Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215
• Hearing dates: 16 May 2014
• Decision date: 03 July 2014
• Before: Beazley P at [1]; Basten JA at [2]; Sackville AJA at [69]

Decision

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: EVIDENCE - admissibility - opinion evidence - worker exposed to asbestos dust during employment - admissibility of statements of workers alleging exposure to asbestos dust - whether identification of dust as asbestos inadmissible as opinion - whether evidence admissible as perception of a fact - whether evidence admissible as opinion based on specialised knowledge - Evidence Act 1995 (NSW), ss 76(1), 78, 79; TORT - joint tortfeasors - contribution between tortfeasors - worker sued statutory authority in negligence - statutory authority settled without admitting liability - statutory authority sought contribution from worker's employer - whether statutory authority liable to worker - whether erroneous apportionment of liability - whether failure to consider relative culpability of parties - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2); TORT - negligence - duty of care - statutory authority regulating stevedoring industry - worker exposed to asbestos dust when employed by a stevedore - worker not a registered waterside worker - whether statutory authority owed a duty of care to persons other than registered waterside workers - functions and powers of the statutory authority- breach of duty - whether evidence established breach - Stevedoring Industry Act 1956 (Cth), ss 7, 8, 17, 18, 28, 29, 33, 39, 41
• Legislation Cited: Dust Diseases Tribunal Act 1989 (NSW), s 32; Evidence Act 1995 (NSW), ss 76, 78, 79; Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5; Stevedoring Industry Act 1956 (Cth), ss 7, 9, 10, 17, 18, 23, 28, 29, 33, 29, 41
• Cases Cited: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540; Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; 20 NSWCCR 417
• Category: Principal judgment
• Parties: Howard Smith & Patrick Travel Pty Ltd (Appellant); Comcare (Respondent)
• Representation: Counsel: Mr G J Parker SC (Appellant); Mr J Sheller/Mr O Jones (Respondent); Solicitors: HWL Ebsworth (Appellant); Australian Government Solicitor (Respondent)
• File Number(s): 2013/209537

Decision under appeal

• Jurisdiction: 9115
• Citation: Comcare v Howard Smith & Patrick Travel P/L [2013] NSWDDT 6
• Date of Decision: 2013-06-21 00:00:00
• Before: Finnane DCJ
• File Number(s): DDT 65 of 2011

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between 1964 and 1982 Mr David Lindsay was employed by a stevedoring company (a predecessor of the present appellant) as a gearman at Port Kembla. His work required him at times to enter the holds of ships to recover gear, operate the steam winches used to unload ships and wash the clothes of waterside workers. From 1964 to 1974, he claimed to have been regularly exposed to asbestos dust, either from dust given off by worn asbestos lagging on pipes and steam winches or from loose asbestos in the holds of the ships.

Stevedoring operations were during that time regulated by the Australian Stevedoring Industry Authority ("the Authority"). Established under the Stevedoring Industry Act 1956 (Cth) ("the Act"), the Authority was to perform its functions and exercise its powers "with a view to securing the expeditious, safe and efficient performance of stevedoring operations" (s 8), a requirement given greater specificity throughout the Act. While it did not employ waterside workers, the Authority assigned registered waterside workers to different stevedores, with employment being on a job-by-job basis. Mr Lindsay was not a registered waterside worker under the Act because he was permanently employed (s 7), thus not having the same direct relationship with the Authority. Nevertheless, his employer was registered under the Act, did employ registered waterside workers and the work was subject to control by the Authority.

In October 2008, Mr Lindsay was diagnosed with mesothelioma. He died in 2010. Prior to his death, he commenced proceedings against the respondent, Comcare, the successor to the Authority's liabilities. The respondent settled the claim and sought to recover from the appellant as a joint tortfeasor under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). For a contribution to be recovered, it needed to be established that both the appellant and the respondent were liable. The Dust Diseases Tribunal found for the respondent and ordered the appellant to pay 75% of the damages as a contribution.

The issues for determination on appeal were:

(i) Whether the evidence identifying the dust inhaled by the deceased as asbestos was inadmissible as opinion evidence;

(ii) Whether the class of persons the respondent owed a duty of care was limited to registered waterside workers;

(iii) Whether the evidence established a breach of duty;

(iv) Whether the Tribunal erred in the amount of contribution ordered to be paid.

The Court held, dismissing the appeal:

In relation to (i):

1. The admissibility of evidence as to the identity of a substance depends on the issue in dispute. Where there is no attempt made to distinguish types of airborne material, the evidence may be admitted as an account of perceived facts based on knowledge which was common to those with relevant experience. Evidence of exposure to asbestos dust, given by workers was not inadmissible as opinion evidence: [27]-[29]; [70]

In relation to (ii):

2. The duty of care owed by the Authority extended to those at risk of inhaling airborne asbestos in the course of a stevedoring operation, which was an indivisible activity. It would be incongruous to conclude that the only persons owed this duty were registered waterside workers and not those in regular employment at the same place: [47]-[49]; [72]-[73]

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1; Graham Barclay Oysters v Ryan [2002] HCA 54; 211 CLR 540 applied.

Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; 20 NSWCCR 417; Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 considered.

In relation to (iii):

3. Once the evidence of the workers was admitted, together with evidence of awareness of the Authority of exposure and associated risks, the argument that there was no evidence to establish a breach of duty was without substance: [60]-[63]

In relation to (iv):

4. There was evidence on which the Tribunal could assess the relative culpability of the parties. No error of law was disclosed in the apportionment of responsibility made by the Tribunal: [66]-[67]

Judgment

1 BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA. I agree with his Honour's reasons and the orders he proposes. I also agree with the additional reasons of Sackville AJA.

