Recent Cases

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 (23 August 2022) (Brereton, Beech-Jones and Mitchelmore JJA)


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