Francesco Mastronardi v Edward Markham Kennedy (t/as Mark Kennedy & Co) and John Turnbull [2001] NSWCA 354

New South Wales Court of Appeal

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.