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[1999] HCA 59
High Court of Australia
1999-11-10
Gleeson CJ, Callinan JJ, McHugh J
Original judgment source is linked above.
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.
(b) the Committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Authority that existed immediately before the expiration of that period.
The 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] .
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.
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.
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.
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] .
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
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.
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".
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.
[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
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
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.
The obligation of a statutory authority to take affirmative action
(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.
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.
The grant of powers for the protection of a specific class of plaintiff
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.
The risk of harm to the plaintiff was reasonably foreseeable
The plaintiff was vulnerable as the result of the directions of the Authority
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.
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 -
(b) inspect any stevedoring operations and any material, machinery, appliances or articles used for or in connection with stevedoring operations and any books, documents, papers or things relating to stevedoring operations; and
The Authority was to maintain a register of registered waterside workers and registered employers (s 25(e)). Section 25 also provided that the Authority could determine quotas for the number of waterside workers at each port for the purpose, inter alia, of ensuring the "expeditious, safe and efficient performance of stevedoring operations".
Section 33(1) declared that a registered employer should not act in a manner whereby the expeditious, safe and efficient performance of stevedoring operations was prejudiced or interfered with and should provide proper supervision of the performance of stevedoring operations by waterside workers engaged by him; and should ensure that, as far as was practicable, stevedoring operations for which it had engaged waterside workers were expeditiously, safely and efficiently performed.
Section 33(2) provided that an employer who failed to comply with these provisions was guilty of an offence. Section 35 provided that, if an employer was convicted of an offence, the Commonwealth Conciliation and Arbitration Commission could order the cancellation or suspension of the registration of an employer.
Section 36(1) provided that the Authority could cancel or suspend a waterside worker's registration where, after such inquiry as it thought fit, the Authority was satisfied that the worker's registration should be cancelled or suspended. The power to cancel or suspend was conditional upon satisfaction that the worker was, by reason of his physical or mental condition or his incompetence or inefficiency, a danger to others or had acted in a manner whereby the safe performance of stevedoring operations had been prejudiced or interfered with. There was also power to cancel or suspend registration when the worker had failed to comply with an order or direction of the Authority under the Act or an award of the Commission.
The evidence indicates that the Authority, or at least some of its officers, gave a broader interpretation to its powers and functions than the legislation warranted [78] . However, since the plaintiff did not attempt to make out a case of actual reliance on the conduct of the Authority, it is unnecessary to discuss this evidence. Nevertheless, it is clear that the Authority actually, and not merely theoretically, played, and was expected by the Parliament to play, an essential role in ensuring the safety of waterfront operations.
The respondent's submissions characterise the policy of the legislation in the following terms:
The scheme of the Act, on analysis, reveals the truly administrative character of the Authority, clothed with certain disciplinary powers which had to be reposed in some authority or body
The Authority took no part whatever in stevedoring operations except to act as the operator of the employment bureaux. Even here, the Authority performed its functions so as to give effect to the day-to-day requirements for labour of employers. When performing loading or unloading operations the waterside workers such as the plaintiff were under the direct control and supervision of the stevedoring company who employed them. The Authority had no power to direct or control waterside workers once they were engaged for work.
The respondent contends that the Authority's power was to regulate, not control. It refers to the differences between the Act and its predecessor [79] , the Stevedoring Industry Act 1949 Cth, which set up the Australian Stevedoring Industry Board. Section 13(a) of that Act provided that one of the functions of the Board was "to regulate and control the performance of stevedoring operations" (emphasis added). By contrast, the Minister in his Second Reading Speech on the Act declared that [80] :
Secondly, the bill proposes to give the authority clear, but rather more limited, functions than the present board has. In certain directions the functions of the authority are being stated more explicitly. The main differences from the present functions of the board are that the power to control the performance of stevedoring operations, except during emergencies declared by the Minister - and I should hope that they would be rare to the point of non-existence - is to be eliminated, and the present power to regulate is being limited so that its exercise will avoid, as far as possible, impingement on the control by employers of their labour and their methods of working. 1. See Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 408, per Kitto J. 2. Australia; House of Representatives; Parliamentary Debates (Hansard); 29 May 1956, p 2555.
The respondent argues that this policy is reflected in the terms of the Act and that a survey of the functions of the Authority in s 17(1) generally reveals a facilitative rather than coercive approach - to "investigate", to "encourage" and to "administer", for example. Apart from powers and functions of regulation, only s 17(1)(d) overtly seems to impose a mandatory duty - and that is over the waterside workers. Moreover, s 17(2) imposed a general limitation to "avoid imposing limitations upon employers" save where "essential for the proper performance of that function". The power to make orders under s 18 was to be the result of a consultative process. The powers of Port Inspectors in s 23 were limited to the making of investigations and suggestions and providing opinions. The Authority's power to discipline employers was also limited, and the power to punish cumbersome, requiring legal action (ss 33-35).
It is true that the Authority's power over employers was limited. But nothing in the Act prohibited the Authority from taking steps to eliminate, so far as was reasonably practicable, the risk of harm to waterside workers. On the contrary, the obvious expectation of the Act was that the Authority would investigate the safety of waterfront conditions and encourage employers to eliminate unsafe practices. Furthermore, although the making of orders under s 18 was to be the result of a consultative process, the Authority had the power to make orders binding on one or more employers in respect of particular working conditions. The scheme and terms of the Act placed a responsibility on the Authority for the maintenance of a certain minimum standard of safety on the waterfront. The Minister's Second Reading Speech supports this view of the legislation. He said [81] :
[T]he safeguard is there, and will continue to exist at all times, that, where standards fall below what is believed to be desirable, the authority will have the power to remedy the position. 1. Australia; House of Representatives; Parliamentary Debates (Hansard); 29 May 1956, p 2555.
Section 8 and other sections required the Authority to exercise its powers "with a view to securing the expeditious, safe and efficient performance of stevedoring operations" (emphasis added). Section 17(1)(o) empowered the Authority "where necessary, to provide waterside workers with articles and equipment" for safety purposes, articles and equipment which the Authority was empowered to purchase by s 16(a)(iv) of the Act.
Nothing in the foregoing account of the Act gives the slightest indication that imposing a common law duty of care on the Authority was either forbidden or was inconsistent with the Act. But the respondent naturally places much reliance on s 17(2) which required the Authority to "avoid imposing limitations upon employers with respect to their control of waterside workers" save where "essential for the proper performance" of its functions. However, s 17(2) spoke only of "regulating the performance of stevedoring operations", which was only one of the functions (s 17(1)(a)) imposed on the Authority. Thus, it did not limit the Authority's abilities with respect to warning or instructing employers and workers about dangers likely to arise in the course of employment or from encouraging them to adopt practices which would eliminate or reduce those dangers. Nor did it limit the Authority, in more extreme cases, from supplying waterside workers directly with the appropriate "articles and equipment" or from refusing to assign waterside workers to premises it deemed hazardous.
In my opinion, an examination of the scheme and purpose of the Act reveals that the Authority possessed the necessary powers and functions to protect the specific class of waterside workers by ensuring that certain minimum standards of safety were observed, either by direct action, or via its control and influence over employers. Furthermore, nothing in the Act forbade, or was inconsistent with the imposition of, a common law duty of care on the Authority.
"Core policy-making" and "quasi-legislative" functions
Section 20 of the Act declared that any orders made by the Authority had the "force of law". This section indicates that orders made by the Authority were part of the exercise of a "quasi-legislative" function and beyond the scope of any duty of care. This, however, does not exhaust the Authority's powers, even within s 18(1) itself. The Authority still retained sufficient powers to ameliorate the risk of injury to the waterside workers and those powers do not fall within the definition of "core policy-making". The "policy/operational" distinction has certain difficulties that attend it, but the nature of the other powers and functions exercised by the Authority with respect to safety clearly fall closer to the "operational" end of the spectrum. Although they involve considerations of convenience, discretion and budgetary allocation, they are matters appropriately considered as part of the breach question.
There are no other reasons to deny a duty of care. There are no considerations such as those that led the House of Lords to deny a duty of care in X (Minors) v Bedfordshire County Council [82] - cutting across of a statutory scheme, the "delicacy" of the relationship between the parties or the fact that the officers of the Authority might adopt a "more cautious and defensive approach to their duties". Quite the opposite - in this case a recognition of a duty would likely have made the Authority more vigilant in its role. Nor do I think that the position of the Port Inspectors is analogous to the position of police officers [83] , given that the Authority was charged with responsibility for the safety of a specific class - the waterside workers under its direction.
(a) all rights and property that, immediately before the expiration of the transitional period, were vested in the Authority are, by force of this section, vested in the Committee; and
(b) the Committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Authority that existed immediately before the expiration of that period.
The use of the word "liable" can cause difficulty in construction because of the various senses in which the word is or has been from time to time employed. The word takes its particular significance, however, from the context in which it appears and the subject matter and evident policy of the legislation in which it is found. This is so, even though some judges have expressed the opinion that the "ordinary or natural meaning" of the word is limited to "actual" (rather than "potential") liability [89] . 1. Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 at 330, per Barwick CJ; see also Scala v Mammolitti (1965) 114 CLR 153 at 157, per Kitto J and Bromilow & Edwards Ltd v Inland Revenue Commissioners [1969] 1 WLR 1180 at 1189-1190; [1969] 3 All ER 536 at 543, per Megarry J. 2. (1974) 130 CLR 321 at 330. 3. Preston v Lord; Ex parte Preston [1984] 2 Qd R 269 at 272-273, per McPherson J; see also O'Keefe v Calwell (1949) 77 CLR 261 at 295-296, per Williams J.
the condition of being actually or potentially subject to an obligation, either generally, as including every kind of obligation, or, in a more special sense, to denote inchoate, future, unascertained or imperfect obligations, as opposed to debts, the essence of which is that they are ascertained and certain. Thus when a person becomes surety for another, he makes himself liable, though it is unascertained in what obligation or debt the liability may ultimately result. 1. 2nd ed (1977), vol 2, p 1091 (emphasis added).
there are at least three main senses in which lawyers speak of a liability or liabilities. The first, a legal obligation or duty: the second the consequence of a breach of such an obligation or duty: the third a situation in which a duty or obligation can arise as the result of the occurrence of some act or event. 1. (1967) 116 CLR 537 at 584.
