Crimmins v Stevedoring Industry Finance Committee

High Court of Australia|1999-11-10|Before: Gleeson CJ, Callinan JJ, McHugh J

High Court of Australia Gleeson CJ Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ Crimmins v Stevedoring Industry Finance Committee (M115/1998) [1999] HCA 59

Summary 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). ORDER

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.

Walters v Babergh District Council (1983) 82 LGR (Eng) 235 (QBD).

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:

(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.

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".

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] 1. 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:

(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 (s 18(2)), including the holding of hearings if the Authority so determined (s 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 [5] and the failure to exercise [6] 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 [7] . 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 [8] .

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); at 458, per Mason J; at 484, per Brennan J; at 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. 2. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443, per Gibbs CJ (Wilson J agreeing); at 460-461, per Mason J; at 479, per Brennan J; at 501-502, per Deane J; Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 302, per Kirby P; at 328, per McHugh JA; Pyrenees Shire Council v Day (1998) 192 CLR 330. 3. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443-445, per Gibbs CJ (Wilson J agreeing); at 460-461, per Mason J; at 478, per Brennan J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-369, per McHugh J. 4. 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 [9] . Rather, the statute pursuant to which the body is created and its powers conferred operates "in the milieu of the common law" [10] . 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 [11] .

See, eg, Anns v Merton London Borough Council [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; at 951, per Lord Hoffmann. 2. 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", Jesting Pilate (1965) 203, at p 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". 3. 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 [12] , between policy and operational decisions [13] and between powers and duties [14] . 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 [15] .

See, eg, 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. 2. See, eg, Anns v Merton London Borough Council [1978] AC 728 at 754, per Lord Wilberforce; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 442, per Gibbs CJ; at 468-469, per Mason J; at 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 Privy Council; 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. 3. See, eg, 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 Council [1978] AC 728 at 755, per Lord Wilberforce. 4. 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 sub-section 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" (s 8), 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.

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 [16] . 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".

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 [17] . 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 non-exercise of a power that is legislative in nature [18] . 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.

Section 20(1)(c) of the Industry Act. 2. See, eg, Welbridge Holdings Ltd v Metropolitan Corporation of 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 [19] . 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.

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 [20] .

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 [21] .

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 (s 17(1)(e)), the making of arrangements for allotting waterside workers to stevedoring operations (s 17(1)(f)), the determination of the method of engagement of waterside workers for stevedoring operations, including the time waterside workers should present for work (s 17(1)(g)) and the making of arrangements to facilitate their engagement (s 17(1)(h)). The Authority was also to ensure that sufficient waterside workers were available at each port (s 17(1)(d)) and pay them attendance and other moneys payable under the Act and under the award which regulated their employment (s 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 (s 25) and to register waterside workers (s 29). 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 (s 39(1)). 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.

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 (s 28) 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 (s 35(1)(c)). The Authority was empowered to institute proceedings against an employer for an offence against the Industry Act (see s 34(2)), 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".

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 [22] . 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.

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 [23] in these terms:

Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimise a risk of personal injury or disability, recognised 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 realisation 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. 1. (1985) 157 CLR 424 at 464.

The notion of general reliance has been the subject of some criticism [24] and more recent decisions of this Court have tended to focus on the vulnerability of the person who suffers injury [25] , 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 [26] . And those precise considerations appear to underpin the notion of general reliance as explained by Mason J in Sutherland Shire.

See Pyrenees Shire Council v Day (1998) 192 CLR 330 at 344, per Brennan CJ; at 385-388, per Gummow J; at 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. 2. 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); at 216, per McHugh J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 372-373, per McHugh J; at 421, per Kirby J; Perre v Apand (1999) 198 CLR 180 at 194-195, per Gleeson CJ; at 202, per Gaudron J; at 236, per McHugh J; at 259-260, per Gummow J; at 289, per Kirby J; at 327-329, per Callinan J. 3. See, eg, Pyrenees Shire Council v Day (1998) 192 CLR 330 at 362, per Toohey J; at 372, per McHugh J; at 389, per Gummow J; at 420-421, per Kirby J; Perre v Apand (1999) 198 CLR 180 at 194-195, per Gleeson CJ; at 202, per Gaudron J; at 236, per McHugh J; at 256-260, per Gummow J; at 289, per Kirby J; at 298-299, per Hayne J; at 327-329, per Callinan J. 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.

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 [27] 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.

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 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.

During the period from 1960-1965, twelve to fifteen 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" (s 28(b)(i)). 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."

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" (s 29(1)(b)(i)). 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 (s 37)). 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.

