HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MAUREEN CRIMMINS (as Executrix of the Estate of
BRIAN JOHN CRIMMINS deceased) APPELLANT
AND
STEVEDORING INDUSTRY
FINANCE COMMITTEE RESPONDENT
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59
10 November 1999
M115/1998
ORDER
Appeal allowed with costs.
Set aside the orders of the Court of Appeal of the Supreme Court of Victoria and remit the matter to that Court for determination of the remaining issues in the appeal to that Court, including the costs of that appeal.
On appeal from the Supreme Court of Victoria
Representation:
T E F Hughes QC with J T Rush QC, J H L Forrest QC and R M Doyle for the appellant (instructed by Slater & Gordon)
D F Jackson QC with C G Gee QC and E A Cheeseman for the respondent (instructed by Blake Dawson Waldron)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Crimmins v Stevedoring Industry Finance Committee
Negligence – Duty of care – Statutory authority for stevedoring industry – Worker directed to places of work involving risk of injury – Whether duty to take affirmative action to protect worker – Factors relevant to determination of existence of duty.
Statutes – Interpretation – Transfer of liabilities from one statutory authority to another – Meaning of "liabilities and obligations" – Whether includes inchoate causes of action.
Words and phrases – "liabilities and obligations".
Stevedoring Industry Act 1949 (Cth), s 13(a).
Stevedoring Industry Act 1956 (Cth), ss 8, 17(1)(a), 17(1)(d), 17(1)(1), 17(1)(o), 17(1)(p), 17(2), 17(3), 18(1), 20, 23(4), 25(b), 25(e), 28(b)(i), 33(1), 33(2), 35, 36(1).
Stevedoring Industry Acts(Termination) Act 1977 (Cth), ss 14(a), 14(b), 15.
Stevedoring Industry Finance Committee Act 1977 (Cth).
GLEESON CJ. Two issues arise in this appeal. The first is whether the Australian Stevedoring Industry Authority ("the Authority") owed a duty of care to the late Mr Crimmins, a waterside worker. The second is whether, upon the true construction of the legislation under which the respondent took the place of the Authority, and assumed all its existing liabilities and obligations as at a certain date, the respondent is legally responsible for a breach of such a duty of care which resulted in injury after that date.
The material facts and legislative provisions are set out in the judgment of McHugh J.
I agree, for the reasons given by McHugh J, that the Authority owed a common law duty of care to Mr Crimmins. That involves the conclusion that the legislation under which the Authority operated was not inconsistent with the recognition of such a duty.
We do not have before us for decision an issue as to whether, in the facts and circumstances of the case, and in the light of the statutory functions and powers of the Authority, there was a breach of the duty. The trial jury resolved that question adversely to the respondent, but that aspect of the case is not the subject of the present appeal.
Acceptance that a statutory authority, in the discharge of its functions, owed a duty of care to a person, or class of persons, is only the first step in an evaluation of the authority's conduct for the purpose of determining tortious liability. In some cases, the difficulty of formulating the practical content of a duty to take reasonable steps to avoid foreseeable risks of harm, for the purpose of measuring the performance of an authority against such a duty, may be a reason for denying the duty. In other cases, of which the present is an example, recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources, and industrial relations.
As to the second issue, the outcome depends upon the meaning and effect of s 14(b) of the Stevedoring Industry Acts (Termination) Act 1977 (Cth), which provides:
"[T]he Committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Authority that existed immediately before the expiration of [the transitional] period."
By the date of the expiration of the transitional period, the acts and omissions of the Authority said to constitute negligence had occurred, but no injury had yet been suffered and therefore no cause of action had arisen. Thus, it was argued, there was no "liability" that "existed" at the relevant time.
Depending upon the context, the meaning of "liability" can include a contingent or potential liability[1]. When the legislature, in providing for replacement of the Authority by the respondent, stipulated that the respondent was to perform all the duties, and discharge all the liabilities, of the Authority, which was abolished and which had no further capacity itself to meet any claims upon it, there was no good reason to distinguish between complete and inchoate causes of action in cases where the Authority had committed a breach of a legal duty. Such a distinction is not required by the use of the word "liability", and to give it a narrow construction would defeat the evident purpose of the legislation, which was to preserve the just entitlements of those who had dealings with the Authority before its abolition.
[1]Walters v Babergh District Council (1983) 82 LGR 235 (Queen's Bench Division).
I agree with the orders proposed by McHugh J.
GAUDRON J. The relevant facts and the history of these proceedings are set out in other judgments. I shall repeat them only to the extent necessary to make clear my reasons for concluding that the appeal in this matter should be allowed.
Two questions are raised in the appeal. The first is whether the appellant can maintain these proceedings against the respondent, the Stevedoring Industry Finance Committee ("the Committee"), as successor to the Australian Stevedoring Industry Authority ("the Authority"). The second is whether the Authority owed a duty of care to the late Mr Crimmins who contracted mesothelioma as a result of the inhalation of asbestos fibres during his employment as a waterside worker at the Port of Melbourne.
The question whether these proceedings can be maintained against the Committee depends on the meaning of s 14(b) of the Stevedoring Industry Acts (Termination) Act 1977 (Cth) ("the Termination Act"). Subject to certain transitional provisions, s 4(1) of that Act provides that certain other Acts, including the Stevedoring Industry Act 1956 (Cth) ("the Industry Act"), cease to have effect[2]. The Authority was established under s 10 of that latter Act. In that context, s 14 of the Termination Act relevantly provides:
" On the expiration of the transitional period-
...
(b) the Committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Authority that existed immediately before the expiration of that period."
[2]See the definitions of "Stevedoring Industry Act" and "Stevedoring Industry Acts" in s 3 of the Termination Act.
The transitional period referred to in s 14 of the Termination Act expired on 26 February 1978[3]. It is common ground that the late Mr Crimmins had not then suffered the injury upon which these proceedings are based and, thus, no cause of action had then accrued. On this basis, it was argued for the Committee that there was no liability or obligation on the part of the Authority "that existed immediately before the expiration of [the transitional] period".
[3]By s 3 of the Termination Act, "transitional period" is defined as:
"the period commencing immediately after the commencement of [the Termination Act] and ending on such day as is fixed by the Minister, by notice in the Gazette, as the terminating day for the purposes of this definition".
By notice dated 17 February 1978 in the Commonwealth of Australia Gazette, G8, 28 February 1978, the terminating day of the transitional period was fixed as 26 February 1978.
The evident purpose of s 14(b) of the Termination Act is to ensure that persons who had a claim on the Authority in respect of unperformed duties and undischarged liabilities and obligations could, once the Authority had gone out of existence, look to the Committee for their performance and discharge. That being its purpose, s 14(b) should be construed as widely as its terms permit. The argument for the Committee is that those terms permit only of the transfer of liabilities and obligations that were enforceable immediately before the expiration of the transitional period. That was so, it was said, because otherwise they would not constitute liabilities or obligations "that existed immediately before the expiration of that period".
The word "existed" is not synonymous with "were enforceable". Nor, in my view, should it be so construed. There is no difficulty in speaking of the existence of a liability or obligation that is not presently enforceable: equally, there is no difficulty in speaking of a liability or obligation that existed in the past but was not then enforceable. At least that is so if there is or was some foundation for the liability or obligation in question. For example, there is no difficulty in speaking of the existence – whether past or present – of a person's liability in damages in the event of breach of contract if that person is or was, at the relevant time, under a contractual obligation to do or refrain from doing some particular thing. The example illustrates the potential width of the concluding words of s 14(b). Those words are capable of meaning not only that the liability or obligation should have been enforceable at the expiration of the transitional period, but that its foundation should then have been in existence. In my view, they should be construed to include that latter meaning.
The liability which the appellant asserts in these proceedings is liability founded on the breach by the Authority of a duty of care, which breach is said to have occurred well prior to the expiration of the transitional period. Assuming there was such a duty and assuming, also, its breach, the Authority was, prior to the expiry of the transitional period, liable in damages if injury should eventuate. And on that assumption, that liability was, by s 14(b) of the Termination Act, transferred to the Committee.
For reasons which will later appear, the question whether the Authority owed a duty of care to the late Mr Crimmins necessitates an analysis of the Industry Act. As already mentioned, the Authority was established by s 10 of that Act. It was given powers and functions and, by s 8, it was provided:
" The Authority shall perform its functions, and exercise its powers, under this Act with a view to securing the expeditious, safe and efficient performance of stevedoring operations."
That section is important in that the purpose or objective with which the Authority's powers and functions were to be exercised encompassed the purpose of securing the safety of stevedoring operations. That objective is entirely consistent with the existence of a common law duty of care on the part of the Authority to take reasonable steps to prevent the foreseeable risk of injury to persons engaged in those operations. However, that does not determine whether that duty existed.
The question whether the Authority was under a duty of care to the late Mr Crimmins depends on two matters: first, whether the powers and functions conferred on the Authority are compatible with the existence of that duty; and secondly, whether there was a relationship between the Authority and Mr Crimmins of a kind that gave rise to such a duty. Before turning to these issues, it is convenient to note the duty of care asserted and the matters which are alleged to constitute its breach.
The duty of care asserted against the Authority is:
"a continuing duty of care from 1956 to 1977 in the exercise of its statutory functions, duties and powers to take reasonable care to avoid foreseeable risks of injury to the health of [the late Mr Crimmins] in Stevedoring operations at the Port of Melbourne."[4]
[4]Further Amended Statement of Claim, par 6F.
So far as concerns the statutory functions of the Authority by reference to which the duty of care is asserted, s 17 of the Industry Act relevantly provided:
"(1) The functions of the Authority are-
(a) to regulate the performance of stevedoring operations;
...