The whole tenor of the order is designed to ensure that the reorganisation would not effect events which would otherwise have occurred further than is absolutely necessary because of that reorganisation. That the public should be able to look to the new authority precisely in respect of those matters which it could look to the old authority; that the public's position should be no better or no worse. If the draftsman has not used words which are appropriate to cover potential liabilities it can only be because he was so crassly incompetent as not to appreciate that for actions in tort it is not sufficient to have a breach of duty; you must also have damage. 1. (1983) 82 LGR (Eng) 235. 2. Walters (1983) 82 LGR (Eng) 235 at 242.
I regard the word "liabilities" as capable of having amplitude of meaning. In the context of this case I consider that it is wide enough to apply to contingent or potential liabilities. It appears to me that I have a fair choice Having that choice I have no hesitation in choosing an interpretation which makes, in my view, sense of this part of the order, rather than leaving a large gap between obligations and causes of action which have accrued. 1. Walters (1983) 82 LGR (Eng) 235 at 243.
The language of s 14 is not "intractable". Given the evident object of s 14, I see no reason for giving the words "liabilities and obligations" a narrow meaning. The case would be different if the respondent was to be liable only for causes of action "that existed immediately before the expiration of that period". But the legislature has chosen a more ambiguous term. That ambiguity should be resolved in a way that protects, rather than destroys, potential rights. It should therefore be given an interpretation which protects the rights which the plaintiff would have had against the Authority but for the legislative re-organisation of the industry.
The appeal should be allowed and the matter remitted to the Court of Appeal for further hearing.
I agree generally with the reasons for judgment of Hayne J.
I would add only the following respecting, first, the nature of the jurisdiction exercised in this case by the Supreme Court of Victoria and, secondly, the interaction between statute and the common law duty of care, the existence of which is asserted by the appellant.
It appears to have been accepted in the course of argument in this Court that, although the action was brought in tort, the jurisdiction exercised by the Supreme Court was federal jurisdiction invested by s 39(2) of the Judiciary Act 1903 Cth. Two heads of federal jurisdiction were engaged by this action.
First, the liability of the respondent to the appellant depended upon federal law for its existence. The respondent was obliged by s 14(b) of the Stevedoring Industry Acts (Termination) Act 1977 Cth to discharge the relevant liability and obligation of the Australian Stevedoring Industry Authority (the Authority). Had it not been for s 14(b), the action would not have lain against it. Thus, there was a matter arising under a law of the Commonwealth within the meaning of s 76(ii) of the Constitution [101] .
A law of the Commonwealth may exclude, wholly or partially, the operation of the common law on a subject within its legislative power [108] or it may confirm the operation of the common law on such a subject [109] or it may simply assume that the common law applies to the subject [110] , as in truth it does unless excluded. 1. Western Australia v The Commonwealth (1995) 183 CLR 373. 2. Western Australia v The Commonwealth (1995) 183 CLR 373 at 487. 3. eg, s 6 of the Diplomatic Privileges and Immunities Act 1967 Cth. 4. eg, s 5 of the Insurance (Agents and Brokers) Act 1984 Cth. 5. eg, s 5 of the Bills of Exchange Act 1909 Cth: see Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 137-139.
In other cases, the powers vested by statute in a public authority may give to it such a significant and special measure of control over the safety of the person or property of the plaintiff as to oblige it to exercise its powers to avert danger or to bring the danger to the knowledge of the plaintiff. The powers of the appellant with respect to fire prevention in Pyrenees Shire Council v Day [125] were in this category.
In the present case, the appellant's case was put first on the footing that the statutory powers of the Authority placed it in a position similar to that of an employer, in the same way as the public authority in Romeo v Conservation Commission (NT) was put by statute in a position analogous to that of an occupier of private land. Hayne J demonstrates in his reasons that the analogy which the appellant sought to draw breaks down at several points.
Alternatively, the case was put that the Authority owed stevedores such as the appellant's husband a common law duty of care to exercise various of its statutory powers, in particular the power to supply equipment. However, the existence of those powers did not place the Authority in control of the working situation of stevedores. The Authority occupied a position lacking the practical and legal measure of control enjoyed by the local government authority in Pyrenees with respect to the particular premises in question.
As Hayne J explains, the Authority could have required the use of respirators only by making an order of general application under s 18 of the Authority Act. Upon its true construction, the provision for the making of orders under s 18 provided the complete statement of the legislative provision for the regulation of the subject matter [126] . The Authority owed no common law duty of care to the stevedores in deciding whether or not to exercise that power.
The imposition of a common law duty of care on a statutory authority in respect of a matter the subject of a quasi-legislative power such as that in s 18 would imperil the devolution of responsibility from the legislature to that statutory authority. The common law would circumvent the legislative scheme by entering upon a field which, upon construction of the statute, is constituted by legislatively created norms which provide for delegated law-making. No action in negligence lies in respect of the passing of a by-law which causes economic loss to a plaintiff even if it later be declared invalid [127] . Still less does an action in negligence lie in respect of a failure to exercise a power to pass a by-law which, if passed, would have been valid.
The liability of the Authority was transmitted to the Committee
[I]t is hardly to be expected that Parliament intended that if a liability which was in the process of crystallising but had not crystallised before the relevant date, crystallised after the relevant date, the party to whom the liability would have been owed if it had crystallised before the relevant date, be left without remedy. Eames J relied on that approach. This course was criticised by the Court of Appeal. But I consider that it was correct and especially when the history of successive transmission provisions is remembered. 1. A recent example is Byrnes v The Queen (1999) 199 CLR 1 at 33-35. 2. Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523. 3. Wintle v Stevedoring Industry Finance Committee (unreported; Supreme Court of Vict; 5 April 1989) at 8. See also now Gibson v Stevedoring Industry Finance Committee (unreported; Dust Diseases Tribunal (NSW) (Judge Curtis); 2 June 1998).
Walters has a dual purpose for this appeal. It provides an illustration of an approach to the meaning of the word "liabilities" which seems apt to the use of that word in the provision under consideration. But it also illustrates an acceptance of the fact that "liabilities" may apply in the case of a claim in tort (specifically of negligence) although the damage had not occurred before the transmission provision attached and, therefore, the tort was not fully formed by that time. Once again, applied to the present statutory language, an "obligation" did not exist immediately before the specified date. But a "liability", within the meaning of the provision, did.
I accept that there are differences between the statutory language under consideration in Walters and the provisions of s 14(b) of the Termination Act. That will invariably be the case. The use of the words "that existed" in s 14(b) is insufficient to render inapplicable the approach and conclusion expressed in Walters . The liability did "exist". It was simply a liability of a particular kind, namely one contingent or potential. In different legislation the word might invite a more restrictive meaning. But in a provision for the transmission of liability from one federal agency to its successor, a narrow approach would tend to frustrate the achievement of the obvious objective of the Parliament. Especially would this be so as the provision in question is understood against the background of earlier similar legislative changes.
Fourthly, the Committee placed emphasis upon the terms of s 15 of the Termination Act relating to contracts. The Parliament expressly provided in that section that the Committee was to be regarded as substituted for the Authority as a party to a contract, so that, if the Authority had breached a contract during its existence, the Committee could be sued in respect of the liability occasioned by that breach. It was therefore submitted that s 15 would have been unnecessary if the word "liabilities" in s 14 had the meaning urged for the appellant. There are several answers to this argument. Section 14 designedly provides the general rule on transmission of entitlements and responsibilities. There could be many reasons why, for the special consequences of contracts, it was deemed appropriate to make particular provision in that regard. In any case, as Eames J observed, a provision similar to s 15 was part of the scheme of the legislation considered by Woolf J in Walters [162] . It did not deflect his Lordship from the construction of "liabilities" which he preferred. Nor does it me.
The primary judge was therefore right in the meaning which he gave to s 14(b) of the Termination Act. That meaning furthered the objectives of the provision, properly understood. The alternative meaning frustrated their achievement. No good reason could be offered by the Committee as to why the Parliament, having adopted such a transmission provision, would have done so for the purpose of depriving a person in the position of the deceased (and now the appellant) of such legal rights as could be proved against the Authority. The only explanation which could be offered was that the claim fell into an unforeseen gap in the legislation necessitated by a strict reading of a word of acknowledged ambiguity. The alternative reading is preferable. The transmission of liability point should therefore be determined in favour of the appellant.
The Authority's functions and powers: the legislative scheme
The beginning of a consideration of the duty of care point requires the examination of the legislative scheme governing the Authority's functions, powers, rights and responsibilities at the time the deceased was working at the Port of Melbourne when he was exposed to asbestos fibres. This is the approach that is required both by authority in this country [163] , in England [164] and elsewhere. If, from the terms of the legislation, it is plain that the Parliament has ruled out a co-existence of a common law duty of care with the operation of the statute [165] , or has imposed on the statutory body discretionary functions which are incompatible with the existence of an action by a person affected, liability will be excluded on a true reading of the legislation [166] .
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. (Emphasis added.)
I do not believe that it is either helpful or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence [I]t leads, in my judgment mistakenly, to the contention that claims for damages for negligence in the exercise of statutory powers should for procedural purposes be classified as public law claims and therefore should be brought in judicial review proceedings. 1. [1995] 2 AC 633 at 736.
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 ie those laid down in Caparo Industries Plc v Dickman [212] . Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care? 1. [1995] 2 AC 633 at 739. 2. [1990] 2 AC 605 at 617-618. See also Rowling v Takaro Properties Ltd [1988] AC 473; Hill v Chief Constable of West Yorkshire [1989] AC 53.
• The 1956 Act maintained the relationship of employment between waterside workers and stevedores and thus recognised the continuance of the primary duty of the individual employer to the workers concerned.
• The 1956 Act was intended to impose on the Authority functions more limited than those previously performed by the Commission and the Board [240] .
• The Authority was obliged to operate in forty-two ports throughout Australia. At those ports cargoes were received from all over the world. The Authority might not have any notice as to the contents, packaging and dangers of such cargoes nor any warning of the specific precautions that should be taken for the safety of waterside workers.
• The Authority did not generate income and profit as such. It was funded entirely from payments from Consolidated Revenue in amounts equal to moneys collected under the Stevedoring Industry Charge Act 1947 Cth [241] .
