STEVEDORING INDUSTRY FINANCE COMMITTEE v RONALD J GIBSON & 4 ORS

Appellant: T Tobin QC/EA Cheeseman 1st Resp: T Hughes QC/D Letcher QC/A McSpedden COUNSEL : 2nd Resp: J D Hislop QC/ C Hoeben SC/ D Ferrari 3rd Resp: G J Parker 4th Resp: G Little/ S Marsh Appellant: Blake Dawson Waldron SOLICITORS : 1st Respondent: Turner Freeman 2nd Respondent: McCullough & Buggy 3rd & 4th Respondent: Church & Grace CATCHWORDS : Negligence - personal injury - asbestosis - stevedore - Crimmins duty of Australian Stevedoring Industry Authority - contribution - Sanderson costs order - failure to abandon hopeless grounds of appeal - D DECISION : Appeal dismissed with costs. See also par 157.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40454/98 DDT 98/96

MASON P STEIN JA HEYDON JA Friday 21 July 2000

THE STEVEDORING INDUSTRY FINANCE COMMITTEE v RONALD JOHN GIBSON & ORS

JUDGMENT 1 MASON P: Mr Gibson, who is the first respondent and to whom I shall refer as the plaintiff, was employed as a waterside worker in the Port of Sydney between 1956 and 1991. Between 1956 and 1967 he was repeatedly exposed to high concentrations of asbestos dust and fibre while discharging cargoes. Between 1967 and 1974 the extent of exposure was reduced because of improvements in handling and packaging and because, in June 1970, the plaintiff became a crane and forklift driver. No exposure occurred after 1974. 2 In 1994 the plaintiff sought medical advice because of the onset of breathlessness. An asbestos related disease was diagnosed. In 1996 he commenced proceedings in the Dust Diseases Tribunal. The defendants sued were: - Stevedoring Industry Finance Committee (SIFC), the successor to the liabilities of the Australian Stevedoring Industry Authority (the Authority), the present appellant; - Association of Employers of Waterside Labour (in liquidation) (AEWL), the industrial association of stevedoring companies; - Stevedoring Employers of Australia Ltd (in liquidation) (SEAL) the plaintiff's employer from December 1967 to March 1983 except for a brief period in 1974; - Patrick Operations Pty Ltd (Patrick), the company which regularly employed the plaintiff to work on asbestos cargoes as a casual day labourer between 1956 and 1967 and as a permanent employee for a brief period in 1974-1975. 3 There were various cross-claims for contribution and a cross claim for indemnity by SEAL against its insurer NZI Insurance Australia Ltd (NZI). 4 -Damages were agreed at $100,000. After a lengthy trial before Judge Curtis the plaintiff's claims against SEAL and AEWL were dismissed. However, there was a verdict and judgment against Patrick and the Authority in the sum of $100,000. Judge Curtis found that 75% of the plaintiff's exposure to asbestos occurred during his employment with Patrick and that Patrick was liable for breach of its duty of care as an employer. As between the defendants found liable, contribution was apportioned in the ratio of 25% (SIFC) and 75% (Patrick). His Honour found that NZI would have been liable to indemnify SEAL had that company been found liable to the plaintiff.

Overview of the appeals 5 The primary judge's decision that the Authority owed a duty of care to the plaintiff and that SIFC could be sued with respect to any liabilities stemming from breach of that duty were effectively affirmed by the High Court in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, 74 ALJR 1, 167 ALR 1. Crimmins removed several of the grounds of appeal originally raised by SIFC. Unfortunately, others equally foreclosed by Crimmins were persisted with. 6 However, SIFC challenges the findings that the Authority breached the relevant duty and that such breach caused the plaintiff's medical disability. Within the broad challenges as to breach and causation, SIFC contests a number of specific findings of fact. It is also submitted that Judge Curtis based his judgment against SIFC on an impermissible finding of breach of statutory duty. 7 SIFC alternatively challenges the apportionment of the verdict as between Patrick (75%) and SIFC (25%), contending that one half of the latter percentage would be the proper figure if any liability is found against SIFC. 8 SIFC further submits that, if the Authority was in breach of a duty of care, so too was SEAL. The plaintiff originally filed a defensive cross-appeal challenging the findings that led to the verdict in SEAL's favour, but this was not pressed. 9 There is also an appeal by SIFC against the cost orders made against it. Essentially, SIFC challenges the order requiring it to pay its portion (25%) of the costs of all parties to the proceedings in the Tribunal including the Sanderson orders requiring it to pay the costs which the plaintiff was ordered to pay the successful defendants, SEAL and AEWL. SIFC also challenges the order that some of those costs be paid on an indemnity basis, because of unreasonable rejection of a settlement offer. SIFC also challenges a particular costs order referable to a dispute over interrogatories. 10 AEWL was joined as a respondent to SIFC's appeal because the appeal from the costs order may affect its interest. 11 NZI (now known as CGU Insurance Ltd) came to this Court solely as a respondent joined by SIFC in its appeal. As was its right, it advanced submissions in support of SEAL, the party whose liability the insurer was at risk of being ordered to indemnify. But, under cover of a notice of contention, NZI challenged Judge Curtis' conclusion that the putative liability of SEAL was within the terms of the policy. SEAL did not object to this procedural irregularity, although it defended the correctness of his Honour's reasoning on this point. 12 Patrick sought leave to file a belated cross-appeal which challenged one aspect of the costs order made against it, essentially on the ground that the primary judge had made a slip in translating his intent into his orders. 13 There was a cross appeal by the plaintiff against SEAL, but it was not proceeded with.

The primary findings of fact and SIFC's challenges to them: 14 (i) The plaintiff's illness Judge Curtis found that the plaintiff had contracted the disease of asbestosis. The dispute at trial turned upon the interpretation of images produced by CT scanning of the plaintiff's lungs. The plaintiff's witness, Dr Foster, interpreted and explained the CT scans in a manner that his Honour found convincing and obvious to the eye. For reasons explained at RB 89-90, the evidence of Dr Foster was preferred to that of SIFC's witness, Professor McKenzie. 15 SIFC's challenge to this reasoning, pressed only in the written submissions, misconstrues the cumulative effect of the primary judge's perfectly acceptable reasoning process. Like several of the detailed grounds of appeal that the court was left to work through on the papers, this was entirely without merit and should have been withdrawn. 16 Relevantly to other issues, his Honour pointed out that the conventional medical view is that every particular exposure to asbestos contributes to the development of diseases like asbestosis, because the higher the dose the more likely that condition is to appear. It is and was also well known that the reaction to asbestos fibres in an individual is idiosyncratic, with some persons capable of developing the disease upon exposure to limited quantities of asbestos dust.

(ii) The extent of the plaintiff's exposure to asbestos 17 Judge Curtis' unchallenged general findings about working conditions involving asbestos make chilling reading: THE PLAINTIFF'S EXPOSURE TO ASBESTOS In the years 1955 to 1967 asbestos was transported by sea to the Port of Sydney in coastal vessels bringing asbestos from Western Australia and in deep sea vessels bringing asbestos from North America, South Africa and Canada. The ships were structurally similar, differing essentially in size. Each ship had multiple deck hatches measuring approximately 20 foot by 30 foot. Below the weather deck each vessel contained several intermediate decks. Deep sea ships had up to 8 hatches and 3 to 4 decks. Each intermediate deck contained an opening directly underneath the weather hatch and of identical dimensions. The area created by this unobstructed column of space through the ship was known as the square. Beyond the coaming or edge of the square in the intermediate deck, cargo space extended for some distance to the side of the ship's hull abeam (which area was known as the wings) and fore and aft (which area was known as tweendecks). Often the tweendecks were fitted with lockers comprising enclosed spaces approximately 12 foot by 40 foot and 10 foot high designed for refrigerated cargo. The only opening into each locker was a narrow doorway constructed over a raised sill above the deck. Below the lowermost deck and above the ship's bottom was an extension of the hold known as the deep tank. In this space ballast was carried at sea if the ship was unladen. It was otherwise used to carry cargo. The hatches to these tanks were narrower than the area of the square. The distance from the ship's bottom to the top deck varied but was approximately 70 foot to 100 foot in deep sea vessels. Into all of this space cargo was stowed. At times a ship contained nothing but asbestos. At times a cargo of asbestos occupied all parts of the ship serviced through one particular weather hatch. At times a single hatch may contain both asbestos and other cargo. The asbestos was contained in unlined jute or hessian bags each containing 100 pounds of asbestos, the walls of which were neither impervious nor of uniform strength. The bags were stowed in all parts of the hold - in the deep tank, the lockers, the wings, the tweendecks and the square. The topmost layer was often the subject of damage and rupture caused in the securing of the hatch. Discharge of the cargo was affected at each hatch by a gang of waterside workers. Each gang contained 6 to 8 "Holders" whose job it was to work in pairs assembling the bags into bundles of 16 bags. The plaintiff was a holder. The bundles were placed within the confines of a rope sling, a cargo net or a try to be hoisted from the hold. The individual bags were manhandled to the place of assembly with the assistance of a wharfie's hook. This hook is fashioned from a 15 centimetre length of steel approximately 1 centimetre square in section sharpened and curved beyond 90 degrees at one end and fitted with a wooden handle at right angles to the plane of the curve at the other. Each application of the hook to a bag caused a small rupture through which dust and fibre escaped. In many cases because of the effort required to dislodge a bag from its stack, the bags having been tightly stowed, significant tears were caused to the casing. Some bags were of such poor quality they tore easily on handling or were severed by the rope of the sling. The movement of the bags from their stack would liberate the dust generated in the stacking process which had settled in the course of the journey. As the men dropped the bags to the deck in the sling net or tray, dust was forced in clouds through the course weave of the bag. Some bags had been damaged when stowed. Each damaged bag not only released asbestos into the atmosphere but contaminated the remained of the cargo with subsequent release of more dust and fibre. Slung bags in nets would when hoisted release a dribble of particles from holes caused by the cargo hooks, greater flows from larger tears and also fine material falling from the hessian. From time to time bags suspended from slings or nets would strike a latch or coaming when being hoisted and rupture, releasing dense clouds of dust and fibre. Bags would occasionally fall from the sling and burst on impact releasing clouds of dust. There was a storm of dust each time a sling or net was lifted from the hold. When assigned to a hold the men first discharged cargo occupying the square to the lowermost deck. In the course of this work they were exposed to the accumulation of dust and fibre released in handling the bags and from a cascade of dust from elevated bags above them. After clearing the square of cargo each intermediate deck of wing, tweendecks and lockers were cleared sequentially from the top. Beams were placed over the square at each intermediate deck for this purpose. Working away from the square, the bags were slung and dragged along the deck by the hoist cable to a position under the hatch. In the course of this manoeuvre some bags suffered damage. Bags in the lockers were carried over the sill of the locker door and were prone to suffer damage by catching the doorway or its latches and buckles. As the gang worked deeper into the ship the amount of airborne dust and fibre increased and accumulations of spillage reaching the working surfaces also increased until the men worked with up to five inches of asbestos underfoot. This dust was raised by feet and the landing of slings nets and trays, adding considerably to the concentration of dust in the atmosphere. The operations produced a constant atmospheric haze of dust and fibre which increased in density as the work progressed to the lower levels. In the confined space of each locker and tank a heavy haze would develop as the bags were brought to the square. The lower the men worked the more dust descended as there was, without ventilation, nowhere else it could go. At times visibility was impaired because of the dust haze. Work would occasionally stop when the descending gear could not be seen. Plastic goggles were sometimes issued. When men emerged from the deep tanks particularly they were covered with "white fur all over them". The asbestos fibre settled in the clothing, hair, ears, nose and mouth of the men who at times paused to gargle water in order to rinse out the dust. The work was hard and the breathing heavy. Below the top deck and in the lockers breathing became increasingly difficult. Such conditions were regarded by the men as obnoxious and unsafe. Complaint was made on many occasions to inspectors of the Authority who visited every ship discharging cargo and to the supervisors of the stevedores. Nothing was done. At times the men stopped work demanding the provision of effective respirators such as were provided when loading bulk cargoes of wheat, or the payment of a higher hourly rate. Such disputes were mediated initially between industrial officers employed by the associations or employers and those of the Waterside Workers Federation who were known as "vigilance officers". If no agreement was reached the matter was determined on site by the local representative of the Authority exercising arbitral powers conferred upon him as a "Board of Reference" by the Waterside Workers Award. At no time in this period were such disputes resolved by provision of adequate respirators or amelioration of the conditions. An extra rate was offered or awarded or not. Sometimes cotton gauze masks were provided. Because these quickly became clogged by the combination of dust and heavy breathing they were useless. The men then continued work, or if they refused they were suspended. The following day the suspended men, who had already lost the balance of one day's pay, were subject to further days of suspension by the representative of the Authority exercising disciplinary powers pursuant to the Stevedoring Industry Act 1956 . Until at least the end of 1966 shipments of asbestos into the Port of Sydney included consignments of blue asbestos. After 1967 because of the gradual introduction of improved packaging, palletisation of cargo, and increasing recognition of the dangers of dust, conditions improved. However until June 1974 conditions incompatible with the recommendations of the Occupational Health Committee of the National Health and Medical Research Council of Australia made in 1969 and with industrial safety codes later adopted continued in Australian Ports. This was evidenced by ship inspections conducted by the Department of Public Health … On 22 December 1969 an inspection of a ship discharging asbestos in Melbourne found men working in spillage three inches deep (SIFC 1(85)). On 11 January 1970 an inspection of the "Port Nelson" discharging asbestos in Sydney revealed very high concentrations of airborne asbestos dust and a "snow storm" of asbestos dust each time a sling was raised from the hold (PX 37(281)).