(i) to regulate the conduct of waterside workers in and about ... wharves and ships;
...
(k) to train, or arrange for the training of, persons in stevedoring operations;
(l) to investigate means of improving, and to encourage employers to introduce methods and practices that will improve, the expedition, safety and efficiency with which stevedoring operations are performed;
...
(o) to encourage safe working in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers engaged in stevedoring operations and, where necessary, to provide waterside workers with articles and equipment designed for that purpose;
(p) to obtain and publish information relating to the stevedoring industry".
The powers of the Authority relevant to the asserted duty of care were those conferred by s 18(1) of the Industry Act. That sub-section provided:
" For the purpose of the performance of its functions under [section 17], the Authority may, subject to this section, make such orders, and do all such other things, as it sees fit."
Succeeding sub-sections required consultation with Union and employer representatives before the making of an order[5], including the holding of hearings if the Authority so determined[6].
[5]Section 18(2).
[6]Section 18(3).
In the context of the powers and functions set out above, it is claimed that the Authority failed to warn of the dangers of asbestos, failed to instruct as to those dangers, failed to provide respiratory equipment, failed to encourage employers to introduce safety measures for the handling of asbestos, failed to ensure that employees were aware of the risks of exposure to asbestos and failed to properly inspect the conditions under which stevedoring operations were carried out.
Additionally, it is claimed in the Further Amended Statement of Claim that the Authority was negligent in:
"(c) Failing to prohibit the [late Mr Crimmins] and other waterside workers from unloading asbestos unless they were adequately protected from the harmful effects thereof;
...
(l) Failing to make orders restricting the [late Mr Crimmins'] exposure to asbestos or obliging his employers or the owners of vessels upon which he worked to take steps to eliminate the risk [to his] health posed by exposure to asbestos;
...
(n) Failing to prohibit the [late Mr Crimmins] and other waterside workers from working in conditions where they were exposed to asbestos until suitable precautions had been taken for their safety".
The various breaches asserted against the Authority involve failure on its part to take some positive step to avoid a risk of harm. However, the claim that the Authority was negligent in failing to make orders is in a distinct category. And if the claims that the Authority was negligent in failing to prohibit certain action on the part of Mr Crimmins are intended to mean that the Authority failed to make orders prohibiting that action, they are, to that extent, also in that category.
It is not in issue that a statutory body, such as the Authority, may come under a common law duty of care both in relation to the exercise[7] and the failure to exercise[8] its powers and functions. Liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act[9]. What is in question is not a statutory duty of the kind enforceable by public law remedy. Rather, it is a duty called into existence by the common law by reason that the relationship between the statutory body and some member or members of the public is such as to give rise to a duty to take some positive step or steps to avoid a foreseeable risk of harm to the person or persons concerned[10].
[7]Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 436 per Gibbs CJ (Wilson J agreeing), 458 per Mason J, 484 per Brennan J, 501 per Deane J; Stovin v Wise [1996] AC 923 at 943-944 per Lord Hoffmann; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 391-392 per Gummow J.
[8]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443 per Gibbs CJ (Wilson J agreeing), 460-461 per Mason J, 479 per Brennan J, 501-502 per Deane J; Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 302 per Kirby P, 328 per McHugh J; Pyrenees Shire Council v Day (1998) 192 CLR 330.
[9]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443-445 per Gibbs CJ (Wilson J agreeing), 460-461 per Mason J, 478 per Brennan J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-369 per McHugh J.
[10]Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-369 per McHugh J. See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 460-461 per Mason J and the cases there cited.
In the case of discretionary powers vested in a statutory body, it is not strictly accurate to speak, as is sometimes done, of a common law duty superimposed upon statutory powers[11]. Rather, the statute pursuant to which the body is created and its powers conferred operates "in the milieu of the common law"[12]. And the common law applies to that body unless excluded. Clearly, common law duties are excluded if the performance by the statutory body of its functions would involve some breach of statutory duty or the exercise of powers which the statutory body does not possess[13].
[11]See, for example, Anns v Merton London Borough [1978] AC 728 at 754 per Lord Wilberforce; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 483 per Brennan J; Stovin v Wise [1996] AC 923 at 935 per Lord Nicholls of Birkenhead, 951 per Lord Hoffmann.
[12]Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 487 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, referring to the statement of Sir Owen Dixon in "The Common Law as an Ultimate Constitutional Foundation", (1965) Jesting Pilate 203 at 205 that "[w]e act every day on the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute".
[13]See Stovin v Wise [1996] AC 923 at 935 per Lord Nicholls of Birkenhead.
Legislation establishing a statutory body may exclude the operation of the common law in relation to that body's exercise or failure to exercise some or all of its powers or functions. Even if the legislation does not do so in terms, the nature or purpose of the powers and functions conferred, or of some of them, may be such as to give rise to an inference that it was intended that the common law should be excluded either in whole or part. That is why distinctions are sometimes drawn between discretionary and non-discretionary powers[14], between
policy and operational decisions[15] and between powers and duties[16]. Where it is contended that a statutory body is not subject to a common law duty in relation to the exercise or non-exercise of a power or function because of the nature or purpose of that power, what is being put is that, as a matter of implication, the legislation reveals an intention to exclude the common law in relation to the exercise or non-exercise of that power[17].[14]See, for example, Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1031 per Lord Reid; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 442 per Gibbs CJ; X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 736-737 per Lord Browne-Wilkinson; Stovin v Wise [1996] AC 923 at 953 per Lord Hoffmann.
[15]See, for example, Anns v Merton London Borough [1978] AC 728 at 754 per Lord Wilberforce; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 442 per Gibbs CJ, 468-469 per Mason J, 500 per Deane J; X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 737-738 per Lord Browne-Wilkinson; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 425-426 per Kirby J. See, however, Rowling v Takaro Properties Ltd [1988] AC 473 at 501 per Lord Keith of Kinkel, delivering the opinion of the House of Lords; Stovin v Wise [1996] AC 923 at 951-952 per Lord Hoffmann; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 393-394 per Gummow J where it is said that the policy-operation distinction is problematic and may not be useful.
[16]See, for example, East Suffolk Rivers Catchment Board v Kent [1941] AC 74 at 102 per Lord Romer; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 482 per Brennan J. But compare Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 457 per Mason J, where his Honour points to the limited relevance of the distinction between powers and duties, and Anns v Merton London Borough [1978] AC 728 at 755 per Lord Wilberforce.
[17]See Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 500 per Deane J.
As already pointed out, the purpose or objective of the Authority's powers and functions, as specified in s 8 of the Industry Act, is not inconsistent with the existence of a duty of care to take positive steps to prevent a foreseeable risk of injury to waterside workers. Moreover, the relevant functions imposed by s 17(1) of the Industry Act and set out above are entirely consonant with the existence of a duty of that kind. At least that is so unless some implication to the contrary is to be derived from s 17(2). That sub-section provides:
" In regulating the performance of stevedoring operations under this Act, the Authority shall, except to such extent as, in the opinion of the Authority, is essential for the proper performance of that function, avoid imposing limitations upon employers with respect to their control of waterside workers engaged by them and their manner of performance of stevedoring operations."
It should at once be noted that, in terms, s 17(2) is concerned only to prevent "limitations upon employers with respect to their control of waterside workers ... and their manner of performance of stevedoring operations". Moreover, the subsection is directed only to the Authority's function of "regulating the performance of stevedoring operations". It does not purport to limit the Authority's training functions, or those directed to investigating or encouraging the safety of stevedoring operations, the provision of safety equipment or the publication of information.
In a context in which the Authority's functions were to be performed and its powers exercised "with a view to securing the expeditious, safe and efficient performance of stevedoring operations"[18], it is impossible, in my view, to derive any implication from s 17(2) to the effect that the Authority was not intended to be subject to a duty of care in relation to the performance of any of the functions set out above, including that of regulating the performance of stevedoring operations.
[18]Section 8.
Different considerations apply with respect to the Authority's power under s 18(1) of the Industry Act to make orders, although not its power to "do all such other things, as [the Authority thought] fit". The power to do all such other things as the Authority thought fit necessarily extended to doing those things that were essential for and, also, those things that were conducive to the performance of its functions[19]. And unlike the power to make orders, the power to do those things was not confined by succeeding sub-sections requiring consultation with interested organisations. There is, thus, nothing in the Industry Act to exclude the common law in relation to the power to "do all such other things, as [the Authority thought] fit".
[19]See Herscu v The Queen (1991) 173 CLR 276 at 281 per Mason CJ, Dawson, Toohey and Gaudron JJ.
The critical consideration in relation to the Authority's order-making power under s 18(1) of the Industry Act is that, if made, orders would have had the force of law[20]. It is, thus, appropriate to characterise the power to make orders as legislative in nature. There is considerable incongruity in the notion that the common law might impose a duty of care in relation to the exercise or nonexercise of a power that is legislative in nature[21]. Indeed, so incongruous is that notion that I am of the view that, as a matter of necessary implication, s 18 is to be construed as excluding the operation of the common law in relation to the Authority's exercise or non-exercise of its power to make orders. That aside, however, there is nothing to exclude the operation of the common law in relation to the Authority's power to take other action in the discharge of the functions referred to earlier. More precisely, there is nothing in relation to those powers and functions to exclude a common law duty of care to waterside workers.
[20]Section 20(1)(c) of the Industry Act.
[21]See, for example, Welbridge Holdings Ltd v Greater Winnipeg [1971] SCR 957 at 967-968 per Laskin J; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 500 per Deane J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 393-394 per Gummow J and the cases there cited.