• The present case might not stand alone. Other claims might be brought, significantly straining the financial resources of the Committee and quickly exhausting the reserves transmitted from the Authority to the Committee. Because the Committee's resources depend upon the levy on current stevedores, this would involve, potentially, levying present stevedores for the defaults of others long ago to the redress of which defaults they made no contribution.
• So far as reliance was placed upon the fact that orders could be given by the Authority to employers, the power so to order was significantly circumscribed by the Act [242] . In any case, arguably, the making of such orders involved the performance of an independent statutory function for the careless exercise of which no claim in negligence could arise [243] . So far as it concerned suggested defaults on the part of inspectors, they would not be rendered liable in law for the independent performance of their statutory duties any more than police officers, who have been held generally exempt from such liability [244] .
• The particular vulnerability of persons in the position of the deceased and the lack of any real opportunity to protect themselves when allocated by the Authority to work in conditions involving an unsafe or unhealthy working situation.
• The access which the Authority secured, and the power it enjoyed, to obtain specialised expertise and knowledge about the safety of work conditions involving waterside workers whom it registered and allocated to their work duties.
• The resources potentially available to the Authority as an agency of the Commonwealth charged with safety responsibilities and "where necessary" with the function of providing waterside workers with articles of clothing and equipment for their protection.
• The specificity of the group of persons exposed to danger who constituted a defined and particular class much narrower than the community at large.
• The high public interest which existed during the deceased's service as a waterside worker in the competent discharge of the functions of a body such as the Authority and the achievement, where necessary, of national minimum standards for the safety of Australian waterside workers.
The appellant alleges that the Australian Stevedoring Industry Authority (a Commonwealth statutory authority) should have acted to prevent physical injury that was suffered by a waterside worker as a result of his exposure to asbestos fibres in the course of his employment by various stevedoring companies in the Port of Melbourne between 1961 and 1965. The worker sued the respondent, the Stevedoring Industry Finance Committee, claiming damages for negligence. The worker (to whom I shall refer as "the deceased worker") died soon after the trial of the proceeding. His legal personal representative is now the appellant in this Court.
The appellant contends that the Australian Stevedoring Industry Authority (the Authority) owed the deceased worker a duty of care, that the Authority breached that duty, that the breach of duty was a cause of the injuries from the effects of which he died soon after the trial of the proceeding, and that the respondent succeeded to responsibility for the Authority's liability to the deceased worker.
The procedural history of the matter is set out in the reasons for judgment of Kirby J. In this Court only the questions of duty of care and succession to liability have been debated. If both are resolved in the appellant's favour, the parties agree that the matter should be remitted to the Court of Appeal to consider questions of breach and damage that were raised in, but not decided by, that Court. If the respondent succeeds on either the question of duty of care or the question of succession, the appeal and the claim for damages both fail.
The question of succession is a short but difficult question of statutory construction. The question of duty of care raises fundamental issues at the intersection of public and private law.
The Authority was established by s 10 of the Stevedoring Industry Act 1956 Cth (the Act) [251] . The constitution of the Authority was changed by the Stevedoring Industry (Temporary Provisions) Act 1970 Cth and from 1 July 1970 the Authority consisted solely of a Director appointed by the Governor-General [252] .
4 (1) Subject to this Part, the Stevedoring Industry Acts cease to have effect at the commencement of this Act.
(2) Where a provision of the Stevedoring Industry Acts ceases to have effect at any time by reason of the operation of this Part, that provision shall be deemed, for the purposes of section 8 of the Acts Interpretation Act 1901, to have been repealed at that time by this Act.
(3) The provisions of this Part other than this section cease to have effect at the end of the transitional period and shall be deemed, for the purposes of section 8 of the Acts Interpretation Act 1901, to have been repealed at the end of that period by an Act other than this Act.
5 (1) The Authority is continued in existence during the transitional period for the purpose of the performance of functions by the Authority under the succeeding provisions of this Part.
(2) Such of the provisions of the Stevedoring Industry Acts as are necessary for or in relation to -
(a) the performance by the Authority of functions under the succeeding provisions of this Part; or
(b) the operation of any of the succeeding provisions of this Part,
continue to have effect during the transitional period.
(3) Without limiting by implication the generality of sub-section (2), sections 14 and 15 and Part IV of the Stevedoring Industry Act and sections 6A, 6B, 6D, 6E, 6F, 6G and 6H of the [Stevedoring Industry (Temporary Provisions) Act 1967 Cth] continue to have effect during the transitional period for the purpose mentioned in that sub-section.
The "Authority" referred to in the Termination Act was defined by s 3 as "the Australian Stevedoring Industry Authority established by the Stevedoring Industry Act and constituted in accordance with section 6A of the [Stevedoring Industry (Temporary Provisions) Act 1967]". The "transitional period" mentioned in ss 4(3) and 5(1) of the Termination Act was defined as "the period commencing immediately after the commencement of this 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". The Minister fixed 26 February 1978 as the terminating day.
(a) all rights and property that, immediately before the expiration of the transitional period, were vested in the Authority are, by force of this section, vested in the Committee; and
(b) the Committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Authority that existed immediately before the expiration of that period. (Emphasis added.)
The respondent is the "Committee" referred to in s 14.
Any contract or other instrument subsisting immediately before the expiration of the transitional period to which the Authority was a party has effect after the expiration of that period as if -
(a) the Committee were substituted for the Authority as a party to the contract or other instrument; and
(b) any reference in the contract or other instrument to the Authority were (except in relation to matters that occurred before the expiration of that period) a reference to the Committee.
Section 16 obliged the Authority to prepare and furnish to the Minister its financial statements and a report on its operations for the period between its last report and the end of the transitional period.
It is in this context that s 14 must be construed. When the "transitional period" mentioned in the Termination Act ended on 26 February 1978, the Authority ceased to exist. The deceased worker alleged that he did not suffer any damage as a result of his exposure to asbestos dust until many years later, and the proceeding was conducted at all stages on the basis that any cause of action that the deceased worker had was not complete until 1997. Did s 14 of the Termination Act make the respondent liable to satisfy the deceased worker's claim?
The chief obstacle in the path of the appellant's contention that the respondent assumed liability to the deceased worker is the temporal expression in s 14 - "that existed immediately before the expiration of [the transitional] period". Were there no temporal reference in the section it may be easier to say that the "liabilities and obligations of the Authority" that the respondent was required to discharge included all forms of liability and obligation, whenever incurred. In turn, however, that invites attention to what is meant by "liability" or "obligation" of the Authority. In particular, do those words apply where the Authority has broken a duty of care but no damage has been suffered by anyone as a result of that breach?
"Liability" and "obligation" are not always easy words to construe. In Ogden Industries Pty Ltd v Lucas [253] , Windeyer J said:
without descending to too much refinement there are at least three main senses in which lawyers speak of a liability or liabilities. The first, a legal obligation or duty: the second the consequence of a breach of such an obligation or duty: the third a situation in which a duty or obligation can arise as the result of the occurrence of some act or event. Neither of the first two senses identified by Windeyer J can be applied to the circumstances where a person (in this case, the Authority) has allegedly broken a duty of care but no-one has yet suffered any damage. At that time there is no legal obligation owed to any third party and there is no consequence to the breach of the duty of care. 1. (1967) 116 CLR 537 at 584.
For present purposes, it is the third sense that is relevant. Does s 14(b) use "liabilities" and "obligations" to refer to situations in which a duty or obligation can arise as the result of the occurrence of some past or future act or event? That is, may it be said that "liabilities" and "obligations" extend to partly formed liabilities and obligations - those that will be fully formed on the occurrence of some future event? Or, to adopt language from another statutory context, are they words that include "all liabilities, duties and obligations, whether actual, contingent or prospective" [254] , the burden of which was to be transferred to the Committee [255] ?
The use of the words of temporal limitation in s 14(b) was said to require that the liabilities or obligations in question must "exist", in the sense of being fully formed, at the critical date. But to adopt that construction is to say that liabilities "exist" only when fully formed whereas it is clear that the term can be used to refer to obligations that have not yet been fully formed.
Further, the appellant pointed to the results that follow from giving the temporal words in s 14(b) the effect of limiting liabilities to those that are fully formed by the relevant date. That construction was characterised as unjust or unintended because adopting it means that no provision is made for liabilities and obligations that were not fully formed at the critical date. The provisions of s 14 do not provide for a winding up of the affairs of the Authority - with the books of the Authority ruled off, liabilities identified and met, and any surplus transferred to the Committee. The purpose of s 14, so the argument goes, was not to provide for a winding up but to provide a seamless transition from the Authority to the Committee in which all rights and property of the Authority were vested in the Committee and all liabilities and obligations of the Authority were transferred to the Committee.
This view of the effect of s 14 (as providing for a seamless transition) is supported by s 15 and its provision for substitution of the Committee for the Authority as a party to "[a]ny contract or other instrument subsisting immediately before the expiration of the transitional period". To give effect to that understanding of the purpose of s 14, it is necessary to read the temporal reference in s 14(b) as there only to give emphasis to the fact that the expiration of the transitional period was to mark the point of assumption and transfer rather than to read it as limiting the kinds of liabilities and obligations that were transferred.
Must the construction urged by the appellant be adopted if unjust and unintended results are to be avoided? At first sight that question may seem to depend on whether the Authority is liable in negligence to persons like the appellant. There will be a "gap" in the transmission effected by s 14(b) only if there are liabilities or obligations that were not fully formed at the expiration of the transitional period but which later became fully formed. Claims for negligence for personal injury might be seen as the kind of case most likely to be of that kind. In this regard it is important to recall that the Authority was itself an employer (the Act, s 15). It was, therefore, by no means unlikely that a person who had been employed in the service of the Authority constituted by s 15, or who had been employed as a temporary or casual employee under s 15(7), might have had some potential claim in negligence against the Authority in which the alleged breach of duty had occurred but damage had not been suffered by the time spoken of in s 14 of the Termination Act. On the construction urged by the respondent that employee of the Authority would have had no claim against the Committee. That being so, I prefer to construe s 14 in the way for which the appellant contends. It is necessary, therefore, to consider the question whether the Authority owed the appellant a duty of care.
The amended statement of claim in the proceeding alleged that 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 deceased worker] in Stevedoring operations at the Port of Melbourne". It was alleged that the deceased worker, in unloading and handling bagged asbestos fibre, was exposed to asbestos dust and fibres "as a consequence" of the negligence of the Authority, its servants or agents. Numerous particulars of negligence were given. They included: failing to warn, failing to instruct as to dangers, failing to prohibit workers from unloading asbestos unless they were adequately protected, and failing to provide suitable and safe respiratory protective equipment.