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" (s 17(1)(a)). The Authority was empowered, in the performance of its functions, to "make such orders, and do all such other things, as it thinks fit" (s 18(1)), although it was to have regard to the desirability of encouraging full employment on the waterfront (s 17(3)), 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 (s 17(2)).

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 twenty 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 (s 17(1)(o)) 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.

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 [28] .

Stevedoring Industry Finance Committee v Crimmins [1999] 1 VR 782 at 826-827, per Buchanan JA.

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[ [29] ] to be occasioned, by their exercise, damages for negligence may be recovered" [30] . Similarly, in Sutherland Shire Council v Heyman [31] , Mason J, citing Caledonian Collieries Ltd v Speirs [32] , 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."

Later cases require "likely" to mean that there is a reasonable possibility that the injury is likely to be occasioned. 2. Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220, per Dixon CJ, McTiernan, Kitto and Taylor JJ. 3. (1985) 157 CLR 424 at 458. 4. (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" (s 17(1)(f)). 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.

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 [33] . 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.

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: Judicial Minimalism on the Supreme Court [34] , 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. 1. (1999), pp 42-43.

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. 1. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999), p 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 [36] . 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" [37] . Different judges will apply different factors with different weightings. There will be no predictability or certainty in decision-making [38] 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.

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), p 59. 2. R v Williscroft [1975] VR 292 at 300, per Adam and Crockett JJ. 3. See Perre v Apand Pty Ltd (1999) 198 CLR 180 at 215-216, per McHugh J.

Sometimes, as in Perre v Apand Pty Ltd [39] , 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 [40] refers to the principles which are ordinarily applicable in cases of pure economic loss.

(1999) 198 CLR 180 at 217-218. 2. (1999) 198 CLR 180 at 231-232.

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 [41] and Pyrenees Shire Council v Day [42] . In Heyman [43] , 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 1. (1985) 157 CLR 424. 2. (1998) 192 CLR 330. 3. (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 [44] , 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. 1. [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" [45] .

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 [46] , 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".

Doyle, "Tort Liability for the Exercise of Statutory Powers", in Finn (ed), Essays on Torts (1989) 203, at pp 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 [47] :

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise 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. 1. (1985) 157 CLR 424 at 469.

In X (Minors) v Bedfordshire County Council [48] Lord Browne-Wilkinson formulated a three-stage test to accommodate the policy/operational distinction:

[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

[1995] 2 AC 633 at 738-739 (Lords Jauncey of Tullichettle, Lane, Ackner and Nolan agreeing, emphasis in 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" [49] . The Supreme Court of the United States in United States v Gaubert [50] 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 [51] .

Stovin v Wise [1996] AC 923 at 951, per Lord Hoffmann (Lords Goff of Chieveley and Jauncey of Tullichettle agreeing). 2. (1991) 499 US 315. 3. Pyrenees (1998) 192 CLR 330 at 358-359, per Toohey J; at 393-394, per Gummow J; see also Romeo v Conservation Commission (NT) (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 [52] . 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 [53] . 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 [54] .

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

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469, per Mason J; at 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. 2. Todd, "Liability in Tort of Public Bodies", in Mullany & Linden (eds), Torts Tomorrow - A Tribute to John Fleming (1998) 36, at pp 46-47 (emphasis in original). 3. See esp Just v British Columbia [1989] 2 SCR 1228 at 1244; X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 737.

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 1. Todd, "Liability in Tort of Public Bodies", in Mullany & Linden (eds), Torts Tomorrow - A Tribute to John Fleming (1998) 36, at p 47 .

[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. 1. (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" [57] . He then listed what in his view were the key elements that could be distilled from the recent decisions of this Court [58] :

(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.

Todd, "Liability in Tort of Public Bodies", in Mullany & Linden (eds), Torts Tomorrow - A Tribute to John Fleming (1998) 36, at p 55 . 2. Todd, "Liability in Tort of Public Bodies", in Mullany & Linden (eds), Torts Tomorrow - A Tribute to John Fleming (1998) 36, at p 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:

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.

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.

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.

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.

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.

Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, 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 [59] , Lord Nicholls of Birkenhead (dissenting, Lord Slynn of Hadley agreeing) said:

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. 1. [1996] AC 923 at 935.

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. 1. (1998) 192 CLR 330 at 421.

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. 1. Pyrenees (1998) 192 CLR 330 at 423.