18 Particularly graphic evidence of these conditions appears in the OHC Report to which reference will later be made (BlB 1768. See also BlB 1752, 1828-9, 1832-3, 1838-9, 1876). 19 The plaintiff's evidence supported these findings and related them to him specifically (see generally BlB 1219-1221, 1225-6, 1228-31). He loaded and unloaded hessian bags manually, including bags containing blue asbestos. Often they tore open when he used a cargo hook. On these and other occasions asbestos fibres were airborne within enclosed working areas. Often a Board of Reference under the relevant industrial award ordered the payment of additional rates for working in such conditions. No ventilation or adequate breathing apparatus were provided, other than totally inadequate cotton gauze masks that were tied up behind the ears. Of these, the plaintiff said (BlB 1221): Half the time they fell off. Otherwise it was almost impossible to breathe because of sucking in the cotton and the clogging-up of the mask and the heat. Given that the masks were ineffective they were not usually worn.

20 There was specific evidence from the plaintiff as to the extent of his exposure to asbestos (BlB 1218-9; BkB 136). At trial, SIFC sought to meet this evidence by reference to a statistical construct based upon general data as to shipping and work practices. The primary judge was entitled to prefer the evidence of the plaintiff whom he described as an impressive and essentially reliable witness. The plaintiff's evidence was generally corroborated by his fellow workers and the extent of shipping carrying asbestos that came through the Port of Sydney. The fact that other waterside workers had different levels of exposure is perfectly understandable. The Federal Advisory Committee of Waterfront Accident Prevention (FACWAP) minutes recognise a variety of work experiences. Indeed, one of the more telling points made about the FACWAP material is that it treated data about average working conditions as if that satisfied any duty referable to wharf labourers with particular susceptibility or greater than average exposure. 21 Judge Curtis expressed his conclusion on this issue in the following terms: I am not persuaded by the statistics offered by the defendant that the plaintiff's evidence relating to the frequency of his exposure, taken at its lowest, should not be accepted. The plaintiff was an impressive and I believe essentially reliable witness. His evidence as to the actual conditions was corroborated in material respects by other witnesses and documentation in evidence. While the evidence of the plaintiff may appear inconsistent with histories recorded by some medical practitioners such discrepancies are explicable by failure on the part of the doctors, by probing questioning, to extend the memory of the plaintiff. If such a finding be relevant I find that the plaintiff was on average exposed to very high concentrations of asbestos dust on 15 days each year between 1956 and December 1974.

22 For the reasons set out above, I am unpersuaded by the appellant's challenge to this finding. The trial judge did not overlook his finding made elsewhere in the judgment as to the plaintiff's minimal exposure after 1970. I would add that, both as regards concentration and intensity of exposure, the finding greatly exceeds the "reasonable" working level recommended in the 1969 report of the Occupational Health Committee (OHC) of the National Health and Medical Research Council (NHMRC) upon which SIFC places great emphasis. So there is a very significant margin of error in any event. In November 1970 the OHC wrote to the Secretary of FACWAP stating that: Prudence indicates that respirators should be worn when men are cleaning up gross spillages. As you do not find it possible to roster men to avoid frequent exposure of individuals to asbestos dust it would be prudent for any man to wear a respirator after he has worked for five days in any one year manually handling asbestos shipped in permeable packing. Sacking and stowed in refrigeration lockers or similar enclosed spaces.

23 It is also relevant to record that it is common ground that the evidence clearly discloses that the plaintiff was exposed to concentrations of asbestos dust well in excess of the "Dreesen standard" of 5 million particles per cubic foot.

(iii) Disputes in relation to asbestos cargoes 24 Several grounds of appeal challenged the findings that waterside workers regarded asbestos cargoes as obnoxious and unsafe, that they complained in these terms to inspectors of the Authority, that their demands for respirators were not met, and that they were effectively compelled by the Authority to work in unsafe conditions (see grounds 3-7, 18-25, 38-40, 45-46, 55-56). 25 The evidence of the plaintiff and his workmates and the well-documented complaints of Mr Roach at FACWAP show that the findings that the workers complained about working with asbestos were justified. 26 On occasions the men were supplied with gauze masks but these were an ineffective form of respiratory protection (see esp BkB 68-9) and were an inadequate response to the problem even as it presented itself during the 1960s. Part of the plaintiff's evidence about these masks is set out at par 19 above. 27 There was evidence capable of supporting the finding that the Authority effectively compelled workers to continue working notwithstanding complaints about asbestos (BkB 82-85). In any event, the particular finding is not a critical one. The reality of the situation was that the union's complaints, voiced by Mr Roach through FACWAP, fell on deaf ears throughout the 1960s. The main players (shipowners, stevedores and labour) generally resolved disputes about obnoxious cargoes in money terms, with the union invoking a Board of Reference if necessary. The ongoing safety issue lay generally unaddressed. 28 As developed in written and oral argument, several of these grounds of appeal challenged the interpretation of the Stevedoring Industry Act 1956 (Cth) (the 1956 Act) that underpins Crimmins (see below). Suffice it to say that Crimmins demonstrates that the Authority had the legal capacity to control the supply of labour to the extent necessary to ensure adequate safety on the waterfront. The Authority had the knowledge and the means of knowledge (eg through inspectors and participation in FACWAP) about working conditions involving asbestos. Most importantly, it had the means to encourage and warn employers, shipowners and wharf labourers about proper safety measures; to provide those measures if the employers defaulted; and, as a last resort, to withhold labour unless and until proper measures were put into place. 29 It is no answer for SIFC to point to the Waterside Workers' Award with its provisions for Boards of Reference or to show that safety concerns were frequently eclipsed by demands for higher rates of pay. The Authority's statutory role was to stand apart from short-term economic or industrial issues as they presented to both employers and employees and to concern itself with the safety and welfare of the workforce under its effective control. Through FACWAP, safety issues were addressed in relation to loading cargoes of wheat. Regrettably, very little was done about asbestos until it was too late, until men like the plaintiff had ingested what turned out to be life-threatening levels of asbestos fibre. In the circumstances this neglect fell short of a reasonable standard of care. 30 Compliance with the Award by stevedoring employers did not discharge the Authority's duty of care nor break any chain of causation. Nor did a Board of Reference determination that a particular cargo was "obnoxious" dispose of problems stemming from its concurrently dangerous qualities. Nor was the Authority's duty affected by the limited function of allocating labour that was vested in SEAL from 1967 onwards. The Authority's common law duty was and remained an overarching one, stemming from the unique combination of powers vested in it under the 1956 Act.

(iv) Inspectors 31 His Honour also found (RB 128): It was because of the signal failure of the inspectors to communicate the real position that the Authority through the FAC received medical advice that no danger to health was posed by asbestos operations on the wharves. Had the real position been communicated to occupational hygienists practising in 1956 such as Dr Ferguson and Mr Gershom Major, both called by SIFC, recommendations would have immediately followed that steps be taken to reduce the dust or provide effective respirators to the men. The role of the inspectors was the subject of comment from time to time in the Annual Reports published by ASIA. In the 1972 Report the Authority stated: In each case where Port Inspectors drew the attention of supervisory staff to a safety hazard in connection with Stevedoring Operations, remedial action was promptly taken and the hazard eliminated. If the Inspectors were blind to the hazard of dust it must be because they were inadequately instructed by the Authority. Any practising occupational hygienists in 1956 would have pointed out the dangers. On 1 June 1966 Mr Buckland, the Authority Representative of the FAC was told by Dr Gordon Smith of the OHC that men should not work in extremely dusty atmospheres. He was able to himself say that "labour do not appreciate the hazards involved". It was the duty of Inspectors to alert them. For this failure the Authority may be vicariously liable if subject to a duty of care to protect the plaintiff.

32 Inspectors employed by the Authority inspected all discharging operations and observed the conditions to which men were subjected. They received the complaints of the workers about their conditions. Section 23 of the 1956 Act clearly documented the investigative and reporting functions of inspectors and the capacity of the Authority, through its inspectors, to take steps "on the ground" as well as to inform itself about more general issues touching the safety of waterside workers. 33 Judge Curtis found that the knowledge of the inspectors was imputed to the Authority. I do not understand this finding to be challenged and it is clearly correct. The conclusion renders irrelevant SIFC's complaint about another finding that if inspectors were blind to the hazard of dust it must be because they were inadequately instructed by the Authority (RB 128). However, that finding was also open in view of the information as to the dangers of asbestos conveyed to the Authority through FACWAP. 34 The evidence amply supported the conclusions as to the working conditions which the Authority knew or ought to have known about through its inspectors. There was sufficient information generally available as to the variety of working conditions, some of them being as bad as experienced by the plaintiff.

Crimmins and the Authority's duty of care. 35 The Authority was established under the 1956 Act. Its statutory functions were to be performed and its powers exercised with a view to "securing the expeditious, safe and efficient performance of stevedoring operations" (s8). It was armed with powers to take direct action as well as regulatory powers enabling it to control in many ways the conduct of employers and workers in this industry. 36 It would be entirely unproductive to traverse in any detail the statutory material and legal principles which led the High Court to conclude that the Authority owed a duty of care to persons such as the plaintiff. The judgments in Crimmins examined the statutory functions and powers of the Authority (most notably ss8, 17, 18 and 23) as well as its specific function in administering port quotas and registration of employers and waterside workers (Pt III). Several of these powers expressly addressed safety issues. The powers included those of investigation, encouragement, warning, instruction and provision of safety equipment as well as powers effectively to compel employers to provide safe working conditions through the capacity of the Authority to withhold labour and/or proceed directly against defaulting employers by way of prosecution and deregistration proceedings. 37 The statutory framework was held to give rise to an affirmative and continuing duty of care. The justices in the High Court may have proceeded to their conclusions down partially different paths. However, I do not read the majority judgments as differing in any relevant respect as regards the nature of the duty, although some placed greater emphasis than others upon the power to control the provision of labour as the critical springboard of the duty. 38 The Chief Justice agreed with McHugh J who described the duty (at [112]) as: … a continuing duty of care … in the exercise of its statutory functions, duties and powers to take reasonable care to avoid foreseeable risk of injury to the health of the plaintiff. 39 Gaudron J referred (at [35]) to: … a duty to take those steps, short of making binding orders, which a reasonable Authority with its powers and resources would have taken in the circumstances, which circumstances included the fact that no relevant orders were made.

40 Kirby J concluded (at [236]) that: … the Authority owed a duty of care to the deceased to take reasonable steps to ensure that, when he was allocated to perform work for individual stevedores, the working conditions would be reasonably safe. Where necessary (as where the stevedore failed or neglected to do so), the Authority owed a duty of care to provide waterside workers such as the deceased with articles and equipment designed for their protection and safety in carrying out their work and to ensure that such articles and equipment were used.

41 Callinan J recognised (at [342]) (as did the other Justices) that the Authority's duty was not as extensive as that of the stevedoring companies for whom Mr Crimmins worked on a day to day basis. Nevertheless the duty: … was capable … of being extensive enough to require the respondent to adopt some measures for the protection of Mr Crimmins against the inhalation of asbestos dust and fibre.