The duty alleged was a duty to take reasonable care "in the exercise of [the Authority's] statutory functions, duties and powers". The statement of claim made particular reference to the Authority's functions, duties and powers with respect to (a) the regulation and control of the performance of stevedoring operations; (b) the development of port facilities used in connection with stevedoring operations (including the introduction, modification, replacement and operation of machinery, plant and equipment); (c) the provision of sufficient waterside workers for stevedoring operations; and (d) ensuring that the labour of waterside workers was used to the best advantage. In addition, the statement of claim referred to the disciplinary powers of the Authority in respect of registered waterside workers and their employers.
On the hearing of the appeal in this Court, the appellant gave a different description of the Authority's duty of care. It was said that the Authority owed "a general duty of care to take reasonable steps to ensure that there were safe working conditions for waterside workers" and, in particular, "a mandatory duty to provide waterside workers with articles and equipment "designed for the protection of workers" in carrying out their work". The specific duty was said to be imposed by s 17(1)(o) of the Act which provided that:
(o) to encourage safe working in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers engaged in stevedoring operations and, where necessary, to provide waterside workers with articles and equipment designed for that purpose.
It is convenient, however, to deal first with the general statement of duty for which the appellant contended on the hearing of the appeal. (I do not stay to consider the differences between the way in which the duty was expressed in argument in this Court and the way it was put in the pleadings. Nothing was said to turn on these differences.)
The appellant pointed to a number of matters which were said to support the conclusion that the Authority owed waterside workers the general duty of care that has been described. The most important of these was said to be the relationship between the Authority and waterside workers - a relationship which gave the Authority powers of a kind ordinarily exercisable only by employers. Four particular powers were mentioned: (a) the power to discipline; (b) the power to require medical examinations; (c) the power to direct workers to turn up for work; and (d) if work was available, the power to direct waterside workers where and when to work. Describing the Authority's powers in this summary way is not complete and, to that extent, may be inaccurate. It is as well, therefore, to refer to the relevant provisions of the Act.
The Act defined the functions of the Authority in seventeen paragraphs (s 17(1)). Paragraph (o) of those functions has already been mentioned. Other functions that should be noticed include:
(i) attendance money payable under an award of the Commission;
(d) to ensure that sufficient waterside workers are available for stevedoring operations at each port and that their labour is used to the best advantage;
(e) to establish and administer employment bureaux for waterside workers;
(f) to make arrangements for allotting waterside workers to stevedoring operations so as to ensure, as far as practicable, a fair distribution of work in stevedoring operations amongst registered waterside workers, including arrangements under which waterside workers who have been allotted to stevedoring operations may be transferred to other stevedoring operations, whether or not the transfer involves a change of employers;
(g) to determine the method of, and other matters relating to, the engagement of waterside workers for stevedoring operations
(h) to make arrangements for facilitating the engagement of waterside workers for stevedoring operations
(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;
These functions must be read against the background of other provisions of the Act. Particular reference should be made to s 8 of the Act which directed the Authority to perform its functions and exercise its powers "with a view to securing the expeditious, safe and efficient performance of stevedoring operations" and to s 17(2) which provided that:
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.
Regard must also be had to the fact that the Act cast obligations on registered employers. In particular, s 33(1) required a registered employer to ensure that "as far as is practicable stevedoring operations for which he has engaged waterside workers are expeditiously, safely and efficiently performed".
The Authority did have some disciplinary powers. In particular, it had power to cancel or suspend the registration of waterside workers if satisfied of any of a number of grounds. Those grounds included: "misconduct in or about an employment bureau, or a wharf or ship" (s 36(1)(a)), a worker being incapable of properly carrying out the duties of a waterside worker by reason of his physical or mental condition or his incompetence or inefficiency (s 36(1)(b)), and a worker acting in a manner "whereby the expeditious, safe or efficient performance of stevedoring operations has been prejudiced or interfered with" (s 36(1)(c)). The Authority's power to cancel a worker's registration on these grounds can be seen as analogous to an employer's power to dismiss an employee; the power to suspend does not find an analogy so readily. Nevertheless, it may be accepted that the Authority had power to discipline waterside workers.
The Authority's powers over registered employers were more limited than the disciplinary powers it had over workers. It could apply to the Commonwealth Conciliation and Arbitration Commission for an order directing the Authority to cancel or suspend the registration of an employer as a registered employer of waterside workers (s 35). One ground for making such an order was that the employer did not have the means of carrying out stevedoring operations in an expeditious, safe and efficient manner, or of discharging the duties and obligations of an employer under the Act (s 35(1)(a)). But what is notably absent was any power on the part of the Authority to deal directly with an allegation that an employer that had the means of carrying out stevedoring operations safely did not use those means to do so. A registered employer who did not ensure that, as far as was practicable, stevedoring operations for which waterside workers were engaged were performed expeditiously, safely and efficiently could be prosecuted for an offence (s 33(1)(c), (2)), and conviction for an offence under the Act was a ground for the Commission to order cancellation or suspension of registration (s 35(1)(c)). But the Authority could not itself cancel or suspend the employer's registration; that was a decision for the Commission.
For the purpose of the performance of its functions the Authority had power to make orders (s 18(1)). Those orders might be expressed to apply to persons included in a class of persons, to a class or kind of stevedoring operations or at a particular place (s 18(5)), but s 18(5) provided that an order made by the Authority "shall not be expressed to apply to a particular person or to a particular stevedoring operation". The Act required the Authority to consult representatives of registered employers and unions that were likely to be affected by a proposed order (s 18(2)) and provided that consultation could take the form of a hearing (s 18(3), (4)). Section 20(1) of the Act gave legislative force to such orders. It provided that they should not be deemed to be Statutory Rules but should "have the force of law". A person who contravened or failed to comply with a provision of an order made by the Authority committed an offence (s 20(2)). If an order was made after a hearing, it was deemed to be an award of the Commonwealth Conciliation and Arbitration Commission (s 20(3)).
The Authority had power to direct waterside workers about when and where they were to work. The Authority had two relevant functions - to establish and administer employment bureaux for waterside workers (s 17(1)(e)), and "to make arrangements for allotting waterside workers to stevedoring operations" (s 17(1)(f) (emphasis added)). Had the Authority's functions stopped at the establishment and administration of employment bureaux, it may be that its role would have stopped at the provision of information to employers and employees upon which each was free (but not bound) to act. But its functions went beyond telling workers and employers what work was available and who was available to perform it: it had to make arrangements for allotting workers to stevedoring operations. In fact the Authority itself undertook this task of allotting workers and it is right then to say (as the appellant submitted) that, if work was available, the Authority had power to direct waterside workers where and when to work. Whether or not the Authority knew what cargoes were being unloaded, it was the Authority's act of allotting workers to particular stevedoring operations which determined which workers unloaded cargoes of asbestos.
These being the relevant powers and functions of the Authority, did it owe the deceased worker a duty of care in their performance and exercise?
The fact that the Authority is a statutory body given statutory discretions does not prevent the application of ordinary principles of the law of negligence [256] . But the courts have often found the task of identifying the duty of care that is owed by a statutory body to be difficult. To whom is the duty owed? What is the content of the duty?
There are several reasons why the task is difficult. As Gummow J pointed out in Pyrenees Shire Council v Day [257] , a person claiming against a public body with statutory powers seeks "to translate the public law "may" into the common law "ought" ". Should the courts (and can the courts) distinguish between policy and operational decisions of statutory bodies? Is the distinction between non-feasance and misfeasance relevant? Does it matter that the constituting statute gives a body some statutory duties and then, in different language, gives it some statutory powers? Is the body to be liable in negligence when it does not use the powers it was given but was under no statutory duty to use them (or perhaps even to consider their use)? All these, and more, are questions that may arise.
None of these questions is answered by the adoption of the three-stage test said [258] to have been expressed by Lord Bridge of Harwich in Caparo Industries Plc v Dickman [259] and requiring reference to (a) foreseeability, (b) proximity or neighbourhood and (c) whether it is "fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other" [260] . As Lord Bridge himself went on to say in Caparo [261] :
the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. And it is because these considerations of proximity and fairness are not susceptible of precise definition that, as Brennan J said in Sutherland Shire Council v Heyman [262] : the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed". 1. Pyrenees (1998) 192 CLR 330 at 419, per Kirby J; Perre v Apand Pty Ltd (1999) 198 CLR 180 at 275. 2. [1990] 2 AC 605 at 617-618. 3. Caparo Industries Plc v Dickman [1990] 2 AC 605 at 618, per Lord Bridge. 4. [1990] 2 AC 605 at 618. 5. (1985) 157 CLR 424 at 481. See also Caparo [1990] 2 AC 605 at 618, per Lord Bridge; X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 751, per Lord Browne-Wilkinson; Barrett v Enfield London Borough Council [1999] 3 WLR 79 at 90; [1999] 3 All ER 193 at 204, per Lord Slynn of Hadley.
As I have pointed out, the appellant alleged that the Authority owed the deceased worker a duty to take reasonable care in the exercise of its statutory functions, duties and powers. But the central complaint of the appellant appeared to be that the Authority could and should have taken steps which, if taken, would have prevented the deceased worker suffering the injuries he did.
It is convenient to consider at this point the analogy which it was sought to draw between the relationship of the Authority to the deceased worker and the relationship of an employer to an employee.
Was the Authority in a position similar to an employer?
Emphasis was given to the fact that the Authority was obliged to, and did, allot the deceased worker to the stevedoring operations which, it is alleged, caused him the injuries which he suffered and from which he died. To that extent it may be said that the Authority stood in the same position as an employer directing an employee to perform those stevedoring operations. But the analogy between the Authority's having and exercising power to allot waterside workers to particular stevedoring operations, and an employer doing so, must be treated with care. It does not lead inexorably to the conclusion that, on each occasion the Authority exercised its power to allot the deceased worker to stevedoring operations, it was under a general duty to exercise reasonable care to avoid exposing him to unnecessary risk of injury.
The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty "of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury" [263] .
