Francesco Mastronardi v Edward Markham Kennedy

Court of Appeal (NSW)|2001-09-13|Before: Priestley JA, Stein JA, Per Stein JA

CITATION : Francesco Mastronardi v Edward Markham Kennedy (t/as Mark Kennedy & Co) and John Turnbull [2001] NSWCA 354 FILE NUMBER(S) : CA 40019/00 HEARING DATE(S) : 13 September 2001 JUDGMENT DATE : 5 October 2001

Francesco Mastronardi - Appellant PARTIES : Edward Markham Kennedy (t/as Mark Kennedy & Co) - 1st Respondent John Turnbull - 2nd Respondent JUDGMENT OF : Priestley JA at 1; Stein JA at 2; Fitzgerald AJA at 39

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2232/98 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

COUNSEL : I M Khan - Appellant F Lever - Respondents N J Papallo & Co - Appellant SOLICITORS : Yeldham & Associates - 1st Respondent Henry Davis York - 2nd Respondent CATCHWORDS : TORTS - NEGLIGENCE - PROFESSIONAL NEGLIGENCE - failure to advise about limitation period - whether loss suffered - whether would have failed in original action - EVIDENCE - credibility - medical evidence - whether findings open - TORTS - NEGLIGENCE - causation - whether a presumptive inference - D LEGISLATION CITED : Civil Aviation (Carrier's Liability) Act 1959 (Cth) Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 CASES CITED: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 Johnson v Perez (1988) 166 CLR 351 DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40019/00 DC 2232/98 PRIESTLEY JA STEIN JA FITZGERALD AJA

Friday, 5 October 2001 Francesco MASTRONARDI v Edward Markham KENNEDY (t/as Mark Kennedy & Co) and John TURNBULL The appellant sought the advice of the respondents, a firm of solicitors and a barrister, regarding an illness he had suffered after eating yoghurt on an Alitalia flight between Sydney and Rome in 1994. Any proceedings against the airline would have had to have been commenced within the two year limitation period under s 34 Civil Aviation (Carriers' Liability) Act 1959 (Cth). Neither of the respondents advised the appellant regarding the limitation period. The barrister gave advice that proceedings should not be commenced as there was a high risk of failure. The appellant sued the respondents for damages for professional negligence. He appeals the decision of Garling DCJ, who found that the plaintiff would not succeed against the airline and therefore dismissed the claim.

Per Stein JA (Priestley JA, Fitzgerald AJA agreeing)

None of the medical evidence raised more than a possibility of a connection between the yoghurt and the appellant's illness. There is no justification for the drawing of any inference of probable connection.
The trial judges' findings of credit were open to him on the evidence.
The trial judge was entitled to come to the view that the appellant would have failed in any action he brought against the airline. The appellant did not lose anything of value by reason of the negligent failure of the respondents to advise of the limitation period.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40019/00 DC 2232/98 PRIESTLEY JA STEIN JA FITZGERALD AJA

Friday, 5 October 2001 Francesco MASTRONARDI v Edward Markham KENNEDY (t/as Mark Kennedy & Co) and John TURNBULL Judgment

