Caltex Refineries v Stavar

Citation: [2009] NSWCA 258

Stavar's husband worked at an oil refinery where he was exposed to asbestos. She was then exposed herself when washing his clothes, resulting in her contracting mesothelioma (aka asbestos cancer).

Prior to 1974, he was employed by McDonald Construction (building the oil refinery), and from 1974-1991, he was employed by Ampol (A company purchased by Caltex in the 90's) working at the refinery. Initial ruling was in favour of Stavar, with damages awarded from Caltex for the 1974-1991 period, and Stavar ordered to pay costs for the 64-74 period. Caltex appealed the award, Stavar sought leave to appeal claiming Caltex did owe a duty of care prior to 1974.

Caltex's appeal was dismissed, and Stavar was granted leave to appeal

(a) What were the circumstances that made the case novel?
It was the wife of an employee that was affected by the negligence, rather than the employee himself - as such, the conventional employer-employee duty relationship did not apply in this case.

(b) Why did the New South Wales Court of Appeal hear the appeal when the circumstances giving rise to the plaintiff’s personal injury occurred in Brisbane?
The original case was heard by the Dust Diseases Tribunal of New South Wales, which suggests that Stavar initiated the case in New South Wales.
Permission to transfer to Queensland was requested by Caltex, but denied given the doubt over whether the case could be heard promptly in Queensland combined with Mrs Stavar's rapidly deteriorating condition.

(c) What was the overall difference between Allsop P’s approach to the issues of duty and breach and Basten JA’s approach?
Allsop P only really looked at whether the President had erred in his original ex tempore ruling, and chose only to look at elements of the original ruling he believed relevant to the appeal. The only area he really discussed in any detail without invoking the original case was the multi-factorial approach to determining duty. Basten on the other hand explored the fragmented nature of negligence law, where the same tort applies in very different manners to very different types of harm, and the distinction between and overlapping nature of breach, duty, and even causation.

(d) What are the salient features under the multifactorial approach? How are they applied to novel circumstances?
To quote Allsop P:

(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
(r) Did I have a tasty sandwich for lunch today?

In novel circumstances, it is necessary to closely analyse the relationship between the parties in order to determine whether it is appropriate to impose a legal duty. This should be done with reference to the 'salient features'- there may be others besides the ones listed, and not all those listed will be relevant. See [102] (Allsop P). It is also important to identify how a feature should be used (is it a necessary condition? a constraint?) and whether it is normative (a value judgment, essentially) or factual. See [175] (Basten JA).

(e) Why did Allsop P conclude that determination of whether the law should impose a duty to take reasonable care to avoid harm or injury in novel cases is a reasoned and evaluative task?

Because there is no specific factor or rule that can be applied to determine if a duty exists in novel cases - the appropriate factors must be identified based on the circumstances of the case, with the ultimate determination of duty being based on a reasoned evaluation of these factors.

(f) Basten JA emphasised the importance of approaching the issues of duty and breach correctly. What is the essential difference in this regard?

The question of duty is a lot more abstract than that of the breach, which is purely factual, though the question of duty appears to be becoming less abstract now that "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."

Duty: "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."

Breach: "The assessment of breach involves an examination of the actual conduct of the defendant and the options available in the circumstances of the case."

(g) Is the determination of a duty of care in novel circumstances a question of law only?

Yes, however Basten JA seemed to feel that as "the concept of reasonableness itself invoked consideration of community standards" it was using the community as a de facto jury for that particular factor.

Alternatively: per Basten JA, it is usually described as a question of law, but that is an oversimplification. "The existence of a duty depends in part on findings of fact and part on value
judgments and legal policy." [159]