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

Amaca Pty Limited (the appellant) appealed from a decision of the Dust Diseases Tribunal of New South Wales. The respondent, Roseanne Cleary, was the legal personal representative of the estate of the late Fortunato Gatt. Mr Gatt had been exposed to asbestos dust and fibres at the appellant's factory between 1962 and 1964, and he died in 2019 from lung cancer. The sole issue before the primary judge was causation, specifically whether Mr Gatt's asbestos exposure caused him to acquire asbestosis and/or lung cancer.

The appeal raised several legal issues. These included whether the primary judge was obliged, as a matter of law, to accept evidence from the appellant's experts that was not cross-examined, and whether the primary judge was obliged to draw a *Jones v Dunkel* inference from the respondent's failure to call a specialist who had viewed a lung scan. The court also considered whether the primary judge erred in law in their approach to causation, particularly in relation to the epidemiological evidence concerning the relative risk of smoking and asbestos exposure, and whether the primary judge acted inconsistently with section 25B of the *Dust Diseases Tribunal Act* and previous tribunal decisions. Finally, the court considered whether the primary judge failed to address the appellant's argument that the causal potency of historical asbestos exposure diminishes over time.

The Court of Appeal dismissed the appeal. It held that there is no legal obligation to accept unchallenged evidence, nor is there an automatic obligation to draw a *Jones v Dunkel* inference. The primary judge's finding of asbestosis was based on a preference for the respondent's expert evidence, and the primary judge's approach to causation, while potentially flawed in its treatment of epidemiological evidence, did not constitute an error of law that warranted overturning the decision. The court found that the primary judge had not acted inconsistently with the *Dust Diseases Tribunal Act* or previous tribunal decisions, and had adequately addressed the appellant's arguments. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.