1 PRIESTLEY JA: I agree with Stein JA. 2 STEIN JA: Introduction 3 The appellant, Francesco Mastronardi, sued the respondents, a firm of solicitors and a barrister, for damages for professional negligence. He had sought their advice concerning an illness he suffered on an Alitalia flight between Sydney and Rome on 22 August 1994. 4 Any proceedings by the appellant against the airline would have to have been commenced within 2 years, with no provision being available for any extension of time (see s 34 Civil Aviation (Carriers' Liability) Act 1959 (Cth)). Proceedings were not commenced within the 2 year limitation, which expired on or about 24 August 1996. It is not disputed that neither the solicitors, nor counsel, gave advice about the time limit, although the barrister was only briefed to advise on the issue of liability. His advice, given some 4 1/2 months before the limitation period expired, was that the appellant should not commence proceedings since they had 'an extremely high risk of failure'. 5 It was agreed at the trial that if proceedings had been commenced against the airline within time, that trial would have taken place on 23 February 1998. 6 The brief facts concerning the airline incident on 22 August 1994 are that the appellant and his father (and two uncles) travelled on the same flight to Rome. On the leg from Melbourne to Bangkok breakfast was served to economy passengers (including the appellant) about one hour out from Bangkok. The meal included a carton of yoghurt, which the appellant consumed. About 5 to 10 minutes later he experienced sharp abdominal pains and nausea. The appellant went to the toilet where he had diarrhoea and vomited. He resumed his seat and disembarked at Bangkok, where he and his father looked for a chemist without success. He returned to the plane although still in pain. Apparently a doctor, who was also a passenger, came and administered some first aid. The appellant lay on the floor with his legs up against a door and stayed on the floor until the plane landed at Rome. 7 An ambulance picked him up at the plane and took the appellant to a first aid station, where he received some treatment. The appellant was due to fly to Sicily by a connecting flight but was too ill. He was taken to a hospital in Rome where he was treated and later returned to the airport to fly to his destination.

Adverse credit findings 8 His Honour was critical of 'a considerable amount of exaggeration' in the appellant's and his father's evidence, as well as considerable conflict between their evidence. Whilst accepting that the appellant clearly experienced an incident on the plane to Bangkok, his Honour said that he did not accept as accurate his father's evidence. Indeed, he did not accept the evidence of either (the appellant or his father) unless it was not in issue or there was independent supporting evidence. 9 His Honour's findings of credit were well open on an examination of the evidence. I will give but one illustration. Evidence was given by Mr Ruggeri, the appellant's initial solicitor (before the first respondents were retained). His Honour accepted Mr Ruggeri's evidence. Mr Ruggeri said that he was instructed by the appellant and his father that a number of other passengers had been affected on the flight after eating breakfast. His Honour noted that this was not the evidence given in Court, which was that the appellant was the only passenger affected. His Honour gave other examples of obvious exaggeration in the evidence of the father and the appellant.

The appeal 10 As was observed by Brennan J (as he then was) in Johnson v Perez (1988) 166 CLR 351 at 372, the plaintiff's loss is whatever monetary compensation he would have received but for his solicitors' negligence. The Court must find whether or not he lost something of value. Brennan J added that, 'if he would have failed in the original action, he has lost nothing'. 11 Garling DCJ found that 'the plaintiff would not succeed against the airline'. 12 His Honour accepted that the appellant had become ill on the plane but found that there was no evidence that it was caused by the yoghurt which the appellant said he consumed at breakfast. His Honour said that there was no evidence that the yoghurt was contaminated. That is correct and I do not understand the appellant's counsel to contest this finding. The judge placed reliance on the absence of evidence that any other passenger became ill after breakfast. His Honour concluded that he was not satisfied on the balance of probabilities that the eating of the yoghurt caused the appellant's illness. This conclusion is challenged, as I understand it, on three bases. These are that:

(b) A presumptive inference should have been drawn from the sequence of events, viz. appellant eats yoghurt; appellant becomes ill, therefore the yoghurt must have been the cause.

(c) No weight should have been placed on material set out in a letter from the airline's solicitors relating to the yoghurt served on the flight.

