FRANCESCO CINZANO and CIA (AUSTRALIA) PTY LTD v CARNUCCIO

PRACTICE and PROCEDURE - interlocutory appeal - whether lies the Court of Appeal from Dust Diseases Tribunal - motion to dismiss appeal as incompetent - order extending time to sue under Limitation Act 1969, s57, s58 - held: Whether or not an appeal lies from an interlocutory order of the Dust Diseases Tribunal need not be decided in this case as the appeal can be disposed of on its merits.

WORDS and PHRASES - "knowledge - "nature and extent".

Dust Diseases Tribunal Act 1989, s12. Limitation Act 1969, s57, s58.

Kirby P Domenico Carnuccio (the respondent) issued a statement of claim out ofthe Supreme Court on 13 October 1989. By that process he claimed damages against his former employer, Francesco Cinzano and CIA (Australia) Pty Ltd (the appellant). His claim was transferred to the Dust Diseases Tribunal of New South Wales (the Tribunal) Pursuant to s12 of the Dust Diseases Tribunal Act 1989. In due course, the respondent came before the Tribunal constituted by O'Meally J seeking an extension of time within which the proceedings might be brought against the appellant. Pursuant to s58 of the Limitation Act 1969, the Tribunal ordered that the time within which the action might be brought should be extended to 23 February 1990. Accordingly, the statement of claim in the Supreme Court deemed to have been commenced in the Tribunal, was within time.

The uncongenial language of s57, s58 Limitation Act The appellant purportedly appeals to this Court from the decision of O'Meally J. The respondent has filed a motion which, in its amended form, challenges the competency of the purported appeal. Put shortly, the respondent says that s32 of the Dust Diseases Tribunal Act 1989 does not provide a right of appeal to this Court from an interlocutory decision of the Tribunal.

The Court postponed the hearing of the argument on the motion. It proceeded, for convenience, directly to the substance of the purported appeal. In my view, the purported appeal should be dismissed on its merits. It is therefore not necessary to express a final view on the matter raised as to the competence of the

appeal. The respondent's challenge in that regard can be left to another day when the matter needs to be determined in order to dispose of the process before the Court.

The litigation about s57 and s58 of the Limitation Act has been so prolific and so energetic that I hesitate to add in the slightest particular to the jurisprudence which has developed around those sections.

In Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 at 698, I suggested that courts, lawyers and citizens must find their way through the thicket of the statutory language of the sections and that they generally emerged on the other side "dazed, bruised and not entirely certain of their whereabouts". In this case I must confess that I have less uncertainty than is normally the case. But embarking upon the meaning of the sections, and their application to particular facts is far from a pleasure.

In Bailey v Oswald, unreported, Court of Appeal, 25 May 1990, Meagher JA put the matter even more succinctly. He said that that case provided one more occasion where the Court was constrained to "construe the barely comprehensible words of the section". It was not, he said, so much an occasion for "explaining the elliptical and expounding the expressed as propounding the obscure and reconciling the contradictory". Once more we embark upon the task of elucidating sections.

Asbestos exposure of an unskilled labourer The facts of this case were shortly these. The respondent is an unskilled worker. He was born in Italy in 1930. He was found by the Tribunal to speak little English and to read none. He was described as unsophisticated. His education in his homeland extended for a period of only five years. He attended school during those years only twice a week. He came to this country in 1952.

The respondent was employed by the appellant from June 1954 until April 1986, on which last date he was retrenched. During his employment he was engaged in activities ancillary to the production of the appellant's well known alcoholic beverage. It appears that during his employment he was engaged in the filtering of the product through asbestos filters. Needless to say, this process has now been abandoned upon the insistence of health authorities.

From time to time the respondent was required to replace these asbestos filters. Occasionally they broke. when they did so they scattered dust and fibres, which he inhaled. It is apparently now his case that this inhalation caused him later to develop a dust disease and that it was negligent of the appellant to expose him to the risks of the process as it did. That allegation will take the court of trial into questions of whether the appellant's conduct was, by the knowledge of the times, lacking in reasonable care.

This Court has not been concerned to resolve that issue. For the purpose of the proceedings before the Court and in the Tribunal it was assumed that the respondent had a valid cause of action but for the problem said to arise under the Limitation Act. The respondent sought to cure that problem by the application for the extension of time which the Tribunal allowed.