At [360] he defined the duty: … as a duty to take reasonable care for the safety of Mr Crimmins in the work place as the respondent was reasonably capable of taking as a matter of practicality in the performance of its functions, 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. 42 Gummow J and Hayne J dissented. 43 It is convenient at this stage to address SIFC's submission that Judge Curtis found SIFC liable for breach of statutory duty as distinct from a common law duty of care. There is nothing in this point. In a well-reasoned judgment, the learned judge carefully analysed the statutory material and referred to the corpus of High Court law concerning proximity and duty of care then available. There are references to the public law duty of the Authority in the judgment, but I do not read these as indicating that his Honour thought he was directly enforcing by civil remedy some private right of action stemming directly from the 1956 Act. On the contrary, Judge Curtis was addressing the argument raised on the pleadings that no common law duty of care existed. His conclusion was (RB 132) that: …the Authority had a duty to exercise its powers so as to prevent injury to the plaintiff. This could and should have been done by informed and effective supervision of stevedoring operations together with directions to the stevedores, provision by the Authority itself of effective respirators, repeated prosecutions or applications for de-registration of negligent employers and ultimately the withdrawal of labour.

44 Such a conclusion might well have provided a short headnote for Crimmins, which was to be decided 17 months later. 45 As SIFC points out in its written submissions, his Honour's findings in relation to the Authority's duty of care were based on the following analysis of what the Authority could have done but did not do (RB 123F, 125S, 130L): It had power to say to a particular operational stevedore "this is what you will do or (a) we will not allocate labour to you nor compel the men to work or (b) we will prosecute you for breaches of section 33 or (c) we will move for your deregistration pursuant to section 35". The Authority had power to give directions generally as to the methods by which asbestos was to be discharged and the protective equipment that was to be supplied to the workers engaged in the work. Pursuant to section 17(o) the Authority itself had power to provide articles or equipment necessary for the protection of workers engaged in stevedoring operations…. However the want of the power for present purpose to give more force to directions concerning matters of safety by the imposition of a fine does not rationally limit the power to make such directions in circumstances where a failure to provide a safe place of work is already characterised as an offence the subject of penal sanction, where the Authority has appointed inspectors to investigate and report on conditions existing on wharves and ships, where the Authority may apply for deregistration of an employer not complying with safe work practices, and where the employer is dependent upon the Authority for the provision of labour…. To my mind what should have been done was direction by the Authority to stevedores to either minimise dust or provide respirators, in default of which the Authority should refuse to compel men on the job to work and refuse further allocation of labour. In the face of persistent breaches of safe practice the Authority should have prosecuted and/or sought deregistration of a stevedore. 46 This analysis is entirely consonant with Crimmins and, for reasons developed later, provides a more than ample springboard for the conclusions as to breach, causation and apportionment. 47 It is true that there is an earlier portion of the judgment (RB 124) which describes the duty as a statutory duty. But the passage in context makes it plain that the judge was referring to a specific formulation of duty in a case regarded as inapt for analogy with the position of the Authority (Hill v Chief Constable of West Yorkshire [1989] AC 53). The duty which the Authority was found to have breached was not directly a statutory one, although it stemmed from the concatenation of statutory functions and powers imposed on the Authority by the 1956 Act. The particular passage complained of cannot be read as suggesting the contrary. 48 The matter becomes crystal clear in the following summation by Judge Curtis (RB 135): In the present case the stevedoring operations on which the plaintiff was engaged constituted a grave risk to his health if not properly ordered. The plaintiff was powerless in the face of the hazard created by the system of work imposed upon him. The Authority controlled his right and his duty to work - when he worked, where he worked, if he worked, for whom he worked and, within limits, how he worked. The Authority had powers of control over the operational stevedores "with a view" to achieving safe working conditions in recognition of the distinct risk of personal injury in stevedoring operations. In the light of the discussion of public law duty I can see no reason of policy which would make it other than fair, just and reasonable to recognise a duty on the Authority of equivalent scope to that imposed by the public law duty to take reasonable steps to provide a safe system of work. The scope of the duty of the Authority may be more narrow than the scope of the duty of a master to his own servant, but that scope extended to the exercise of these powers sufficient to deny use of labour to stevedores and give directions to those stevedores whose failure to comply would be the subject of application for deregistration or prosecution. The Authority is in breach of this duty to provide a safe system of work and is liable for the plaintiff's damages.

49 Portions of SIFC's submissions attempted to challenge the learned judge's conclusions on duty of care, by reference to alleged failure to advert to various limitations on the Authority's statutory powers (Appellant's Outline of Submission Part II pars 7ff). At times the submission was bolstered by reference to dissenting judgments in Crimmins. The submissions have not been overlooked, but they merit no further attention in this judgment. In the main they depend upon pure conjecture or they constitute veiled attempts to undermine the central propositions for which Crimmins now stands as authority and which were correctly applied by the primary judge. 50 Another submission designed to qualify the scope of the duty as established in Crimmins was based upon the arbitral powers conferred upon Boards of Reference under the Waterside Workers' Award. Safety issues could be referred to a Board of Reference for settlement, with a right of appeal to the Commonwealth Conciliation and Arbitration Commission. The submission is entirely unpersuasive in light of Crimmins. In any event, as indicated above, it elides the worker's capacity to address safety issues through industrial action under the Award against an employer with the Authority's obligation to address them in accordance with the duty of care enunciated in Crimmins. The award no more qualified the Authority's duty of care than it would have qualified that of the stevedoring employers.

FACWAP 51 Before turning to SIFC's general challenges as to breach, causation and apportionment it is necessary to examine the material concerning the Authority's involvement with a Committee called FACWAP. FACWAP is an acronym for Federal Advisory Committee of Waterfront Accident Prevention. It was formed in 1960 at the initiative of the Central Committee of Interstate and Overseas Shipowners. Its stated object was "to give the three major bodies concerned with safety, namely the employer, the employee and the Accident Prevention Association [of the Central Committee] the opportunity to talk over the problems in a spirit of cooperation". The three groups were represented at most meetings. Employees were usually represented by Mr Roach of the Waterside Workers Federation (WWF). 52 The Authority requested participation and its representative, Mr Fleming first attended meetings in 1961. FACWAP minutes were sent to the Authority. Later in the 1960s other organisations were represented as well, including AEWL and the Shipowners Medical Service. 53 FACWAP was not a scientific or medical committee of experts, although its members had experience with medical or safety problems in stevedoring. Through FACWAP there was sharing of information, including information sought or obtained from outside organisations such as government departments and from the Occupational Health Committee (OHC) of the NHMRC. FACWAP established port advisory panels in a number of major ports. 54 What happened or did not happen in and through FACWAP assumed central importance in the appeal as it related to the issue of breach. 55 In broad terms, SIFC relied upon the Authority's involvement in FACWAP as the means whereby it discharged its duty of care. SIFC sought to rely upon information tabled at FACWAP as indicative of: (a) the state of knowledge reasonably available in the 1960s; (b) a reasonable explanation for the Authority's inactivity in exercising its statutory powers referable to safety regarding asbestos; and (c) the absence of a causal link between any breach of duty and the damage suffered by the plaintiff. The Court was properly reminded of the need to exercise care against projecting present attitudes into the past and abusing the benefits of hindsight. 56 In the words of Mr Tobin QC (Appeal transcript pp12-13): …the conduct of the Authority in [FACWAP] in the decade leading up to 1970 would represent in our view a reasonable exercise by the Authority of its duty of care in the particularity of this case with regard to asbestos….

57 On the other hand, the plaintiff and the other respondents point to the FACWAP material as evidence that clear warnings were given about the danger of asbestos; and as proof of inaction (even studied inaction) by employers, shipowners and the Authority. 58 It is appropriate to set out a lengthy extract from the judgment of Judge Curtis (the emphases were added by his Honour): Much debate in this case concerned itself with the perceived failings of this committee through its constituent members. It has no independent legal status and is not a defendant however it is appropriate to set out its origins, function and role in the eventual improvement in the conditions under which waterside workers discharged asbestos. The Advisory Committee was formed by the initiative of the Central Committee. The first meeting took place in Sydney on 16 November 1960 (PX 37(93)). Present were Mr G P Johnson as representative of Interstate and Overseas Ship Owners (chairman), Captain D G Dalziel of the Accident Prevention Organisation of the Central Committee, Captain C R Davis of 'the Employers' and Mr E Roach of the Waterside Worker's Federation. It is useful to reproduce some of the introductory remarks of Mr Johnson: The object of forming this Committee was to give the three major bodies concerned with safety, namely the employer, the employee and the Accident Prevention Association, the opportunity to talk over the problems in a spirit of co-operation. It will be our aim to discuss the problems associated with safety on the waterfront, to consider the best forms of publicity and to assist the Accident Prevention Organisation with the general safety education of all waterfront personnel. It will not be our job to alter regulations or conditions that have existed over the years but to advise the Authorities concerned in matters that we consider could help in our ultimate aim and keep in mind that we are endeavouring to prevent men being hurt not to cross the policies of our Principals or the Government departments. (emphasis added) It was agreed at this meeting that Captain D G Dalziel of the Accident Prevention Organisation should act as secretary to the advisory committee with the assistance of his staff. This service continued when AEWL assumed the functions of the Accident Prevention Organisation and employed Captain Dalziel. FAC established subsidiary Port Advisory Panels (PAP) at Port level throughout Australia comprising the State Superintendent of the APO, a practical stevedore, a representative of the Waterside Workers' Federation and where desired a representative of the shipowners. The Australian Stevedoring Industry Authority requested participation in the proceedings of the FAC and first attended in the person of Mr W Fleming at the fourth meeting on 15 March 1961. Also present at later meetings were representatives of the Department of Shipping and Transport and of the Foreman Stevedores Association. On 23 August 1961 at the eighth meeting of the FAC Dr Jarvis is recorded as appearing as the representative of the Shipowners' Medical Service. On 12 February 1963, after the incorporation of AEWL, Dr Jarvis is recorded as appearing as representative of AEWL. On 14 February 1962 Mr G P Johnson addressed the committee in these terms recorded in the minutes (PX 37(105)). There have been (and there still are) occasions in stevedoring when it has been (and is) necessary to seek expert advice for the protection of employees' health and safety in circumstances where some hazard exists or may arise. Obvious examples of such circumstances would include contact with dangerous chemicals, gases or dusts of various types. Undoubtedly, the availability of specialised knowledge is essential to us, not infrequently, if employee welfare is to be properly safeguarded. Applications for expert investigation and advice are usually made to State Government Occupational Health and Industrial Hygiene Departments, and these bodies have been able to render many valuable services to the industry, by virtue of their specialised medical and scientific staffs and of their laboratory and reference library facilities. The suggestion is now made that there is a need for certain improvements to the existing somewhat haphazard and informal contacts and to the channels of communication which the industry has with these expert bodies. Some of the present anomalies which we should certainly try to overcome include poor liaison between States and between sections of the industry, unnecessary duplication of scientific work in the various States, inefficient distribution to all concerned of information obtained and - quite frequently - the absence of a written report to the industry from the department which has investigated a problem due to the department not knowing to whom such a report should be made. This Federal Advisory Committee is representative of sections of the industry. It is not an "expert committee" in a scientific or medical sense. Although most of us present today have had experience of some of the medical and health problems in stevedoring, we must acknowledge at once that we are not competent ourselves to pronounce on these specialised subjects . It may well be, however, that we are ideally constituted to be able to offer considerable assistance in the field of co-ordination and distribution of scientific knowledge, which we ourselves have obtained from the most authoritative sources in the country. We have access to the secretarial facilities necessary for this rather formidable but essential contribution. (emphasis added) In support of the Chairman Dr Jarvis is recorded as having said "Many of the health problems encountered are of a complex technical nature, and ready access is essential to various types of expert opinion … backed by laboratory and library facilities". Upon the recommendation of Dr Jarvis the Occupational Health Committee of the National Health and Medical Research Council (OHC) was approached and asked to provide advice on a systematic basis upon problems of occupational health confronting the industry. In response the advisory committee received from the Occupational Health Committee on 21 August 1962 a document described as "the Committee's proposals and recommendations" (PX 37(110). This document noted that waterfront problems with an occupational health aspect were either those of long term importance, usually not urgent, or of day to day concern where a quick decision was required in order to prevent or resolve an industrial dispute. The OHC agreed to give advice in relation to long term matters referred to it for advice and recommended that day to day matters be referred to the various State Departments of Public Health as they arose. This scheme was adopted by the FAC which resolved that the Authority was the most appropriate authority through which day to day requests for advice be channelled to the State Departments for assistance. Reports received by the Authority in response were to be provided by the Authority to the FAC for circulation (PX 37(111)). On 20 February 1963 (PX 37(113)) Mr Roach of the Waterside Workers Federation proposed to the FAC a scientific survey of waterside workers engaged in handling substances such as wheat, lead and asbestos which might result in chronic respiratory ailments. Mr Fleming of the Authority informed members that certain surveys had previously been carried out in Queensland and South Australian ports, the results of which were published in the Authority Annual Report. The following is then recorded: After discussion the chairman indicated that such measures outlined by Mr Road would be of a long term nature and it would be necessary for the Committee to give further consideration to the matter. On 17 April 1963 (PX 37(114)) Mr Roach, observing that the Port of Fremantle handled a much larger tonnage of asbestos than other ports and that the risks of asbestos concerned him, requested a survey of workers to ascertain if the disease was evident. Dr Jarvis, than of the APO, confirmed that asbestosis was a disease resulting from inhalation of asbestos dust and that the matter should be examined. Dr Jarvis also expressed the view in the meeting that workers were probably not at risk when exposed to asbestos other than blue asbestos which was "more dangerous". (Transcript page 671) Mr Fleming of the Authority suggested the proper approach was an official enquiry directed to the Authority which would receive the necessary hearing and "no doubt the Authority would be agreeable to conducting such a survey". On 1 May 1963 Dr Jarvis (PX 37(274)) wrote as senior medical officer of the Central Committee to Dr D Letham, care of the School of Public Health and Tropical Medicine, setting out the tonnages of types of asbestos fibre handled by Fremantle waterside workers and the methods of handling in these terms: The following information has been supplied by our representative in Fremantle. Blue asbestos fibre, mined at Wittenoom Gorge WA, is shipped from Port Samson either into vessels of the State Shipping Service for discharge at Fremantle or increasingly lately into overseas vessel for overseas ports. It is estimated that only about 5,000 tons will be discharged this year at Fremantle, of which 1,000 tons will be used locally and the remaining 4,000 tons exported from Fremantle to eastern states and overseas. The asbestos is packed in ordinary jute bags with no interior lining, of approximate weight 100 pounds each. The method of discharge at Fremantle is by role slings, and waterside workers are issued with overalls, mainly on account of the deposit of red dust on the outside of the bags, picked up during transit and open storage. In loading, the bagged asbestos is palletised and then taken from the pallets for storage in the hold of the ship. Overalls are issued, and when necking the bags is necessary, the men are provided with hoods to prevent the fibres from going down their necks and causing irritation. No respiratory protection for employees has been provided, nor has there ever been any claim in the past, that it should be. In addition to the Wittenoom Gorge asbestos small parcels of "white asbestos" from South Africa are imported into Fremantle for local use. It is also bagged, but it is thought to present no problem in its discharge. No information is available as to the frequency with which any particular individual employee would be employed in the handling of this mineral. Dr Jarvis, in this letter, advised Dr Letham of the proposal raised at the FAC that a health survey be carried out and of his expectation that the Authority would approach the Commonwealth Occupational Health Unit for guidance. He went on: In the meantime, however, and this is my main concern - if any respiratory protective measures for waterside workers are clearly indicated, we would not wish their introduction to be delayed pending a possible protracted survey being carried out on behalf of the authority, or even pending referral of the question to the occupational health centre. On 21 May 1963 Dr Jarvis forwarded to Captain Dalziel of the APO the text of a letter received from Dr McNulty, deputising in Perth for Dr Letham as follows (PX 37(276)): Dr Letham has forwarded letters from you regarding the handling of asbestos at Fremantle. The next shipment of blue asbestos from Fremantle will be around mid June. I will look at the method of discharge or loading and write to you again. The main shipments are from Port Samson. A few years ago I arranged chest x-rays for asbestos carriers from Wittenoom and the wharf labourers at Port Samson and found no evidence of pulmonary disease. It is hard to imagine that workers at Fremantle handling bagged asbestos even up to 7,000 tons, could be exposed to any significant hazard. However, I would be the last person to belittle blue asbestos as a hazard. Australian Blue Asbestos has been a major health hazard for some years now and although so far only one pleural mesothelioma case has occurred, there seems little doubt that more will occur. Asbestosis and silicosis are all too common.

