FRANCESCO CINZANO and CIA (AUSTRALIA) PTY LTD v CARNUCCIO [1990] NSWCA 42

FRANCESCO CINZANO and CIA (AUSTRALIA) PTY LTD v CARNUCCIO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P, and PRIESTLEY JA 20 June 1990, 20 June 1990 [1990] NSWCA 42

Limitation of action — practice and procedure Words and Phrases — "nature and extent of personal injury" LIMITATION OF ACTIONS — personal injury — extension of time — exposure to asbestos dust — knowledge of "nature and extent" of condition — unskilled, uneducated Italian labourer exposed to fibres during employment between 1954 and 1986 — delay in diagnosis of condition — finding that he did not "know" the "nature and extent" of his condition until after critical date one year before commencement of damages proceedings — held: The finding was open to the Tribunal and the extension of time should not be disturbed. Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697 applied.

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.