Both the power to direct and the power to control are important. As was said by Mason J in Kondis v State Transport Authority [264] :
The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. 1. (1984) 154 CLR 672 at 687-688.
Unlike an employer, the Authority's power to influence (let alone control) the system of work used by a waterside worker or the state of the workplace to which it sent a waterside worker was limited. The Authority was not in the same position as the stevedore (which was the employer of waterside workers) to control the way in which work was done or the places and conditions in which it was to be done.
First, as I have noted earlier, the Authority was enjoined by its statute not to impose limitations on employers with respect to their control of waterside workers engaged by them and their manner of performance of stevedoring operations "except to such extent as, in the opinion of the Authority, is essential for the proper performance" of its function of regulating the performance of stevedoring operations (s 17(2)).
Secondly, the Authority's function of "regulating" the performance of stevedoring operations could be carried out by making orders under s 18. But that was a quasi-legislative power and could be exercised by making general orders about how a class or kind of stevedoring operation should be performed. The Authority was forbidden to make an order expressed to apply to a particular stevedoring operation or a particular person (s 18(5)).
Thirdly, it had functions of investigating means of improving and encouraging safe working (s 17(1)(l), (m), (o)) and a function of training or arranging for the training of persons in stevedoring operations (s 17(1)(k)), but the whole tenor of the Act was that primary responsibility for safety in each particular workplace rested with employers, not the Authority. The Authority's functions were directed to the industry as a whole, not to the individual workplace.
Fourthly, it is necessary to consider s 17(1)(o) upon which the appellant placed considerable emphasis. The first part of par (o) described the Authority's function as being "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". (Emphasis added.) The paragraph went on to confer on the Authority the function of providing workers with articles and equipment designed for that purpose, but that function was limited by its introductory words "where necessary". There was some debate in argument about whether the words "where necessary" were to be read as a wholly objective test of necessity, or were to be read as requiring the formation of some opinion by the Authority that it was necessary to provide equipment. I need not resolve this debate. The appellant did not press a claim of breach of statutory duty.
Whatever is meant by "necessary" in the context of s 17(1)(o), deciding whether it was necessary for the Authority to provide respirators would require consideration of what funds the Authority had available and whether those funds could have and should have been expended in this way. That is, it would require consideration of whether some other, better use of the Authority's funds could (or should) have been made and would, therefore, require consideration of how the budgetary priorities of the Authority should have been ordered.
Further, it is always necessary to recall that the power given to the Authority was a power to provide equipment. One complaint of the appellant was that respirators should not only have been available for use but that a worker (including the deceased worker) should have been required by the Authority to wear them when unloading cargoes of asbestos. On this branch of the argument, a failure by the Authority to provide respirators would be significant to the appellant's claim against the Committee only if it were shown that the Authority could and should have required their use. That would direct attention to the Authority's relevant power to require wearing of respirators: the quasi-legislative power to make orders under s 18.
The analogy which the appellant sought to draw between the Authority and an employer is not exact. It breaks down at several points. The Authority did not have day to day control of the system of work used for unloading individual ships. It did not have day to day control of the safety of the individual workplaces where stevedoring operations were conducted. It did have power to prescribe rules having the force of law that would generally govern such matters. It could provide safety equipment but, short of making a general order, it could not enforce the use of that equipment by workers or employers. Deciding whether to provide safety equipment would be affected by what other obligations the Authority had to meet to fulfil its statutory obligations and, in the case of safety equipment, it would be affected by considering (amongst other things) whether it would be better if employers could and would provide it.
No doubt the differences that I have identified suggest that it may be unsafe to rely on the analogy with an employer that the appellant sought to draw. But the differences are more significant than that. They reveal why no common law duty of care of the kind alleged by the appellant should be held to have been owed to the deceased worker.
The appellant based her case on breach of a common law duty of care, not on breach of any statutory duty owed to the deceased worker, whether under s 17(1)(o) or otherwise. For the purposes of the claim in negligence then, the significance of s 17(1)(o) is that the Authority had power to provide safety equipment for use by waterside workers. And the significance of s 18 is that the Authority had power to make orders regulating the performance of stevedoring operations. Did the Authority owe waterside workers (and the deceased worker in particular) a common law duty of care to exercise those powers? The appellant placed greatest weight on the power to supply equipment but it is convenient to deal first with the power given by s 18 to make general orders.
As I have said, the Authority could have required the use of respirators only by making a general order under s 18. The Authority owed no common law duty of care to the deceased worker in deciding whether or not to exercise that quasi-legislative power. There are several reasons why that is so.
First, to hold that the Authority owed waterside workers a duty of care that would be broken if the Authority did not make general orders providing for a safe system of work and safe place of work for those members, would be contrary to the express statutory limitation on the Authority's exercise of its function to regulate the performance of stevedoring operations. Section 17(2) provided that the power of the Authority to regulate the performance of stevedoring operations should be exercised only where it was "essential for the proper performance" of that function. To impose the alleged duty of care on the Authority would transform the nature of the relationship between the Authority and individual stevedores that was prescribed by the Act: from one in which the Authority would limit the control of stevedores over waterside workers (or their manner of performance of stevedoring operations) only where to do so was essential, to one in which the Authority would interfere in the day to day operations of the waterfront.
Of course if the Authority were under a duty to take reasonable care, observing that duty could be said to be "essential" to the proper performance of its functions. But the point I seek to make is not one that depends upon some difficulty of reconciling the imposition of a common law duty of care with individual words in s 17(2). It is that s 17(2) was intended to achieve a particular balance between the role of the Authority and the role of employers and that balance would be transformed if it were to be held that the Authority was liable in negligence if workers suffered injury as a result of the Authority failing to exercise the powers given to it by s 18.
Secondly, as has been identified in a number of authorities [265] , there are other, more deep-seated reasons for rejecting the imposition of a duty of care that would require the performance of quasi-legislative functions by a body such as the Authority.
I have referred to a "distortion" of what should be the public focus of the performance of a quasi-legislative function. I turn to explain what I mean and do so by reference to the position if, contrary to the position in this case, the Authority had made an order under s 18.
An order, when made, had the force of law. An order could not lawfully be directed to a particular person or to a particular stevedoring operation; it had to have more general application. No doubt the class of persons affected by an order could be identified and in many (perhaps all) cases the class of persons for whose benefit the order was made could also be determined. It might be said that if those affected by the order and those for whose benefit the order is made can be identified, imposing a duty on a public authority to take reasonable care not to injure those persons would not distort the proper performance of that quasi-legislative function. I do not accept that this is so. Important as the interests of those two classes may be in deciding what order should be made, there will often be other important considerations that affect that question. To give only one example, the Authority may well have had to consider maintaining industrial peace as part of its obligation of securing expeditious, safe and efficient performance of stevedoring operations (s 8). Thus, questions of industrial relations may well have loomed very large in the waterside industry of the 1960s. How would those questions find reflection in the decision to make an order if regard is had only to the interests of those for whose benefit the order is made and those who are affected by it?
To impose a common law duty of care on the Authority would have affected the way in which the body went about its task. It would have shifted the Authority's attention from what the general good of the industry required (which, of course, included workplace safety but was not limited to that) to what should be done to avoid the Authority being held responsible for particular breaches of workplace safety by those having primary responsibility for the task - the employers of waterside labour. Whatever may have been the social benefits of having the Authority fulfil that kind of role (and they may now be thought to have been large) it is essential not to lose sight of the fact that this is not the role that the Parliament gave it. That being so, the courts should not, indeed cannot, do so.
The present case is even clearer. The appellant's complaint is that the Authority made no order. It did not exercise its quasi-legislative power. If the appellant is to succeed then, it is necessary to show that the Authority, exercising reasonable care, was duty bound to exercise its power to make a general order and to exercise that power in a particular way. What I have called the distortion of focus is greater if a common law duty to exercise the power (as opposed to a common law duty affecting how the power is exercised) is found to exist. It is greater because the imposition on the Authority of a duty owed to individuals means that the Authority would have been bound to consider the position of those individuals and to do so regardless of what other subjects may have properly required its time and attention in performing the functions given to it by the Act. The Authority's focus would shift from the good of the industry to protection of the Authority from suit. (The distortion of focus would be no less if the duty were cast in terms of a duty to consider making an order, but the appellant did not contend for such a duty.)
The Authority did not owe the deceased worker a duty to make an order under s 18.
As I have said earlier, much of the weight of the appellant's case was placed on the power to supply equipment. And in this respect the duty alleged stopped short of obliging the Authority to take regulatory or coercive measures. Thus, the argument that the Authority was obliged to provide safety equipment must be dealt with separately from any contention that the Authority should have prohibited workers unloading asbestos without protection. It is, however, convenient to deal with the alleged duty to warn of danger or encourage safe working practices at the same time as I deal with the alleged duty to supply equipment.
These arguments of the appellant are all founded in allegations that the Authority failed to exercise its powers, not that it exercised them carelessly. I do not, however, consider that the classification of the alleged breaches as non-feasances rather than misfeasances concludes whether the Authority owed the deceased worker a duty of care to exercise the powers in question. The distinction between non-feasance and misfeasance is often elusive and even if that were not so, adopting that distinction as an exclusive test for deciding whether a duty was owed may well be inconsistent with Pyrenees. The majority of the Court held in that case that the Council owed a duty to exercise its statutory powers and was liable for failing to do so.
In this case the question of duty to take the steps I have identified (warning of danger, or encouraging safe working practices, or supplying respirators) should be resolved against the appellant for other reasons.
The particular warning or encouragement which it is said that the Authority should have given, and the particular equipment which it is said it should have supplied, relate to the dangers if workers inhaled asbestos fibres. But waterside work at the time with which this case is concerned was dangerous work for many reasons. Workers were injured when slings were not properly used; they were injured when they fell into ill-lit and uncovered holds; they were injured when they lifted heavy weights without proper assistance. The effects of inhaling asbestos fibres often became apparent only well after the event and it was, for that reason, a risk that was not immediately evident to the worker in the same way as the risk of slipping and falling into a hold. Nevertheless, if the Authority owed a duty of care to warn workers against the risk of inhaling asbestos fibres, there seems no reason to think that it would not also have owed a duty to warn workers of the many other kinds of risk they ran on the waterfront and to encourage safe working practices in these respects as well. And if the Authority owed a common law duty to provide respirators for use by workers (or to provide them if employers did not) the Authority presumably owed a like duty to provide all other necessary safety equipment.
