Dixon v Whisprun Pty Ltd

[2001] NSWCA 344

CITATION:	Dixon v Whisprun Pty Ltd (formerly known as Northwest Exports Pty Ltd) [2001] NSWCA 344
FILE NUMBER(S):	CA 40883/00
HEARING DATE(S):	20 September 2001
JUDGMENT DATE:	28 September 2001
PARTIES :	Sonya Lea Dixon (Appellant) Whisprun Pty Ltd (formerly known as Northwest Exports Pty Ltd) (Respondent)
JUDGMENT OF:	Beazley JA at 1; Heydon JA at 2; Davies AJA at 83

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC N105/97
LOWER COURT JUDICIAL OFFICER :	Newman J

COUNSEL:	Mr D F Jackson QC/Mr K J Ryan (Appellant) Mr R J Burbidge QC/Mr A Ventura (Respondent)
SOLICITORS:	Walker Kissane & Plummer (Appelllant) Hickson Wisewoulds (Respondent)
CATCHWORDS:	Workers Compensation - Personal Injury - Damages - Severity of illness and extent of damage caused - Whether plaintiff's claim was adequately considered by trial judge - Effect of plaintiff's credibility and plaintiff's evidence on factual findings re ongoing illness - Effect of medical opinion evidence and other evidence on factual findings re ongoing illness - Workers Compensation Act 1987 (NSW) - Court of Appeal - Orders - New trial - Order for new trial sought - Whether plaintiff's claim was adequately considered by trial judge - Workers Compensation claim by employee against employer - Effect of plaintiff's credibility and plaintiff's evidence on factual findings re ongoing illness - Whether "substantial wrong or miscarriage" - Supreme Court Rules 1970 (NSW) Pt 51 R 23 - D
LEGISLATION CITED:	Evidence Act 1995 (NSW) Surpeme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW)
CASES CITED:	Akins v National Australia Bank (1994) 34 NSWLR 155 CDJ v VAJ (1998) 197 CLR 172 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 HG v R (1999) 197 CLR 427
DECISION:	See para 82

CA 40883/00

SC N105/97

BEAZLEY JA

HEYDON JA

DAVIES AJA

DIXON v WHISPRUN PTY LIMITED (formerly known as NORTHWEST EXPORTS PTY LIMITED)

Workers Compensation – Personal Injury – Damages – Severity of illness and extent of damage caused - Whether plaintiff’s claim was adequately considered by trial judge – Effect of plaintiff’s credibility and plaintiff’s evidence on factual findings re ongoing illness – Effect of medical opinion evidence and other evidence on factual findings re ongoing illness - Workers Compensation Act 1987 (NSW)

Court of Appeal- Orders – New trial – Order for new trial sought – Whether plaintiff’s claim was adequately considered by trial judge – Workers Compensation claim by employee against employer - Effect of plaintiff’s credibility and plaintiff’s evidence on factual findings re ongoing illness - Whether “substantial wrong or miscarriage” – Supreme Court Rules 1970 (NSW) Pt 51 R 23

The appellant (“the plaintiff”) contracted Q fever as a result of her employment with the respondent (“the defendant”) at its abattoirs. The risk of contracting Q fever can be negated by the administration of a vaccine in advance. However, the defendant did not arrange for such a vaccine to be administered to the plaintiff, and hence breached its duty of care to her.

The plaintiff brought an action against the defendant, but she was unsuccessful at first instance because the sums which the trial judge found ought to have been awarded to her for non-economic and economic loss fell below the thresholds stipulated by the Workers Compensation Act 1987 (NSW) as the prerequisite for any damages to be awarded at all. The trial judge accepted that the plaintiff experienced an acute episode of Q fever from 27 July 1994, but held that that episode ceased in February 1995 and that she did not suffer from a chronic infection. The trial judge found that the plaintiff’s credibility was damaged by cross-examination, and that she had not in fact suffered from the post-February 1995 symptoms that she had detailed to doctors and in evidence. The plaintiff appealed.