The medical evidence 13 His Honour dealt with the medical evidence in a somewhat cryptic fashion. Nevertheless, when the evidence is read as a whole, it supports his Honour's findings. The appellant is critical of the way in which the judge dealt with the evidence of Professor Pirola, Dr Aroney and Dr Hudson. 14 The effect of Professor Pirola's evidence was to exclude campylobacter bacteria since it was probably not present until a separate incident involving a pizza in October 1996. Second, if the appellant had no problem for 20 months, this would tell against the diagnosis of irritable bowel syndrome secondary to the flight incident. 15 In this respect, it does not appear that the appellant consulted anyone about such a problem between late September 1994 (after he had returned to Australia) and July 1996 when he saw Dr Aroney. 16 Professor Pirola, however, mentioned that the appellant had told him of two similar episodes in November 1995. This was part of the reason for him thinking that the appellant was suffering an irritable bowel syndrome at the time of the flight. However, there was no corroboration whatsoever for the history given by the appellant to the Professor of his experiencing incidents in November 1995. Given the appellant's lack of credibility, this reinforces the opinion of the Professor that experiencing no problems for 20 months is contrary to a diagnosis of irritable bowel syndrome. 17 Two other aspects of Professor Pirola's evidence may be noted. First, the appellant gave him no history of any problem prior to the August 1994 plane incident. Yet it is clear that the appellant was diagnosed two years before (1992) with what was thought to be an acute episode of gastroenteritis. The Professor conceded that it was possible that this episode caused the development of an irritable bowel syndrome. He also said that 70% of people who develop the syndrome do so without any recognisable incident. 18 On balance, the evidence of Professor Pirola provides little support for the appellant's case. 19 The appellant submits that the trial judge erred in the way he summarised the opinion of Dr Aroney. His Honour had said that the doctor did not comment as to the responsibility of yoghurt other than to say that it was a possibility. The key portion of his report dated 20 December 1996 (relied on by appellant's counsel) is as follows: Basically, the patient was confirmed recently to be suffering from "campylobacter jejuni" infection. His symptoms began from the plane trip of 1994. If (as I presume) this can be proven, then it is reasonable to say the campylobacter started then. This germ is transmitted through infected foods, such as yoghurt. 20 It may be seen that the premise for Dr Aroney's opinion is that the appellant's symptoms began on the plane trip in 1994. Moreover, Dr Aroney says that in that event, it is reasonable to say that the campylobacter started then. However, this is quite contrary to the other specialist medical evidence, including Professor Pirola and Dr Hudson. Both of them say that the appellant probably did not contract campylobacter bacteria on the plane in August 1994. Given the 1992 incident, also apparently not mentioned by the appellant to Dr Aroney, there can be no certainty that the appellant's symptoms began on the plane in August 1994. 21 Dr Hudson is another medical practitioner who the appellant says his Honour misquoted. Of his evidence his Honour said that Dr Hudson said that it was just as likely that the appellant could get sick from eating something before he left home. 22 Like Professor Pirola, Dr Hudson was also not given a history of the June 1992 episode, which was thought to be gastroenteritis. Dr Hudson said that the onset of illness from the bacteria campylobacter jejuni was usually between one and seven days after consumption of contaminated food. Since the appellant's onset of illness was within 10 minutes of consumption of the yoghurt, it was unlikely to have contracted campylobacter from the yoghurt. He could have had campylobacter prior to boarding the flight. However, the appellant's account of what happened on the plane was more likely to be a toxin related gastroenteritis. This could also have been acquired before the appellant boarded the plane. Gastroenteritis had a much shorter incubation period than campylobacter. The October 1996 diagnosis of campylobacter also made it more likely that the disorder was contracted at that time and involved the eating of pizza. Prior to this time, it was more likely that the appellant had an underlying gastrointestinal problem aggravated each time he got gastroenteritis. 23 In cross-examination the doctor said: … the natural history really with campylobacter would have been that it had disappeared generally inside a couple of weeks or months and shouldn't really have been present in October 1996 from the illness that he got on the Alitalia flight 24 Dr Hudson also said that toxin related illnesses are generally short lived but the irritable bowel symptoms could last longer than a day or two. 25 Overall Dr Hudson was inclined to conclude that the appellant had an irritable bowel like syndrome. 26 In re-examination by the appellant's counsel at the trial, Dr Hudson was asked whether it was more probable that the appellant's symptoms were 'subsequent to the incident on the aircraft'. The question makes no real sense unless one reads 'subsequent to' as 'consequent upon'. Examining the transcript it looks like that was what the question was and certainly how it was interpreted by Dr Hudson, because he answered, 'I don't think I've been given enough information to determine that'. 27 When Dr Hudson's evidence is read as a whole, his Honour's brief summary is not inaccurate. But more important is the fact that Dr Hudson's evidence provides little assistance to the appellant in providing any link between eating the yoghurt and the appellant's illness on the flight.