2 BASTEN JA: In October 2008 David Lindsay was diagnosed with mesothelioma. He died on 24 July 2010. Prior to his death, he brought proceedings against Comcare (as the successor to the liabilities of the Australian Stevedoring Industry Authority, "the Authority"), alleging negligent exposure to asbestos dust whilst working on the waterfront at Port Kembla. Comcare settled the claim brought by Mr Lindsay, a consent judgment being entered, "without admission of liability", on 9 April 2009 in an amount of $350,000. After Mr Lindsay's death, Comcare commenced proceedings in the Dust Diseases Tribunal against the present appellant, a former employer of Mr Lindsay, seeking contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). On 21 June 2013 the Dust Diseases Tribunal made an award in favour of Comcare in an amount of $335,125.

3 The appellant challenged the judgment against it on two primary bases. First, it challenged the underlying premise that the Authority owed a duty of care to the deceased worker: notice of appeal, ground 5. (Not having been a party to the proceedings between the worker and Comcare, it was not bound by the judgment in that case.) Secondly, it objected to the evidence of exposure to "asbestos dust", given by Mr Lindsay and other workers with experience on the waterfront. It submitted that their evidence should have been rejected as opinion evidence as it involved a conclusion as to the identity of the airborne material they inhaled, based on no relevant expertise and which did not need to be given in that form to provide an adequate understanding of their perceptions: grounds 1-4.

4 There were a series of further or secondary grounds of appeal (6-9), identification of which may be deferred to a later stage. The right of appeal to this Court was limited to an erroneous decision of the Tribunal in point of law or on a question as to admission or rejection of evidence: Dust Diseases Tribunal Act 1989 (NSW), s 32(1). Not all of the grounds set out in the notice of appeal were articulated in terms which clearly fell within the scope of this provision.

5 For the reasons given below, the appeal fails and should be dismissed with costs.

6 Although it may be logical to consider first the alleged duty of care accepted by Comcare, that issue requires reference to the circumstances in which the worker was exposed to asbestos dust, a matter which will become clearer following consideration of the evidence. Accordingly it is convenient to deal first with the challenges to the admissibility of evidence.

Undisputed facts

7 Mr Lindsay worked on the Port Kembla waterfront from 1961 until 1988. He claimed to have been exposed to asbestos dust during his employment from about 1964 until 1974 with Port Kembla Stevedoring and Agency Co Pty Ltd ("Port Kembla Stevedoring"), a predecessor of the appellant. Although the appellant denied that he was employed by its corporate predecessor, the Tribunal held that he had been so employed and the matter was not in dispute on the appeal.

8 Pursuant to the Stevedoring Industry Act 1956 (Cth) employers of waterside workers were required to be registered with the Authority. Waterside workers were also registered with the Authority. Although Port Kembla Stevedoring was a registered employer, Mr Lindsay was not registered as a waterside worker. Rather, from 1964 until 1982 he was continuously employed as a stevedoring gearman and wire rope splicer. He said he had not been exposed to asbestos otherwise than whilst working for Port Kembla Stevedoring. Unlike waterside workers who, during at least part of that period, were employed on a job by job basis and allocated work by the Authority, Mr Lindsay was in fulltime employment.

9 The Tribunal accepted that Mr Lindsay worked alongside waterside workers, sometimes in the holds of ships and sometimes on steam winches. At times he was responsible for washing clothes of waterside workers. He drove a truck loaded with gear used by waterside workers in loading and unloading ships; the gear was often left in the holds of ships or on the wharves: at [14]. There was lagging on steam pipes in the holds of ships and also on pipes carrying steam to the ship's winches.

10 While there was a dispute as to much of the evidence relating to the exposure to asbestos dust, there did not appear to be any issue raised by the appellant as to the following matters. First, asbestos products were used as lagging to insulate pipes carrying steam, both in ships' holds and on steam winches. Secondly, although cargos of asbestos were "not normally unloaded" at Port Kembla (judgment at [24]) ships which carried asbestos, particularly for discharge at Sydney, would continue to Port Kembla. If there were loose asbestos in the holds following the unloading of part of the cargo at Sydney, the holds would not have been cleaned before Port Kembla.

Evidence of exposure to asbestos dust

11 Apart from the general propositions set out above, the evidence of Mr Lindsay's actual exposure to asbestos derived from two main sources. First, there was his own statement, provided by way of particulars to his claim, the correctness of which he affirmed by affidavit on 16 April 2009. In answer to the question "How were you exposed to asbestos?" He stated that "on average" he would spend several hours each day below deck on ships: question 4.1, answer (b). The particulars continued:

"d. I was exposed to asbestos in various ways because of my work. One of the ways I was exposed to asbestos was because of its presence on ships. In the holds of ships, bags of loose asbestos were often stored for use as lagging on the ships. When I was in the holds, I had to move this lagging to access the cargo. Asbestos dust was given off from the bags as a result.

e. In addition, to get to the holds of some ships, it was necessary to travel some distance below deck. This included going through sections of ships with asbestos-lagged steam pipes, and also going into and adjacent to engine rooms. These were dusty areas of the ships, usually with a visible layer of dust on flat surfaces. I also sometimes brushed against the asbestos lagging below deck. I was exposed to asbestos dust because of this work.

f. When I first started in about 1964 as a stevedoring gearman and wire rope splicer, steam winches were used for unloading most of the ships. I operated this machinery on occasion. The winches, and particular the steam pipes which drove them, were lagged with asbestos slurry and rope. Often this lagging was worn and dust was given off from the lagging by the operation of the winch. I inhaled this dust. By the mid-1970s, most of the ships did not have steam winches.

g. Another way I was exposed to asbestos was from loose asbestos cargo. I was sometimes involved in the rigging of this cargo for its removal from the ships. The asbestos cargo was loaded into a sling and lifted out of the hatch on to the wharf. I was also involved in re-stacking it. The Hessian bags were pretty strong. However, sometimes they had holes in them and indeed, sometimes the work of unloading them tore holes in the bags. When this happened, asbestos dust came out of the bag and I breathed it in.

h. Many of the ships I worked on went to Sydney first, and then came to Port Kembla. Frequently, these ships had asbestos cargo on board which had been unloaded in Sydney. When these ships arrived in Port Kembla there was no longer any asbestos cargo on board, but there was plenty of asbestos dust and fibre still in the ship and all over the remaining cargo. I understand the holds were not cleaned in Sydney after the asbestos was unloaded. This meant that as soon as I commenced unloading the remaining cargo the asbestos dust and fibre that had settled was disturbed and as a result I breathed it in."