Held by Heydon JA (Beazley JA and Davies AJA concurring), allowing the appeal and ordering a new trial:

The plaintiff’s claim has not been properly considered and this constitutes a

“substantial wrong or miscarriage”, which justifies the ordering of a new trial under Pt 51 r 23(1) of the Supreme Court Rules 1970 (NSW).

1. The trial judge erred in concluding that once the plaintiff’s credit was damaged, no further inquiry was called for.

2. The trial judge erred by failing to make any findings about the existence of symptoms which were observable by the medical experts, and which were taken into account by them.

3. The trial judge erred by failing to assess the totality of the medical evidence in light of medically observed symptoms that were not dependent on the plaintiff’s own account, and in light of medical experts’ experience and assessment of the probability that she had Q fever chronic fatigue syndrome.

4. In assessing the plaintiff’s credibility the trial judge did not bear in mind the possibility that the unsatisfactoriness of the plaintiff’s testimony (and its inconsistency with other evidence) was caused by symptoms of post Q fatigue syndrome, such as memory impairment and fluctuating energy levels.

5. The trial judge placed weight on trivial discrepancies and misconstrued the evidence in arriving at his findings on the plaintiff’s credibility.

ORDERS

1. The appeal is allowed.

2. The judgment and orders of the trial judge are set aside.

3. A new trial is ordered.

4. The respondent is to pay the appellant’s costs of the appeal.

5. The respondent is to have a certificate under the Suitors Fund Act, if qualified.

6. The costs of the first trial are to be in the discretion of the trial judge at the second trial.

CA 40883/00

SC N105/97

BEAZLEY JA

HEYDON JA

DAVIES AJA

DIXON v WHISPRUN PTY LIMITED (formerly known as NORTHWEST EXPORTS PTY LIMITED)

Judgment

I agree with Heydon JA.

On 13 October 2000 Newman J dismissed with costs the plaintiff’s claim to recover damages for personal injury after a trial lasting six days. This is an appeal against those orders.

Background

3 The plaintiff, then aged 21, was employed by the defendant at its abattoirs from 11 April 1994. As described by the trial judge, her duties required her to remove foetal blood from the hearts of unborn calves by sucking it out with a pipette. On occasion she ingested some of the blood. This placed her at risk of contracting Q fever. That risk can be negated by the administration of a vaccine in advance. The defendant did not arrange for that to be done and conceded a breach of its duty of care. Its conduct, indeed, was strongly criticised in some of the medical evidence, and with reason. Thus Professor Kendall said:

“I can think of no method of ensuring infection with ‘Q’ fever more certain than the work practice imposed on her and find the whole matter really astounding.”

4 The plaintiff experienced an acute episode of Q fever from 27 July 1994, when she first saw a doctor. The trial judge found that that episode ceased in February 1995. He also found that despite that acute episode, she did not suffer from a chronic infection.

5 However, despite the fact that she was found not to suffer from a chronic or any other Q fever infection from February 1995, she complained to numerous doctors and gave evidence at the trial about symptoms – headaches, fever, muscular aches, sweating and severe fatigue - which persisted up to the trial. The medical evidence differed on whether she was suffering from chronic fatigue syndrome as a sequela of the acute episode of Q fever. Most of the medical evidence was to the effect that she was. One medical expert accepted that she had a chronic or fatigued state, but said it was not caused by Q fever. Another thought that the Q fever had precipitated her symptoms, but that they had psychological components.

6 The trial judge considered that there was evidence that whether a post Q fever syndrome existed could not be substantiated or disproved by objective means; and that there was also evidence that to arrive at that conclusion depended on an acceptance of the plaintiff’s account of her symptoms and capacities. The trial judge accepted the conclusions suggested by that view of the evidence. The trial judge analysed the plaintiff’s evidence in chief and in cross-examination in the light of other evidence, including film of her activities, some of which corroborated and some of which damaged her account. He concluded that the cross-examination “effectively damaged her credibility”. He said:

“I have formed the view that from the time when the plaintiff had recovered from the acute episode of Q fever, which the serological evidence indicates was in February 1995, I am not satisfied, on the balance of probabilities, that the plaintiff has in fact suffered from the symptoms which she recounted to medical practitioners and in chief to this Court.”