To say there is nothing to preclude the existence of a common law duty of care on the part of the Authority to waterside workers is, however, not to say anything as to the content of that duty. Ordinarily, a duty of care is expressed in terms of a duty to take those steps that a reasonable person, in the position of the person who owes the duty of care, would take to avoid a foreseeable risk of injury to another[22]. However, a public body or statutory authority cannot properly be equated with a natural person. Nor is a public body with the powers and functions of the Authority properly to be equated with a reasonable employer of waterside labour and subjected to the same duty of care.
[22]See Cook v Cook (1986) 162 CLR 376 at 382 per Mason, Wilson, Deane and Dawson JJ; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 per Mason, Wilson, Deane and Dawson JJ; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 429-430 per Mason CJ, Deane, Dawson and Gaudron JJ.
A public body or statutory authority only has those powers that are conferred upon it. And it only has the resources with which it is provided. If the common law imposes a duty of care on a statutory authority in relation to the exercise or non-exercise of its powers or functions, it only imposes a duty to take those steps that a reasonable authority with the same powers and resources would have taken in the circumstances in question[23].
[23]See Stovin v Wise [1996] AC 923 at 933 per Lord Nicholls of Birkenhead (Lord Slynn of Hadley agreeing), who was in dissent but only as to the result of the case.
For present purposes, it is sufficient to note that, if the common law imposed a duty of care on the Authority, it was a duty to take those steps, short of making binding orders, which a reasonable authority with its powers and resources would have taken in the circumstances, which circumstances included the fact that no relevant orders were made. No question arises in this appeal as to what steps a reasonable authority would have taken in the circumstances of this case. It is, however, appropriate to note that, if there is a common law duty of care, that question was one to be decided by the jury[24].
[24]See Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220-221 per Dixon CJ, McTiernan, Kitto and Taylor JJ; Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44 per Mason J.
As already indicated, the question whether the Authority owed a duty of care to waterside workers depends on whether there was a relationship of the kind between it and them that gave rise to such a duty. In this regard, it is convenient to note that, at the relevant time, work on the waterfront stood in a somewhat different position from work in most other industries. Employment was casual, with waterside workers being engaged by the day by different stevedoring companies. The shipping companies whose ships were to be loaded and unloaded might or might not be Australian-based: they might or might not meet Australian safety standards. And although employment was regulated by award, day to day activities and conditions might vary from employer to employer, ship to ship and cargo to cargo. Moreover, not only was work on the waterfront casual, it was also hazardous. Much of this finds recognition in various provisions of the Industry Act earlier referred to. Indeed, it explains the particular functions of the Authority set out above and, also, those to which I now turn.
In addition to the functions set out earlier in these reasons, s 17(1) also specified that functions of the Authority should include the establishment and administration of employment bureaux for waterside workers[25], the making of arrangements for allotting waterside workers to stevedoring operations[26], the determination of the method of engagement of waterside workers for stevedoring operations, including the time waterside workers should present for work[27] and the making of arrangements to facilitate their engagement[28]. The Authority was also to ensure that sufficient waterside workers were available at each port[29] and pay them attendance and other moneys payable under the Act and under the award which regulated their employment[30].
[25]Section 17(1)(e).
[26]Section 17(1)(f).
[27]Section 17(1)(g).
[28]Section 17(1)(h).
[29]Section 17(1)(d).
[30]Section 17(1)(c).
It is not in issue that the Authority established work bureaux, allocated work to waterside workers and paid them whatever moneys were due to them. In order to discharge these functions, the Authority was given power to fix quotas for each port[31] and to register waterside workers[32]. Except in special circumstances, it was an offence for any person without the consent of the Authority to employ waterside workers who were not registered[33]. Waterside workers whose registration numbers were published in newspapers or called by radio broadcast were required to report to specified wharves or docks for work. Workers whose numbers were not published or broadcast reported to the employment bureaux where they might be allocated to particular stevedoring operations. Those workers who reported for work but were not required would be paid attendance money.
[31]Section 25.
[32]Section 29.
[33]Section 39(1).
In addition to registering waterside workers, the Authority was also empowered to cancel or suspend registration if satisfied of any of the grounds set out in s 36(1) of the Industry Act, including the ground specified in par (e), namely, that the worker had failed:
"(i) to offer for or accept employment as a waterside worker;
(ii) to commence, continue or complete an engagement for employment as a waterside worker; or
(iii) to perform any stevedoring operations which he was lawfully required to perform".
The system of allocating work to waterside workers also depended on the registration of employers. The Authority was given power to register employers[34] and to apply to the Commonwealth Industrial Court for their deregistration on grounds specified in s 35 of the Industry Act, including on the ground that the employer had been convicted of an offence against that Act[35]. The Authority was empowered to institute proceedings against an employer for an offence against the Industry Act[36], including for the offence created by s 33(1)(a), namely, "act[ing] in a manner whereby the expeditious, safe and efficient performance of stevedoring operations [was] prejudiced or interfered with".
[34]Section 28.
[35]Section 35(1)(c).
[36]See s 34(2).
In addition to the powers and functions to which reference has already been made, the Authority had power to appoint inspectors to investigate and report in relation to stevedoring operations[37]. Such inspectors were, in fact, appointed. The evidence is that they attended regularly to inspect stevedoring operations at the Port of Melbourne. Thus, there was evidence from which it might properly be inferred that they and, through them, the Authority knew or ought to have known of the conditions associated with the loading and unloading of asbestos cargoes. Those conditions were described in evidence as involving the exposure of waterside workers to considerable quantities of asbestos dust and fibre, on as many as twenty days a year. Moreover, there was evidence that, even if the Authority did not know of the risk of mesothelioma, it knew that exposure to asbestos could be injurious to health.
[37]Section 23 of the Industry Act.
Various tests have been propounded as to the factors which will stamp a relationship as one which calls a duty of care into existence. In some cases, emphasis has been placed on the notion of "general reliance". The concept of general reliance in its application to public authorities was explained by Mason J in Sutherland Shire Council v Heyman in these terms[38]:
"Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimize a risk of personal injury or disability, recognized by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realization that there is a general reliance or dependence on its exercise of power".
His Honour cited the control of air safety, the safety inspection of aircraft and the fighting of fire in a building by a fire authority as examples of situations where general reliance may operate.
[38](1985) 157 CLR 424 at 464.
The notion of general reliance has been the subject of some criticism[39] and more recent decisions of this Court have tended to focus on the vulnerability of the person who suffers injury[40], on the one hand, and, on the other, the knowledge of risk and the power of the party against whom a duty of care is asserted to control or minimise that risk[41]. And those precise considerations appear to underpin the notion of general reliance as explained by Mason J in Sutherland Shire.
[39]See Pyrenees Shire Council v Day (1998) 192 CLR 330 at 344 per Brennan CJ, 385-388 per Gummow J, 408-412 per Kirby J; Stovin v Wise [1996] AC 923 at 953-955 per Lord Hoffmann (Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreeing); Capital & Counties Plc v Hampshire County Council [1997] QB 1004 at 1026-1028 per Stuart-Smith LJ delivering the judgment of the Court.
[40]See Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ; Hill v Van Erp (1997) 188 CLR 159 at 186 per Dawson J (Toohey J agreeing), 216 per McHugh J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 372-373 per McHugh J, 421 per Kirby J; Perre v Apand (1999) 73 ALJR 1190 at 1193-1194 per Gleeson CJ, 1197-1198 per Gaudron J, 1217 per McHugh J, 1231 per Gummow J, 1248 per Kirby J, 1271 per Callinan J; 164 ALR 606 at 611-612, 618, 645, 664, 688, 718719.
[41]See, for example, Pyrenees Shire Council v Day (1998) 192 CLR 330 at 362 per Toohey J, 372 per McHugh J, 389 per Gummow J, 420-421 per Kirby J; Perre v Apand (1999) 73 ALJR 1190 at 1193-1194 per Gleeson CJ, 1197-1198 per Gaudron J, 1217 per McHugh J, 1230-1231 per Gummow J, 1248 per Kirby J, 1253-1254 per Hayne J, 1270 per Callinan J; 164 ALR 606 at 611-612, 618, 645, 662-664, 687, 695-696, 718-719. See also Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 307 per Kirby P; Stovin v Wise [1996] AC 923 at 939-940 per Lord Nicholls of Birkenhead; Brown v Heathcote County Council [1986] 1 NZLR 76 at 82.
In the present case, Mr Crimmins was not only vulnerable to injury by reason of the hazardous nature of his employment but he was less able than employees in most other industries to protect his own interests. The casual nature of his employment precluded the development of any longstanding employer-employee relationship in which he might usefully seek to secure his own health and welfare. And his relative powerlessness in that regard was magnified by the Authority's directions as to when and where he was to work in circumstances in which he was at risk of having his registration as a waterside worker cancelled or suspended if he did not obey.
As already indicated, the Authority ought to have known from its inspectors of the frequency with which and the degree to which waterside workers at the Port of Melbourne were exposed to asbestos. Further, it knew that exposure to asbestos dust and fibres could be injurious to health. It was in a position to know what, if any steps, employers were taking to avoid the risks posed by asbestos. And more to the point, if employers were not taking adequate measures, the Authority was in a position to take various steps, short of making orders having the force of law, to control or minimise those risks.
Given the vulnerability of the late Mr Crimmins, the knowledge the Authority had or should have had, and its position to control or minimise the risks associated with the handling of asbestos, there was, in my view, a relationship between Mr Crimmins and the Authority giving rise to a duty of care on the part of the Authority to take those steps, short of making binding orders, which, in the circumstances, a reasonable authority with its powers and resources would have taken to avoid foreseeable risk of injury as a result of exposure to asbestos.