12 Objection was taken to the admissibility of each sentence in these paragraphs where Mr Lindsay expressed an opinion about the substance being asbestos: Tcpt, 17/04/13, p 43(25).

13 Secondly, reliance was placed on statements from three other workers, since deceased, given in other proceedings in the Tribunal, namely Lionel David Foley (22 November 2000), Philip Munro (26 November 2001) and Barry William Wales (20 December 2001). Each contained a detailed account of the deponent's work experience, starting on the Sydney waterfront.

14 Mr Foley worked on the Sydney waterfront from 1948 to 1958: at pars 12, 14 and 20. He described unloading "bundles of asbestos fibro" which he was told were bound for the Housing Commission: pars 28-29. He continued at par 30:

"The cargos were contained within hessian bags. The one name that sticks in my mind is John Manville. The ships came in from Canada with asbestos cargo mixed with other cargo; in particular it was often carried with paper. Occasionally the asbestos was also used as a buffer cargo for heavier cargo ...."

15 He identified wharves at which he unloaded asbestos from deep sea vessels, the name of the stevedoring companies and on occasion the shipping lines. He described how the asbestos was stored:

"33. The asbestos was carried in hessian bags. The bags were not lined and the weave was a loose weave. These bags were stowed one on top of the other and next to each other. They were tightly packed so that the ship carried as much cargo as possible.

34. We would unload the cargo using a [rope] sling. ...

...

36. Depending on the manner in which the ship had been loaded, sometimes we had to work our way down to the very bottom hole to unload the cargo to be deposited at that particular wharf. ... All the cargo would be smothered with the asbestos. Often you could leave the 'tween alone because the cargo loaded in them would not be in the way. ...

37. The asbestos was a very light cargo and very dusty. It was stored in the holds of the ships in the upper or lower tween decks, which were above the waterline. It was also stowed in the lockers and in the deep tanks right at the bottom of a ship.

38. We worked in pairs. One of us would hook the bags in order to move them from where they were stowed to the square and then load them into the sling, which would lift them from the hold onto the deck. If the bags were in the lockers we would drag them from the lockers we would use our hooks and our hands to sling the bags. As a general rule we would get up to 15 bags of asbestos onto a sling ....

39. The bags would rip when I hooked them to haul them out and when we put the slings around the bags they would often burst and the air would fill with dust. The bags had a tendency to tear very easily. When the sling was reeved, loose dust would be released. ... If the bags broke (and this happened frequently) the asbestos would go everywhere and I couldn't see the hatch. ..."

16 From 1958 to 1984, Mr Foley worked at Port Kembla: par 20. He had one specific recollection of discharging a cargo of asbestos from a coastal vessel, but was told that after his shift the cargo was returned to the vessel. He had no other recollection of discharging asbestos at Port Kembla. The main cargos were steel, iron, tinplate, general cargo and paper: par 53. His affidavit continued:

"54. The ships carrying paper cargo stopped in Sydney first if they had asbestos on board in order to unload the asbestos cargo. When these ships arrived in Port Kembla there was no longer any asbestos cargo on board but there was plenty of asbestos dust and fibre still in the ship and all over the paper cargo. In my experience ships were not cleaned in Sydney after the asbestos was unloaded. This meant that as soon as I and the other wharfies commenced unloading the paper cargo the asbestos dust and fibre that had settled were disturbed and as a result became airborne. I saw asbestos fibres floating in the hatch.

55. Throughout my time as a waterside worker[,] I worked on steam driven ships where hot pipes were lagged with asbestos. This included the steam pipes, which operated the winches on old vessels. Often the lagging on the steam pipes would be worn and we called on the gear man, who was a seaman, to re-lag the pipes. I saw [them] wrapping asbestos rope around the pipes."

17 Mr Munro gave similar evidence as to the experience on the Sydney waterfront. At par 20 he stated:

"I recall unloading asbestos from a number of different shipping lines. I unloaded Manville asbestos. Waterside workers were familiar with Tommy Manville as he was he man with 9 wives. I unloaded asbestos from the Straat boats, Bank boats, City boats and from Western Australian State Boats. I remember the asbestos came from South Africa, Canada and Western Australia. I have worked unloading asbestos from the 'Kangaroo' and the 'Koolarra' both of which came from Western Australia. They carried blue asbestos. There were other boats from Western Australia that carried asbestos too."

18 Mr Munro also moved to Port Kembla, in 1967. He stated:

"28. At Port Kembla I was never required to unload or stack asbestos cargo. However I continued to be exposed to an inhale asbestos dust in various ways. The use of steam winches on all of the BHP 'Iron' boats was a regular thing at Port Kembla. The steam winches had hot pipes all round the seat where I and other waterside workers sat when driving the winches. All of the pipes that were only centimetres away from our body and face were insulated with white asbestos cloth that was wrapped around. The asbestos lagging was always damaged and hanging off. It was also in bad repair and brittle. On the steam winches, on the left hand side was the steam control and when I used it the steam winch vibrated and the asbestos lagging on the pipes shook and dust went in the air. The lagged pipes were very close to my face. Sometimes the lagging was so damaged and brittle that I told the foreman to relag the steam pipes before I operated the winch. ... I operated a steam winch or was present when someone else operated it regularly at Port Kembla until the late 1970s.