7 The trial judge found that the sums which ought to be awarded to the plaintiff for non-economic loss and economic loss fell below the thresholds stipulated by the Workers Compensation Act 1987 (NSW) as necessary if any damages were to be awarded. He thus gave judgment for the defendant.

The Notice of Appeal

8 The Notice of Appeal has passed through several changes. In the form relied on during oral argument, it sought a new trial on two grounds. The first related to the trial judge’s conclusion that the plaintiff did not suffer from any form of Q fever after that suffered in the period July 1994-February 1995. The second related to the trial judge’s conclusions as to the plaintiff’s credibility on the issue of whether she had symptoms indicative of post Q fever syndrome. The plaintiff wished to support both arguments by tendering further evidence. Since it is not necessary to consider that evidence if the other arguments succeed, it is convenient to consider those other arguments first.

Chronic Q fever

9 In essence the plaintiff’s argument was as follows.

10 It began by pointing to the passages in which the trial judge concluded that the plaintiff did not have a chronic infection and that her acute episode of Q fever ceased in February 1995. He said:

“In the plaintiff’s case when first seen by Dr Hall of Inverell on 27 July 1994 she was suffering from severe headaches, vomiting, back and chest pains. Later she complained of being febrile. She was diagnosed after pathological tests had been performed, as suffering from Q fever.
Subsequent serological tests carried out and again the evidence is uncontested, revealed that while she had an acute episode of Q fever, fortunately she did not have a chronic infection.
While the evidence in the case is not precise as to dates it seems that following the original diagnosis of the plaintiff suffering from this malady she ultimately returned to work with the defendant. The plaintiff’s evidence was that she was unable to perform her work properly on that return.
She consulted a Dr Thatcher who was a colleague of Dr Hall on 1 November 1994. Dr Thatcher confirmed Dr Hall’s diagnosis of Q fever. The serology tests which indicated that the condition was not chronic were carried out at Dr Thatcher’s behest.
The serology testing which established that the plaintiff did not have a chronic infection was carried out in February 1995. In a report dated 8 May 1995, Dr Thatcher stated that the results of the serology carried out showed that she has had Q fever but does not have a chronic infection. Again there is no evidence before me to suggest that Dr Thatcher’s diagnosis in this regard was other than correct. Indeed, the evidence of all medical practitioners on this topic coincides [with] the views expressed by Dr Thatcher.”

11 The plaintiff submitted that the conclusion stated by the trial judge in the last two sentences quoted was wrong. The plaintiff said:

“He failed to take into account the report of Prof. Boughton – Red 86, 88G – which referred to a later serology test, which had been done on 4 December 1995, and which gave the opinion that the results were consistent with an acute Q infection in the recent past but should be repeated by the same laboratory in (say) 6 months time to confirm that the antibody levels fall.
Prof. Boughton did not say that the appellant did not have a chronic infection and his view obviously did not ‘coincide with’ the opinion of Dr Thatcher, as his Honour had asserted.
In fact Prof. Boughton’s view in relation to the appellant was that ‘there may be long term sequelae in the form of chronic Q fever for instance, Q fever endocarditis or Q fever hepatitis or 10-20% of Q fever sufferers symptoms may continue in the form of post-Q chronic fatigue syndrome’: Red 89J. He went on to say ‘Sonya Dixon is currently not fit for any kind of employment even sedentary work at a desk because of the impairment of mental concentration that occurs in this condition’: Red 89Q.
It is submitted that the Judge was in error in finding that the medical evidence was to the effect that the appellant had recovered from episode of Q fever by February 1995. He has misapprehended the evidence.”