The appeal should be allowed with costs. The orders of the Court of Appeal of the Supreme Court of Victoria should be set aside and the matter remitted to that Court for it to determine the remaining issues in the appeal to that Court, including the costs of that appeal.
McHUGH J. This appeal presents two questions for determination. Both questions arise out of a claim that a statutory authority supervising stevedoring operations at Australian ports negligently exposed a waterside worker to asbestos dust, the inhalation of which eventually caused the terminal lung disease mesothelioma.
The first question in the appeal is whether the statutory authority owed the plaintiff a common law duty of care. Resolution of this question requires an examination of the circumstances in which a statutory authority will come under a duty to take affirmative action to protect a person who may suffer harm if the authority does not act. The second question in the appeal is whether any liability of the statutory authority in tort to the worker was transmitted to the authority's successor body, the respondent, in circumstances where the liability could only be described as "contingent or potential" because the damage was suffered, and hence the tort was "complete", only after the respondent had taken over the liabilities of the statutory authority. Resolution of this question turns on the construction of the statutory provisions governing the transmission of liabilities to the respondent.
The appeal is brought against an order of the Court of Appeal of the Supreme Court of Victoria[42] which set aside a verdict for the plaintiff in an action for damages for negligence. The Court held that the statutory authority did not owe a duty of care to the plaintiff and that, if it did and had breached that duty, its liability to the plaintiff was not transmitted to the respondent. In my opinion, the Court of Appeal erred in ruling against the waterside worker on both questions.
[42]Stevedoring Industry Finance Committee v Crimmins [1999] 1 VR 782 (Winneke P, Tadgell and Buchanan JJA).
The statutory authority owed a duty of care to the worker because it directed him to places of work where there were risks of injury of which the authority was, or ought to have been, aware and in respect of which, the authority knew or ought to have known that the worker was specially vulnerable. The worker's vulnerability arose as a result of the casual nature of his employment and his obligation to obey the authority's directions as to where he worked. Nothing in the legislation governing the authority's powers and functions negatived the existence of a common law duty of care. Furthermore, the respondent was liable for any liability which the predecessor would have had to the plaintiff because the relevant statutory provision should be construed in accordance with the principle that, where legislation is open to a construction that will save existing or potential common law rights, it should not be construed as abolishing or reducing those rights.
The factual and procedural background
The appellant, Mrs Maureen Crimmins, is the widow and executrix of the estate of Brian John Crimmins, who was the waterside worker in question and was the plaintiff in the action against the respondent. In or about May 1997, Mr Crimmins ("the plaintiff") was diagnosed as suffering from the lung disease mesothelioma which is caused by the inhalation of asbestos fibres. The disease is inevitably fatal. He died on 23 July 1998. His action was conducted on the basis that the relevant injury was not sustained until shortly before the manifestation of symptoms in May 1997. The respondent accepted that this was so.
Between April 1961 and November 1965, the plaintiff was employed as a registered waterside worker in the Port of Melbourne. At that time, stevedoring operations throughout Australia were regulated by the Australian Stevedoring Industry Authority ("the Authority") which was established by the Stevedoring Industry Act 1956 (Cth) ("the Act"). The Authority was later abolished and replaced by the respondent, the Stevedoring Industry Finance Committee ("the Committee"), at the expiration of a "transitional period" fixed at 26 February 1978, pursuant to the provisions of the Stevedoring Industry Acts (Termination) Act 1977 (Cth) ("the Termination Act") and the Stevedoring Industry Finance Committee Act 1977 (Cth). Section 14(b) of the Termination Act provided that the Committee was to assume "all the liabilities and obligations of the Authority that existed" as at 26 February 1978.
The plaintiff contended at trial that the Authority was in breach of the duty of care that it owed to him to protect him from the harmful effects of asbestos dust and that that breach was one of the existing "liabilities and obligations of the Authority" assumed by the Committee on 26 February 1978, notwithstanding that no cause of action arose until 1997.
The Authority
During the period from 1960 to 1965, 12 to 15 stevedoring companies were registered with the Authority at the Port of Melbourne where the plaintiff worked. The Act required the Authority to register employers who applied for registration and who satisfied the statutory requirements, one of which was that the employer was capable "of carrying out stevedoring operations ... in an expeditious, safe and efficient manner"[43]. This requirement reflected the obligation imposed by s 8 of the Act which declared that "[t]he Authority shall perform its functions, and exercise its powers, under this Act with a view to securing the expeditious, safe and efficient performance of stevedoring operations."
[43]s 28(b)(i).
During this period, about 5,000 waterside workers were registered with the Authority. Registration was governed by the Act and depended, inter alia, upon a medical examination and the satisfaction of the Authority's "reasonable requirements ... as to ... age, physical fitness, competence and suitability"[44]. However, the workers were employed not by the Authority, but by the stevedores (and occasionally the owner or master of a ship), employment being on a job by job basis. But the Authority's role was more than supervisory. The Authority allocated the waterside workers for work in accordance with the needs of the various employers – the workers having no say in the allocation. The Authority was responsible for the payment of attendance moneys, sick pay, long service leave and for public holidays. It funded these payments by a statutory levy on the employers. The Authority also had certain powers of discipline over the workers including the power in certain circumstances to cancel or suspend the worker's registration (though an appeal lay to the Commonwealth Conciliation and Arbitration Commission[45]). Once a worker had been assigned to a wharf, however, he was subject to the direction of the employer, who would supply any safety equipment required by the relevant Award. The Authority was generally ignorant of the structure or size of the ships to which the workers were allocated, and the nature of the cargoes to be handled there.
[44]s 29(1)(b)(i).
[45]s 37.
The Authority's other functions included the adjudication of disputes between waterside workers and employers including the participation in Boards of Reference established under the Commonwealth Conciliation and Arbitration Act 1904 (Cth) and the Waterside Workers' Award 1960 ("the Award"); the appointment of Port Inspectors who were empowered to make investigations and to report to the Authority and the Commonwealth Conciliation and Arbitration Commission regarding matters of safety and efficiency of stevedoring operations; the power to lay informations for offences by registered employers; the encouragement of safe working conditions including if necessary the provision of the proper safety equipment; and a general power to "regulate the performance of stevedoring operations"[46]. The Authority was empowered, in the performance of its functions, to "make such orders, and do all such other things, as it thinks fit"[47], although it was to have regard to the desirability of encouraging full employment on the waterfront[48], and to "avoid imposing limitations upon employers with respect to their control of waterside workers engaged by them and their manner of performance of stevedoring operations" save to the extent the Authority thought it "essential for the proper performance" of its functions[49].
[46]s 17(1)(a).
[47]s 18(1).
[48]s 17(3).
[49]s 17(2).
Working conditions and safety on the waterfront
During his employment at the Port of Melbourne, the plaintiff was required (by unspecified stevedoring companies) from time to time to unload asbestos cargoes. The asbestos fibres were packed in loosely woven hessian bags, the handling of which resulted in the percolation of the fibres through the hessian and spillage from broken bags, creating clouds of airborne asbestos dust. Dust accumulated on clothes, hair and arms. At times, the dust was so pervasive that the plaintiff would have to blow his nose frequently to expel the dust from his nostrils. The plaintiff estimated that he worked approximately 20 days a year on asbestos cargoes. Neither the Authority nor any employer warned the plaintiff of the dangers of asbestos; nor was he provided with clothing or equipment to protect him from those dangers. From time to time, waterside workers complained of working in dusty conditions, and on occasion they were paid "dirt money" as the result of inspections by Port Inspectors. Upon the evidence, it was open to the jury to find that, during the relevant period, the employers knew or ought to have known that dust generally, and asbestos in particular, was likely to harm those who came into contact with it.
As part of its function to encourage safe working practices[50] the Authority corresponded with international shipping companies with respect to safety matters including the stowage and handling of hazardous materials. It threatened to withhold dock workers from vessels whose equipment did not comply with Australian safety standards. It also consulted with domestic unions and employers and disseminated literature regarding proper safety practices. In 1960, the shipowners set up the Federal Advisory Committee on Waterfront Accident Prevention ("FACWAP"), which had representatives from a variety of entities interested in the Australian waterfront including stevedoring companies, unions and the Authority. In 1962 FACWAP adopted a protocol for dealing with matters relating to industrial health on the waterfront. Long-term health issues were referred to the Occupational Health Committee of the National Health and Medical Research Council ("NHMRC"), while urgent matters were referred to the appropriate State health departments. The Authority was the conduit for the provision of information respecting occupational health and safety to the industry.
[50]s 17(1)(o).
Although the Authority had an overarching supervisory and regulatory role with respect to safety on the waterfront, it is clear that the primary responsibility fell upon the employers. The Award placed a number of very specific safety responsibilities upon the employers (and not the Authority) including an obligation to provide safety equipment where it was needed[51].
[51]Stevedoring Industry Finance Committee v Crimmins [1999] 1 VR 782 at 826-827 per Buchanan JA.
The duty of care alleged by the plaintiff
Upon these facts, the question arises whether the Authority, as well as the individual employers, owed a common law duty of care to the plaintiff. In my opinion, it did. The correct approach in determining whether a statutory authority owes a duty of care is to commence by ascertaining whether the case comes within a factual category where duties of care have or have not been held to arise. Employer and employee, driver and passenger, carrier and consignee are a few examples of the many categories or relationships where, absent statute or contract to the contrary, the courts have held that one person always owes a duty of care to another. Frequently, a statutory authority will owe a duty of care because the facts of the case fall within one of these categories. The authority may, for example, be an employer or occupier of premises or be responsible for the acts of its employees, such as driving on a public street.