29. At Port Kembla I worked in the holds of many dirty and dusty ships. There were occasions when there was loose asbestos in the holds on some of the ships that came to Port Kembla after unloading at Sydney. It was just lying on the floor in clumps or it just lay on top of other cargo. As we worked down below we disturbed it and it was dusty. I cannot recall how frequently I worked in a hold contaminated with asbestos at Port Kembla, but I know that some of the ships like the Straat line came to Port Kembla and I worked in the holds. These were the same ships that carried asbestos when I worked in Sydney."

19 Mr Barry Wales also worked on the Sydney waterfront from 1956 to 1966: par 20. He gave a similar detailed description to that given by Mr Foley and Mr Munro, including naming similar ships as those carrying asbestos.

20 In 1966 he transferred to Port Kembla where he continued as a waterside worker until well beyond 1983. He gave similar evidence as to contact with asbestos in ships while at Port Kembla, again not having unloaded asbestos cargo there: pars 31-33.

Principles relevant to admissibility

21 Generally evidence of an opinion is not admissible to prove the existence of a fact about which the opinion was expressed and which the opinion is tendered to prove: Evidence Act 1995 (NSW), s 76(1). The rule does not apply to evidence which constitutes an account of perceptions of facts; nor does it apply if the opinion is based on what the witness perceived and is necessarily so expressed to obtain an adequate understanding of the perception: s 78. Further, the rule does not apply to "expert" opinion. By that is meant opinion wholly or substantially based on "specialised knowledge" which in turn is based on the witness's "training, study or experience": s 79(1). There is, it has been remarked on more than one occasion, a continuum between evidence of objective facts and expert opinions; what are described as lay opinions may fall somewhere along that spectrum between the two identified poles. Further, it is necessary to draw a distinction between expert opinion based on study and training and expert opinion based on experience. Although study and training are a form of experience, they tend to assume the imparting of specialised knowledge by another expert, through a process with some degree of formality and structure, rather than unstructured self-trained acquisition of specialised knowledge.

22 In the present case, none of the waterside workers claimed any specialised knowledge by study or training. The question is rather, particularly in the cases of Messrs Foley, Munro and Wales, whether by working on the Sydney waterfront for periods of some 10 years each, they acquired a degree of experience sufficient to allow them to identify the fibrous substance with which they worked on many occasions as asbestos. If so, they may have acquired "specialised knowledge" sufficient to satisfy s 79. On the other hand, it is clear that common knowledge is also acquired by experience and may be identified as a perception.

23 The proper analysis in the present case must commence with identification of the facts sought to be proved. The ultimate fact was that the deceased was exposed to airborne asbestos dust or fibre in the course of his employment with Port Kembla Stevedoring. To do that he sought to establish that there was loose asbestos in the holds of ships in which he worked, on cargos which he helped to unload, as lagging on steam pipes in the holds of ships and on the piping of steam winches which he helped to operate. With respect to the lagging, he further needed to establish that it tended to come loose and disintegrate, thus causing dust or airborne fibres which were likely to be inhaled. It was not in doubt that he could give evidence of his perceptions of dust and fibrous material: the only question was whether, through his own evidence or the evidence of the other workers, he could establish on the balance of probabilities that the dust was asbestos.

24 Asbestos may be identified as a silicon based mineral found in various types, each with its own specific chemical formula. No doubt it requires specialised knowledge to identify the chemical formula of a particular fibre, but that information is not necessary in order to identify asbestos fibre prepared for industrial use. Thus, whether expert knowledge is required to form a particular opinion depends on the specific fact to be established and the context in which it is to be established. Anyone can identify water without knowing its chemical composition. However, if confronted with two colourless, odourless liquids, one of which is thought not to be water, specialised knowledge may be required to make the necessary distinction.

25 People who work with particular materials may acquire knowledge which is not common to the population at large. A carpenter may be able to identify a wide range of woods, a skill which others would not possess. If the question is whether particular wood was walnut or mahogany, it might be necessary to know whether the person expressing an opinion had experience with each of those timbers. There may be also a question as to how the ability to distinguish was originally acquired. It is true that waterside workers did not construct or manufacture from the materials they handled. Nevertheless, manual handling and knowledge of shipping will undoubtedly form a basis upon which to identify cargos in an age before cargos travelled in uniform boxes or containers.

26 If there were evidence of cargos being unloaded in Sydney which were light and fibrous and contained in hessian bags, coming from Canada, South Africa or Western Australia, there might have been a live issue as to whether experienced waterside workers could distinguish asbestos fibre from other forms of fibre. However, no such issue arose. For example, it was not in dispute that two or three ships a month discharged asbestos in the Port of Sydney during the 1960s. It is also not in dispute that lagging on steam pipes consisted of a form of asbestos rope. Further, no question arose in the present case as to the quantification of Mr Lindsay's exposure.

27 It was clear from the evidence of the three deceased workers that their jobs involved identifying relevant cargo, "usually by word of mouth", as explained by Mr Munro, at par 10. After describing in detail the manner of unloading and stacking asbestos cargos, he noted that it was "always the same": at par 21.

28 Given the proper identification of the issue to which the evidence went, the experience of the individual workers over many years and the fact that no attempt was being made to distinguish types of asbestos or quantities of airborne material, what they described was based on what was, for them, common knowledge. Their evidence in that regard was admissible as evidence of a fact which they perceived.

29 It may be accepted that Mr Lindsay's exposure to what the other workers identified as asbestos was more limited than theirs. Nevertheless, he described exposure as occurring "regularly" from about 1964 until the early 1970s. Despite lesser exposure, there is no reason to suppose that what was common knowledge amongst the waterside workers was not also common knowledge for Mr Lindsay. It may be that not all of the dust and fibre described as asbestos was in fact asbestos, but again the contextual evidence did not suggest that it was likely to constitute other similar fibres which were not readily distinguishable. Mr Lindsay's evidence was admissible on the same basis as that of the other workers.

