Rosanne Cleary as the Legal Personal Representative of the Estate of the late Fortunato (aka Frank) Gatt v Amaca Pty Ltd [2021] NSWDDT 5

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Rosanne Cleary as the Legal Personal Representative of the Estate of the late Fortunato (aka Frank) Gatt v Amaca Pty Ltd [2021] NSWDDT 5 Hearing dates: 6 July 2019; 17 July 2020; 29 July 2020; 3 and 4 August 2020; 21 September 2020; 27 October 2020; 9, 10, 11, 12, 13 November 2020; 15 February 2021 Date of orders: 6 September 2021 Decision date: 06 September 2021 Before: Strathdee, J Decision: 1. Judgment for the plaintiff against the defendant in the sum of $540,000.00. 2. Defendant to pay the plaintiff's costs as agreed or assessed. 3. If any alternate costs order is sought, parties must notify my associate within 14 days. Catchwords: DUST DISEASES TRIBUNAL – causation – balance of probabilities – negligence – deceased was a smoker – lung cancer – contributory negligence – use of epidemiological evidence – effect of smoking and exposure to asbestos fibres – impossible to determine the cause through medical examination – whether epidemiological evidence established a cause on the balance of probabilities ADMINISTRATIVE LAW – rules of evidence – examination and cross-examination – rule in Browne v Dunn – whether Tribunal erred in failing to have regard to the circumstances that evidence not accepted by Tribunal went unchallenged by cross-examination Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation (Dust Diseases) Act Cases Cited: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Allianz Australia Ltd v Sim (2012) 10 DDCR 325 Allianz Australia v Sim (2012) 10 DDCR 325 Amaca Pty Ltd v Booth (2011) 246 CLR 36 Amaca Pty Ltd v Ellis (2010) CLR 111; [2010] HCA 5 Amaca v Ellis (2010) 240 CLR 111 Browne v Dunn (1983) 6 R 67 Dasreef v Hawchar (2011) 243 CLR 588 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Evans v Queanbeyan City Council (2010) 9 DDCR 541 Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303 Hull v Thompson [2001] NSWCA 359 Jones v Dunkel (1959) 101 CLR 298 Judd v Amaca Pty Ltd [2003] NSWDDT 12 Scalise v Bezzina & Ors [2003] NSWCA 362 State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540 Category: Principal judgment Parties: Rosanne Cleary as the legal personal representative of the estate of the late Fortunato (aka Frank) Gatt (Plaintiff) Amaca Pty Limited (First Defendant) Representation: Counsel: Mr G Parker SC and Mr J Sharpe appeared for the Plaintiff Mr D Hooke SC and Mr D Klineberg appeared for the Defendant