There is one settled category which I would have thought covered this case: it is the well-known category "that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely[[52]] to be occasioned, by their exercise, damages for negligence may be recovered"[53]. Similarly, in Sutherland Shire Council v Heyman[54], Mason J, citing Caledonian Collieries Ltd v Speirs[55], said that "[i]t is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty."
[52]Later cases require "likely" to mean that there is a reasonable possibility that the injury is likely to be occasioned.
[53]Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ.
[54](1985) 157 CLR 424 at 458.
[55](1957) 97 CLR 202 at 219-220.
In directing the plaintiff and other waterside workers to places of work, the Authority was exercising its power to give directions in aid of its function of making "arrangements for allotting waterside workers to stevedoring operations"[56]. That being so, I would have thought that the Authority owed a duty to the plaintiff as a person affected by the exercise of the power to exercise it with reasonable care for his safety. On that hypothesis, duty would not have been an issue in the case; breach of duty and causation would have been the critical issues for determination. But negligent exercise of a statutory power does not seem to be the way that the case was conducted at the trial or in the Court of Appeal. Nor was it the way that it was conducted in this Court.
[56]s 17(1)(f).
The case as pleaded
The plaintiff's Further Amended Statement of Claim alleged that:
"In the premises, the Authority was under a continuing duty of care from 1956 to 1977 in the exercise of its statutory functions, duties and powers to take reasonable care to avoid foreseeable risks of injury to the health of the Plaintiff in Stevedoring operations at the Port of Melbourne."
The allegation of duty is wide enough to encompass a claim of negligently exercising a statutory power. But the particulars of negligence, which were pleaded, indicate otherwise. They can be grouped into the following classes: failure to disseminate information (encourage, warn, train, publish), failure to inspect, failure to prohibit, failure to provide equipment and failure to make orders. The bulk of the plaintiff's complaints concern the Authority's failure to act. In this Court, the plaintiff relies principally on s 17(1)(o) of the Act, which stated that one of the Authority's functions was:
" ... to encourage safe working in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers engaged in stevedoring operations and, where necessary, to provide waterside workers with articles and equipment designed for that purpose ...".
It is true that the particulars of negligence, though relevant to determining whether a duty existed, go to the question of breach. To speak of failures to do this or that as being concerned with specific duties is in my view wrong in principle, for it tends to elevate questions of fact to principles of law[57]. Thus, a driver owes a duty to other road users to take reasonable care, not a series of specific duties, such as a duty to keep a proper lookout, a duty not to drive at excessive speed or a duty to give a warning where there is a risk of collision. In particular circumstances, failing to keep a lookout, driving at speed or not giving a warning may constitute a breach of the duty to take reasonable care. But that is all. Nevertheless, the particulars pleaded in the present case, while not allegations of duty, do indicate that the plaintiff's case, or at all events his main case, was not concerned with the negligent exercise of power. The various failures alleged against the Authority assume that it owed a duty of care to the plaintiff but they imply that duty was one to take affirmative action.
[57]Tidy v Battman [1934] 1 KB 319 at 322 per Lord Wright.
Curiously, the case that was left to the jury was wide enough to include the negligent exercise of power. However, the jury were never specifically directed that the plaintiff's case was concerned with the negligent exercise of a statutory power. The learned trial judge directed the jury:
"The defendant was under an obligation not to do anything which it could reasonably have foreseen might cause injury to the plaintiff of the kind which he suffered. Conversely, it could be put: the Authority was under an obligation not to omit to do something which it might reasonably have done so as to prevent the plaintiff suffering the foreseeable injury."
Despite the width of these statements, the judgment of the trial judge on the duty issue and those of the learned judges of the Court of Appeal suggest that the case that was made at trial was not a case of the negligent exercise of power. In the Court of Appeal, Winneke P said:
"The duty, and the scope of it, which his Honour found to exist was a general one to take reasonable steps to prevent foreseeable harm befalling waterside workers engaged in stevedoring operations."
Similarly, Tadgell JA, who did not determine the question of duty of care – his Honour decided the case on the succession of liability issue – thought that the plaintiff's case was that "the Authority, as well as his various employers, had owed him, as an allotted waterside worker, a duty to take reasonable care for his safety".
These formulations accord with my reading of the trial judge's judgment on the duty issue which emphasises what the Authority could have done rather than what it did.
Thus, the plaintiff's claim at the trial seems to have been that, in all the circumstances of the case, the Authority owed him a duty to take reasonable steps to avoid harm to him from reasonably foreseeable risks of harm, notwithstanding that his Honour's charge records counsel for the Authority as stating that the Authority "was not negligent either as to what it did or as to what it failed to do." In other words, the plaintiff's case seems to have been conducted on the basis that the Authority had an affirmative obligation to prevent harm to the plaintiff from the stevedoring operations in which he was engaged, rather than having negligently exercised the power to give directions to him. Because that is so, I think that it would be wrong at this stage to treat the case as one concerned with the negligent exercise of a statutory power. The plaintiff's case must stand or fall as one concerned with an affirmative obligation on the part of the Authority to take reasonable steps to protect the plaintiff from injury.
The common law liability of statutory authorities in negligence
The present case has no factors which require it to be categorised as a case where a duty always exists or never exists, although the plaintiff asserts that the case is analogous to an employer-employee relationship and should be examined in that light. Nor is the case one where the factual situation is identical or nearly so with a situation where a common law court has held that the defendant owed no duty of care. It is a case where the plaintiff claims that a statutory authority owed him a duty to take affirmative action to protect him. The question of duty must therefore be determined by reference to what has been decided in similar cases.
Basic to that determination, as always, is the question: was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant's acts or omissions? A negative answer will automatically result in a finding of no duty. But a positive answer then invites further inquiry and a close examination of any analogous cases where the courts have held that a duty does or does not exist. In determining whether the instant case is analogous to existing precedents, the reasons why the material facts in the precedent cases did or did not found a duty will ordinarily be controlling.
The policy of developing novel cases incrementally by reference to analogous cases acknowledges that there is no general test for determining whether a duty of care exists. But that does not mean that duties in novel cases are determined by simply looking for factual similarities in decided cases or that neither principle nor policy has any part to play in the development of the law in this area. On the contrary, the precedent cases have to be examined to reveal their bases in principle and policy. Only then, if appropriate, can they be applied to the instant case. A judge cannot know whether fact A in the instant case is analogous to fact B in a precedent case unless he or she knows whether fact B was material in that case and, if so, why it was material. Only then can the judge determine whether the facts of the current case are sufficiently analogous to those in an apparently analogous precedent to treat the precedent as indicating whether a duty of care did or did not exist in the current case. By this means, reasons of principle and policy in precedent cases are adapted and used to determine new cases. Very often, the existence of additional facts in the current case will require the judge to explain or justify why they are or are not material. In this way, the reasons in each new case help to develop a body of coherent principles which can be used to determine whether a duty of care does or does not exist in novel cases and which also provide a measure of certainty and predictability as to the existence of duties of care.
Much legal reasoning proceeds by way of analogy. In his recent book One Case at a Time[58], Professor Sunstein pointed out:
"[A]nalogical reasoning reduces the need for theory-building, and for generating law from the ground up, by creating a shared and relatively fixed background from which diverse judges can work. Thus judges who disagree on a great deal can work together far more easily if they think analogically and by reference to agreed-upon fixed points."
[58](1999) at 42-43.
He went on to say[59]:
"The fact that precedents provide the backdrop removes certain arguments from the legal repertoire and in that way much simplifies analysis. The search for relevant similarities, and low-level principles on which diverse people can converge, often makes legal doctrine possible. Of course intense disagreements may remain."
[59]Sunstein, One Case at a Time (1999) at 43.
Analogical reasoning therefore reduces the cost of decision-making and the chance of error. Where the background of legal decision-making is relatively fixed, the range of evidentiary materials is narrower than is usual where a case is to be decided by vague standards or relatively indeterminate principles. This reduces the cost of litigation and the cost per case of providing public courts. It also makes it easier for professional advisers to predict the outcome of litigation with the result that costly litigation can be avoided or, at worst, settled at an early stage when the relative strengths of the opposing cases become apparent. Where the background is relatively fixed, there is also less chance that appellate courts will take a different view of the material facts from that of the trial court, thus discouraging appeals and preventing the defeat of the expectations of the successful party at the trial.
Since the demise of any unifying principle for the determination of the duty of care and the general acknowledgment of the importance of frank discussion of policy factors, the resolution of novel cases has increasingly been made by reference to a "checklist" of policy factors[60]. The result has been the proliferation of "factors" that may indicate or negative the existence of a duty, but without a chain of reasoning linking these factors with the ultimate conclusion. Left unchecked, this approach becomes nothing more than the exercise of a discretion – like the process of sentencing, where the final result is determined by the individual "judge's instinctive synthesis of all the various aspects"[61]. Different judges will apply different factors with different weightings. There will be no predictability or certainty in decision-making[62] because each novel case will be decided by a selection of factors particular to itself. Because each factor is only one among many, few will be subject to rigorous scrutiny to determine whether they are in truth relevant or applicable. In my opinion, adherence to the incremental approach imposes a necessary discipline upon the examination of policy factors with the result that the decisions in new cases can be more confidently predicted, by reference to a limited number of principles capable of application throughout the category. In this case, the relevant principles are found in cases concerned with the common law liability of statutory authorities, the control of another person's liberty and the duty to take positive action.
[60]See Stapleton, "Duty of Care Factors: a Selection from the Judicial Menus" in Cane & Stapleton (eds), The Law of Obligations – Essays in Celebration of John Fleming (1998), 59.
[61]R v Williscroft [1975] VR 292 at 300 per Adam and Crockett JJ.