The language of the Limitation Act is familiar. I incorporate in this judgment those opaque words:

(a) 'personal injury' includes any disease and any impairment of the physical or mental condition of a person;

(b) the material facts relating to a cause of action include the following -

UR&RANCESCO CINZANO and CIA (AUSTRALIA) PTY LTD v CARNUCCIO (Kirby P) 3

(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded;

(ii) the identity of the person against whom the cause of action lies;

(iii) the fact that the negligence nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused; and

(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty;

(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -

(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in success and award of damages sufficient to justify the bringing of an action on the cause of action; and

(ii) that the person whose means of knowledge is in question ought, in his own interests, and taking his circumstances into account, to bring an action on the cause of action;

(d) 'appropriate advice', in relation facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require;

(e) a fact is not within the means of knowledge of a person at a particular time if, but only if -

(ii) in so far as the fact is capable of being ascertained by him, he has, before that time, taken all reasonable steps to ascertain the fact; and

(f) 'limitation period ' means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under this Act.

(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that -

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,

the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of para(b) of subs(1) of s26, the limitation period is extended accordingly.

(3) This section applies to a cause of action whether or not a limitation period for the cause of action has expired -

(b) before an application is made under this section in respect of the cause of action."

To succeed in his application, the respondent was obliged to establish that before 13 October 1988 (the date a year before he commenced these proceedings) there was in existence a fact, which was a material fact of a decisive character, relating to his cause of action which was not within his means of knowledge and that a reasonable person, appropriately advised, would not have brought an action

before that time without knowledge of that fact. Only then will the respondent be entitled to the extension of time which he sought and obtained in the Tribunal

The slow discovery of an asbestos related condition The appellant's case was that the material facts of which the respondent was aware before 13 October 1988 required that he should have commenced his proceedings before that time. It is therefore crucial to explore, as the Tribunal did, the facts which the respondent knew, and which the Tribunal accepted that he knew, before the critical date.

The appellant began in early 1988 to complain of a cough, tiredness and breathlessness. He consulted his local general practitioner, Dr Khatri. This adviser treated him for influenza. He prescribed antibiotics. Because the condition did not improve, the respondent was sent to a cardiologist, Dr Savvides. Dr Savvides in due course found no cardiac disability.

The general practitioner then referred the respondent, who was still suffering from symptoms, to Dr Peter Gianoutsos, a physician. Dr Gianoutsos first saw the respondent on 30 June 1988. Apparently he did not at that time receive a history about the respondent's exposure to asbestos. The first time that this was said to have been mentioned was when, on 26 July 1988, the respondent went back to see Dr Gianoutsos. He found in his place, apparently as a locum, Professor JP Seale. Professor Seale took a history that between 1956 and 1971 the respondent had "used asbestos as a filter". Professor Seale was beginning to track down the cause of the respondent's complaints. He saw the respondent on 6 and 18 August 1988. It would seem that during this time Professor Seale was still testing the hypothesis in order to reach a final diagnosis.

On 18 August 1988 Professor Seale referred the respondent to the Dust Diseases Board for the purpose of the respondent's making an application to that Board. At that stage, no final decision appears to have been made that the respondent had an asbestos related condition. Nor was that clear when, on 23 August 198, the respondent collapsed and was admitted to the Royal Prince Alfred Hospital in Sydney. That he had a serious health condition was by that stage abundantly obvious. But that it was sufficient to require him, acting reasonably to take proceedings against his employer, was not established at that time. It was still reasonable that he should know what the Dust Diseases Board decided about the nature and cause of his condition.

That decision was not even made on 6 January 1989. On that day the Board sent a letter to the respondent. It informed him that the authority considered that there was insufficient evidence available to permit the certification that he was suffering from a dust disease. A further medical examination was suggested. Such medical examination was later carried out. Finally, on 23 February 1989, the Board informed the respondent that he had been certified as suffering from a dust disease. He was certified as totally disabled. He commenced the present proceedings within eight months of receiving that information.

The appellant says that the respondent knew sufficient material facts before the preceding October to put him out of court. He knew he had a serious health condition. He know he had worked with asbestos. He knew from a television programme, so it was said, that asbestos could be dangerous to his health. All of these facts should have propelled him to seek advice and to commence proceedings before 13 October 1988. In any case, having those material facts, he was out of court for the present application. The Tribunal should have so held.

