AMACA PTY LIMITED (Formerly known as James Hardie & Coy Pty Limited) v NEW SOUTH WALES & ANOR

(2004) 132 LGERA 309; [2004] NSWCA 124

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Duty of care
3. › Public authorities
4. › Statutory powers
5. › Whether State owed duty of care to exercise statutory inspection and direction powers to protect workers from asbestos exposure
6. › Whether circumstances fell within exceptional categories identified in Sutherland Shire Council v Heyman
7. › Scaffolding and Lifts Act 1912 (NSW), ss 5, 13, 15
1. Negligence
2. › Duty of care
3. › Public authorities
4. › Control as basis for duty
5. › Whether degree of State control over workplace sufficient to attract duty of care
6. › Comparison with control in Crimmins v Stevedoring Industry Finance Committee and Pyrenees Shire Council v Day
1. Negligence
2. › Duty of care
3. › Public authorities
4. › Knowledge and reliance
5. › Whether State's knowledge of asbestos risk sufficient to create duty
6. › Whether prior inspection and report constituted intervention engendering reliance
7. › Whether knowledge alone sufficient without other factors
1. Agency
2. › Attribution of knowledge
3. › Government departments and statutory corporations
4. › Whether knowledge of inspectors attributable to the State
5. › Whether knowledge of independent statutory corporation attributable to the State
6. › Scaffolding and Lifts Act 1912 (NSW), s 5
7. › Scaffolding and Lifts Regulations 1950, reg 10

Quick Take

A State government authority with statutory powers to inspect workplaces and give directions regarding unsafe conditions does not owe a duty of care to workers merely because it has knowledge of hazardous conditions and power to intervene, where the field is populated by self-interested commercial actors (employers, manufacturers, occupiers) who themselves possess knowledge and power to avert the risks. The degree of control exercised by workplace inspectors under the Scaffolding and Lifts Act 1912 is fundamentally different from the extraordinary control exercised by the Authority in Crimmins. Knowledge of inspectors within a statutory chain of command is attributable to the State, but knowledge of an independent statutory corporation is not.