[62]See Perre v Apand Pty Ltd (1999) 73 ALJR 1190 at 1205; 164 ALR 606 at 628-629 per McHugh J.
Sometimes, as in Perre v Apand Pty Ltd[63], no case will be found which can reasonably be regarded as analogous to the instant case. Where such novel cases arise, the existence of a duty can only be determined by reference to the few principles of general application that can be found in the duty cases. My judgment in Perre[64] refers to the principles which are ordinarily applicable in cases of pure economic loss.
[63](1999) 73 ALJR 1190 at 1206-1207; 164 ALR 606 at 630-631.
[64](1999) 73 ALJR 1190 at 1214; 164 ALR 606 at 641-642.
General principles concerning statutory authorities
Common law courts have long been cautious in imposing affirmative common law duties of care on statutory authorities. Public authorities are often charged with responsibility for a number of statutory objects and given an array of powers to accomplish them. Performing their functions with limited budgetary resources often requires the making of difficult policy choices and discretionary judgments. Negligence law is often an inapposite vehicle for examining those choices and judgments. Situations which might call for the imposition of a duty of care where a private individual was concerned may not call for one where a statutory authority is involved. This does not mean that statutory authorities are above the law. But it does mean that there may be special factors applicable to a statutory authority which negative a duty of care that a private individual would owe in apparently similar circumstances. In many cases involving routine events, the statutory authority will be in no different position from ordinary citizens. But where the authority is alleged to have failed to exercise a power or function, more difficult questions arise.
In Australia, the starting points for determining the common law liability of statutory authorities for breach of affirmative duties are the decisions of this Court in Sutherland Shire Council v Heyman[65] and Pyrenees Shire Council v Day[66]. In Heyman[67], Mason J, speaking with reference to a failure to exercise power, said:
"Generally speaking, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so … But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning …"
[65](1985) 157 CLR 424.
[66](1998) 192 CLR 330.
[67](1985) 157 CLR 424 at 459-460.
Public law concepts and the policy/operational distinction
Common law courts have offered a number of different solutions to the problem of imposing an affirmative duty of care on a statutory authority. In Stovin v Wise[68], Lord Hoffmann (with whose speech Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed) said:
"In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised."
[68][1996] AC 923 at 953, extracted in Pyrenees Shire Council v Day (1998) 192 CLR 330 at 345 by Brennan CJ.
With great respect to the learned judges who have expressed these views, I am unable to accept that determination of a duty of care should depend on public law concepts. Public law concepts of duty and private law notions of duty are informed by differing rationales. On the current state of the authorities, the negligent exercise of a statutory power is not immune from liability simply because it was within power, nor is it actionable in negligence simply because it is ultra vires. In Heyman, Mason J rejected the view that mandamus could be "regarded as a foundation for imposing … a duty of care on the public authority in relation to the exercise of [a] power. Mandamus will compel proper consideration by the authority of its discretion, but that is all."[69]
[69](1985) 157 CLR 424 at 465.
The concerns regarding the decision-making and exercise of power by statutory authorities can be met otherwise than by directly incorporating public law tests into negligence. Mr John Doyle QC (as he then was) has argued[70], correctly in my opinion, that there "is no reason why a valid decision cannot be subject to a duty of care, and no reason why an invalid decision should more readily attract a duty of care."
[70]Doyle, "Tort Liability for the Exercise of Statutory Powers", in Finn (ed), Essays on Torts (1989) 203 at 235-236.
Another way in which courts in many jurisdictions have attempted to accommodate the difficulties associated with public authorities is the "policy/operational distinction". Mason J referred to this distinction in Heyman[71]:
"The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness."
[71](1985) 157 CLR 424 at 469.
In X (Minors) v Bedfordshire County Council Lord Browne-Wilkinson formulated a three-stage test to accommodate the policy/operational distinction[72]:
"[First] Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. [Second] If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist.
…
[Third] If the plaintiff's complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed … the question whether or not there is a common law duty of care falls to be decided by applying the usual principles …"
[72][1995] 2 AC 633 at 738-739 (Lords Jauncey of Tullichettle, Lane, Ackner and Nolan agreeing, emphasis original).
Although his Lordship had earlier criticised the use of public law principles, this formulation is obviously greatly influenced by those principles. Recently, however, the distinction has come under attack. A year after X (Minors), a majority of the House of Lords held that the distinction was "inadequate"[73]. The Supreme Court of the United States in United States v Gaubert[74] has also pointed out that almost anything done by a public authority involves discretionary and policy judgments about priorities and resources. In Pyrenees, two justices of this Court expressed the view that the distinction was unhelpful on the facts of that case[75].
[73]Stovin v Wise [1996] AC 923 at 951 per Lord Hoffmann (Lords Goff of Chieveley and Jauncey of Tullichettle agreeing).
[74]499 US 315 (1991).
[75](1998) 192 CLR 330 at 358-359 per Toohey J, 393-394 per Gummow J; see also Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 484-485 per Hayne J.
Despite these criticisms, there is some support in this country for the distinction, albeit not in the form described in X (Minors). It may be that functions and powers which can be described as part of the "core area" of policy-making, or which are quasi-legislative or regulatory in nature, are not subject to a common law duty of care[76]. Outside this narrowly defined policy exception, however, as Professor Todd has argued, it seems preferable to accommodate the distinction at the breach stage rather than the duty stage[77]. He has argued:
"While the issue as to the ambit of a public body's discretion and whether it has acted reasonably or rationally certainly needs to be addressed, it is better taken into account in determining whether the public body is in breach of a duty independently held to exist … Indeed, it is significant that the decisions purporting to use the exercise of policy or discretion as a duty concept sometimes themselves lapse into the language of breach.[78]
The question whether a decision was made within the ambit of a statutory discretion seemingly has a direct analogy with the question whether a professional or skilled person took reasonable care in exercising his or her professional judgment. The professional person is not bound to ensure that he or she has made the right decision or to guarantee success in any particular venture. Rather, his or her obligation is to speak or to act within the boundaries reasonably to be expected of a person claiming skill and competence in the particular area. Whether a public or a private defendant is involved, the same kind of question can be asked in relation to any acts or decisions involving the exercise of judgment … "
[76]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469 per Mason J, 500 per Deane J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 393-394 per Gummow J; Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 593-596 per Black CJ, Davies and Sackville JJ.
[77]Todd, "Liability in Tort of Public Bodies", in Mullany & Linden (eds), Torts Tomorrow – A Tribute to John Fleming (1998) 36 at 46-47 (emphasis original).
[78]See especially Just v British Columbia [1989] 2 SCR 1228 at 1244; X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 737.
He went on to say[79]:
"And the degree of care expected of a public body in meeting the standard of reasonableness must be determined in the light of its obligation to carry out various statutory functions and its inability simply to desist from any exercise of its responsibilities … So the funding and other resources which are available to meet the demands which are made upon the public body are very relevant …"
[79]Todd, "Liability in Tort of Public Bodies", in Mullany & Linden (eds), Torts Tomorrow – A Tribute to John Fleming (1998) 36 at 47.
In Pyrenees, I said[80]:
"[T]he fact that the authority owes a common law duty of care because it is invested with a function or power does not mean that the total or partial failure to exercise that function or power constitutes a breach of that duty. Whether it does will depend upon all the circumstances of the case including the terms of the function or power and the competing demands on the authority's resources."
[80](1998) 192 CLR 330 at 371; see also at 394-395 per Gummow J.
To highlight the different position of statutory authorities therefore, it also seems best to formulate an authority's duty by reference to what a "reasonable authority" – rather than a "reasonable person" – would have done (or not done) in all the circumstances of the case.
The obligation of a statutory authority to take affirmative action
In his article "Liability in Tort of Public Bodies", Professor Todd has argued that, despite the current conceptual uncertainty in the law in Australia relating to the common law liability of statutory authorities for a failure to act, "as regards four of the judgments [in Pyrenees, Brennan CJ apart] there is arguably a measure of underlying agreement."[81] He then listed what in his view were the key elements that could be distilled from the recent decisions of this Court[82]:
"(i) the imposition of a common law duty is consistent with and complementary to the performance by the public body of its statutory functions;
(ii) the duty can be seen to arise specifically in relation to a known plaintiff rather than generally in relation to the public at large;
(iii) the defendant is in a position of control and is under a statutory obligation, or at least has specific power, to protect the plaintiff from the danger;
(iv) the plaintiff is in a position of special vulnerability or dependence on the defendant. He or she cannot reasonably be expected to safeguard himself or herself from the danger;
(v) on a policy overview there is no good reason for giving the defendant an immunity from liability."
[81]Todd, "Liability in Tort of Public Bodies", in Mullany & Linden (eds), Torts Tomorrow – A Tribute to John Fleming (1998) 36 at 55.
[82]Todd, "Liability in Tort of Public Bodies", in Mullany & Linden (eds), Torts Tomorrow – A Tribute to John Fleming (1998) 36 at 55.
I am in substantial agreement with this analysis. I would prefer, however, to subsume Professor Todd's first criterion into his fifth. I also think that it is necessary to add a further element – that the authority knew, or ought to have known, of the risk of injury to the plaintiff.
In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1.Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2.By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3.Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4.Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5.Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty.
6.Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.
If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority.
I have already discussed some aspects of the last two questions. But it may be helpful to say something about the second, third and fourth of these questions and their impact on the last two questions.
The grant of powers for the protection of a specific class of plaintiff
In Stovin v Wise, Lord Nicholls of Birkenhead (dissenting, Lord Slynn of Hadley agreeing) said[83]:
"Parliament confers powers on public authorities for a purpose. An authority is entrusted and charged with responsibilities, for the public good. The powers are intended to be exercised in a suitable case."