The South African experience in regard to neighbourhood mill and mine populations is also causing me some concern. The saving feature here has been the limited number of persons involved and the high labour turnover. (emphasis added) On 6 August 1963 Dr McNulty inspected the handling of blue asbestos at Fremantle wharf. On 7 August 1963 he reported to Dr Jarvis as Senior Medical Officer of the Central Committee as follows (PX 37(277)): The asbestos was on board the "Kangaroo" and had been loaded at Port Samson. It had been pretty well bagged although a few bags had burst open liberating some of their contents. There was no visible dust in the atmosphere but there were small scattered tufts of blue fibre lying about the dock and hold. It seemed doubtful that much, if any, dust of a respirable size would be liberated during handling and since contact with the fibre is very occasional and intermittent, no health hazard to the waterside workers at Fremantle would be expected. It is probably advisable that steps should be taken to clear up the spilt fibre on the wharf and the hold . (emphasis added) It is relevant that Dr Jarvis concluded his letter of 1 May 1963 with these words: I would finally comment that I am seeking information or advice from you in my capacity as medical adviser to the employers of waterfront labour, and not on behalf of the Federal Advisory Committee. In a note to Dr Letham written on 24 April 1963 concerning the possible health hazards of asbestos to waterside workers Dr Jarvis observed that: Mr Roach [representative of the Waterside Workers Federation on the FAC] has become quite active recently in looking for all sorts of health hazards in all sorts of places. In his letter of 21 May 1963 to Captain Dalziel of the Central Committee forwarding the opinion of Dr McNulty (before Dr McNulty had made his inspection of 6 August 1963) Dr Jarvis said: While I do not wish to attract undue attention to the projected Health Departments of the handling of the June shipment, I think it necessary to mention Mr Groom [State representative of the Central Committee] to enable Dr McNulty to inquire about shipping dates if necessary … I have thought of suggesting that you let Mr Fleming [the Authority representative on the FAC] know that I have made this inquiry of the State Department, but if you do, doubtless he will have local representative in Fremantle wanting to join the party, and the next thing that would happen would be that the WWF would want to come into it also , a position which might embarrass Dr McNulty. (emphasis added) I do not believe that it was Dr McNulty who may have feared embarrassment but rather the Central Committee. In his letter of 28 August 1963 forwarding the report of Dr McNulty on the ship inspection of 6 August 1963 to Captain Dalziel, Dr Jarvis added (PX 37(278)): … I think we may not yet have heard the last of this subject. Do you mind, please, mentioning it to Mr Oswald-Jacobs [of the Central Committee, Chairman of FAC] prior to the next FAC meeting. He may have an opinion as to whether Dr McNulty's letter should be tabled on our initiative, or alternatively, should not be mentioned unless and until the topic is raised again by Mr Roach or by Mr Fleming. The report was not tabled at the next meeting of the FAC and the matter not raised. Nor was the earlier advice of Dr McNulty concerning the hazards of blue asbestos disclosed. I infer from the correspondence of Dr Jarvis, and his failure to produce the McNulty opinion to the FAC, not that he intended to conceal a known danger, but that, having satisfied himself of the matter, he wished, in the interests of his employers, the Central Committee, that there be no further debate or investigation. Of greater relevance is that the survey to which Mr Fleming of the Authority agreed was never commissioned by FAC nor conducted by the Authority. Dr Jarvis was not unconcerned with safety, as is shown by his letter of 1 May 1963 to Dr Letham. A meeting of the FAC on 16 October 1963 recorded the recommendation of the Hobart Port Advisory Panel that the FAC formulate general guidance on suitable respiratory protection for the handling of various harmful irritant and obnoxious cargoes. Dr Jarvis was not present at the meeting but his general view, previously expressed, that such general guidance was necessary and should be reduced to writing, were recorded. An insight into the thinking of Dr Jarvis and his perceptions of his duty is given by a short letter he wrote to Dr Dalziel on 22 April 1968 in these terms (PX 37(270)): Thank you for the cutting of the newspaper article on the above subject and it does seem to me a pity that this sort of thing has to be pushed by the unions, although I suppose it is inevitable. Reports are regularly appearing in medical literature about these cases of mesothelioma and it does seem very likely that some cases are associated with exposure to asbestos. I should here record that Dr Jarvis is of advanced years and in ill health. It was not possible that he give evidence in this matter as was desired by counsel for AEWL. The members of the FAC received the minutes of the Port Advisory Panels. The minutes of the Melbourne Advisory Panel meeting of 4 November 1964 record the following (PX 37(206)): Asbestos hazards - precautions in handling Mr Swayn (WWF) stated that the Branch had received literature from their Federal office referring to pulmonary effects of asbestos dust in industry and that his members would like to have the possibility of asbestos dust having any cumulative affect investigated, and if necessary, further precautionary and/or protective measures introduced. It was decided to refer the matter to Dr Jarvis. The minutes of the following meeting of 24 February 1965 record this (PX 37(207)): Asbestos Hazards The secretary reported that the matter had been referred to Dr Jarvis, and that an inspection by Dr Jarvis and Dr Milne, (Industrial Division, State Department of Health) had taken place, he understood that Dr Jarvis intended to make further inquiries. Mr O'Neil stated that this matter had been raised some years ago and at that time, the medical opinion was that owing to the intermittent exposure to asbestos dust, there was no danger to waterside workers . (emphasis added) In the light of the then known hazards of blue asbestos such medical opinion if it had been given was plainly wrong. The reservations of Dr McNulty had not been conveyed to the FAC however Dr Jarvis had noted the dangers of blue asbestos at the FAC meeting of 17 April 1963 attended by Mr Fleming of the Authority. On 1 December 1965 Mr Roach of the Waterside Workers Federation proposed to the Committee that a conference be held at national level to meet and discuss with scientists the problems associated with fume and dust hazards experienced within the waterfront industry, together with recommended procedures for their abatement. Such a conference could, he said, result in a national policy for control and abatement of dust. After investigation by Dr Jarvis and Captain Dalziel the Committee on 9 March 1966 rejected this proposal as impractical because "no all embracing policy nor procedure could possibly cover all situations". It was agreed that the question of ventilation in ship holds might profitably be examined. A telegram was dispatched to the OHC requesting general advice on fume, dust and gases hazards. In response the OHC sought more specific terms of reference. It was agreed at the meeting of the FAC of 13 April 1966 that a programme be drafted listing types of dust and the varying circumstances under which they are encountered for submission to the OHC. As an interim measure Dr Gordon Smith, the secretary of the OHC was invited to address the next meeting of the FAC. On 1 June 1966 Dr Smith attended a meeting of the FAC. Representatives of the Authority (Mr Buckland) and AEWL (Dr Jarvis) were present (PX 37(135)). Mr Roach tabled a document referring to the hazards of dusts, vapours and gases in which he said: … failure of quick recognition of these hazards, by both management and labour, often causes the job to be worked without proper attention to protective equipment, including ventilation, thus accentuating the hazards involved. In addition, methods of ventilation are too often left to people, such as foremen, who know little about either the reasons for ventilation or ventilation itself. The stevedoring companies … do not possess anything that borders on adequate ventilation equipment. It was again agreed by the Committee that a list of bulk cargoes would be compiled for submission to the OHC with particulars of the nature of exposure to the substances. Detailed notes of this meeting are in evidence (PX 37(295)). Mr Buckland, representative of the Authority, after speaking of asbestos said "I feel sure in certain cases the labour do not appreciate the hazards involved". The following exchange also occurred: Mr Roach (WWF) The question of dusts. Is it desirable that the men should work in extremely dusty atmospheres if dusts can be allayed or extracted in a normal industrial hygienic process. Dr Gordon Smith General answer is no. The exposure to dusts should be reduced to a limited degree if possible. What is done will depend on type of dust and circumstances. We take the view that no dust is completely harmless. The effect upon the respiratory tissues is bound to be adverse if a man is exposed to vast quantities of any dust. On 20 January 1967 a list of six selected bulk cargoes together with "details on handling methods" was sent by FAC to OHC (PX 37(288)). This revealed no more than that 49 shipments of bagged asbestos averaging approximately 200 tons was "manually handled discharged in slings or on trays with ships gear". It is apparent that the actual tonnage of cargo discharged in Sydney was 21340 tons. This error was corrected after March 1969. See letter, undated, tendered as SIFC 1(46) and minutes of 18 March 1969 page 2 (SIFC 1(48)) but the letter gives no hint of the real conditions of exposure. By 17 October 1968 no reply had been received by the FAC from the OHC. The Hobart Port Advisory Panel of FAC asked Captain Dalziel whether another authority could be approached for advice. Captain Dalziel informed that Panel that "the Occupational Health Committee is the only Authority that can decide on certain matters". When this enquiry was mentioned at the FAC meeting on 17 October 1968 Dr Jarvis regretted that "other questions we have put to the OHC up to 3 or 4 years ago still remain unanswered". On 4 December 1968 a letter was sent by FAC to OHC requesting some response (PX 37(152), PX 37(153)). On 13 February 1969 Captain Dalziel and Captain D M Hogge (the secretary of FAC) attended the School of Public Health and Tropical Medicine in Sydney, the relevant address of the OHC, to discuss the delay. They were informed that asbestos was to be given top priority in the list of gases, dusts and fumes to be investigated by OHC on behalf of the FAC. FAC was asked to provide up to date information regarding the amounts of asbestos handled and methods of handling together with some information on the degree of exposure of waterside workers. On the occasion of this visit Dr Ferguson of OHC informed Captains Dalziel and Hogge that he was presently of the opinion "based on the apparent degree of exposure to individual waterside workers that the hazard is small or non existent". The information requested by the OHC was apparently forwarded by FAC. This undated document again gives no indication of the dust generated in the handling of asbestos, recording merely that 20000 tons in hessian bags, lined and unlined was unloaded in Sydney annually. The information concerning individual exposure was contained in the following passage: Exposure It appears, by relating estimated man-hours worked on asbestos to estimated monthly man-hours worked, that the percentage of total working time spent on asbestos is very small. Estimation of exposure to individual waterside workers, in general terms, is not practicable for the following reasons:- (1) A shipment may be in several parcels, in a number of holds in a ship which is working three shifts, producing a situation of minimum exposure to a maximum number of men. eg 5 gangs, 3 shifts = 180 men 9 gangs, 3 shifts - 324 men (2) A shipment may be in one parcel and be worked on the day shift only, producing a situation of maximum exposure to a minimum number of men. eg 1 gang, 1 shift = 12 men (3) Any combination of circumstances between the above extremes is possible. No information relating to the actual conditions of exposure in which the men worked was conveyed to the OHC. Under cover of a letter dated 2 September 1969 Dr D A Ferguson forwarded the report of OHC entitled "Asbestos on the Waterfront" (PX 37(286)). In his letter Dr Ferguson stated that the OHC having considered the problems associated with handling of asbestos on the Australian waterfront "Is of the opinion that a health hazard is unlikely to be presented to waterside workers engaged in unloading the material from ships". He added that notwithstanding this opinion "The committee stresses the need for all concerned to minimise the exposure of all persons to asbestos dust". The reason for such caution is apparent. The report recorded one measurement of atmospheric fibre concentration taken when men took unlined hessian bags from lockers at 45 fibres per cubic centimetre. Accepting as a standard of safety two fibres per cc daily for 50 years (below which some workers but less than 1 per cent developed clinical signs of asbestosis) the report asserted that exposure to 50 fibres per cc for five shifts per year is without risk to waterside workers. It is noteworthy that Mr Major, who prepared the report, also recorded that "there is no average dust concentration to which wharf labourers are exposed" because of the variables including "the handling practices of the individual workmen". Further Mr Major observed that while he was told it may be improbable that any man worked more than three shifts per year on asbestos cargoes FAC ought make further inquiries of stevedores in this regard. Evidence has been given that the sampling methods used by Mr Major have a potential error of 50 per cent. That is, the actual concentration of fibres in the atmosphere tested may be half or double that recorded (Transcript page 743). If the actual exposure of the men was to a concentration of 100 fibres per cc throughout each shift, and the days of exposure numbered 10 per year a simple calculation is possible. The relationship between time and concentration of fibre is linear. 50 years x 250 working days x 2 fibres per cc equals 25,000 fibre days. 50 years x 10 working days x 100 fibres per cc equals 50,000 fibre days. Relatively small changes in assumptions increase the hazard to an unacceptable degree even on a standard pursuant to which some (though less than 1 per cent) workers will contract diseases with possibly fatal ramification. Mr Major no doubt conscious of these matters declared in his report an intention to inspect and sample the air in most ships carrying asbestos when they arrived in Sydney so as to identify practices which result in unnecessary exposure. "Prudence" said Mr Major "suggests that … exposure be minimised" and "somehow it should be brought to the attention of all in the waterfront that all reasonable steps should be taken to limit the amount of asbestos spillage during loading and unloading" and "experienced stevedores would easily find … practices … which could reduce the amount of asbestos fibre rendered airborne". Upon receipt of this report the FAC resolved that a code of practice be drawn up for the handling of asbestos. Subcommittees were formed for this purpose in Sydney, Melbourne and Adelaide. The meeting of FAC on 3 December 1969 noted that reports received from subcommittees made clear that unlined hessian bags emit dust even when undamaged and that pre-palletised asbestos would greatly reduce spillage and consequent dust. A precis of the report from the OHC was in December 1969 sent to each stevedore and agent. In June 1970 the plaintiff was issued with a power crane and forklift ticket. He was not thereafter exposed to those very high concentrations of asbestos dust previously described. On 2 December 1971 the FAC resolved that the UK code of practice for handling assignments of asbestos fibre in British ports (sent to FAC by the OHC) be adopted in Australian ports pending the issuing of a code by the National Health and Medical Research Council.