12 In written submissions filed the day before the appeal was heard, the plaintiff said that she sought to challenge:

“the view of the primary Judge … that there was no serological evidence of chronic infection by reference to some other evidence at trial:
(a) Dr Kotsiou who saw the appellant on 8 May 1995 (Blue 15K) and had further tests performed which were consistent with then resolving acute Q fever (Blue 15U).
(b) Dr Harvey Sutton, in December 1994, had not resolved whether the appellant did, or did not, have chronic Q fever (Blue 14D).
(c) Dr McGuirk, who examined the appellant on 7 March 1996 (Blue 48J), and referred to the possibility of liver complications: see Blue 48P-S; 49N-S; 50E-F. He also adverted to the fact that the pathology suggested serology consistent with resolving acute Q fever: Blue 49P.”
Professor Boughton’s report

13 The central parts of Professor Boughton’s report of 12 December 1995 were as follows:

“Investigations included liver function tests which were normal and Q fever serology which showed a Q fever complement fixation antibody titre of 80, Q fever phase 1 titre (immunofluorescence) 192, phase 2 (IF) 48, Q fever IgM weak positive (see table summary). These results are consistent with an acute Q infection in the recent past, but should be repeated by the same laboratory in (say) six months time to confirm that the antibody levels fall.
In answer to your specific questions:
1 & 2 See above. No evidence clinically was found of chronic Q endocarditis or hepatitis and her persistent disabling symptoms appear due to post-Q chronic fatigue syndrome.
3. Ms Dixon was exposed to a high risk of Q fever infection by virtue of her duties at the Inverell abattoir. Q fever is a common infectious hazard of the meat and pastoral industries. The organism is widespread in feral and domestic animals and particularly in sheep, cattle and feral goats. The most potent source of the organism Coxiella burnetii is the pregnant or parturient animal as the organism multiplies to extremely high concentrations in the gravid uterus and products of conception. Thus she was exposed to very high levels of the organism in foetal animals and the risk was increased by the procedure of mouth pipetting introducing the organism on a number of occasions into the mouth itself.
The Q fever organism can be transmitted by ingestion, by inhalation or by contamination of breaks in the skin such as lacerations or abrasions or splashing into the eye or onto mucous membranes such as the mouth. It is highly resistant in the environment remaining viable even if exposed to ultraviolet light or drying.
As there is no way of identifying infected animals, the only practical means of protecting workers against infection is by means of vaccination. This should be carried out before the worker actually begins duties in or around the meat works. In her case she was apparently promised the vaccine by the employer but did not actually receive it. This severe illness and its sequelae were entirely preventable.
4 & 5 It appears in the history that Ms Dixon was quite fit for her duties at the abattoir and was in fact able to work very long hours at two jobs before the illness. While Q fever is normally a self-limiting illness responding to appropriate chemotherapy eg. tetracyclines, which she was given during the acute phase of the illness, there may be long term sequelae in the form of chronic Q fever, for instance, Q fever endocarditis or Q fever hepatitis, or in 10-20% of Q fever sufferers, symptoms may continue in the form of post-Q chronic fatigue syndrome.
Unfortunately we do not have any effective treatment for this condition. The prognosis is uncertain; in a study we carried out in the far north coast it was found that the median duration of incapacity from work was three years which means, of course, that 50% of sufferers have symptoms in excess of three years.
Sonya Dixon is currently not fit for any kind of employment even sedentary work at a desk because of the impairment of mental concentration that occurs in this condition. She is anxious to return to a normal existence, to regular employment and a normal social and sporting life. She will have to wait patiently for an uncertain, unpredictable period of time for slow spontaneous resolution of these symptoms to occur.”

14 This Court was not taken to the specific questions which Professor Boughton was answering and they did not appear to be in the appeal papers.

15 At its highest, Professor Boughton’s evidence supported the view that though normally Q fever is cured by medical treatment which the plaintiff received, there might be long term sequelae of various kinds, namely chronic Q fever (e.g. Q fever endocarditis or Q fever hepatitis) or post-Q chronic fatigue syndrome. He also said that there was no evidence before him of Q fever endocarditis or Q fever hepatitis. His diagnosis was that the plaintiff had post-Q chronic fatigue syndrome. The sentence on which the plaintiff most strongly relied was:

“These results are consistent with an acute Q infection in the recent past, but should be repeated by the same laboratory in (say) six months time to confirm that the antibody levels fall.”