Presumptive inference? 28 None of the extensive medical evidence before the Court raised more than a possibility of a connection between the yoghurt and the appellant's illness. As Glass JA said in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197, a finding of causal connection may be open when the medical expert evidence does not rise above a possibility. However, the evidence will be sufficient 'only if the materials offered justify an inference of probable connection'. 29 An examination of the evidence here does not justify the drawing of any inference of probable connection. 30 Glass JA also said that a finding of causal connection may be open without any medical evidence to support it. 31 In this regard, the appellant relies on remarks of Rich ACJ concerning presumptive inferences from a sequence of events in Adelaide Stevedoring Co Ltd v Forst [1940] 64 CLR 538 at 563. 32 Nonetheless, the evidence must be sufficient to justify the inference of a probable connection. His Honour was correct to find that it did not rise to that level. Garling DCJ noted that there were explanations for the appellant's illness on the plane other than the yoghurt. Further, that there was no evidence that any other passengers became ill from the yoghurt.

Reliance on airline letter 33 In giving judgment his Honour said that there was no evidence that the yoghurt was contaminated. He continued: In fact the only evidence seems to me to be that a large number of cartons of yoghurt were served on this flight, and indeed were ordered, and no-one else became ill, Exhibit 2 under tab 7. A letter from Alitalia's solicitors. They had clearly carried out an investigation. There was nothing to the contrary. 34 Counsel for the appellant submits that his Honour should not have given any weight to the letter, which was from the airline's solicitors to Mr Ruggeri, then acting for the appellant. 35 However, without the letter, it was plain from the appellant's own evidence (and that of his father) that they were on an international flight from Australia to Italy via Bangkok and were travelling in economy class. The evidence was such as to allow the trial judge to infer that there were large numbers of economy passengers who were served breakfast at the same time as the appellant, and that the yoghurt served was probably from the one batch. His Honour knew that there was no evidence that anyone else, besides the appellant, became sick from the yoghurt. All these matters were open to be found without recourse to the letter. 36 The letter itself (dated 17 February 1995) was not objected to by counsel for the appellant at the trial and the relevant part reads as follows: … we are instructed that a full investigation of the matter has not indicated anything that would justify a finding that the illness was caused by this food. On the flight in question 304 economy passengers were served with the same yoghurt, which was part of a batch of almost 15,000 containers of the same yoghurt of which approximately half was used on various airlines on the same day. We are instructed that the manufacturer of the yoghurt is a major producer and exporter of dairy products, the manufacture of which is controlled by the Victorian Dairy Industry Authority, the Australian Quarantine Inspection Service, and the Victorian Department of Health. Quality Assurance records held indicate that the product complied with all relevant standards. Final fight cheque records indicate that economy meals were at the appropriate holding temperature. If the batch of yoghurt which included the container served to your client had been contaminated it would be reasonable to expect more than 1 report of illness from other passengers who had consumed the yoghurt. In fact the catering manager received no other reports of illness or complaint relating to the consumption of the yoghurt. This suggests that the symptoms suffered by your client were unlikely to have been caused by consumption of the yoghurt. 37 In the absence of any other evidence on the issue of whether the yoghurt consumed by the appellant was contaminated, his Honour was entitled to place some weight on the contents of the letter. 38 It follows in my view that the appeal should be dismissed with costs. On the facts his Honour was entitled to come to the view that the appellant would have failed in any action that he would have brought against the airline. If his Honour had asked himself, what chance of success the appellant would have had it is apparent that his Honour would have concluded that the appellant could not have succeeded. Accordingly, the appellant had not lost anything of value by reason of the negligent failure of the respondents to advise of the two year time limitation. 39 FITZGERALD AJA: I agree with Stein JA.

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Civil Aviation (Carrier's Liability) Act 1959(Cth)

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