59 I agree generally with the conclusions in this passage. 60 From as early as 1961 FACWAP began discussing the compilation of an Australia-wide safety code, including one that addressed problems stemming from hazardous conditions and cargoes. The Committee's minutes record Mr Roach proposing as early as 1963 a scientific survey of waterside workers engaged in handling substances such as wheat, lead and asbestos which might result in chronic respiratory diseases. No one appeared to dissent, but no action was taken by FACWAP or the Authority along the lines proposed by Mr Roach. 61 There was, however, sharing of information about the extent of Australian shipping involving asbestos fibre, especially blue asbestos fibre mined at Witenoon Gorge in Western Australia and shipped through Fremantle. The minutes of the meeting of April 1963 record the following: Mr Roach introduced the subject stating that the Port of Fremantle handled much a larger tonnage of Asbestos cargoes than other ports in Australia. Having studied reports concerning Asbestos he considered it necessary that some survey of workers who have handled Asbestos over a long period should be conducted to ascertain if the disease Asbestosis is evident.

Dr Jarvis [representing Shipowners' Medical Service] confirmed that asbestosis is a disease resulting from exposure to inhalation of asbestos dust, and he agreed that the matter should be examined.

In discussing the method of approach to the correct authority, Mr Fleming stated that an official inquiry directed to the A.S.I.A. [ie the Authority] would receive the necessary hearing and, no doubt the Authority would be agreeable to conducting such a survey."

62 In 1963 FACWAP considered information about the tonnages of asbestos passing through Fremantle (BlB 1623). This disclosed that no respiratory protection for employees had been provided at that port. On 14 May 1963 a representative of the Department of Public Health in Western Australia (Dr McNulty) informed Dr Jarvis that it was hard to imagine that workers at Fremantle handling bagged asbestos, even up to 7000 tons, could be exposed to any significant hazard. Nevertheless, the doctor continued: However, I would be the last person to belittle blue asbestos as a hazard. Australian Blue Asbestos has been a major health hazard for some years now and although so far only one pleural mesothelioma case has occurred, there seems little doubt that more will occur. Asbestosis and silicosis are all too common. The South African experience in regard to neighbourhood mill and mine populations is also causing me some concern. The saving feature here has been the limited number of persons involved and the high labour turnover.

This portion of his letter is quoted in the lengthy passage from the judgment that I have set out above. 63 As with much of the FACWAP material, there is something for everyone in this evidence. However, it is far from clear that this letter was tabled at FACWAP. A letter from Dr Jarvis of 21 May 1963 to fellow members of the Central Committee set out the terms of the McNulty letter, adding that Dr Jarvis did not want to attract undue attention to the projected Health Department's examination. The letter concluded (BlB 1631): I have thought of suggesting that you let Mr Fleming know that I have made this enquiry of the State Department, but if you do, doubtless he will have his Local Representative in Fremantle wanting to join the party, and the next thing that would happen would be that the W.W.F. would want to come into it also, a position which might embarrass Dr McNulty.

64 It would have been apparent to all members of the Committee and to the organisations that they represented, that FACWAP represented groups that would not have seen eye to eye on all issues of economics and work safety. A further insight into the thinking of Dr Jarvis and his perceptions of his duty is given by a short letter he wrote to Dr Dalziel on 22 April 1968: Thank you for the cutting of the newspaper article on the above subject and it does seem to me a pity that this sort of thing has to be pushed by the unions, although I suppose it is inevitable. Reports are regularly appearing in medical literature about these cases of mesothelioma and it does seem very likely that some cases are associated with exposure to asbestos.

65 Dr McNulty's record of his own examination of conditions at Fremantle (BlB 1636) which obviously forms the key part of his opinion stands in marked contrast to the conditions at the Port of Sydney as found by the trial judge (see BlB 1637, 1641). 66 The survey that Mr Roach called for repeatedly (BlB 1613, 1648, 1653, 1662, 1668) was never commissioned by FACWAP nor conducted by the Authority. 67 The minutes throughout the late 1960s show Mr Roach repeatedly raising concern about the very risk posed by asbestos. They also show the representatives of interests other than labour doing nothing about the problem though FACWAP, largely on the basis of stated opinions that waterside workers' exposure was intermittent and (uniformly) at safe levels (eg BlB 1654). This studied inaction lies ill with the information indicating that conditions varied from cargo to cargo and from port to port (see eg BlB 1736). 68 As early as 1966 FACWAP was liaising with the OHC, through Dr Gordon Smith at the University of Sydney. The OHC was stressing the need for detailed information to be made available that would pinpoint the extent of exposure (see BlB 1676, 1706, 1714, 1738). In this context, Mr Roach renewed his call for a detailed national survey (BlB676-7). 69 The minutes of a 1966 meeting between FACWAP members with Dr Smith of OHC are particularly instructive (Additional Documents, Blue File p5074). Dr Smith stressed the need for detailed information. Mr Roach and Dr Dalziel disagreed as to particular cargoes that should be inspected. Mr Buckland (for the Authority) suggested the inclusion of asbestos, adding "I feel sure in certain cases the labour do not appreciate the hazard involved". He proposed investigating a training scheme. A Mr Finlay sought guidance as to when respiratory protection was appropriate, including cannister or half face cartridge respirators. Mr Roach emphasised that exposure levels varied from man to man and that asbestos cargoes were handled mostly in Sydney. There was the following exchange: Roach: What matters most - the economics or health of the blokes? Chmn: The cheapest way which is also safe. Roach: It is the responsibility of industry to provide the max protection that science can provide for the working man instead of saying how much it will cost.

After discussion about ventilation and the absence of control over packaging there was the following exchange: Roach: The question of dusts. Is it desirable that men should work in extremely dusty atmospheres if dusts can be allayed or extracted in a normal industrial hygienic progress? Dr GS: General answer is no. The exposure to dusts should be reduced to a limited degree if possible. What is done will depend on type of dust and circumstances. We take the view that no dust is completely harmless. The effect on the respiratory tissue is bound to be adverse if a man is exposed to vast quantities of any dust. 70 The delay in gathering information obviously contributed to OHC's delay in reporting. Ultimately the OHC presented its Report on 2 September 1969. In all probability the plaintiff had ingested sufficient asbestos to lead to the contraction of his disease by this time and, for that reason alone, the report provides little assistance to SIFC. However, reliance is placed by SIFC upon what is said in the report as to the state of knowledge reasonably available at the end of the 1960s. 71 The summary of the report in Dr Ferguson's covering letter of 2 September 1969 (BlB 1764) is set out in the lengthy extract from the judgment set out above (par 58). Once again one finds a general assurance that no hazard existed coupled with a warning about the need to minimize exposure. The report documents clearly show the medical opinion as to relevance of exposure and is quite frank in its admission that "the interpretation of the hazard to which waterside workers might be exposed while handling asbestos is difficult" (BlB 1767). Earlier in the report there is express recognition that asbestos is packaged in different ways, stowed in different ways and handled differently from ship to ship: The variations in packaging material and method together with the different stowage conditions combine to present quite different real and potential dust concentrations to which waterside workers might be exposed. …it must be acknowledged that there is no average dust concentration to which wharf labourers are exposed.