Standing alone, the fact that a duty to warn or encourage or a duty to provide equipment would be as wide as I have described, is no reason to say it did not exist. After all, employers owe their employees a duty of care that encompasses all of these factors and more. But what the breadth of the asserted duties does is draw attention to the very considerable duplication of duties - the Authority would be under duties that were very like duties owed by the employer to its employees. Again it must be said at once, however, that the bare fact of duplication does not suggest, let alone require, the conclusion that the duties cannot co-exist. Rather the duplication of duties invites attention to whether the two persons said to owe the same kind of duty (the Authority and the employer) are in such a similar position that like duties should be imposed upon them.
It is necessary to recall that the hypothesis for this branch of the argument is that the Authority owed no duty to require employers to provide, or employees to use, a safe system of work. If the Authority owed no duty to take coercive measures, any warning or encouragement it gave, any equipment it supplied, would be done in a context where the employer, not the Authority, had control over the effect that was given to the warning or encouragement and control over whether the equipment was worn.
The absence of control is very significant in deciding whether to hold that the Authority owed a duty of care to warn, encourage or to supply equipment. No doubt the absence of control would also be important in deciding whether any breach of the asserted duty was a cause of the injury of which complaint was made. But its significance is not limited to questions of causal link between breach and damage, it is more radical than that.
An employer owes an employee the duty of care it does because the employer not only puts the employee in harm's way but also controls, and is responsible for, the place and system of work to which the employee is exposed. It is that control over the safety of the place and system of work that leads to the conclusion that the employer owes a duty of care to employees about those matters. It is the absence of that control which distinguishes the position of the Authority from that of an employer. If the duty asserted in this case were performed (whether the duty is to supply equipment or warn or encourage) it would be for others, not the party subject to the duty, to determine whether the steps taken by that party were given any effect or were given no, or only limited, effect.
The persons responsible for creating the risks to which the deceased worker was exposed, and for avoiding those risks, were the employers of waterside labour. To adopt the expression used by Professor Stapleton, the Authority was a "peripheral" party [268] ; its conduct was causally insignificant in the deceased worker's sustaining injury. At its highest, the complaint now made against the Authority is that it did not control others - the employers. And for the reasons I have given earlier, I reject the contention that the Authority was duty bound to exercise its order-making power to require modification of the system of work which was used by stevedores. The other complaints made (failure to warn, failure to encourage, failure to supply but not require) are even less causally significant.
There are, then, several considerations that affect the decision whether to find that the Authority owed a duty to take these last three kinds of step (warn, encourage or supply).
No doubt the Authority would provide a deep pocket defendant to whom an injured worker could look for compensation for the loss sustained. But the financial resources of a party are irrelevant to deciding whether that party owed a duty of care. This consideration should be put to one side.
Because employment in the industry changed from day to day, holding the Authority liable would give the injured worker a single person to whom to look for satisfaction of the loss sustained because the various places and systems of work under which the worker laboured were unsafe. But it is necessary then to consider the consequences of imposing a duty on the Authority when the duty that is to be imposed is a duty to act, but is not a duty to control the multitude of individual workplaces to which a worker was exposed.
Imposing a duty on the Authority would not have deterred those who had primary responsibility for those workplaces from persisting in what are now alleged to be unsafe work practices. Indeed, had the injured worker been able to look to the Authority, rather than the employer, the transient nature of employment would have made it much more likely that claims were directed to the Authority, not the employers. Especially would that have been the case where the worker complained of injury as a result of prolonged or repeated exposure to harmful substances or unsafe systems of work. Far from encouraging safer work practices, imposing a duty on the Authority may well have produced the opposite result because employers may have thought themselves relieved of principal responsibility for the safety of their workers.
And what could the Authority have done to warn or to encourage? Is it to be supposed that it was required to post notices at all ports warning of all the many kinds of danger to which waterside workers were exposed? And if it did that, would this have persuaded the employer not to cut corners, or to review its methods of work, or to acquire safety equipment? And if the Authority were duty bound to supply equipment which employers did not, why should the courts rather than the Authority decide that the cost of providing a safe system of work for employees fall on the public purse rather than the employer? Even more significantly, why should the burden of compensation for those injured because of the default of employers be shifted from those primarily responsible to a public body?
The Authority did not owe the deceased worker a common law duty to warn against dangers or encourage safe working practices, and it owed no common law duty to supply safety equipment.
The right of a person between 1961 and 1965 to work as a waterside worker depended upon his registration by the Australian Stevedoring Industry Authority (ASIA). Mr Neil was the local representative of ASIA in Melbourne from 1956 until 1964-65. His assistant local representative was Mr O'Neill. As a condition of registration, and therefore of an entitlement to work on the waterfront, intending waterside workers were obliged to undergo and pass a medical examination at the Melbourne Bureau of ASIA. In the 1960s there were approximately 5,000 waterside workers registered with ASIA to work at the Port of Melbourne.
Stevedoring companies could only operate on the wharves on registration with ASIA. In the relevant period twelve to fifteen stevedoring companies were registered at the Port of Melbourne.
There was no permanent employment with one employer on the waterfront in the years 1960-65. Evidence was given at the trial that ASIA controlled the "pick up" of waterside workers and allocated them to the ships and wharves upon which they were to work. It exercised a large measure of control over the labour that worked on the wharf. Waterside workers had no choice about where they worked. They worked where ASIA told them to work. When sent by ASIA to work at a particular wharf a waterside worker would there be employed by a stevedoring company. A refusal to attend work as directed by ASIA could lead to disciplinary action by its local representative, Mr Neil. ASIA penalised waterside workers for matters such as not attending work, swearing at a foreman, and drunkenness. The authority of ASIA to discipline waterside workers arguably extended to their behaviour beyond the workplace for work related misconduct.
The trial judge in his summing up to the jury summarised the statutory functions of the respondent in this way.
By section 17 the functions of the Authority were set out. Among those functions it was to regulate the performance of stevedoring operations; to ensure at each port sufficient waterside workers were available for stevedoring operations; to ensure that the labour of waterside workers is used to the best advantage; to establish and administer employment bureau for waterside workers; to provide first-aid equipment, medical attendance, ambulance facilities, rest rooms, sanitary and washing facilities, canteens, cafeterias, dining rooms and other amenities for waterside workers; to train and arrange for the training of persons in stevedoring operations.
It was also provided that the Authority shall perform its functions under the Act with a view to ensuring the speedy, safe and efficient performance of stevedoring operations. It was further provided that for the purpose of the exercise of its powers and the performance of its functions under the Act, the Authority may make such orders and give such directions and do all such things as it thinks fit.
Its functions also included to regulate the conduct of waterside workers in and about employment bureau, wharves and ships; 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; 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 workers with articles and equipment designed for that purpose.
There was evidence that the respondent had actually involved its staff in affairs relating to safety. ASIA corresponded with international shipping companies on such safety matters as the stowing of hazardous material safely on ships and threats to withhold dock workers from vessels whose gear did not comply with Australian Standards.
ASIA also sometimes involved itself in matters more directly affecting the safety of waterside workers. For example it took steps to provide protective equipment, sought views from local health authorities, and required that precautions be taken in some instances.
Furthermore, in a section of the Annual Report of ASIA 1961 concerning the safety of ships' gear and the exposure of waterside workers to chemicals reference was made to "the precautionary measures that should be taken to safeguard the health of the men", including the supply of respirators. The Annual Report of ASIA 1962, noted that waterside workers were issued with industrial clothing, masks and goggles for the handling of hazardous cargoes. And again, the Annual Report of ASIA 1963 recorded that all matters concerning occupational health were to be channelled through the ASIA local representative, and that waterside workers were to be provided with overalls, rubber gloves when handling dangerous cargoes, and, with respect to some cargoes (radioactive) ASIA was to be notified in advance of the arrival of the ship carrying such a cargo and an officer of ASIA was to be present before handling commenced. Mr Neil gave evidence that if he had known of the conditions of exposure to asbestos (described by Mr Crimmins and Mr Fowler, a retired waterside worker) he would have checked to ensure that the waterside workers were not required to work in such conditions without necessary protection.
ASIA conducted safety courses, and in 1960 distributed literature concerning the dangers of inhalation of dust, diseases caused by exposure to dust, and compensation schemes for workers affected by the inhalation of dust, including asbestos dust.
There was therefore, a considerable body of evidence upon which the jury would be entitled to find that the plaintiff was exposed to asbestos dust in harmful quantities, and in primitive and unhealthy conditions when the potential for harm by such dust was generally well known and was well within the means of knowledge of the respondent, as it was of the stevedoring companies.
Mr Crimmins' exposure to asbestos fibres occurred while he was employed by unidentified stevedoring companies. The fibres came from asbestos cargoes packed in loosely woven hessian bags measuring three feet by two feet and weighing 100 pounds. These bags had to be unloaded from the holds and lockers of ships.
A locker was a confined compartment to which access was gained through a small door leading from the hold. The asbestos percolated from the bags which two workers had to manhandle into slings used for lifting a load out of the hold. The asbestos would float around in the atmosphere. In the holds "a mass of fibre was coming down on [them]". The dust was worse in the lockers where the temperature was higher than in the hold. The younger men, including Mr Crimmins, had to work in the lockers. Sometimes bags were broken; there was spillage of dust into the workplace; "it would spew out". At times the asbestos dust was so pervasive, according to Mr Crimmins, that he needed to blow his nose frequently in an attempt to expel it from his nostrils. Dust accumulated on clothes, in hair and on arms.
Sometimes Mr Crimmins stacked bags in the sheds after unloading them from the ship. The dust in the sheds was worse than on the ship. Mr Crimmins worked approximately twenty days a year in asbestos cargoes. It would normally take three or four days to unload such a cargo from a ship.
Mr Crimmins was classified as a "floater", which meant that he normally worked inside the ship rather than on the wharf or on deck. He received no warning about the dangers involved in working with asbestos. He was never offered a mask or anything else to prevent the inhalation of asbestos fibres.
Waterside workers would complain about working in the dusty conditions unloading asbestos. The consequence of such complaints might be the payment of extra remuneration - "dust money" occasionally allowed by Port Inspectors who were employed by the ASIA.
At the trial his Honour directed the jury in these terms:
In this case, I direct you that the defendant did owe the plaintiff a duty of care; that is not disputed.