[83][1996] AC 923 at 935.
Similarly, in Pyrenees Kirby J said[84]:
"The Council of the Shire had relevant powers to require the owners of the shop and residence containing the dangerous chimney and fireplace to repair or remove the danger … The powers existed for the protection against fire of persons such as the claimants."
[84](1998) 192 CLR 330 at 421.
His Honour then went on to say[85]:
"The statutory power in question is not simply another of the multitude of powers conferred upon local authorities such as the Shire. It is a power addressed to the special risk of fire which, of its nature, can imperil identifiable life and property."
[85](1998) 192 CLR 330 at 423.
And later his Honour said[338]:
"I do not think it is appropriate to say that the word 'liabilities' in s 14 includes 'contingent' or 'potential' liabilities. For one thing, each of these adjectives lacks precision. To say, as the argument for the respondent would have it, that 'potential' liabilities are included is to my mind plainly wrong because a 'potential liability', whatever it may be intended to describe, is the antithesis of a liability that 'existed immediately before the expiration of' the transitional period, as s 14(b) requires. To say that 'contingent liabilities' are included is at best misleading because it cannot be asserted that the phrase 'contingent liabilities' has any settled legal meaning[339]. The imprecision of the word 'liabilities' is magnified when it is coupled with the adjective 'contingent' which, in any event, s 14 does not contain. It is true enough that some liabilities are accurately described as contingent which may also be accurately described as existing: a surety's uncalled liability under an existing guarantee is an obvious instance. The expression 'contingent liabilities' is sometimes found in a statute and must be construed in its context. Re Sutherland, decd[340] provides an example. There, it was held by the House of Lords (by a majority) that an existing legal liability was not essential to the creation of a contingent liability within the meaning of s 50(1) of the Finance Act 1940. Lord Guest[341] described the expression as there found as '… a liability which depends for its existence upon an event which may or may not happen'. By comparison, s 14 of the Termination Act not only does not contain a reference to contingent liabilities but the context excludes the concept of contingency. Apart from that, the notion of a contingent liability in negligence seems to me to be a contradiction in terms. A contingent liability pursuant to a contract or referred to as such in a statute is understandable; but I have neither heard of nor been able to find any reference to an existing set of facts as giving rise to a contingent liability in negligence or, indeed, in tort of any kind. The reason, perhaps, is that a liability for most kinds of torts – at any rate for negligence – is dependent upon the infliction of damage to the plaintiff; and, when damage occurs, and not before, tortious liability – if it arises at all – arises immediately. In other words, if a liability in negligence exists, its very nature is such that it is not contingent."
[338][1999] 1 VR 782 at 815-816.
[339]Re Sutherland, decd [1963] AC 235 at 248 per Lord Reid.
[340][1963] AC 235.
[341][1963] AC 235 at 262.
Accordingly his Honour upheld the appeal on the preliminary point. Both Winneke P and Buchanan JA would have upheld the appeal on this point also. In the result the respondent's appeal to the Court of Appeal was unanimously upheld.
The appeal to this Court
The appellant appealed to this Court on a number of grounds including the following:
1. The Court of Appeal erred in holding that ASIA did not owe Mr Crimmins a duty of care.
…
5. The Court of Appeal erred in failing to properly consider the object for which ASIA was to exercise its powers and functions under s 8 of the Act, ie, for "expeditious, safe and efficient performance of stevedoring operations".
6. The Court of Appeal erred in holding that ASIA did not have a coexisting duty of care with employer stevedoring companies and that it erred in failing to properly consider-
(i) the nature and circumstances of such employment;
(ii)the role of ASIA in directing waterside workers to such employment.
…
8. The Court of Appeal erred in holding that any liability of ASIA to Mr Crimmins was not a liability of the respondent pursuant to s 14(b) of the Termination Act.
9. The Court of Appeal erred in holding that the word "liabilities" as referred to in s 14(b) of the Termination Act did not include "contingent" or "potential" liabilities.
12. The Court of Appeal erred in failing to interpret the word "liabilities" in s 14(b) of the Termination Act in a manner that was consistent with the protection of basic common law rights.
I will deal with the issue of the existence of a duty of care first and state my conclusion on that matter immediately. It is that the respondent's predecessor did owe a relevant duty of care to Mr Crimmins. The duty may not have been as extensive as that of the stevedoring companies for whom Mr Crimmins worked on a day to day basis but it was capable, in my opinion, of being extensive enough to require the respondent to adopt some measures for the protection of Mr Crimmins against inhalation of asbestos dust and fibre. Before defining the content of that duty I will state the matters that bring me to the conclusion that it was owed.
In doing so it will be necessary to analyse the legislation which established the respondent. In enacting the Act the legislature brought into existence a legal personality capable in law of being sued. Without more the respondent would have been subject to all the liabilities and obligations owed by anybody else capable of being sued. But of course there was more, and that consisted of elaborate provisions which not only defined the place and role of the respondent in the community in which it was to exist, but also provided some measure of its obligations in that community, and the framework for its relationship with others within it. Those provisions, by stating the functions, powers and obligations of the respondent, operate to modify, mould, and indicate the common law principles which may be applied to the respondent which otherwise would have an unfettered application to it. It is for these reasons that careful consideration must be given to the Act to ascertain the extent to which the common law duties of care may apply to the respondent, and ultimately the respondent's liability or otherwise to the appellant.
First, there was the uncontradicted evidence of Mr Fowler that the respondent collected Mr Crimmins' pay and actually paid him, although, by doing so, the respondent may have gone somewhat beyond what it was strictly bound to do pursuant to s 17(1)(c) of the Act.
Secondly, the Act as a whole contemplated a role for the respondent of a unique kind, if not as an employer, but as a legal personality with a real capacity, and some obligations, to influence the working conditions of waterside workers. Section 17 states the functions of the respondent. Those functions have to be understood in the context of the Act which both explicitly and implicitly recognises and gives effect to the unusual way (by comparison with other industries) the stevedoring industry was organised. Waterside workers suffered the disadvantage of not having one regular employer and therefore the opportunity for day to day dialogue on working conditions and safety available to regular, full time employees of one employer. Sometimes employees may have had no work at all and an entitlement to attendance money only (s 17(1)(c)). It was the function of the respondent to regulate generally the performance of stevedoring operations (s 17(1)(a)) and in so doing to allocate a particular worker to a particular dock or ship (s 17(d), (e), (f), (g), (h) and (i)).
The appellant focuses on the function stated by s 17(1)(o):
"to encourage safe working in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers engaged in stevedoring operations and, where necessary, to provide waterside workers with articles and equipment designed for that purpose".
It is relevant also to note that the respondent had a function "to train, or arrange for the training of, persons in stevedoring operations" (s 17(1)(k)).
Moreover, the respondent was armed with ample power to give effect, pursuant to s 18 of the Act, by orders or otherwise, to functions which it performed under the Act[342]. And s 20(2) provided for a penalty for a contravention or a failure to comply with an order so made.
[342]Section 18(1).
The respondent seeks to rely upon s 17 of the Act, particularly s 17(2) to found a contention that it is confirmatory of the employers' primary obligations in matters of workplace safety. Section 17(2) provided as follows:
"In regulating the performance of stevedoring operations under this Act, the Authority shall, except to such extent as, in the opinion of the Authority, is essential for the proper performance of that function, avoid imposing limitations upon employers with respect to their control of waterside workers engaged by them and their manner of performance of stevedoring operations."
I would read s 17(2) as requiring no more than that the respondent engage in no non-essential interference with the day to day work, and ordinary relationship of employer and employee between worker and stevedoring company. The subsection, although it may be taken as intending to confirm, indeed perhaps reinforce the usual incidents of the relationship of employer and employee between a stevedoring company and waterside workers on a daily basis, does not operate to relieve entirely the respondent of, although it may shed some light on, the extent of any duty of care that it may have owed to Mr Crimmins.
The matters to which I have referred and s 25 of the Act[343] indicate that the respondent was entitled to exercise a large measure of control over waterside workers and their employers. I do not overlook that s 17 makes provision for functions and not duties, but that the respondent might reasonably be expected to perform those functions from time to time as if they were duties appears from a number of matters. The first is the statutory obligation imposed by s 8 of the Act.
"The Authority shall perform its functions, and exercise its powers, under this Act with a view to securing the expeditious, safe and efficient performance of stevedoring operations."
[343]Section 25 provided as follows:
"For the purposes of-
(a)ensuring that a sufficient number of waterside workers of the necessary physical fitness, and with the necessary competence and efficiency, are available for the expeditious, safe and efficient performance of stevedoring operations at each port at which stevedoring operations are performed and, in particular, ensuring that the average earnings of waterside workers at each such port will be such as to attract to, and retain in, the stevedoring industry at the port such a number of such waterside workers;
(b)furthering the objective of the decasualization of waterfront labour and ensuring that the labour of waterside workers available for stevedoring operations at each such port is not wasted or used otherwise than to the best advantage; and
(c)promoting industrial peace at each such port,
the Authority shall-
(d)from time to time determine, by instrument in writing, the quota of waterside workers for each such port, that is to say, the number of waterside workers which, in the opinion of the Authority, is required for the proper and effective conduct of stevedoring operations at the port; and
(e)establish and maintain a register of employers, and a register of waterside workers, at each such port."
The second is the fact that the Act (s 23) contemplates the appointment of inspectors and the entrusting to them of rights of entry to perform functions of the respondent, and of inspection which, if obstructed, might be visited with a substantial monetary penalty.