72 After referring to other variables (BlB 1766) the report stated that: …inquiries have shown that it is improbable that any gang will work with asbestos for more than three shifts in any one year and this must receive consideration when assessing the hazard to health of these workmen. FACWAP should be asked to make inquiries from stevedoring companies and give a firm estimate of the maximum number of shifts for which any man in any port is likely to be engaged in asbestos work and whether it is possible to limit by some administrative method the number of shifts actually worked each year with this product.

73 Later (BlB 1767) reference was made to certain recommendations of the British Occupational Hygiene Society (BOHS). The report concluded that: Judged by this standard it seems reasonable to assert that exposure to 30 fibres of chrysotile per cc for three shifts per year is without risk to the health of waterside workers.

74 In my view the OHC report assists the plaintiff's case to a considerable degree. It contains graphic evidence of observed working conditions that is entirely consistent with the evidence of the plaintiff and his fellow workmen; it shows the common understanding at the time that risk increased with exposure; the "all clear" that was given was in the most qualified terms and based upon assumptions as to minimal exposure; and it emphasised the need for full information and further study and the importance of formulating a national strategy that ensured that particular workmen were not exposed to more than minimal levels of asbestos. 75 FACWAP received the report and agreed in October 1969 to draw up a code of practice for the handling of asbestos. This was too late for the plaintiff. In any event it was not until December 1970 that the UK Code of Practice was adopted as an interim measure (BlB 1878). The Australian Code was formulated in 1972. 76 In January 1970 Dr Smith was still writing to the Accident Prevention Committee pointing out "the need to make an estimate of the number of days each year that any man might be called upon to handle asbestos cargoes, particularly now that, with permanent employment on the waterfront, the employees of some stevedoring companies may handle the bulk of this cargo" (BlB 1833). There had been permanent employment since 1967. 77 SIFC's attempt to draw comfort from FACWAP's inactivity through the 1960s must be rejected. The warnings were clearly on the table and nothing was done about them by FACWAP, let alone the Authority. FACWAP's passivity did not provide evidence of active concern about the problem, quite the reverse. 78 It can therefore be seen that the FACWAP material does not lead to the reversal of the finding of breach, even if participation in FACWAP could itself be regarded as a sufficient method for the Authority to discharge its duty of care (which it was not). The Authority was not entitled to wait until consensus emerged at FACWAP before taking matters into its own hands. FACWAP was not an independent contractor whose engagement discharged the Authority's duty of care. A fortiori, the Authority's duty to take reasonable steps to ascertain the extent of the risk could not be discharged by relying upon OHC to carry out its own inspections of isolated loading operations. 79 SIFC did not suggest that any portion of the passage set out above (par 58) contained factual error. However, the written and oral submissions sought to make the following additional points based upon the FACWAP material. 80 One ground of appeal (28) contended that Judge Curtis failed to give adequate weight to the correspondence between Dr McNulty, Dr Jarvis and the Central Committee. It is difficult to understand this submission, because the two 1963 letters relied upon are set out in detail in the lengthy passage from the judgment quoted above. If anything, they are pregnant with warnings. Furthermore, the McNulty advice was expressly conditioned upon stated assumptions or isolated inspections at Fremantle. The legitimate burden of the plaintiff's complaint was that these did not represent actual conditions at Sydney as experienced by the plaintiff. A similar response may be given to the ground (29) complaining of the interpretation placed by Judge Curtis upon certain evidence of Mr Fleming (BkB 671). The particular sentence in the judgment (RB 99P) may not represent Dr Jarvis' evidence in one respect, because Dr Jarvis does not appear to have suggested that (non-blue) asbestos posed no risk to workers. Since, however, nothing turns upon this portion of the evidence in the judgment, no further time should be wasted on this ground of appeal. I deal elsewhere with the Authority's general understanding about the risks of asbestos in the 1960s. 81 Ground 31 complains of the weight attached by Judge Curtis to the failure of the Authority to carry out a survey of workers exposed to asbestos. The Authority's inaction in this regard is said to be justified in part by the fact that the WWF never asked it to conduct such a survey. I regard this as nitpicking and inconsistent with the general submission of SIFC. Mr Roach (WWF) sought such a survey through FACWAP, the Committee concerned with safety matters on which the Authority was represented and whose deliberations are relied upon by SIFC as discharging the Authority's duty of care. No survey was ever commissioned, nor were other steps taken throughout the 1960s.

Foreseeability of injury 82 Judge Curtis concluded that there was overwhelming evidence of foreseeable risk of injury assessed by contemporary standards (RB 87N-88P). 83 In Crimmins, the majority justices expressed similar views (see per Gaudron J at [45], per McHugh J (Gleeson CJ agreeing) at [103], [111], per Kirby J at [223]-[225], per Callinan J at [320]-[324]). 84 Reference may also be made to Seltsam Ltd v Minahan (1996) 13 NSWCCR 410 and Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 for discussion about foreseeability of risk in relation to asbestos. (I have not applied those decisions of fact directly to this appeal, but their approach to the issue is helpful.) 85 SIFC's principal argument was that the risk was small and the Authority's inaction was not unreasonable according to the standards of the day. 86 To the extent that SIFC pressed the grounds of appeal that contended that there was no foreseeable risk of injury, such arguments must be rejected. The "undemanding test of foreseeability" endorsed in Wyong Shire Council v Shirt (1980) 146 CLR 40 was satisfied by a wide margin. As the primary judge recorded (RB 122), in 1956 the possibility of lung cancer as a complication of men contracting an asbestos-related disease was well known to the medical profession. After 1963 the known gravity of their peril included the possibility of contracting the fatal disease of mesothelioma from relatively slight exposure to asbestos dust and fibre. Mr Major, an industrial hygienist, called in the SIFC case, gave evidence that in 1956 he would have advised that exposure to asbestos dust should be minimized (BkB 706, 711. See also the evidence of Dr Ferguson: BkB 723). There was also the long course of complaints at FACWAP by the Waterside Workers' Federation about obnoxious work conditions caused by asbestos dust in waterside employment. 87 It was accepted in argument before us that the linkage between exposure and risk was generally known throughout the 1960s. The material going to establish breach (especially the FACWAP material) shows that the risk of injury was not only foreseeable, it was foreseen. The risk was taken because the Authority decided to rely on FACWAP which decided to wait until the OHC report and, in any event, to ignore the material at hand indicating that some wharf labourers were exposed to dangerous quantities of asbestos.

The Authority's breach of duty 88 The primary judge made robust findings that the Authority breached its duty of care towards the plaintiff and that such breaches contributed to his illness (RB 133K-134E, 135G-N). More specifically, it was found that the plaintiff had been put to work with stevedoring employers without the Authority exercising reasonable care in the supervision of his working conditions. The Authority also failed to intervene notwithstanding what it knew or ought to have known about working conditions involving asbestos in the Port of Sydney. 89 These findings are challenged. Like Judge Curtis, I think that they were the inevitable consequences of the primary facts. The breaches fall within the scope of the duty variously stated in the Crimmins judgments. 90 SIFC acknowledges that there was a general understanding as to the correlation between length of exposure to asbestos and risk of disease (Appeal Transcript 23/05/00 pp35, 43). Its case on breach was that the information available in the 1960s did not make it unreasonable for the Authority to do as little as it did for people like the plaintiff. The nub of the problem for SIFC is that little or nothing was done to correlate the information generally available about the dangers of asbestos exposure with the reality of the plaintiff's working conditions in the Port of Sydney. 91 The Authority had actual knowledge as to the health hazard associated with asbestos cargoes; it had knowledge and the means of knowledge about the movement of asbestos through the Port of Sydney (significantly higher than Fremantle); through FACWAP, it had the warnings and complaints that stemmed from Mr Roach with monotonous regularity during the 1960s; and through FACWAP it eventually received the warnings of the OHC report which "stresse[d] the need for all concerned to minimise the exposure of all persons to asbestos dust and urge[d] your organisation to take all reasonable steps to bring this about". 92 The potential risks of asbestos were being voiced by some of the experts during the relevant period of the plaintiff's employment. The Authority's statutory remit imposed upon it positive duties to investigate the extent of these risks, yet practically nothing was done beyond talk. 93 The evidence did not come close to suggesting that the Authority's inaction was because it lacked the financial resources to do more. Whatever the continuing status of the policy/operational distinction generally, the duty of care issue for the Authority was settled in Crimmins. In any event, the evidence did not suggest that lack of financial resources contributed to, let alone excused, the Authority's passivity. The absence of evidence corroborates the unchallenged submission of senior counsel for the plaintiff in the appeal that no issue was fought at trial concerning the Authority's financial inability to perform its (Crimmins) duty. 94 The hazards to the plaintiff's health were preventable by means well within the Authority's statutory powers as expressed in Crimmins. The Authority took steps to ensure that respirators were available and used for loading and unloading wheat cargoes, but similar steps were not taken as regards asbestos even though better masks were sought by the workers on occasions (BkB 252). It is common ground that such steps would have been an effective response to the hazards of ingestion of asbestos fibre, at least to the extent necessary to satisfy the relatively undemanding causation requirements of the law of torts. The Authority had the power to ensure the effective provision of such protective equipment by stevedoring employers and, as last resorts, to provide it itself, to refuse allocation of labour or to launch prosecutions and seek deregistration of recalcitrant employers. The cost would have been small compared to the risk to health and life of doing nothing. Other measures of dust abatement were also available, but nothing was done by employers beyond offering the ineffective gauze masks and paying higher rates when ordered by Boards of Reference. The Authority must bear its share of responsibility for this state of affairs, because it lay within its power to do more and it had the information which should have triggered a more active response. 95 There was plenty of information available to the Authority during the relevant period (especially through FACWAP) that showed that the risk of injury to health was increased by a greater intensity and/or frequency of exposure. This is not disputed. Yet the Authority was content to remain inactive, partially lulled into that inactivity by the soothing messages being given by shipowner and employer representatives through FACWAP. The information coming from the Department of Health in Western Australia was Janus-like, but even the assuring portions spoke in generalities and did not relate sanguine opinions to the circumstances of particular employees, some of whom (like the plaintiff) had significantly greater exposure than the hypothetical situations being addressed by the authorities. The same can be said about the OHC Report, to the extent that it is relevant to the issues in this case. 96 I have explained elsewhere why participation in FACWAP did not discharge the Authority's duty. If anything, it documents the breach of that duty.

Causation 97 Causation was amply demonstrated. 98 In the light of the Authority's duty of care and its multi-faceted breach, the plaintiff's task in persuading the tribunal of fact that his illness was caused or materially contributed to by the Authority's conduct was a fairly easy one (see Chappel v Hart (1998) 195 CLR 232 at 238-9, 247-8, 257, 273-4, Naxakis v Western General Hospital (1999) 197 CLR 269 at 279, 296, 312). 99 Judge Curtis concluded that the continued assaults on the plaintiff's health were the natural and probable consequences of the continued failure of the Authority to intervene (RB 133) and that the Authority's failure to exercise its ample powers for the purpose of protecting the plaintiff as a member of a class caused his damage (RB 134). 100 Some of SIFC's submissions on causation suggested that it was beyond the Authority's effective power to have done anything (Written Submissions, Part II, 21-22). This submission lies most uneasily with SIFC's invocation of the FACWAP material and the evidence as to the steps actually taken in relation to hazards generally in the 1960s (as evidenced in its Annual Reports) and asbestos in particular in the 1970s. It must be rejected entirely in light of the analysis in Crimmins which documents the many ways open to the Authority to have encouraged and coerced safer working conditions. The Authority had the capacity to track dangerous cargoes and, through its inspectors, to take action "on the ground". The suggestion that the Authority lacked the funding to act effectively fails for the same reasons as well as for lack of evidence. 101 The plaintiff said that he would have used respirators had they been provided (BlB 1234). If these had been provided and (if necessary) their use encouraged, by the Authority, then the risk to health would have been materially avoided. Other things could also have been done, such as limiting an individual's exposure over a time period and prohibiting certain types of packaging.