Stevedoring Industry Authority - duty of care

30 The appellant challenged the finding of the Tribunal that the Authority owed a duty of care to Mr Lindsay. It accepted that the Authority owed a duty of care to waterside workers, a proposition which flowed inevitably from the decision in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1. However, the appellant, noting the Tribunal's reliance on Crimmins, submitted that Crimmins was distinguishable and did not dictate the result in the present case. The Tribunal, the submission continued, was also in error in relying on Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; 20 NSWCCR 417, a case dealing with a waterside worker whose exposure arose in the Port of Sydney. (The Court in Gibson undertook an expansive review of the facts, as then required because appeals from the Tribunal were not limited to points of law, a matter noted by Mason P at [159].)

31 The Tribunal identified two main differences from the circumstances of those cases, namely that Mr Lindsay worked at Port Kembla (where asbestos was not loaded or unloaded) and that he was not a registered waterside worker: at par 30. The reasoning continued:

"However, he worked for a registered stevedoring company and worked with Waterside workers who were exposed to asbestos during the course of their working day. This meant that he also was exposed to asbestos."

32 The Tribunal further noted that the Authority had "port inspectors" and had "control of stevedoring operations in Port Kembla just as it had in other ports": at pars 31 and 32. The Authority "could have stopped work being carried out on vessels that had asbestos in their holds and could have directed that no work be carried out until the workers were protected from exposure to asbestos on steam pipes on winches and within ships": at par 35.

33 On the appeal, the points of distinction relied upon by the appellant were both factual and legal. The factual considerations were that (a) Mr Lindsay did not unload cargo; (b) asbestos was not loaded or unloaded at Port Kembla, and (c) the work conditions at Port Kembla with respect to asbestos were not comparable to those at Sydney or Melbourne. Each point of distinction may be accepted, but, by reference to the relevant principles for determining whether or not a duty existed, they are of little significance, either individually or collectively.

34 The appellant was on stronger ground in identifying the differences in the legal relationship between the Authority and Mr Crimmins and Mr Gibson, on the one hand, and Mr Lindsay, on the other. Thus, Mr Lindsay was (a) in continuous employment and not part of a casual workforce; (b) not a registered waterside worker, and (c) not subject to direct control by the Authority. The respondent contended that the points of distinction were immaterial, relying upon some broad statements as to the operation of the Authority in the reasons of Mason P in Gibson at [35]-[37]. However, as the President noted at [36], it would be "entirely unproductive to traverse in any detail the statutory material and legal principles" given the decision in Crimmins. Because, in the present case, there are points of distinction from Crimmins it is necessary to return to the statute.

35 Before doing so, it is helpful to identify the legal principles to be applied in determining whether a defendant owed a duty of care to a plaintiff.

Legal principles - duty of care

36 The statements of principles to be applied in determining whether a defendant owes a plaintiff a duty of care have undergone a degree of linguistic metamorphosis over the last two decades. It is now common in this country to require reference to the "salient features" of the relationship between the plaintiff and the defendant. In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649, Allsop P provided a list or catalogue of some 17 salient features, described as "a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content": at [103] and [104]. However, the value of such a catalogue is limited. As noted by McHugh J in Crimmins at [77]:

"Since the demise of any unifying principle for the determination of the duty of care and the general acknowledgment of the importance of frank discussion of policy factors, the resolution of novel cases has increasingly been made by reference to a 'checklist' of policy factors. The result has been the proliferation of 'factors' that may indicate or negative the existence of a duty, but without a chain of reasoning linking these factors with the ultimate conclusion. Left unchecked, this approach becomes nothing more than the exercise of a discretion .... There will be no predictability or certainty in decision-making because each novel case will be decided by a selection of factors particular to itself. Because each factor is only one among many, few will be subject to rigorous scrutiny to determine whether they are in truth relevant or applicable."

37 Dealing with a case involving a public authority, McHugh J identified six questions, the answers to which might determine the existence or absence of a duty of care: at [93]; see also Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [84].

"1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.

2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.

3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.

4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.

5. Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty.

6. Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty."

38 Gummow and Hayne JJ in Graham Barclay noted that the existence or otherwise of a common law duty of care allegedly owed by a statutory authority "turns on a close examination of the terms, scope and purpose of the relevant statutory regime": at [146]. The joint reasons continued at [149]:

"An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance."

39 The joint reasons also noted that "[t]he factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority": at [150].

Application of principles

40 The relevant factual findings have been outlined above. Mr Lindsay did not unload asbestos, nor was he directly involved in unloading cargo. Nevertheless, he worked in close proximity to waterside workers who were unloading cargo and worked about ships in circumstances where there was loose asbestos capable of being inhaled by both waterside workers and others whose duties required them to be in the immediate vicinity, whether in ships holds or working steam winches.

41 The statutory scheme was as follows. The Stevedoring Industry Act, as in force in 1973, established the Authority (s 10) and required that it "shall perform its functions, and exercise its powers, under this Act with a view to securing the expeditious, safe and efficient performance of stevedoring operations": s 8. The functions, established under s 17, were, relevantly, as follows:

17 Functions of the Authority

(1) The functions of the Authority are -

(a) to regulate the performance of stevedoring operations;

...

(c) to pay -

(i) attendance money payable to registered waterside workers ...;

(d) to ensure that sufficient waterside workers are available for stevedoring operations at each port ...

...

(f) to make arrangements for allotting waterside workers to stevedoring operations so as to ensure, as far as practicable, a fair distribution of work in stevedoring operations amongst registered waterside workers ...;

...