Thirdly, although the activities referred to in s 17(1)(a), (b), (c) and (d) are in terms functions, the overall scheme of the Act clearly shows that if they were not in fact performed, the industry could not and would not have been organised and could not have operated in the rather special way that this one did and for which the Act made provision. In short, what are in the paragraphs which I have just mentioned, referred to as functions, are clearly in the nature of duties.
The evidence in this case shows that a number of relevant functions were actually performed and that in fact the respondent exercised a large measure of control over waterside workers. Mr Neil, a witness called by the respondent gave this evidence.
"What powers were delegated to you and to Mr O'Neill?
We had the responsibility for controlling the pick-up centre. We had responsibility for deciding whether a person who for some reason had got off the roster should be rerostered or should be subject to disciplinary action and we had responsibilities to see that work was properly performed at the various vessels and properly performed in every way."
Later he said this:
"What other tasks did you have as the local representative of the authority? Tell us about safety committees; did you have any meetings about safety committees?
Well, the local representative or the authority had port inspectors that were responsible to the local representative. I was in charge of the port inspectors in my two ports and we had to have regular meetings with them to make sure that each port inspector knew what all the other port inspectors knew and that the local representative knew what they knew and they knew what the local representative knew; it was keeping everybody in touch so everybody was working in unity."
There was a deal of evidence from the same witness that the respondent actually exercised disciplinary powers over workers and the Act shows that the workers could be deregistered by the respondent in consequence of which a worker might be denied work either temporarily or permanently.
The right to control and actual control are important matters in determining whether a duty of care is owed. As Mason J said in Stevens v Brodribb Sawmilling Co Pty Ltd[344]:
"A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it." (footnotes omitted)
[344](1986) 160 CLR 16 at 24.
This was a case in which the factual circumstances were quite different from those considered by this Court in Stevens v Brodribb Sawmilling Co Pty Ltd[345] but it is true to say here, as Mason J did in that case, that there was a significant measure of "interdependence of … activities … [and a] need for co-ordination" between the stevedoring company and the respondent. For some purposes and in some respects the respondent stood in a similar position to an employer. Although the respondent certainly had a role of a quasi-legislative kind to regulate some aspects of the relationship between the stevedoring companies and the workers (ss 17, 18), the Act manifested an intention and conferred a power upon the respondent to go beyond mere regulation, actually to interfere in the relationship and to interfere to design and require appropriate safety measures.
[345](1986) 160 CLR 16 at 31.
It is necessary now to consider the nature and extent of the duty of care owed by the respondent to Mr Crimmins in light of the statutory role conferred on it. It is important to remember that s 17(1)(o) speaks in terms of the encouragement of "safe working in stevedoring operations" and that s 18 recognises that a relationship of master and servant exists between the workers and the stevedoring companies. The duty owed by the respondent must take account of and yield to these matters and other contextual indications that the Authority cannot be precisely equated with an employer.
That duty I would define as a duty to take such reasonable care for the safety of Mr Crimmins in the workplace as the respondent was reasonably capable of taking as a matter of practicality in the performance of its functions[346], and which the actual employer could not be expected to, or did not itself have the capacity to take, or was flagrantly failing to take, in circumstances in which measures available to the respondent, if taken, would have been likely to be effective in preventing or alleviating the harm done to Mr Crimmins.
[346]cf Stovin v Wise [1996] AC 923 at 936 per Lord Nicholls of Birkenhead.
No argument was addressed to this Court on the question whether the relevant duty of care was breached, and the parties are agreed that if the appeal succeeds the matter will need to go back to the Court of Appeal.
The other question is the preliminary question, whether s 14 of the Termination Act preserved any right or entitlement in the appellant to recover damages from the respondent.
Any tort committed against Mr Crimmins would only have been complete when he sustained some non-minimal damage[347]. It was common ground that because of the slow onset of mesothelioma Mr Crimmins did not suffer any compensable injury until long after he stopped working in the dusty conditions and the Authority ceased to exist.
[347]Cartledge v E Jopling & Sons Ltd [1963] AC 758; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 555 per Toohey J.
Section 14 of the Termination Act provides as follows:
"On the expiration of the transitional period-
(a) all rights and property that, immediately before the expiration of the transitional period, were vested in the Authority are, by force of this section, vested in the Committee; and
(b) the Committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Authority that existed immediately before the expiration of that period."
The words in sub-par (b) "that existed immediately before the expiration of [the transitional] period" are certainly open to an interpretation, as Tadgell JA held, that only actual and not contingent or inchoate liabilities are contemplated as being preserved by the section. However having regard to the numerous activities and functions of the Authority and the consequential potential for late or slowly emerging damage or loss, particularly of the kind that was suffered here, it is unlikely that the legislature would have intended that one of its statutory creatures or its successor would be able to escape all liability for insidious, slowly emerging damage or injury. It is equally unlikely that the legislature would have deliberately set out to make futile any grant of an extension of time within which to bring actions pursuant to ss 5 and 23A of the Limitation of Actions Act 1958 (Vic) and their analogues enacted in other States before 1977[348]. It is in the light of these matters that the meaning of "liabilities" as used in the Termination Act must be considered.
[348]Limitation Act 1969 (NSW) s 60G(2); Limitation of Actions Act 1936 (SA) s 48(1)(c); Limitation Act 1935 (WA) ss 38A, 38B; Limitation of Actions Act 1974 (Qld) s 31.
As Kitto J makes clear in Scala v Mammolitti[349] the word "liability" does not always have "concrete signification".
[349](1965) 114 CLR 153 at 157.
In Walters v Babergh District Council[350] Woolf J had to decide whether an action could be brought against a local authority that had replaced one that had ceased to exist. The provision under consideration in that case, as noted by his Honour, was this[351]:
"The Secretary of State or any appropriate Minister may at any time by order make such incidental, consequential, transitional or supplementary provision as may appear to him – (a) to be necessary or proper … and nothing in any other provision of this Act shall be construed as prejudicing the generality of this subsection. (2) An order under this section may in particular include provision – (a) with respect to the transfer … of property (whether real or personal) and the transfer of rights and liabilities; …"
[350](1983) 82 LGR 235.
[351](1983) 82 LGR 235 at 239.
An order for which the section provided was made in this form[352]:
"(a) all property and liabilities vested in or attaching to an authority described in column (1) of Part I or II of Schedule 4 (or of any extension thereof effected by any further order under section 254 of the Act made before 1 April 1974) shall by virtue of this order be transferred to and vest in or attach to the authority specified in respect of such authority in column (2); …"
Of this order Woolf J said[353]:
"The whole tenor of the order is designed to ensure that the reorganisation would not effect events which would otherwise have occurred further than is absolutely necessary because of that reorganisation. That the public should be able to look to the new authority precisely in respect of those matters which it could look to the old authority; that the public's position should be no better or no worse. If the draftsman has not used words which are appropriate to cover potential liabilities it can only be because he was so crassly incompetent as not to appreciate that for actions in tort it is not sufficient to have a breach of duty; you must also have damage.
It is always dangerous to look to decisions on similar words in different Acts of Parliament as aids to interpretation. However, I am fortunate in this case to have general assistance as to the approach to the problem in a decision of Megarry J in Bromilow & Edwards Ltd v Inland Revenue Commissioners[354]. … A very different problem was before Megarry J from that which is before me. However, in the course of his judgment Megarry J considered the words 'a liability' and he said[355]:
'There is a further consideration, namely, the ambit of the word "liability". I refrain from any detailed attempt to explore the various possible meanings of this word. All that I need say is that I have looked at the entry under that word and under "liable" in Words and Phrases (1944) and in Stroud's Judicial Dictionary (1952), 3rd ed, and that it seems plain that "liability" is a word capable of some amplitude of meaning. I say this without discussing the meaning that that word bears in the celebrated classification in Hohfeld's Fundamental Legal Conceptions (1932), where it is the correlative of "power" and the opposite of "immunity". I do not think that the meaning of the word can be limited, as Mr Heyworth Talbot would have me limit it, to a present, enforceable liability, excluding any contingent or potential liability. Used simpliciter, the word seems to me to be fully capable of embracing the latter form of liability, as in a surety's liability for his principal before there has been any default. … Given a choice, and, as it seems to me, a fair choice, I have no hesitation in choosing the interpretation which makes sense and makes this part of the subsection work, as against one which reduces it to dust. In any case, I consider that the meaning which I prefer is the primary and natural meaning of the words in the context in which they appear.'
I would respectfully agree with the general statements made by Megarry J in that judgment and apply them word for word to the context here under consideration. I regard the word 'liabilities' as capable of having amplitude of meaning. In the context of this case I consider that it is wide enough to apply to contingent or potential liabilities. It appears to me that I have a fair choice between the meaning submitted by Mr O'Brien and the meaning submitted on behalf of the plaintiff by Mr Macleod. Having that choice I have no hesitation in choosing an interpretation which makes, in my view, sense of this part of the order, rather than leaving a large gap between obligations and causes of action which have accrued."
[352](1983) 82 LGR 235 at 239.
[353](1983) 82 LGR 235 at 242-243.
[354][1969] 1 WLR 1180; [1969] 3 All ER 536.
[355][1969] 1 WLR 1180 at 1189-1190; [1969] 3 All ER 536 at 543-544.
Save for any suggestion of gross incompetence on the part of the draftsperson of this legislation, the reasoning which I have quoted I would generally adopt and apply to this case. Liabilities in this case should be taken to include a contingent liability for an injury of the kind suffered by Mr Crimmins if the appellant is able to establish her case against the respondent that there has been a breach of the duty of care as I have defined it.
I would allow the appeal with costs. The case should be remitted to the Court of Appeal of Victoria so that that Court may deal with the two outstanding issues, whether there was a breach of the relevant duty of care and damages.