SEAL's liability to the plaintiff 102 When permanency of employment was introduced on the waterfront in 1967 SEAL was established in the circumstances set out below. In this capacity, SEAL employed the plaintiff from December 1967 to March 1983 except for a short period in early 1974 when he was a permanent employee of Patrick. 103 SEAL was held to have owed a very limited duty of care to the plaintiff, namely to take reasonable steps to protect the plaintiff from dangers in the workplace of which SEAL was actually aware. Judge Curtis found that SEAL did not breach that duty because it lacked that knowledge, nor was it established with effective power to have acquired it (RB 136-9). He indicated that, were SEAL to be liable, he would have apportioned 5% of the burden of the judgment on it, abating the contributions of Patrick and SIFC to 72% and 23% respectively. 104 SIFC challenges these conclusions. It submits that SEAL was equally positioned with the Authority to take protective measures for the plaintiff. 105 However, there was a real distinction given the Authority's statutory duties and powers (which SEAL lacked), as well as the means of knowledge it possessed through its inspectors, its membership of FACWAP and other means. 106 SEAL was a company incorporated under the Companies Act 1961 (NSW) whose functions were spelled out in the Stevedoring Industry (Temporary Provisions) Act 1967. It was correctly described by Senator Gorton in his second reading speech as "a holding company, whose members will be the registered stevedoring industry employers, and which will allocate its employers to operational employers as required" (Parliamentary Debates, Senate 1967 vol S36 pp2043-4). SEAL was not itself an operating stevedore and it had no effective vestige of control after it allocated workers to operational stevedores. This distinguished it from the stevedores and from the Authority itself. As found by the primary judge, SEAL was unaware of the cargo to be loaded or unloaded in particular cases. It had no bureaucracy or inspectorate. SEAL was not responsible for recruiting or training waterside workers. In essence, it assumed the bureau function previously operated by the Authority and became the vehicle whereby workers not allocated to operational stevedores could have the benefits associated with permanent employment, ie regular remuneration, long service leave and other benefits. The effective and ongoing control over workers while on the waterfront remained with the Authority and the stevedores to whom they were assigned. SEAL had no choice but to allocate waterside workers to operational stevedores in accordance with the directions from the Authority's priority committee. 107 In my view, the appeal against the verdict in SEAL's favour must fail.

Apportionment challenge 108 No party to the appeal challenges the trial judge's conclusion that Patrick breached its duty of care as the plaintiff's principal employer (RB 135-6). 109 SIFC and Patrick claimed contribution from each other pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. 110 Judge Curtis correctly observed that his task required a comparison of culpability and of the acts of the parties causing damage. He held that (RB 143): It is quite apparent that responsible officers of each defendant observed the conditions in which the men worked and effectively ignored their complaints. It is also apparent that the men were compelled to work unwillingly in conditions of obvious hazard by both the Authority and by Patricks. The relevant distinction in terms of culpability is that Patricks profited from its activities and refused to countenance any diminution in those profits by expenditure on adequate respirators for the men. While in terms of causal potency the negligence of the Authority also encompassed that one quarter of the total exposure in which Patricks was not involved, I do not believe that factor balances the greater culpability of Patricks. In one sense the SIFC stands as a surrogate for those negligent stevedores who cannot be identified. Consistent with my views as to the respective blame and causal potency I apportion liability 75 per cent to Patricks and 25 per cent to SIFC.

111 Pressed to indicate what percentage would have been appropriate for SIFC if the finding as to its liability stands, senior counsel suggested half of the 25% awarded. 112 SIFC submitted that the primary judge failed to give adequate weight to the following factors: (a) Patrick was the plaintiff's employer and as such had a non-delegable duty of care of a high order; (b) The evidence was that 75% of the plaintiff's exposure occurred when he was working for Patrick, the balance being when he worked for other unidentified stevedores; (c) Patrick profited from employing the plaintiff in conditions in which he was exposed to asbestos; (d) Patrick was aware in advance of putting waterside workers such as the plaintiff to work of the nature of the cargo to be unloaded; (e) Patrick was responsible for allocating waterside workers to work on particular hatches and for directing them as to the method of work; (f) Patrick on occasion issued waterside workers with cotton gauze masks which were ineffective against the inhalation of asbestos; (g) Patrick was obliged by the Act, the Award and the common law to provide the plaintiff with a safe system and method of work and this extended to provision of protective equipment. 113 The broad thrust of these submissions is further evidence of SIFC's unwillingness to accept the scope of the Authority's duty of care as established in Crimmins. Once that duty is acknowledged and the multi-faceted breach of the Authority seen for what it was, then in my view the discretionary apportionment of liability is unappealable on the facts of the case. His Honour applied the correct approach to apportionment (cf James Hardie & Co Pty Ltd v Roberts [1999] NSWCA 314). He recognised the different roles of the Authority and of Patrick, and the different duties stemming from those roles. 114 SIFC submits that particular error is revealed in Judge Curtis' remark that in one sense the SIFC stands as a surrogate for those negligent stevedores who cannot be identified. It is somewhat unclear what his Honour had in mind by this comment. Strictly speaking there is no difference between Patrick and the unidentified operating stevedores beyond Patrick's much greater relationship with the plaintiff. (It was held that three quarters of the plaintiff's asbestos exposure was in the employment of Patrick.) Perhaps his Honour was seeking to emphasise that the Authority's duties stood over against those of the plaintiff's employers. The remark is unfortunate, but it does not persuade me to interfere, because (if it betokens the introduction of an irrelevant factor) I would reassess apportionment as between SIFC and Patrick on the same percentages.

The Insurer's appeal 115 The insurer is the successor to the underwriters of SEAL's workers' compensation policies. 116 The insurer (formerly known as NZI Insurance Australia Ltd) was held liable to indemnify SEAL with respect to any judgment that would have been entered against SEAL in favour of the plaintiff. As indicated, the insurer seeks to challenge this conclusion under cover of a notice of contention. 117 As indicated, SEAL was held not to have breached any duty of care to the plaintiff. Judge Curtis held that, had any duty existed and been breached, SEAL would have been entitled to indemnity from NZI under s18(3A) of the Workers Compensation Act 1926 (cf now s159(4) of the Workers Compensation Act 1987). 118 The insurer submits that Judge Curtis should have gone further than concluding that no duty was breached. The insurer contends that no (relevant) contract of service existed between the plaintiff and SEAL, that SEAL owed no duty of care, that the insurance policy issued by NZI did not respond and that the plaintiff was not otherwise a "worker" whose claim against SEAL might have engaged the extended cover provided in s18(3A). 119 This dispute raises issues of fact and law. The factual issues relate to the relationship between the plaintiff and SEAL and the probative impact of certain answers given by SEAL in an insurance proposal. On these, I see no error on the trial judge's part, given the clear statutory role of SEAL and SEAL's answer to certain questions in a 1968 insurance proposal (RB 140). The legal issues cannot be so easily disposed of. They relate to the meaning of the words "in any business or occupation" in s18(3A) and the capacity of an employer that conducts a multiplicity of business activities to insure different aspects of its business with different insurers (cf MLC Insurance Ltd v FAI Traders Insurance Co Ltd (1994) 49 FCR 23 at 34), the scope of SEAL's policy and the application of the concept of "worker" to the plaintiff's relationship with SEAL. 120 The dismissal of SIFC's appeal against the verdict in SEAL's favour means that there is no present utility in addressing these issues. SEAL and the insurer should bear their own costs referable to this issue, raised in the insurer's notice of contention.

SIFC's costs appeal 121 The proceedings in the Dust Diseases Tribunal were heard over 28 days between 2 February 1998 and 27 March 1998. Judgment was delivered on 2 June 1998. Arguments over costs spanned two days in August. A Ruling as to costs was handed down on 9 September 1998. 122 Judge Curtis was faced with a most complex task as regards costs, due to the following matters, among others: a) each of the defendants regarded the litigation as a test case; b) it was clear from a very early stage that the costs would far exceed the sum that the plaintiff was claiming; c) the plaintiff had sued four defendants in the alternative; d) four cross claims for contribution had been filed, albeit that each cross-claimant did not proceed against all other defendants; e) there was the discrete dispute between SEAL and its insurer; f) verdicts were entered in favour of two of the defendants, one on the basis of no duty (AEWL), the other on the basis of no breach (SEAL); g) there had been a spate of settlement offers from 19 January 1998 onwards, some being accepted but by less than all of the parties to whom they were offered; h) each party proposed a different costs order; i) there was much scope for genuine uncertainty as to whether a duty of care was owed by the Authority and by SEAL. ( Crimmins lay in the future and that decision would divide the High Court of Australia.) 123 In the circumstances, the decision as to costs which Judge Curtis had to make was of an intensely discretionary character. 124 The reasons of the learned judge set out in commendable detail the legal and factual circumstances taken into account. The reasons are lengthy and may speak for themselves. Leaving aside the issues yet to be addressed, they amply support the orders in a context where the relevant power of the Tribunal was to "make such order as to the payment of costs as it thinks fit" (Dust Diseases Tribunal Act 1989, s29(1)). 125 Judge Curtis made the following orders: 1. SIFC is to pay (a) one quarter of the costs of the plaintiff, assessed on a party/party basis, incurred prior to 5pm on 5 February 1998; (b) the whole of the plaintiff's costs incurred thereafter, assessed on a party/party basis to 5pm on 20 February 1998 and thereafter on an indemnity basis; (c) one quarter of the costs of AEWL assessed on a party/party basis; (d) one quarter of the costs of SEAL (excluding costs of the cross claims against NZI) assessed on a party/party basis to 5pm on 13 February 1998 and thereafter on an indemnity basis; (e) the whole of the costs of Patricks incurred after 5pm on 5 February 1998 on an indemnity basis. 2. Patricks are to pay (a) three quarters of the costs of the plaintiff assessed on a party/party basis incurred prior to 5pm on 5 February 1998; (b) three quarters of the costs of AEWL assessed on a party/party basis; (c) three quarters of the costs of SEAL (excluding the costs of the cross claim against NZI) assessed on a party/party basis to 5pm on 13 February 1998 and thereafter on an indemnity basis. 3. NZI to pay the costs of SEAL in prosecuting the cross claim against NZI. 4. The plaintiff is to pay indemnity costs of AEWL incurred upon the first day of submissions in the trial and to pay in addition one half of counsel's fees incurred in respect of the written submissions of AEWL on liability. 5. The plaintiff and SIFC each bear his/its own costs in respect of interlocutory proceedings of 11 December 1998. 126 In broad terms, the plaintiff had the benefit of Sanderson orders against SIFC and Patrick with respect to the costs of the successful defendants; the prima facie burden of costs of those other defendants was shared between SIFC and Patrick according to the 25:75 apportionment of their respective liabilities to the plaintiff; costs were awarded against SIFC on an indemnity basis from various dates because SIFC was held to have acted unreasonably in rejecting settlement offers available on those dates; and the plaintiff and SIFC were ordered to bear their own costs referable to a particular interlocutory contest over interrogatories. This summary is sufficient for an understanding of the challenges launched by SIFC against an otherwise incontestable costs order.

Challenge to Sanderson orders 127 In the appeal, SIFC disputes the orders making it liable in respect of the costs incurred by the plaintiff against the successful defendants AEWL and SEAL. 128 Judge Curtis referred to the leading cases on Bullock and Sanderson orders (GBk 7-11). One of them was the decision of Asche CJ in Lackersteen v Jones (No 2) (1988) 93 FLR 442 which contained the following summary at 449: 1. It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant. 2. The causes of action against two or more defendants need not be the same but they must be substantially connected or dependent the one on the other. 3. While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion. 4. Finally, in considering whether to make such an order, the court should, in the exercise of its discretion balance overall two considerations of policy: the first, that an unnecessary multiplicity of actions should not be forced on litigants, so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; secondly, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful. 129 SIFC accepts this as a correct statement of law. 130 It is nevertheless submitted that the primary judge failed to have "sufficient regard" to whether the causes of action against the various defendants were "substantially connected or dependent the one on the other"; and whether he failed to give "sufficient weight" to the fact that "an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful". References to "sufficient" usually ring warning bells that an appellant may be trying unsuccessfully to convert the exercise of a judicial discretion into appealable error. 131 SIFC's submissions (Outline Part III, 13-16) raise complaints about his Honour's conclusions that it was prudent for the plaintiff to have joined AEWL and that the conduct of SIFC justified the joinder of the two ultimately successful defendants. 132 Judge Curtis found that three issues placed the plaintiff in a position of reasonable doubt as to whom to sue: (i) Foreseeability

The principal employer, Patrick, asserted in its Defence that it had no cause to foresee the plaintiff's injury and it claimed entitlement to rely on the actions of the Authority and AEWL. This was held to have led the plaintiff into pressing his claims against those parties. Indeed, based on Tribunal experience of similar cases, Judge Curtis believed that it would have been imprudent for the plaintiff to have omitted any one defendant active on the waterfront with access to relevant knowledge of actual dangers.