(i) to regulate the conduct of waterside workers in an about employment bureaux, wharves and ships;

(j) to provide or assist in providing, at places where satisfactory provision therefor is not, in the opinion of the Authority, made by employers or any other person or authority, first aid equipment ... sanitary and washing facilities ... and other amenities for waterside workers;

...

(l) to investigate means of improving, and to encourage employers to introduce methods and practices that will improve, the expedition, safety and efficiency with which stevedoring operations are performed;

...

(o) to encourage safe working in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers engaged in stevedoring operations and, where necessary, to prove waterside workers with articles and equipment designed for that purpose;

...

(2) In regulating the performance of stevedoring operations under this Act, the Authority shall, except to such extent as, in the opinion of the Authority, is essential for the proper performance of that function, avoid imposing limitations upon employers with respect to their control of waterside workers engaged by them and their manner of performance of stevedoring operations.

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

42 The Authority had power to appoint inspectors: s 23. Inspectors were required to investigate and report in relation to stevedoring operations as the Authority directed and "to suggest to employers and waterside workers, in appropriate cases, means by which stevedoring operations may be performed with greater expedition, safety and efficiency ...".

43 Section 28 provided for the registration of employers carrying out stevedoring operations at a port and s 29 provided for the registration of persons seeking employment as waterside workers at a port. Obligations to carry out stevedoring operations in an expeditious, safe and efficient manner were imposed on registered employers: s 33. There was a prohibition on employment of unregistered persons as waterside workers and for unregistered employers to engage persons as waterside workers: ss 39 and 41.

44 There was a definition of "waterside worker" which meant "a person who accepts, or offers to accept, employment for work in the loading or unloading of cargo into or from ships", but excluding "persons in the regular employment of a person engaged in an industrial operation, being persons whose duties include the performance of stevedoring operations in connection with that undertaking": s 7(1), "waterside worker", chapeau and par (n). Mr Lindsay was not a waterside worker because he fell within the last exclusion: he was excluded because he was in regular employment by an employer undertaking stevedoring operations. Nevertheless, his work, including the "driving or operation of mechanical appliances used in connexion with the loading or unloading of ships or with the handling or storage of cargo or other goods at or adjacent to a wharf", fell within the broad description of work undertaken by a waterside worker.

45 The other phrase used regularly in the provisions set out above is "stevedoring operations", which was defined to mean activities mirroring those in the definition of waterside workers, but only when performed by a person who was a member or applicant for membership of the Waterside Workers' Federation. There was no finding that Mr Lindsay fell within that category: he was therefore not engaged in stevedoring operations within the meaning of the statute.

46 Accepting that the Authority had a duty of care to those who were involved in stevedoring operations and were registered waterside workers, the question is whether that duty extended to others undertaking similar or related work, even work that fell within the physical descriptions set out above, but who were not covered by the statutory scheme, for example because they were in regular employment.

47 In this case, the existence of a duty will depend in part on its content. The point is helpfully considered by reference to the questions identified in Crimmins. If the obligation of the Authority, in exercise of its duty of care to registered waterside workers, was to issue those persons with protective equipment, it is arguable that the duty would be restricted to those subject to its direction and control, which would have excluded Mr Lindsay. On the other hand, if the duty extended to refusing to allocate registered waterside workers to unload ships which contained loose asbestos or deteriorating lagging on steam pipes, then the class of persons who would benefit from the direction given or suffer from the failure to give the direction, would include Mr Lindsay. Without people to unload a vessel, he would have had no function to perform. There would be no reason why, in determining whether to take steps to protect registered waterside workers, the Authority could not properly have taken into account the consequences for other workers working in close proximity to registered waterside workers. A stevedoring operation involving the physical activity of loading or unloading a ship is an indivisible operation: if the duty of the Authority to registered waterside workers required that the operation not be undertaken otherwise than in safe conditions, absent some statutory indication to the contrary, it should be accepted that the duty was owed to an indivisible class, namely those who were at risk of inhaling airborne asbestos in the course of the stevedoring operation.

48 The analysis in Crimmins, with respect to the functions of the Authority and registered waterside workers, concluded that there was nothing inconsistent between the duty of care upheld in that case and the scheme of the statute. McHugh J stated at [103]:

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

49 The same reasoning would apply with respect to workers with regular employers. All waterside workers were employed by stevedores which were themselves required to be registered with the Authority as employers. Indeed, the evidence of other workers revealed that Mr Lindsay's employer was a registered employer to which registered waterside workers were allocated. To the extent that the Authority was required to exercise its powers by giving directions to employers, providing information and instruction to employers, or deciding whether or not to allocate waterside workers to unload particular ships, absent the proper exercise of which registered waterside workers would be exposed a risk of harm, it would be incongruous to conclude that the class which would benefit from the Authority carrying out its duty (and suffer from a negligent omission) would not include those in regular employment as well as those allocated to the employer by the Authority from time to time.

50 In its statement of claim, the Authority asserted at par 4.3 that Mr Lindsay had alleged, in his claim against the Authority, that:

"At all material times [the Authority and the Australian Stevedoring Industry Board] were under a continuing duty of care in the exercise of their statutory functions, duties and powers, to take reasonable care to avoid foreseeable risks of injury to waterside workers including Mr Lindsay as a result of performing the work in the course of stevedoring operations at the port."

51 No more precise detail of the scope of the Authority's duty was identified. The Authority further noted (par 5) that it had settled the proceedings "without an admission of liability". In its defence, the appellant admitted par 4 of the statement of claim, admitted par 5 and affirmatively stated that the Authority was "not a tortfeasor" noting as a particular that the Authority had denied that it owed a duty of care to Mr Lindsay.