Requirement of knowledge of 'nature and extent' of injury I do not agree. Material facts are defined by s57(1)(b) of the Limitation Act to include: "(iv) the nature and extent of the personal injury so caused." The material facts are then

UR&RANCESCO CINZANO and CIA (AUSTRALIA) PTY LTD v CARNUCCIO (Kirby P) 5

of a decisive character if a reasonable man, knowing those facts and having taken appropriate advice on them, would regard the facts as showing that an action would have reasonable prospects of success so as to justify the bringing of an action and that he ought in his own interests and taking his circumstances into account have brought such an action.

At all times before October 1988 the nature and extent of the respondent's personal injury was unknown. Certainly its precise nature was unknown to him. As far as he was concerned, he was still on a journey to various medical specialists and government bodies to decide exactly what was wrong with him. He had been passed from one medical adviser to another during 1988. At first he was thought to have influenza. Not so. Then it was a heart condition. Not so. Then a locum specialist - not the medical practitioner to whom he had been first sent - thought it was a dust disease. But even this was not absolutely sure. And when he went, as he was told, to the Dust Diseases Board, he was originally told in January 1989 - after the critical date - that there was not sufficient evidence for that Board to find a compensable dust disease. Only later, in February 1989, was a diagnosis finally firmed up. Until then the respondent could reasonable have believed that another mistake of diagnosis might have been made. He knew some facts; but the "nature and extent" of his personal injury was not "known". It was still then in the process of being ascertained.

The appellant argued that it was enough for the respondent to have been shown to know what he knew to attract the disqualifying provisions of s57 of the Act. In a number of cases a question has arisen as to what the words "nature and extent" and "knowledge" mean in the context of s57. The problem arises often because "knowledge" about even grave medical conditions does not generally come upon individuals in an instant. Often, as in this case, the "knowledge" comes over a period of time. The Act must work upon that typical fact situation. In obiter remarks in Brunton v D O'Bryan and Co Pty Ltd, Court of Appeal, unreported, 4 August 1988, McHugh JA expressed views favourable to the argument of the appellant. Meagher JA in Dousi v Colgate Palmolive Pty Ltd (No 2) Court of Appeal, unreported, 12 May 1989 expressed similar views. However, in Brunton Clarke JA specifically reserved his opinion on the point. Hope JA reserved his opinion on the point in Dousi No 2.

In Ditchburn v Seltsam (above) I repeated my view that the "nature" and "extent" of the condition may take time to evolve in the mind of the affected plaintiff. Hope JA agreed in my view in that case. Mahoney JA in that case, for his part, laid emphasis upon the subjective connotation of "knowledge". The material facts must be "known". This implies a degree of appreciation of what they are, that they have significance and that they should propel the person affected to action in his own interests.

Referring to these words "nature and extent" in Ditchburn at 703 I said this:

"Obviously, as the opponent says it is not necessary that this 'nature and extent' should be finally, conclusively and authoritatively determined before 'facts' become 'material facts'. To adopt that approach would be unrealistic, given the provisional nature of many injuries at the time when litigation is ordinarily commenced. But it would be equally unrealistic, given the context in which facts are determined to be material' and, if material, 'of a decisive character' to ignore the need to consider the way ordinary reasonable people knowing of their symptoms and of the progressive manifestation and explanation of them in the case of a disease (including with advice of competent persons), act in defence of their own interests.

A headache might have a hundred explanations. So might chest pains. The present case is a good example. At first the claimant's chest pains were attributed to a back injury. Even in May 1987, when it may be inferred that Dr Mann first raised the question of asbestos, the 'nature and extent' of the claimant's 'personal injury' had not been determined. A relation to asbestos was only one of a number of hypotheses. In the ordinary way of medical diagnosis, various alternative possibilities had first to be excluded before the nature and extent of the injury was known."

In my view, those observations apply with equal force in the present case. They require dismissal of this appeal. In the course of giving evidence before the Tribunal the appellant was tackled directly about his knowledge at the time he was admitted to Royal Prince Alfred Hospital before the critical date. He was asked these questions:

"Q: Who sent you to Prince Alfred Hospital? A: Dr Seale.

Q: You knew at that stage it was a very, very serious matter? A: Yes, I thought so.