These statements bring out the point that some powers are conferred because the legislature expects that they will be exercised to protect the person or property of vulnerable individuals or specific classes of individuals. Where powers are given for the removal of risks to person or property, it will usually be difficult to exclude a duty on the ground that there is no specific class. The nature of the power will define the class - eg, an air traffic control authority is there to protect air travellers. Furthermore, a finding that the authority has powers of this type will often indicate that there is no supervening reason for refusing to impose a duty of care and that no core policy choice or truly quasi-legislative function is involved.

Except in cases where a statutory authority has assumed responsibility, taken control of a situation or is under a statutory obligation to act, it seems an essential condition for imposing a duty of care on an authority that the plaintiff is vulnerable to harm unless the authority acts to avoid that harm. I use the term "vulnerable" in the sense that, as a practical matter, the plaintiff has no or little capacity to protect himself or herself. In earlier cases, it was common to refer to the concept of general reliance or dependence as a necessary condition for imposing a duty of care on a statutory authority [62] . As I remarked in Perre v Apand Pty Ltd, however, while the concept of general reliance has been criticised, properly understood, the concept was merely one way of testing for an important requirement in the determination of duty of care - how vulnerable is the plaintiff as the result of the defendant's acts or omissions [63] . In the context of the common law liability of statutory authorities, general reliance is a combination of the requirements of the existence of powers in the statutory authority to ameliorate harm and the vulnerability of the plaintiff to that harm. In that sense it was an important element for all the justices in Pyrenees [64] . Similarly in Heyman [65] , it was an important, even decisive, consideration that the plaintiffs in that case were able to protect their own interests by making inquiries, requesting a certificate and retaining experts. In Yuen Kun Yeu v Attorney-General (Hong Kong) [66] , the Judicial Committee of the Privy Council held that one of the factors relevant to denying a duty of care was that the plaintiffs could have potentially protected themselves by inspecting publicly available records or consulting investment advisers. Similarly in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [67] , I thought that the likelihood of harm to the plaintiff was minimised by its capacity to protect itself.

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 464. 2. Perre (1999) 198 CLR 180 at 228-230. 3. (1998) 192 CLR 330 at 347, per Brennan CJ; at 361, per Toohey J; at 370, per McHugh J; at 389-390, per Gummow J; at 421, per Kirby J. 4. (1985) 157 CLR 424 at 470-471, per Mason J; at 494, per Brennan J; at 510-511, per Deane J. 5. [1988] 1 AC 175 at 195. 6. (1997) 188 CLR 241 at 284-285.

In Perre v Apand Pty Ltd, I said that "[t]he cases have recognised that knowledge, actual or constructive, of the defendant that its act will harm the plaintiff is virtually a prerequisite of a duty of care in cases of pure economic loss. Negligence at common law is still a fault based system It would offend current community standards to impose liability on a defendant for acts or omissions which he or she could not apprehend would damage the interests of another" [68] . This applies no less to cases regarding the common law duty of public authorities - vulnerability and knowledge go hand in hand. The authority defendant's knowledge was considered an important, even essential, factor weighing in favour of a duty in Pyrenees [69] .

Perre (1999) 198 CLR 180 at 230. 2. (1998) 192 CLR 330 at 371, per McHugh J; at 389, per Gummow J; at 420, per Kirby J; see also Stovin v Wise [1996] AC 923 at 939-940, per Lord Nicholls of Birkenhead (Lord Slynn of Hadley agreeing).

In Perre, I also discussed the issue of constructive knowledge, saying that "[i]t would not be wise, or perhaps even possible, to set out exhaustively when it would be permissible to rely on constructive knowledge" [70] . That statement also applies to this area of the law as much as to cases of pure economic loss. In my opinion, however, one must be very careful about using constructive knowledge in this area. Pyrenees, for example, would have taken on a very different complexion if the shire council did not have actual knowledge of the risk. Speaking generally, I think it is unlikely that a plaintiff could succeed because of the authority's constructive knowledge of an area of risk, unless it can be said that the defendant authority had an obligation to seek out the requisite knowledge in all the circumstances, including cases where the defendant authority already possesses certain actual knowledge, but fails to look further. It would be a farreaching step to impose affirmative obligations on a statutory authority merely because it could have or even ought to have known that the plaintiff was, or was a member of a class which was, likely to suffer harm of the relevant kind.

The risk of harm to the plaintiff was reasonably foreseeable

Safety on the waterfront was part of the Authority's general responsibilities. I do not understand the respondent to contend otherwise. Keeping in mind the generalised nature of the inquiry at the duty stage, it is clear that it was reasonably foreseeable that, if the Authority failed to perform its safety functions with reasonable care, then waterside workers would be liable to suffer injury, even if only because it was reasonably foreseeable that the employers might be derelict in performing their own duties.