16 The plaintiff submitted that the “results” were obtained from tests carried out on 4 December 1995. She submitted that this report did not “suggest that the whole thing was over, in effect, by February.”

17 Professor Boughton’s report does not make it plain what the purpose was of ensuring “that the antibody levels fall”. Since he was not called to give oral evidence, it was not possible for the meaning of that sentence to be explored. Presumably he was intending to communicate a doubt about whether the plaintiff might in fact be suffering from chronic Q endocarditis or hepatitis as distinct from post-Q chronic fatigue syndrome. It is true, as the plaintiff submits, that “Professor Boughton did not say that the appellant did not have a chronic infection”. But he did say that there was no “evidence clinically” that she did, and she bore the burden of proof. It is also strictly true, as the plaintiff submitted, that Professor Boughton’s view did not coincide with Dr Thatcher’s. This raises a question as to how material the difference is between one expert who concludes that there was no chronic infection and another expert who does not conclude that there was, who says that there is no evidence that there was, who suggested further tests in six months for a purpose which is unclear and who offered a diagnosis which was apparently different from a diagnosis of chronic infection. Professor Boughton did not, in any of his several later reports, give any further support to the view that the plaintiff had chronic Q fever.

Dr Kotsiou’s report

18 The passage in Dr Kotsiou’s report of 23 May 1995 on which the plaintiff relied was (Blue 15N-P and U-V – 16E-G):

“The only serology I have available to me are results from New England Pathology (specimens 28 July, 1994 and 2 August, 1994) and from Oxley Medical Laboratories (specimens 2 November, 1994 and 1 February 1995). The latter specimens are consistent with resolving acute Q fever and are not suggestive of chronic Q fever. However, this is a difficult diagnosis to make. I have asked for formal reports from each of these laboratories and will contact you if further results alter my opinion.
I have repeated her serology for Q fever, both phase 1 and phase 2 antigens, and this confirms serology consistent with resolving acute Q fever. Her job involved extensive contact with bovine placentae and she was clearly at high risk of Q fever. My understanding is she was not vaccinated prior to commencing her employment.
In summary, I feel that the background and symptoms of the illness are consistent with an acute Q fever which is now developed into a post-Q fever syndrome. There is insufficient evidence to diagnose chronic Q fever at present. The prognosis for recovery in a woman of this age is good, although symptoms may persist for months, if not years. The diagnosis of post-Q fever syndrome is a clinical one and there are no objective tests to either substantiate or disprove the diagnosis.”

19 The plaintiff submitted that the existence of serology in May 1995 “consistent with resolving acute Q fever” revealed error in the trial judge’s conclusion that there was no Q fever after February 1995 because it “demonstrated that there was still something there, it isn’t all over by February”.

20 It is unclear what Dr Kotsiou meant by “serology consistent with resolving acute Q fever”. Does it mean that the acute Q fever had resolved? Or does it mean that it was resolving, but that the plaintiff was still suffering from it on 8 May 1995 when he saw her? That it means the former is supported by the fact that the first group of tests to which he referred are those which led Dr Thatcher to the conclusion that the plaintiff no longer suffered from Q fever. But if it means the latter, it is evidence inconsistent with the trial judge’s conclusion that she did not have the fever after February 1995. That it means the latter is contradicted by Dr Kotsiou’s conclusion that “an acute Q fever” had “developed into a post-Q fever syndrome”. This doubt should have been resolved either by Dr Kotsiou clarifying the matter in a further report, or by Dr Kotsiou being called to do so in oral evidence. Since Dr Kotsiou did not provide any clarifying report and since he was not called to give oral evidence, it was not possible to resolve this obscurity either.