Q: At what stage did you think it was related to the asbestos? A: Yes, I thought so. "

Conclusions on other challenges to the Tribunal's decision The appellant understandably latched on to this suggested concession. Thinking that he had a serious health condition, the respondent should have taken steps in his own interests to seek advice then and to commence action. He had had the material fact in his mind.

However, it all depends upon how those words are interpreted. Interpreting them was the task of the Tribunal. It had the advantage - which this Court has not

• of seeing the respondent give evidence. If "I thought I had a serious condition related to the asbestos" means, "I affirmatively knew I had asbestosis", the appellant's argument would have great force. If, however, it simply meant that the respondent suspected, or even feared at that stage, that he had an asbestos related condition it would not be knowledge of a material fact. For at that stage the respondent might have feared the worst but he still did not know the extent and nature of the condition. That knowledge came relevantly when the Dust Diseases Board at or about the time of the second letter of February 1990 certified to the condition and wrote in such terms to the respondent.

The appellant has also said that the findings of fact by the Tribunal were an insufficient statement by O'Meally J of his reasons for decision for the purposes of the holding of this Court in Pettitt v Dunkley (1971) 1 NSWLR 376 and the cases which have followed that decision. It is enough for me to say that the critical finding is sufficiently stated by the Tribunal. In my opinion, it sustains the order which the Tribunal made.

The result is that I do not consider that any error has been shown on the part of the Tribunal. To the contrary, on the material before the Tribunal I think the decision reached was not only open to it but was correct. It is the decision which, on a rehearing in this Court, if an appeal lies, this Court should also make.

The conclusion which I have reached requires the following orders:

2. The motion should be dismissed as unnecessary to decide, with no order as to costs.

UARANCESCO CINZANO and CIA (AUSTRALIA) PTY LTD v CARNUCCIO (Priestley JAY

Gleeson CJ I agree. It is common ground that implicit in the findings of fact made by O'Meally J was a finding that, at the relevant time, the respondent did not know that he was suffering from asbestosis. The finding was that all he knew was that he was suffering from a disease of the lung that might be related to asbestos. For the reasons given by the President, I consider that finding was well open on the evidence before his Honour. In the light of the decision of this Court in Ditchburn v Seltsam Ltd (above), which has been referred to by the President, it follows, in my view, that the appeal should be dismissed. I find it unnecessary in this action to express any preference as between the slightly differing approaches taken by the members of the Court in Ditchburn. I agree with the orders proposed by the President.

Priestley JA I also agree. The trial Judge said in his reasons that in the wayin which the case had been conducted before him the issues left for him to decide were whether the plaintiff had established that the material fact not within his means of knowledge was the nature and extent of the personal injury caused within the meaning of s57(1)(b)(iv) of the Limitation Act and the date upon which they were within his means of knowledge. It was common ground in the argument today that his Honour correctly stated the issues that he had been required to deal with.

Although his reasons were somewhat tersely stated, it appears clearly enough from what the trial Judge said that he found that on the critical date the claimant did not know the nature and extent of the personal injury for which he sought to claim damages. On any view of the meaning of the phrase "nature and extent", the word "extent" must involve a factual finding by the trial court.

I did not understand the appellant today to submit that the trial Judge had acted on any erroneous legal construction of the word "extent". Rather, the submissions were directed to persuading the Court that his Honour's factual conclusion and the reasoning leading to them concerning nature and extent were demonstrably flawed. I do not think that they were.

On the material before him, it seems to me that, depending upon the view he took of the substantial meaning of some of the answers given by the claimant in cross examination, it was open to him to come to the factual conclusion that he did. Assuming, as this Court must, in favour of the claimant that the trial Judge did assess the claimant's evidence in a way favourable to the claimant and taking the factual situation as it must thus have appeared to the trial Judge together with the undisputed materials, I would come to the same conclusion as he did - that the nature and extent of the claimant's injury were not known to him at the critical time. Thus, I agree with the other Judges that on the major point of the appeal the appellant must fail. On the Pettitt v Dunkley point, it seems to me that although the reasons were somewhat shortly expressed by the trial Judge they were quite ample to enable an appellate court to see the nature of his reasoning and how he arrived at the factual basis necessary for him to have arrived at his decision. I do not think there is anything in this point either and I agree with the orders that have been proposed by the President.

1. Appeal dismissed with costs; and
2. Motion dismissed, no order as to costs.

Solicitors for the Appellant: Allen Allen and Hemsley