The plaintiff was vulnerable as the result of the directions of the Authority

To my mind, the factor that points compellingly to the Authority owing an affirmative duty of care is that the Authority directed the waterside workers where they had to work and that the failure to obey such a direction could lead to disciplinary action and even deregistration as a waterside worker. That factor points so strongly to the existence of a duty of care that it should be negatived only if to impose the duty was inconsistent with the scheme of the Act. It can seldom be the case that a person, who controls or directs another person, does not owe that person a duty to take reasonable care to avoid risks of harm from that direction or the effect of that control. The police officer who directs traffic [71] , the gaoler who has the custody of the prisoner [72] and the helpful bystander, who obligingly points the way to the traveller seeking guidance, all owe a duty to take care that their directions or control do not lead to harm.

See O'Rourke v Schach [1976] 1 SCR 53. 2. See Howard v Jarvis (1958) 98 CLR 177.

Sometimes the duty which arises from direction or control may extend to controlling the actions of a third party. In The Law of Torts [73] , Professor Fleming described the general principles applicable in this area:

Duties to control the conduct of third persons provide yet another illustration of obligations of affirmative action. Ordinarily, it is true, the law does not demand that one interfere with the activities of another for the purpose of preventing harm to him or strangers, but certain relations call for special assurances of safety in accordance with prevailing assumptions of social responsibility. Such a special relation may subsist either between the defendant and the injured person who is entitled to rely upon him for protection or between the defendant and the third party who is subject to the former's control.

Illustrative of the former [is] the conventional [relationship] between employer and employee

An obligation to control another may arise by dint of a special relationship between the defendant and that person. But in the absence of a right to control, there is ordinarily no corresponding duty to exercise it for the protection of others. 1. Fleming, The Law of Torts, 9th ed (1998), p 170.

What is required to discharge a duty arising from a direction or the control of a person's freedom of action will depend on the circumstances, and, in some cases, it may be very little. But usually the very fact of the direction or control will itself be sufficient to found a duty. Where the person giving the direction or in control of another person's freedom of action knows that there is a real risk of harm unless the direction is given or the control is exercised with care, the case for imposing a duty is overwhelming. I find it impossible to accept, for example, that, if the Authority knew that it was sending waterside workers to a ship where there was a high risk of death or injury, it owed no duty of care to those workers.

No doubt the vulnerability of waterside workers to injury arose primarily from their working conditions in respect of which the Award and s 33 of the Act made the employers responsible. But certain features of the relationship between the workers and their employers made the workers especially vulnerable to harm unless the Authority took action. The Authority knew that the workers were being directed to work on ships where there could be a significant risk of injury to the workers from the use of equipment and machinery, the stowage of cargo and the hazardous nature of the materials which the workers had to handle. It also knew that it was directing the waterside workers to participate in transient, casual employment on the waterfront - a factor recognised in s 25(b) of the Act. In this context, the power of the Authority to direct the waterside workers as to when and where they must work placed them in a very real position of vulnerability. The casual nature of the employment, employment sometimes lasting only for a few hours, was likely to mean that employers did not have the same incentives to protect their employees from harm as do employers who must utilise the same work force day after day. Fear of deregistration as a stevedore was likely to have been the greater incentive to better safety practices on the part of employers than concern for maintaining a fit and available work force. However, the extent of such fear must inevitably have depended upon the extent to which the Authority was prepared to intervene in the conduct of stevedoring operations.

No doubt the vulnerability of the plaintiff was reduced to some extent by him belonging to a union. But membership of a union could not justify the Authority ignoring the risks of harm which might flow from its directions. The bare fact of union membership was not enough to eliminate the vulnerability of the plaintiff and his effective inability to protect himself in the circumstances.

No doubt also the Authority was entitled to take into account that the only employers who could obtain registration under the Act were those 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" (s 28(b)(i)). But that was a factor that went to the issue of breach of duty, rather than the existence of a duty.

