeal and cross-appeal. 6. The parties have leave to file written submissions about the form of the orders and any variation thereof. Any application to vary these orders to be made by notice of motion filed within 14 days.

CATCHWORDS: DUST DISEASES TRIBUNAL – appeal to Court of Appeal - appeal in point of law – error identified not operative - remittal to the Dust Diseases Tribunal - Dust Diseases Tribunal Act 1989 (NSW), s 32 - TORTS – negligence – duty of care – novel categories – multifactorial approach to establishing existence of duty - salient features – proximity no longer general determinant of duty – asbestos - domestic exposure – liability of employer where employee brings home contaminated work clothes into domestic environment – foreseeability of harm – whether indeterminate class – class identified conformed with the available medical and occupational health and safety material – foreseeability of harm – required abstraction of consideration of foreseeability - knowledge of risk – available medical evidence identified as at risk a class of persons in a domestic environment with contaminated workers – Asbestos Rule 1971 under Factories and Shops Act 1960 (Qld) – Asbestos Rule required knowledge of the medical and occupational health and safety knowledge - TORTS – negligence –statutory duty – Factories and Shops Act 1960 (Qld) s38(1) – Asbestos Rule 1971 – construction of width of statutory duty – width of duty established in enabling act – rule not extend to protection of non workers in domestic environment - statutory duty did not extend to those in the position of plaintiff – no private right to those outside the statutory duty of care - TORTS – negligence – duty of care – independent subcontractor – duty of care of principal to third party– asbestos - domestic exposure – liability of principal where third party brings home contaminated work clothes into domestic environment – duty of care to third party in carrying on of hazardous activities or handling toxic materials– no self contained test – failure to apply multifactorial approach – failure to address all relevant factual issues – knowledge of principal – steps taken by contractor – toxicity and hazard of asbestos – degree of control of principal – 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