52 If the basis on which the Authority had been said to owe a duty had been limited to the provision of protective clothing, there was an arguable case that such a duty did not extend to Mr Lindsay who was not a registered waterside worker, nor, it appears, engaged in "stevedoring operations" within the meaning of the Act. However, no such restricted duty was alleged and the appellant admitted that Mr Lindsay had formulated the duty of the Authority in accordance with statement set out above.

53 In these circumstances, there was no error in point of law on the part of the Tribunal in accepting that the Authority owed a duty of care to Mr Lindsay.

Stevedoring Industry Authority - breach of duty

54 Breach of duty is generally a question of fact. Ground 6 in the notice of appeal alleged error on the part of the Tribunal in failing to take into account evidence of an industrial hygienist, Mr Pickford, parts of whose report were tendered by the appellant. In the course of argument, the appellant conceded that this ground did not raise a point of law and it was not pressed. However, grounds 7 and 8 were pressed, on the basis that they were formulated as "no evidence" grounds.

55 Ground 7 alleged that the Tribunal had, at par 38, based a finding that the Authority had actual knowledge of the hazards of asbestos "on determinations of this Court in other proceedings", contrary to s 91 of the Evidence Act. At par 38 the Tribunal had said:

"The actual knowledge of [the Authority] of the hazards of asbestos is clear. Indeed it was spelt out in Gibson [supra]. See para 91."

56 Unlike the ground of appeal, the written submissions did not isolate par 38 of the judgment, nor did they make any submissions by reference to it. Nothing was said in the course of oral argument to expand upon that ground. It must be rejected for that reason alone. However, the ground should be rejected because, as a matter of substance, it was misconceived. The reasoning at pars 37 and 39 provided the substance of the findings: par 38 was an aside.

57 Ground 8 did in fact assert that there was "no evidence" to support two findings by the Tribunal at par 39, namely, (a) "that both Authorities were aware, because of their membership of the various Committees described in the statement of Mr Dalziel that ships in Sydney that unloaded asbestos had residues of asbestos in their holds and had asbestos lagging in their steam pipes", and (b) they "were aware that those ships came to Port Kembla carrying other cargoes with asbestos in the holds as well as asbestos lagging on ships steam pipes and on the steam pipes of wharf winches."

58 The written submissions did not make such a claim good and in oral argument, counsel disavowed the relevance of those grounds as going to breach, saying that they "really bear on the duty question": CA Tcpt, 16/05/14, p 2 (3). Nevertheless, little was said about those passages in relation to duty. In the written submissions dealing with duty, the complaint was made that Mr Dalziel's statement "does not refer to asbestos at Port Kembla": submissions, par 69. So far as it went, that statement was true, but beside the point. The Tribunal referred to Mr Dalziel's statement as the source of information about the various committees to which he referred. The statement discussed the work of various organisations, including those responsible for operational training programs for waterside workers: at par 23. It said that the NSW State Training Officer "was responsible for the ports of Newcastle, Sydney and Port Kembla": at par 24. As a result of recommendations he had made, Mr Dalziel noted the establishment in 1960 of the "Federal Advisory Committee on Waterfront Accident Prevention": par 27. It was a national body which liaised with States by setting up "Port Advisory Panels" in each State: par 31. There was reference to a minute of a meeting in April 1963 dealing with asbestos in Freemantle and seeking a survey of workers who had handled asbestos over a long period: par 52. The possible issue of suitable respiratory equipment was dealt with at another meeting, in October 1963, on referral from the Hobart Port Advisory Panel. At numerous meetings there was a record of asbestos being discussed: the point of the reference by the Tribunal was not that there was discussion with respect to particular ports but that there were committees established which had knowledge of asbestos cargos and acquired and distributed information. The complaint is not that the Authority was not aware of the hazards of asbestos, but that Mr Dalziel's report did not establish that the Authority was aware that ships unloaded in Sydney carried residues to Port Kembla, or that winches and steam pipes had asbestos lagging.

59 The narrowness of the complaint is significant. Amongst other evidence, Mr Dalziel reported that, as a stevedoring supervisor for some years, he was notified of cargo to be loaded or unloaded and was required to provide information "through a senior manager of his stevedoring company, to the Authority seeking labour": par 6. In 1959, he worked for a committee of overseas ship owners, investigating accidents, in the course of which he visited "all the major ports ... to see what they were doing about safety": par 13. He also said that he discussed safety issues with members of the Authority. The report recommended the establishment of the Federal Advisory Committee: par 15.

60 Further, the ground of appeal (whether relevant to duty or breach) was not a complaint about the reasons of the Tribunal, but about the lack of evidence to support a finding. There was, however, detailed material as to the operation of the Authority and other stevedoring industry employers. There was, for example, a statement from Mr William Fleming. He was an employee of the Australian Stevedoring Industry Board from 1954 until 1956 when he became an employee of the Authority. He described the system for allocation of labour, by reference to Sydney. Mr Fleming was also a port inspector from 1956 to 1962. He was the Authority's representative on the Federal Advisory Committee from 18 March 1961.

61 There was in evidence a letter of May 1969 from the Federal Advisory Committee concerning information on asbestos gathered from various sources, addressed to the Occupational Health Committee, School of Public Health and Tropical Medicine at the University of Sydney. The letterhead listed a number of Port Advisory Panels, including one at Port Kembla.

62 It was also open to the Tribunal to infer from the evidence of the waterside workers discussed above that the Authority and the appellant would have been aware of the existence of loose asbestos in the forms discussed. Mr Foley and Mr Munro, for example, were able to identify a specific ship from Western Australia, the "Kangaroo" which was unloaded at Port Kembla and which carried asbestos to the Port of Sydney: see Foley affidavit, par 52; Munro affidavit, par 20. Further, the descriptions prepared in 1969 and 1970 by those working at the School of Public Health and Tropical Medicine on its study of '"Asbestos on the Waterfront" allowed an inference to be drawn that other cargos, which remained in ships carrying asbestos after the asbestos had been removed, would almost inevitably be contaminated and would themselves raise a "snowstorm" when handled.