SEAL had raised the issue whether some or all of the plaintiff's damage had vested prior to his employment by SEAL. It is to be remembered that the plaintiff started on the waterfront in 1956 and SEAL only came on the scene in 1967.

Doubt existed generally pre- Crimmins . The plaintiff's individual doubt was exacerbated by material suggesting that SEAL may have been the employer after 1963 and by Patrick's contention that it could rely on the Authority and/or AEWL. Merely because the plaintiff ultimately failed in law to establish a duty of care by AEWL did not show that it was unreasonable to have urged the contrary prior to judgment. 133 Apart from these issues, the conduct of SIFC was held to have made it reasonable for the plaintiff to have joined the ultimately successful defendants. That was because SIFC itself asserted that they owed the plaintiff a duty of care which had been breached. 134 Judge Curtis concluded (GBk 14): In general terms SIFC blamed the employers and their conduct was such as to make it prudent for the plaintiff to join all employers, including SEAL. The conduct of SIFC relating to the joinder of AEWL sufficient to justify a Bullock order was the denial of a duty by SIFC and the submission that "in the special circumstances of this case" AEWL owed a duty of care to the plaintiff. In circumstances where the plaintiff was facing a denial of duty or breach by all defendants this denial made it reasonable to find that as between the plaintiff and SIFC, where the plaintiff's injuries arose from transactions in which both SIFC and AEWL were intimately involved (employees of each had faced direct and repeated complaints by the men working with asbestos), it is just that SIFC bear the cost of the successful defendant, AEWL. If SIFC had not denied duty the joinder of AEWL would not have been necessary.

135 In my view these reasons amply supported the Sanderson orders. 136 SIFC submits that nothing that it did made it reasonable for the plaintiff to proceed against the unsuccessful defendants. Such arguments as were advanced by SIFC about the liability of those defendants were, it was submitted, only raised in final addresses and were defensive and contingent upon the claims still being pressed by other parties. In my view this does not show that discretion miscarried, because SIFC's own denials of any duty of care to the plaintiff, which preceded the filing of the claim, necessarily contributed to the plaintiff becoming enmeshed in complex litigation of uncertain outcome and remaining enmeshed (to this day).

Indemnity costs orders based upon SIFC's rejection of settlement offers 137 The primary apportionment of the costs orders against SIFC and Patrick was 25:75, ie in accordance with the apportionment of substantive liability to the plaintiff. However, SIFC was ordered to pay the whole of the plaintiff's costs between 5 pm on 5 February 1998 and 5 pm on 20 February 1998 on a party/party basis and thereafter on an indemnity basis. SIFC was also ordered to pay the whole of Patrick's costs on an indemnity basis from 5 February 1998. 138 SIFC was ordered to pay the whole costs from 5 February (the fourth day of the trial) because Patrick, noting that SEAL and NZI were prepared to pay their own costs, offered on that day to pay the plaintiff $150,000 costs plus verdict, to pay SIFC's costs in the sum of $80,000 and AEWL's costs in the sum of $70,000. The offer was not accepted because SIFC countered, seeking $200,000 for its costs and AEWL sought its costs as agreed or taxed, intimating it would accept $120,000 in lieu of the $70,000 offered. At this stage the plaintiff had signalled that he would accept $150,000 as a verdict so long as his costs were paid. It was the defendants who had interests in litigating what for them was a test case that showed what Judge Curtis described as "a strategic interest in establishing 'major matters of principle' relating to the liability of the other defendants". 139 The critical issue therefore became: who should bear costs responsibility for the case proceeding for 23 more days? His Honour held that, had SIFC accepted Patrick's offer, the great probability was that the matter would have been resolved. SIFC does not dispute that this finding is capable of sustaining the costs orders referable to the period commencing on 5 February, because the result ultimately achieved was less beneficial to SIFC than the offer of 5 February. However, it challenges particular aspects of the reasoning leading to the conclusion stated in the previous paragraph especially so-called omissions ( SIFC Submissions III-Costs, par 9). 140 Some of the particular grounds are untenable on the facts (eg Ground 7, because Patrick's offer was made by facsimile). Others (eg Grounds 68, 69, 73, 85 and 86) quibble at irrelevant errors or omissions. The remaining grounds relating to the course of settlement negotiations (Grounds 71-72, 84) seek to analyse the stream of multi-partite negotiations according to principles of contractual offer and acceptance that one might expect to find in an early edition of Anson on Contract. Judge Curtis did not proceed in this way, nor was he bound to do so (cf Evidence Act 1995, s131(2)(h)). As Higgins J said in Quirk v Bawden (1992) 11 FLR 115 at 122 "the process of negotiation does not end with one offer made and declined and a counter-offer made and declined". 141 Judge Curtis was fully aware that Patrick's Calderbank offer of 5 February was withdrawn that day, after rejection through counter-offer by SIFC (see GB 15M). But settlement negotiations continued thereafter, with several more offers going back and forth. The judge was entitled to consider the probabilities of what would have happened had SIFC accepted the 5 February offer which was more favourable than the outcome achieved many months later after an exhaustive trial. 142 The finding that the great probability was that all parties would have come to the table on otherwise acceptable terms, had SIFC not rejected the overture so bluntly, was clearly explained and clearly open on the facts. That probability is indeed supported by reference to what happened in the succeeding negotiations which were not addressed in the judgment in their own right, but which properly informed and sustain the ultimate conclusion. 143 The judge's order was a proper exercise of his discretion. On the above findings, SIFC's conduct in relation to the negotiations as between itself and Patrick made it reasonable for SIFC to bear the plaintiff's costs in full after 5 pm on 5 February 1998. 144 The next broad attack relates to the award to the plaintiff of indemnity costs from 20 February 1998 on the basis of a conclusion that "the 'real cause and occasion of' the litigation [thereafter] was the attitude adopted by SIFC. Before [Patrick's letter of 20 February] the cause of the litigation was the plural attitudes of the plaintiffs, SIFC, AEWL and Patricks". 145 The primary findings that underpinned this conclusion are set out in the Ruling (GB 6-7). The facts are complex and it is unnecessary to recount them. 146 Once again SIFC's attack on this conclusion descends to the minutiae of the law of offer and acceptance. The submission overlooks the main thrust of the reasoning, which is supported on the facts and is free from error.

Costs of interlocutory notice in relation to interrogatories 147 The plaintiff administered extensive interrogatories to SIFC and there were squabbles about the adequacy of SIFC's answers culminating in interlocutory proceedings on 11 December 1998. Some of the plaintiff's challenges were withdrawn, others rejected. Costs were reserved. Only some of the answers to interrogatories were ultimately tendered at trial. 148 As indicated above, there was a special costs order. The plaintiff and SIFC were ordered to bear their own costs of the interlocutory proceedings. The judge's reasons were: The plaintiff challenged the adequacy of 60 of SIFC's answers to interrogatories. Three days before the hearing the plaintiff withdrew the challenge to eight of SIFC's answers. At the hearing on 11 December 1998 I rejected the plaintiff's attack on all but two of SIFC's answers to interrogatories. The basis on which SIFC successfully defended the plaintiff's application was substantially the same as contained in a letter of 11 November 1997 to the plaintiff's solicitors. At the final hearing of the proceedings the plaintiff tendered only a selection of SIFC's answers to interrogatories and that selection included only one of the two interrogatories which SIFC was ordered to answer. The plaintiff's advantage in bringing that interlocutory application did not in my view warrant the expense. It is true that he established an entitlement to some relief and costs normally follow the event so that he ought not have to pay the costs of SIFC. However, in all the circumstances I believe it appropriate that each party to that application bear his/its own costs.

149 There is no error in this discretionary decision. The plaintiff's limited success in challenging SIFC's answers and the unnecessary burden of excessive interrogatories were taken into account. SIFC's appeal on this point amounts to no more than a complaint that it was not given "sufficient" account.

Patrick's Cross Appeal about costs 150 Well out of time Patrick sought leave to file a cross-appeal against SIFC. Patrick's solicitor frankly admitted (by affidavit) that the point first came to mind while senior counsel for Patrick was preparing his submissions in relation to SIFC's appeal. 151 Patrick challenges the order that it pay part of the costs of AEWL and SEAL from 20 February 1998. It submits that there was a slip and that Judge Curtis intended to order SIFC to pay the costs of all parties from that time onwards. Patrick relies upon the reasoning at GB 5-7, particularly the culmination of the discussion relating to Patrick's offer of 20 February 1998 where Judge Curtis said (GB 7): The plaintiff, by assent conveyed to SIFC, was a party to the Patricks letter of 20 February. In the result, because he secures an order that both Patricks and SIFC pay costs to him, he has achieved a more favourable result. SIFC as the recipient of that offer not getting a more favourable result must prima facie pay the plaintiff's costs incurred thereafter on an indemnity basis. The reasons why the offer was rejected relate in part to extraneous commercial considerations of a party facing other suits brought on the same facts.

152 It is submitted that his Honour intended that (under the Sanderson order) SIFC should pick up the costs tab for all parties from 20 February 1998 and that his formal order which retained the 25:75 apportionment with reference to AEWL's costs was an oversight. Later passages in the Ruling are also relied upon (GB 7J, 14Q, 15S, 17U), in particular the following (at 14Q): For reasons expressed above, SIFC, whose attitude thereafter was the 'real cause and occasion' of the litigation alone is to pay the costs of all parties including the plaintiff from the Calderbank letter of Patricks of 20 February. For reasons addressed below (liability to Patricks) SIFC alone is to pay the plaintiff's party/party costs incurred between 5 February and 20 February and one quarter of the plaintiff's party/party costs incurred before that date.

153 SEAL and the insurer adopted these submissions. AEWL filed a submitting appearance. 154 SIFC opposed the cross appeal. It denies that there is a clear slip between the reasoning and orders of Judge Curtis. In its submissions, some of the negotiations between 5 and 20 February continued to have impact after 20 February as regards the present issue. SIFC relies particularly upon the following passage (GB 18D): Patricks accepts that it is liable to pay the plaintiff's costs and bear portion of the plaintiff's liability to SEAL pursuant to a Bullock or Sanderson order, but resists an order that it bear the costs of AEWL asserting that it was not reasonable that the plaintiff join that defendant. For reasons discussed in considering the plaintiff's entitlements I reject that submission. For reasons already canvassed in considering the costs burden of SIFC, Patricks are to pay three quarters of the plaintiff's party/party costs incurred prior to 5 February and three quarters of the total costs of AEWL and SEAL, the latter to be assessed on an indemnity basis after 12 February.

155 I am unpersuaded that there was a slip, at least unpersuaded to the degree appropriate to induce me to seek to detect it and correct it in the manner proposed. Patrick should approach the trial judge. 156 I would refuse leave to file the Cross-appeal.

ORDERS 157 I propose the following orders: 1. Subject to 2, SIFC's appeal dismissed with costs. 2. No order as to the costs of CGU Insurance Ltd and Stevedoring Employers of Australia Ltd (in liq) referable to the issues raised in the former's notice of contention. 3. Refuse leave to Patrick to file a cross appeal, with costs.

Postscript 158 When the appeal was instituted there were genuine legal issues whose determination was important in this test case. They fell away when Crimmins was decided. 159 The factual issues were without merit, many of them obviously so. This appeal was filed before the 1999 amendments to s32 of the Dust Diseases Tribunal Act which at least would have confined the appeal to points of law. 160 The written submissions were extensive and generally helpful. Several of the grounds of appeal were allowed to "speak for themselves" together with the written submissions to which they related. This approach is generally to be encouraged. But some of the grounds of appeal were so lacking in merit, so irrelevant to whatever part of this case remains a test case after Crimmins, and so tangential to the real issues that they should have been abandoned rather than left for the Court to work through at length. 161 Parties, solicitors and counsel all have their part to play in facilitating the just, quick and cheap resolution of the real issues in litigation (cf Supreme Court Rules Part 1 r3). Those on SIFC's side of the record could have done more on this account. 162 STEIN JA: I completely agree with Mason P, his reasons and proposed orders. In particular I endorse his remarks critical of the appellant's case on appeal. 163 HEYDON JA: I agree with Mason P. ****************

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