Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Hearing dates: 29 March 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Before: Brereton JA at [1] Beech-Jones JA at [2] Mitchelmore JA at [103] Decision: (1) Appeal dismissed. (2) The Appellant pay the Respondent's costs of the appeal. Catchwords: DUST DISEASES – appeal from Dust Diseases Tribunal – deceased worker exposed to asbestos dust and fibres at appellant's factory between 1962 and 1964 – heavy smoker – died in 2019 – prior to death acquired lung cancer – only issue was causation – two limbs to causation case – exposure to asbestos caused worker to acquire asbestosis – exposure to asbestos caused worker to acquire lung cancer – success on either limb sufficient for worker to succeed – primary judge upheld both limbs – finding of asbestosis based on preference for respondent's expert – appellant called five experts refuting asbestosis – none cross‑examined – whether primary judge required as a matter of law to accept evidence not cross‑examined on – Browne v Dunn – appeal restricted to points of law – question of fact – no obligation as a matter of law to accept unchallenged evidence – whether primary judge obliged to draw Jones v Dunkel inference from failure of respondent to call specialist who viewed lung scan – no obligation as a matter of law to draw such inference – finding that asbestos exposure caused lung cancer – epidemiological evidence – appellant's expert concluded relative risk of smoking causing lung cancer was around 96% – primary judge wrongly treated evidence as supporting a finding that asbestos made a material contribution to worker acquiring lung cancer – erred in law in approach to causation – s 25B of the Dust Diseases Tribunal Act – whether primary judge acted inconsistently with s 25B(1) and previous decision of tribunal in Judd v Amaca – not established – whether primary judge failed to address appellant's case that causal potency of historical exposure to asbestos reduces over time – not established Legislation Cited: Dust Diseases Tribunal Act 1989 (NSW) Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raines [2018] NSWCA 216 Amaca Pty Ltd v Booth (2011) 246 CLR 36; [2011] HCA 53 Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Browne v Dunn (1893) 6 R 67 Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd 91 NSWLR 34; [2015] NSWCA 281 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Evans v Queanbeyan City Council [2011] NSWCA 230 Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 Jones v Dunkel (1959) 101 CLR 298; [1989] HCA 8 Judd v Amaca Pty Ltd (2003) 25 NSWCCR 125; [2003] NSWDDT 12 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Manly Council v Byrne and Anor [2004] NSWCA 123 McDonald v State Rail Authority (1998) 16 NSWCCR 695; [1998] NSWDDT 4 Patrick Operations Pty Ltd v Comcare (2006) 68 NSWLR 131; [2006] NSWCA 142 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 Rosanne Cleary as the Legal Personal Representative of the Estate of the late Fortunato (aka Frank) Gatt v Amaca Pty Ltd [2021] NSWDDT 5 Roseanne Cleary as the legal personal representative of the estate of the late Fortunato (aka Frank) Gatt v Amaca Pty Limited [2021] NSWDDT 7 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300 Wallaby Grip Limited & Anor v Peirce & Ors; James Hardie & Coy Pty Limited v Peirce [2000] NSWCA 299 Category: Principal judgment Parties: Amaca Pty Limited (Under NSW Administered Winding Up) (Appellant) Roseanne Cleary as the Legal Personal Representative of the Estate of the late Fortunato (aka Frank) Gatt (Respondent) Representation: Counsel: D Hooke SC; D Klineberg (Appellant) B Walker SC; G Parker SC (Respondent)