63 There was no substance to the "no evidence" grounds.

Apportionment

64 The trial judge apportioned responsibility for what he found to be a fair settlement as to 75% against the appellant. He did so on the basis that the appellant was the worker's employer and thus bore a greater degree of responsibility than did the authority. Ground 9 asserted that the Tribunal "failed to assess the relative causal potency and culpability of" the appellant and the respondent and to give reasons for the apportionment. Given that the primary position of the appellant with respect to the duty of care of the Authority was that it owed none to Mr Lindsay, whereas the appellant undoubtedly owed him a duty as his employer, there is some irony in it challenging the apportionment adopted by the Tribunal. However, the appellant's primary position having been rejected, ground 9 must be assessed in its terms.

65 The Law Reform (Miscellaneous Provisions) Act provides, relevantly to this question:

5 Proceedings against and contribution between joint and several tort-feasors

...

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

66 The appellant complained that there was no evidence before the Tribunal to allow it to assess the relevant culpability of each party. However, that was not true. There was evidence accepted by the Tribunal as to the conditions in which Mr Lindsay worked at Port Kembla. Once it was accepted that Mr Lindsay was exposed to significant levels of asbestos dust, and that the Authority had or should have had actual knowledge of that fact and the hazards of asbestos, it was open for the Tribunal to conclude that a stevedoring company operating at the same time in the same port with knowledge of the same circumstances, would share that knowledge. The remaining question did not depend so much on the evidence, as the respective duties of care of the Authority and the employer. Apportionment between them was a matter of evaluative judgment; no error of law is demonstrated by according a higher proportion to the employer than to the Authority, given the nature of the duty of an employer under the general law and the limited responsibility of the Authority with respect to Mr Lindsay, as outlined above.

67 Secondly, the appellant complained that the Tribunal failed "to assess and give reasons for" the quantum of the liability incurred by Comcare, pursuant to the settlement. The Tribunal addressed the quantum of the verdict in favour of Mr Lindsay, namely $350,000 inclusive of costs and noted that "[m]ost plaintiffs in the Tribunal receive by way of general damages if the case goes to judgment, something in the order of $250,000 to $290,000": at par 43. On that basis, and given that the evidence of Mr Lindsay's condition did not demonstrate some unusual form of mesothelioma, it was open to the Tribunal to reach the conclusion that the settlement was fair and not excessive. The reasons given were those stated above and were, in the circumstances, adequate.

Conclusion

68 The appellant having failed on each of the various grounds raised in its notice of appeal, the appeal must be dismissed; the appellant must pay the respondent's costs of the appeal.

69 SACKVILLE AJA: I agree with the orders proposed by Basten JA and with his Honour's reasons. I add two observations.

70 Basten JA has referred to the evidence of the deceased workers as to their experiences with the substance they identified as asbestos. One of those workers in particular, Mr Foley, gave evidence, quoted at [16] above, concerning his observation of asbestos dust at Port Kembla. Earlier in his affidavit (at pars 26-39), Mr Foley gave a detailed account of his experience in loading and unloading cargoes of asbestos on the Sydney waterfront between 1948 and 1958. Mr Foley described the manner in which asbestos was packaged in hessian bags, how the asbestos was transported and unloaded, the circumstances in which loose asbestos came to be scattered around the vessels and the appearance of the asbestos dust that Mr Foley frequently saw both during unloading operations and after the operations had been completed. In my opinion, Mr Foley's extensive experience in handling and observing asbestos amply qualified him to give opinion evidence as to whether the dust and fibres he observed at Port Kembla were indeed asbestos.

71 The second observation concerns the statutory functions of the Australian Stevedoring Industry Authority (Authority). Under s 17 (1) of the Stevedoring Industry Act 1956 (Cth) (Act), as in force in 1973, those functions included:

"(l) to investigate means of improving, and to encourage employers to introduce methods and practices that will improve, the expedition, safety and efficiency with which stevedoring operations are performed;

...

(o) to encourage safe working in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers engaged in stevedoring operations ..."

Section 18(1) of the Act provided that, for the purpose of the performance of its functions, the Authority could make such orders and do all such other things as it thought fit.

72 Mr Lindsay performed work of a kind that was within the definition of "stevedoring operations" in s 7(1) of the Act. However, his work was excluded from the definition because he was not a member of the relevant union. But if the Authority effectively carried out its functions under s 17(1)(l) and (o) of the Act, its actions inevitably would have protected not only members of the relevant union engaged in stevedoring operations, but other workers engaged in precisely the same activities. As a practical matter, it is difficult to see how vessels could have been loaded and unloaded without proper safety precautions if the Authority, acting in accordance with its statutory functions, required appropriate safety precautions to be put in place to protect members of the Waterside Workers' Federation of Australia engaged in stevedoring operations. At the very least, s 18(1) of the Act would have permitted the Authority to advise Mr Lindsay's employer of the dangers of asbestos and of the need to take appropriate precautions to prevent Mr Lindsay being exposed to asbestos fibres.

73 In terms of the questions posed by McHugh J in Graham Barclay Oysters Pty Ltd v Bryan [2002] HCA 54: 211 CLR 540 at [84], there could hardly be a worker in a more vulnerable position than Mr Lindsay, given his exposure to asbestos dust. If the Authority should have known of the dangers posed by asbestos fibres, it had the power to ensure that no operations of the kind included in the definition of "stevedoring operations" took place, whether or not conducted by members of a particular union. It is unthinkable that if the Authority appreciated the dangers posed by asbestos fibres and took measure to ensure the safety of the members of a particular union, it would not be obliged to exercise all powers available to it to prevent other workers engaged in the same activities being exposed to precisely the same risk.

**********

Decision last updated: 04 July 2014