The contrary was in fact the case but his Honour's directions in that form are made explicable by reference to the discussion between counsel for the parties and his Honour which took place before he summed up and during which both parties invited the trial judge to follow the course that he did. The position was that the existence or otherwise of a duty of care was very much in issue and was regarded as an issue for determination by the trial judge. There was urgency about the case because of Mr Crimmins' rapidly deteriorating condition.
The jury were asked two questions to which they gave these answers:
was there any negligence on the part of the defendant which was a cause of injury, loss and damage to the plaintiff?
In what total sum do you assess the plaintiff's damages?
His Honour then went on to consider the question that he had reserved at the request of the parties, whether a duty of care was owed by the respondent to Mr Crimmins. He did so by analysing the evidence which had been called before the jury and held that the respondent did owe such a duty. Accordingly judgment was entered for Mr Crimmins.
The respondent appealed to the Court of Appeal of Victoria. The appeal was upheld. Winneke P said this [271] :
With respect to this very experienced judge, it seems to me that he has overstated the nature and purpose of the statutory functions invested in ASIA. It is apparent from the material before him that the Act of 1956 was introduced as an endeavour to achieve reform of waterfront activities in the interests of the public by better organising and co-ordinating those activities as between ship-owners, stevedores and waterside workers. The "peaks and troughs" of demand, the casual nature of the labour, and the number of stevedores had combined to create inefficiencies and industrial dispute which, in turn, had caused freight costs to escalate. The Act which created ASIA was the fourth in a series of Acts, introduced since the end of World War II, designed to achieve waterfront reform. In each instance the Parliament had created a statutory body and armed it with powers which were aimed, largely, at achieving industrial harmony, discipline on the wharves, and the efficient allocation of labour to meet the fluctuations in demand for stevedoring services. In each instance the statute expressed that the body was to "perform its functions with a view to securing the speedy (or expeditious), safe and efficient performance of stevedoring operations". 1. Stevedoring Industry Finance Committee v Crimmins [1999] 1 VR 782 at 798.
His Honour thought that there was nothing in the Stevedoring Industry Act 1956 Cth (the Act) or the award under which Mr Crimmins was working from which could be inferred an intention to impose on the respondent a common law duty of care to displace or co-exist with that owed by the employers, the stevedoring companies. The President concluded that the trial judge was in error in determining that a common law duty of the nature and scope alleged by the appellant was owed by the respondent. Buchanan JA was of the same opinion.
Tadgell JA did not find it necessary to decide this question. His Honour was of the view that the appeal could be resolved, on what he described as the preliminary point, whether s 14 of the Stevedoring Industry Acts (Termination) Act 1977 Cth (the Termination Act) operated to make this respondent liable to the appellant in the circumstances of this case.
The respondent was established as a body corporate by s 4 of the Stevedoring Industry Finance Committee Act 1977 Cth. Section 14 of the Termination Act, vested in the respondent certain rights and property of ASIA. By virtue of the same section the respondent became liable to perform duties and to discharge certain liabilities and obligations of ASIA. ASIA had been established in 1956 as a body corporate by the Act and was to continue in existence until 26 February 1978, the last day of a transitional period fixed by s 5 of the Termination Act. ASIA was therefore in existence throughout the period of Mr Crimmins' employment as a wharf labourer.
Tadgell JA dealt with the preliminary point in this way [272] :
The evidence in the present case indicates that if the authority had owed the respondent a duty of care, such as that on which he seeks to rely, and had been guilty of acts or omissions in breach of the duty, the breach had caused no loss or damage to the respondent by 26 February 1978. It was not only that by that date there had been no observable or discernible or discoverable bodily injury to the respondent; there was undisputed evidence of medical opinion, which counsel for the respondent accepted before us to be correct, that the deposit of asbestos fibres on lung and pleural surfaces did not constitute injury; and that such a deposit need not lead inevitably to the contraction of mesothelioma; and that in the respondent's case he had sustained no injury until shortly before he developed symptoms of the disease in 1997.
That being the accepted evidence, it was scarcely possible to contend that the authority could have been amenable on or at any time before 26 February 1978 to a claim, let alone a judgment, for the tort of negligence at the suit of the respondent. As regards the effect of s 14 of the Termination Act, attention was directed at the trial and before us chiefly to the ambit of the word "liabilities" in par (b). It was submitted for the respondent that the word should not be construed as being limited to present, enforceable liabilities but as embracing contingent or potential liabilities. This argument recognised that a cause of action against the authority might not have arisen during its lifetime - ie before the expiration of the transitional period on 26 February 1978 - but contended that a contingent or potential or incipient cause of action, which did have its genesis during the respondent's employment as a waterside worker, has now crystallised and that the appellant is liable upon it.
I do not think it is appropriate to say that the word "liabilities" in s 14 includes "contingent" or "potential" liabilities. For one thing, each of these adjectives lacks precision. To say, as the argument for the respondent would have it, that "potential" liabilities are included is to my mind plainly wrong because a "potential liability", whatever it may be intended to describe, is the antithesis of a liability that "existed immediately before the expiration of" the transitional period, as s 14(b) requires. To say that "contingent liabilities" are included is at best misleading because it cannot be asserted that the phrase "contingent liabilities" has any settled legal meaning [274] . The imprecision of the word "liabilities" is magnified when it is coupled with the adjective "contingent" which, in any event, s 14 does not contain. It is true enough that some liabilities are accurately described as contingent which may also be accurately described as existing: a surety's uncalled liability under an existing guarantee is an obvious instance. The expression "contingent liabilities" is sometimes found in a statute and must be construed in its context. Re Sutherland [275] provides an example. There, it was held by the House of Lords (by a majority) that an existing legal liability was not essential to the creation of a contingent liability within the meaning of s 50(1) of the Finance Act 1940. Lord Guest [276] described the expression as there found as " a liability which depends for its existence upon an event which may or may not happen". By comparison, s 14 of the Termination Act not only does not contain a reference to contingent liabilities but the context excludes the concept of contingency. Apart from that, the notion of a contingent liability in negligence seems to me to be a contradiction in terms. A contingent liability pursuant to a contract or referred to as such in a statute is understandable; but I have neither heard of nor been able to find any reference to an existing set of facts as giving rise to a contingent liability in negligence or, indeed, in tort of any kind. The reason, perhaps, is that a liability for most kinds of torts - at any rate for negligence - is dependent upon the infliction of damage to the plaintiff; and, when damage occurs, and not before, tortious liability - if it arises at all - arises immediately. In other words, if a liability in negligence exists, its very nature is such that it is not contingent. 1. Crimmins [1999] 1 VR 782 at 815-816. 2. Re Sutherland; Winter v Inland Revenue Commissioners [1963] AC 235 at 248, per Lord Reid. 3. [1963] AC 235. 4. Re Sutherland [1963] AC 235 at 262.
(i) the nature and circumstances of such employment;
(ii) the role of ASIA in directing waterside workers to such employment.
I will deal with the issue of the existence of a duty of care first and state my conclusion on that matter immediately. It is that the respondent's predecessor did owe a relevant duty of care to Mr Crimmins. The duty may not have been as extensive as that of the stevedoring companies for whom Mr Crimmins worked on a day to day basis but it was capable, in my opinion, of being extensive enough to require the respondent to adopt some measures for the protection of Mr Crimmins against inhalation of asbestos dust and fibre. Before defining the content of that duty I will state the matters that bring me to the conclusion that it was owed.
In doing so it will be necessary to analyse the legislation which established the respondent. In enacting the Act the legislature brought into existence a legal personality capable in law of being sued. Without more the respondent would have been subject to all the liabilities and obligations owed by anybody else capable of being sued. But of course there was more, and that consisted of elaborate provisions which not only defined the place and role of the respondent in the community in which it was to exist, but also provided some measure of its obligations in that community, and the framework for its relationship with others within it. Those provisions, by stating the functions, powers and obligations of the respondent, operate to modify, mould, and indicate the common law principles which may be applied to the respondent which otherwise would have an unfettered application to it. It is for these reasons that careful consideration must be given to the Act to ascertain the extent to which the common law duties of care may apply to the respondent, and ultimately the respondent's liability or otherwise to the appellant.
First, there was the uncontradicted evidence of Mr Fowler that the respondent collected Mr Crimmins' pay and actually paid him, although, by doing so, the respondent may have gone somewhat beyond what it was strictly bound to do pursuant to s 17(1)(c) of the Act.
Secondly, the Act as a whole contemplated a role for the respondent of a unique kind, if not as an employer, but as a legal personality with a real capacity, and some obligations, to influence the working conditions of waterside workers. Section 17 states the functions of the respondent. Those functions have to be understood in the context of the Act which both explicitly and implicitly recognises and gives effect to the unusual way (by comparison with other industries) the stevedoring industry was organised. Waterside workers suffered the disadvantage of not having one regular employer and therefore the opportunity for day to day dialogue on working conditions and safety available to regular, full time employees of one employer. Sometimes employees may have had no work at all and an entitlement to attendance money only (s 17(1)(c)). It was the function of the respondent to regulate generally the performance of stevedoring operations (s 17(1)(a)) and in so doing to allocate a particular worker to a particular dock or ship (s 17(d), (e), (f), (g), (h) and (i)).
The appellant focuses on the function stated by s 17(1)(o):
to encourage safe working in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers engaged in stevedoring operations and, where necessary, to provide waterside workers with articles and equipment designed for that purpose.
It is relevant also to note that the respondent had a function "to train, or arrange for the training of, persons in stevedoring operations" (s 17(1)(k)).
Moreover, the respondent was armed with ample power to give effect, pursuant to s 18 of the Act, by orders or otherwise, to functions which it performed under the Act (s 18(1)). And s 20(2) provided for a penalty for a contravention or a failure to comply with an order so made.
The respondent seeks to rely upon s 17 of the Act, particularly s 17(2) to found a contention that it is confirmatory of the employers' primary obligations in matters of workplace safety. Section 17(2) provided as follows:
In regulating the performance of stevedoring operations under this Act, the Authority shall, except to such extent as, in the opinion of the Authority, is essential for the proper performance of that function, avoid imposing limitations upon employers with respect to their control of waterside workers engaged by them and their manner of performance of stevedoring operations.