Dr Harvey-Sutton’s report

21 The relevant part of Dr Harvey-Sutton’s report of 9 December 1994, which was relied on in written but not oral argument, is (Blue 13P-14F):

“I note the initial pathology report which was from New England Pathology. These were on two specimens collected firstly on the 28 July 1994 and secondly on 2 August 1994. This request was made by a Dr J Hoare.
Also the report from Oxley Medical Laboratory, collection dated 2 November 1994 and at the request of a Dr Thatcher.
OPINION:
1. It is noted that there was no initial rise in Q Fever lgG levels but this had occurred by November 1994.
2. It is noted that the Q Fever 1gM level did rise but the level was not quantified (no numerical value).
However, this would satisfy the criteria in Column 3 of the original criterion documentation that you sent me.
3. As to the question whether she has chronic Q Fever? It is noted that moderate levels of Q Fever lgG are found in asymptomatic immune persons and thus whether she has Chronic Q Fever may depend on clinical examination.”
The fact that Dr Harvey-Sutton was in a state of doubt about whether the plaintiff had “Chronic Q Fever” on 9 December 1994 does not, without more, point against the trial judge’s conclusion that the plaintiff did not have it after February 1995, and no expert evidence was identified which suggested that it did. Dr McGuirk’s report

22 Dr McGuirk examined the appellant on 7 March 1996. He said (Blue 48P-S):

“The current general diagnosis is that of post-Q fever syndrome, otherwise known as chronic fatigue syndrome. She has apparently been assessed from the point of view of developing any of the secondary complications of Q fever, namely endocarditis or liver abnormalities and to all intents and purposes, I understand these have been indicated as normal, with the one exception that when she saw Prof Boughton at Prince Henry Hospital in Sydney, there was apparently some concern about one or more of the liver tests. Unfortunately, we don’t have a report from Prof Boughton, so I can’t comment on that at this time.”
That passage does not invalidate the trial judge’s conclusion, and cannot rise above Professor Boughton’s “concern”, presumably that expressed in the report of 12 December 1995.

23 Dr McGuirk further said that “there was certainly tenderness, particularly over the liver” (Blue 49L). He then said (Blue 49P-S):

“The pathology I have seen suggests that she has serology consistent with resolving acute Q fever.
At present there is insufficient evidence from which I could put a diagnosis of chronic Q fever on her symptoms or her continuing signs, however, the tenderness over her liver is somewhat of a worry and she would probably benefit from liver function tests being performed.
In the absence of a true chronic Q fever, however, she could be described as having a diagnosis of post Q fever syndrome.”

This passage, like the corresponding passage in Dr Kotsiou’s report, is obscure about what “resolving” means. It is also obscure as to what purpose the liver function tests were to have. Dr McGuirk does not contradict the trial judge’s view that the plaintiff had no chronic infection, or any infection, after February 1995. Indeed, the plaintiff accepted that Dr McGuirk’s evidence did not “really take the matter very far”. Even if Dr McGuirk raises a possibility that she did because of his reference to liver tests, and even if the trial judge failed to take that possibility into account, it does not follow that it would have changed his conclusion.

24 A further problem is that the medical evidence was almost unanimously to the effect that the plaintiff had post Q chronic fatigue syndrome rather than chronic Q fever.

25 There are thus various difficulties in the plaintiff’s path in relation to the theory that she may have had chronic Q fever. It is true that the trial judge did not refer to the passages in the reports of Professor Boughton, Dr Kotsiou, Dr Harvey-Sutton and Dr McGuirk on which the plaintiff relied. It seems quite likely that this was because he was not specifically referred to them, and that he was not referred to them because the parties regarded the real issue as being whether the symptoms to which the plaintiff pointed as supporting the medical diagnoses of post Q chronic fatigue syndrome were genuine or feigned.

26 The defendant submitted that this Court ought not to consider the arguments in relation to chronic Q fever because the issue of whether the plaintiff had chronic Q fever was not run at the trial. None of the counsel who appeared on the appeal appeared at the trial, but counsel for the defendant (Mr R J Burbidge QC) informed this Court of what his predecessor (Mr W K L Dodd SC) had told him about the trial. This account was not controverted by counsel for the plaintiff (Mr D F Jackson QC).

27 However, for reasons that appear below, it is not necessary to decide whether the plaintiff’s argument about chronic Q fever should be considered, and, if considered, upheld.