Similarly, questions concerning the Authority's knowledge of the risks of handling asbestos are matters going to breach, not duty. As Winneke P noted in the Court of Appeal, "[t]here was dispute at the trial as to the state of medical and scientific knowledge at the relevant time with regard to the degree of risk which the handling of asbestos posed to the health of waterside workers" [75] . The Authority took an active role in discussing safety matters, including corresponding with shipping companies, participating in FACWAP and conveying information between the Occupational Health Committee of the NHMRC and State health departments and the industry. There was more than sufficient evidence to show that it was widely known at the relevant time that dust generally, including asbestos, was a work hazard. Furthermore the Authority's functions included investigating means of improving safety procedures (s 17(1)(l)), encouraging safe working conditions (s 17(1)(o)) and obtaining and publishing information relating to the stevedoring industry (s 17(1)(p)) including presumably safety matters. Those functions and the wide powers of Port Inspectors to conduct investigations mean that the Authority ought to have known of the conditions on the waterfront, at least in a general fashion, and of the state of knowledge at the time concerning the harmful effects of asbestos dust. The payment of "dirt money" by Port Inspectors indicates that at a minimum it knew that dust was undesirable in the workplace. Even if, contrary to my view, knowledge of the risk of handling asbestos was relevant to the duty issue, there was ample evidence that the Authority knew, or ought to have known, that dust (including asbestos) was dangerous and that workers often unloaded cargoes off ships in conditions that were "primitive and unhealthy" [76] , exposing the workers to a significant risk of injury.

Stevedoring Industry Finance Committee v Crimmins [1999] 1 VR 782 at 788. 2. Stevedoring Industry Finance Committee v Crimmins [1999] 1 VR 782 at 789, per Winneke P.

Subject to the question of whether the imposition of a duty is forbidden or would be inconsistent with the scheme of the Act or involves "core policy" issues, the plaintiff has made good his pleaded allegation that "the Authority was under a continuing duty of care 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". What was required to discharge that duty of care, as always, depended upon all the circumstances of the case. It was plainly open to the jury, however, to find on the issue of breach that the Authority knew or ought to have known that the plaintiff was exposed to a significant risk of injury from the effects of asbestos dust. What, if any, steps the Authority should reasonably have taken to eliminate that risk are matters going to the issue of breach of duty with which this Court is not concerned. Nor is the Court concerned with whether the taking of those steps (if any) would have avoided the harm which the plaintiff suffered. That goes to the question of causation which depends on what the exercise of reasonable care required. In so far as reasonable care required that directions or instructions be given to the plaintiff and his employers, a question may well arise as to whether the harm to the plaintiff could have been avoided even if the Authority had given those instructions or directions.

The conclusion that a duty of care arose from the directions of the Authority makes it unnecessary to examine the plaintiff's further contention that the relationship of the Authority and the plaintiff was analogous to that of an employer and employee and that, consequently, the Authority owed him a duty of care because of that relationship. Thus, in Stevens v Brodribb Sawmilling Co Pty Ltd [77] , this Court held that the duty of care owed by an employer to an independent contractor extended to providing a safe system of work. However, it is unnecessary to examine this contention because, even if the plaintiff's argument is correct, the alleged analogous relationship would not have imposed a higher duty of care on the Authority.

The legislative scheme - the functions and powers of the Authority

No common law duty of care can be imposed on a statutory authority if to do so is either forbidden by the relevant Act or is inconsistent with the statutory scheme. To that question, I now turn.

Section 8 of the Act provided 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". The functions of the Authority were set out in s 17(1) of the Act. They included regulating the performance of stevedoring operations; ensuring that sufficient waterside workers were available for stevedoring operations at each port and that their labour was used to the best advantage; making arrangements for allotting waterside workers to stevedoring operations; determining the method of, and other matters relating to, the engagement of waterside workers; regulating the conduct of waterside workers in and about employment bureaux, wharves and ships; providing or assisting in providing, at places where satisfactory provision therefor was not, in the opinion of the Authority, made by employers or any other person or authority, first-aid equipment, medical attendance, ambulance services, rest rooms, sanitary and washing facilities, canteens, cafeteria, dining rooms and other amenities for waterside workers; training, or arranging for the training of, persons in stevedoring operations; investigating means of improving, and encouraging employers to introduce methods and practices that would improve, the safety with which stevedoring operations were performed; encouraging 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, providing waterside workers with articles and equipment designed for that purpose; and obtaining and publishing information relating to the stevedoring industry.

Sub-sections (2) and (3) of s 17, however, provided that:

(2) 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.

(3) In the performance of its functions under sub-section (1) of this section, the Authority shall have regard to the desirability of encouraging employers to engage waterside workers for regular employment in stevedoring operations and waterside workers to offer for regular employment with employers in stevedoring operations.

Section 18 gave the Authority power to make orders and to do all such things as it thought fit to carry out its functions. Section 20 provided that orders of the Authority would have the force of law. Section 23 empowered the Authority to appoint Port Inspectors to make investigations and reports in relation to stevedoring operations, and to suggest to employers and waterside workers, in appropriate cases, means by which stevedoring operations may be performed with greater safety and efficiency and the labour of waterside workers may be used to better advantage.

(4) For the purpose of carrying out his duties under this Act, an Inspector may, at any time during working hours -

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