I would read s 17(2) as requiring no more than that the respondent engage in no non-essential interference with the day to day work, and ordinary relationship of employer and employee between worker and stevedoring company. The sub-section, although it may be taken as intending to confirm, indeed perhaps reinforce the usual incidents of the relationship of employer and employee between a stevedoring company and waterside workers on a daily basis, does not operate to relieve entirely the respondent of, although it may shed some light on, the extent of any duty of care that it may have owed to Mr Crimmins.
The matters to which I have referred and s 25 of the Act [277] indicate that the respondent was entitled to exercise a large measure of control over waterside workers and their employers. I do not overlook that s 17 makes provision for functions and not duties, but that the respondent might reasonably be expected to perform those functions from time to time as if they were duties appears from a number of matters. The first is the statutory obligation imposed by s 8 of the Act.
The Authority shall perform its functions, and exercise its powers, under this Act with a view to securing the expeditious, safe and efficient performance of stevedoring operations. 1. Section 25 provided as follows: "For the purposes of - (a) ensuring that a sufficient number of waterside workers of the necessary physical fitness, and with the necessary competence and efficiency, are available for the expeditious, safe and efficient performance of stevedoring operations at each port at which stevedoring operations are performed and, in particular, ensuring that the average earnings of waterside workers at each such port will be such as to attract to, and retain in, the stevedoring industry at the port such a number of such waterside workers; (b) furthering the objective of the decasualization of waterfront labour and ensuring that the labour of waterside workers available for stevedoring operations at each such port is not wasted or used otherwise than to the best advantage; and (c) promoting industrial peace at each such port, the Authority shall - (d) from time to time determine, by instrument in writing, the quota of waterside workers for each such port, that is to say, the number of waterside workers which, in the opinion of the Authority, is required for the proper and effective conduct of stevedoring operations at the port; and (e) establish and maintain a register of employers, and a register of waterside workers, at each such port."
The second is the fact that the Act (s 23) contemplates the appointment of inspectors and the entrusting to them of rights of entry to perform functions of the respondent, and of inspection which, if obstructed, might be visited with a substantial monetary penalty.
Thirdly, although the activities referred to in s 17(1)(a), (b), (c) and (d) are in terms functions, the overall scheme of the Act clearly shows that if they were not in fact performed, the industry could not and would not have been organised and could not have operated in the rather special way that this one did and for which the Act made provision. In short, what are in the paragraphs which I have just mentioned, referred to as functions, are clearly in the nature of duties.
The evidence in this case shows that a number of relevant functions were actually performed and that in fact the respondent exercised a large measure of control over waterside workers. Mr Neil, a witness called by the respondent gave this evidence.
What powers were delegated to you and to Mr O'Neill?
We had the responsibility for controlling the pick-up centre. We had responsibility for deciding whether a person who for some reason had got off the roster should be rerostered or should be subject to disciplinary action and we had responsibilities to see that work was properly performed at the various vessels and properly performed in every way.
What other tasks did you have as the local representative of the authority? Tell us about safety committees; did you have any meetings about safety committees?
Well, the local representative or the authority had port inspectors that were responsible to the local representative. I was in charge of the port inspectors in my two ports and we had to have regular meetings with them to make sure that each port inspector knew what all the other port inspectors knew and that the local representative knew what they knew and they knew what the local representative knew; it was keeping everybody in touch so everybody was working in unity.
There was a deal of evidence from the same witness that the respondent actually exercised disciplinary powers over workers and the Act shows that the workers could be deregistered by the respondent in consequence of which a worker might be denied work either temporarily or permanently.
The right to control and actual control are important matters in determining whether a duty of care is owed. As Mason J said in Stevens v Brodribb Sawmilling Co Pty Ltd [278] :
A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it. (Footnotes omitted.) 1. (1986) 160 CLR 16 at 24.
This was a case in which the factual circumstances were quite different from those considered by this Court in Stevens v Brodribb Sawmilling Co Pty Ltd [279] but it is true to say here, as Mason J did in that case, that there was a significant measure of "interdependence of activities [and a] need for co-ordination" between the stevedoring company and the respondent. For some purposes and in some respects the respondent stood in a similar position to an employer. Although the respondent certainly had a role of a quasi-legislative kind to regulate some aspects of the relationship between the stevedoring companies and the workers (ss 17, 18), the Act manifested an intention and conferred a power upon the respondent to go beyond mere regulation, actually to interfere in the relationship and to interfere to design and require appropriate safety measures.
It is necessary now to consider the nature and extent of the duty of care owed by the respondent to Mr Crimmins in light of the statutory role conferred on it. It is important to remember that s 17(1)(o) speaks in terms of the encouragement of "safe working in stevedoring operations" and that s 18 recognises that a relationship of master and servant exists between the workers and the stevedoring companies. The duty owed by the respondent must take account of and yield to these matters and other contextual indications that the Authority cannot be precisely equated with an employer.
That duty I would define as a duty to take such reasonable care for the safety of Mr Crimmins in the workplace as the respondent was reasonably capable of taking as a matter of practicality in the performance of its functions [280] , and which the actual employer could not be expected to, or did not itself have the capacity to take, or was flagrantly failing to take, in circumstances in which measures available to the respondent, if taken, would have been likely to be effective in preventing or alleviating the harm done to Mr Crimmins.
(a) all rights and property that, immediately before the expiration of the transitional period, were vested in the Authority are, by force of this section, vested in the Committee; and
(b) the Committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Authority that existed immediately before the expiration of that period.
The Secretary of State or any appropriate Minister may at any time by order make such incidental, consequential, transitional or supplementary provision as may appear to him - (a) to be necessary or proper and nothing in any other provision of this Act shall be construed as prejudicing the generality of this subsection. (2) An order under this section may in particular include provision - (a) with respect to the transfer of property (whether real or personal) and the transfer of rights and liabilities; 1. (1983) 82 LGR (Eng) 235. 2. Walters (1983) 82 LGR (Eng) 235 at 239.
(a) all property and liabilities vested in or attaching to an authority described in column (1) of Pt I or II of Sch 4 (or of any extension thereof effected by any further order under s 254 of the Act made before 1 April 1974) shall by virtue of this order be transferred to and vest in or attach to the authority specified in respect of such authority in column (2);
Of this order Woolf J said [287] : The whole tenor of the order is designed to ensure that the reorganisation would not effect events which would otherwise have occurred further than is absolutely necessary because of that reorganisation. That the public should be able to look to the new authority precisely in respect of those matters which it could look to the old authority; that the public's position should be no better or no worse. If the draftsman has not used words which are appropriate to cover potential liabilities it can only be because he was so crassly incompetent as not to appreciate that for actions in tort it is not sufficient to have a breach of duty; you must also have damage.
It is always dangerous to look to decisions on similar words in different Acts of Parliament as aids to interpretation. However, I am fortunate in this case to have general assistance as to the approach to the problem in a decision of Megarry J in Bromilow & Edwards Ltd v Inland Revenue Commissioners [288] A very different problem was before Megarry J from that which is before me. However, in the course of his judgment Megarry J considered the words "a liability" and he said [10] : "There is a further consideration, namely, the ambit of the word "liability". I refrain from any detailed attempt to explore the various possible meanings of this word. All that I need say is that I have looked at the entry under that word and under "liable" in Words and Phrases (1944) and in Stroud's Judicial Dictionary (1952), 3rd ed, and that it seems plain that "liability" is a word capable of some amplitude of meaning. I say this without discussing the meaning that that word bears in the celebrated classification in Hohfeld's Fundamental Legal Conceptions (1923), where it is the correlative of "power" and the opposite of "immunity". I do not think that the meaning of the word can be limited, as Mr Heyworth Talbot would have me limit it, to a present, enforceable liability, excluding any contingent or potential liability. Used simpliciter, the word seems to me to be fully capable of embracing the latter form of liability, as in a surety's liability for his principal before there has been any default Given a choice, and, as it seems to me, a fair choice, I have no hesitation in choosing the interpretation which makes sense and makes this part of the subsection work, as against one which reduces it to dust. In any case, I consider that the meaning which I prefer is the primary and natural meaning of the words in the context in which they appear." I would respectfully agree with the general statements made by Megarry J in that judgment and apply them word for word to the context here under consideration. I regard the word "liabilities" as capable of having amplitude of meaning. In the context of this case I consider that it is wide enough to apply to contingent or potential liabilities. It appears to me that I have a fair choice between the meaning submitted by Mr O'Brien and the meaning submitted on behalf of the plaintiff by Mr Macleod. Having that choice I have no hesitation in choosing an interpretation which makes, in my view, sense of this part of the order, rather than leaving a large gap between obligations and causes of action which have accrued.
Crimmins
Stevedoring Industry Finance Committee
(1957) 97 CLR 202
(1985) 157 CLR 424
(1998) 192 CLR 330
(1988) 12 NSWLR 293
(1995) 183 CLR 373
(1991) 173 CLR 276
(1986) 162 CLR 376
(1987) 162 CLR 479
(1993) 177 CLR 423
(1980) 146 CLR 40
(1994) 179 CLR 520
(1997) 188 CLR 159
(1999) 198 CLR 180
(1998) 192 CLR 431
(1996) 63 FCR 567
(1997) 188 CLR 241
(1958) 98 CLR 177
(1986) 160 CLR 16
(1967) 116 CLR 397
(1992) 175 CLR 514
(1974) 130 CLR 321
(1965) 114 CLR 153
(1949) 77 CLR 261
(1967) 116 CLR 537
(1990) 171 CLR 1
(1983) 151 CLR 575
(1992) 174 CLR 219
(1997) 191 CLR 471
(1997) 189 CLR 520
(1932) 48 CLR 128
(1998) 83 FCR 511
(1995) 185 CLR 307
(1937) 56 CLR 464
(1995) 185 CLR 410
(1999) 199 CLR 575
(1982) 149 CLR 191
(1987) 11 NSWLR 363
(1988) 164 CLR 539
(1966) 114 CLR 213
(1999) 199 CLR 1
(1987) 162 CLR 514
(1994) 179 CLR 297
(1998) 192 CLR 285
(1986) 162 CLR 24
(1999) 199 CLR 413
(1994) 125 ALR 151
(1986) 160 CLR 626
(1991) 172 CLR 243
(1956) 96 CLR 18
(1964) 112 CLR 316
(1986) 160 CLR 301
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