Credit

28 The plaintiff pointed out that there was a significant amount of medical evidence from several different experts that one effect of post Q chronic fatigue syndrome is memory impairment. If the plaintiff was suffering from that condition, it would explain to some extent the features of her testimony which the trial judge perceived to be unsatisfactory. The plaintiff rightly submitted that while the medical evidence about memory impairment increased the difficulty of the trial judge’s task in assessing the plaintiff’s credibility and arriving at factual findings, it was not referred to by him at all. The plaintiff also contended, adopting afresh its arguments on acute Q fever, that so far as there was evidence overlooked by the trial judge pointing to the survival of some Q fever after February 1995, that put the plaintiff at an unfair disadvantage in relation to the assessment of her credibility. Further, the plaintiff pointed out that there was medical evidence that one effect of post Q chronic fatigue syndrome is mood swings, and there was some independent evidence that the plaintiff experienced mood swings.

29 The overall posture of the plaintiff on appeal in relation to the credit findings was difficult to gauge. The plaintiff did not in terms assault them by saying that they should never have been made. Nor did the plaintiff’s counsel deny that she had been shown in cross-examination to have been wrong in some respects, and to have gilded the lily. The plaintiff’s submissions were largely not explicit. Often they went no further than to offer half-hints at implications which the court ought to make for itself. On occasion the submissions became subliminal. Taken by themselves, the arguments just described, so far as they were explicit, do not assist the plaintiff sufficiently to justify ordering a new trial, though if there were a new trial, their full development at that trial might well assist the plaintiff’s cause. But those arguments are material, taken with other difficulties, in identifying certain weaknesses in the trial judge’s reasoning now to be discussed.

The trial judge’s approach to the expert evidence

30 The essence of the trial judge’s reasoning was to conclude that once the plaintiff’s credit and her reliability was damaged in the ways he set out, no further inquiry was called for. He pointed to inconsistencies between the plaintiff’s evidence in chief (or her account given to doctors in histories), on the one hand, and other evidence, on the other hand, in connection with whether her relationship with her de facto husband had broken up, and whether that was because of her mood swings; whether she was living on her parents’ land or on land she owned adjacent to it; whether she could not help her daughter with riding; whether she had led a wholly sheltered life or engaged in some social activity; whether she became tired quickly from walking; whether she had been towed by motor boats in an inner tube or a jet ski; and how active she was at a wedding reception. The trial judge made findings which were generally adverse to the plaintiff on these matters. The trial judge made no reference to the large quantity of medical evidence, most of which pointed in one direction. The trial judge made no specific finding that the plaintiff did not have continuing headaches, hot and cold flushes, night time sweats, nausea, fatigue, muscle aches and pains, chest pain, sleep disturbances, reduced libido, impaired memory and concentration, agitation, irritability, restless and unrefreshing sleep and dizziness. He did, however, say in a global way that he was not satisfied “that the plaintiff has in fact suffered from the symptoms which she recounted to medical practitioners and in chief to this Court.”

31 In effect, the trial judge used a common technique in assessing the credibility of witnesses. Having found a witness unsatisfactory in various respects which can be checked, triers of fact commonly infer that the witness is unsatisfactory in all respects unless there is some reason to accept particular parts of the witness’s evidence. The trial judge was not so crass as to incant the hallowed formula: “The witness’s evidence is not to be accepted save to the extent that it is corroborated or consists of admissions”. But that was in essence his approach.

32 There is no doubt that the plaintiff was a witness whose evidence was unsatisfactory in the sense that it was difficult to place reliance on many of the things she said. She frequently used expressions like “I’ve got no idea”, “I’m not quite sure”, or “I can’t remember”. But even if it is assumed that all the strictures which the trial judge made of the plaintiff are sound (and the plaintiff’s counsel conceded that to a degree some of them were), there are several errors in the trial judge’ s approach. They may be summarised as follows. First, the trial judge’s construction of the evidence which led him to the view that a conclusion about the plaintiff’s condition could only rest entirely on her subjective symptoms was wrong. Secondly, he failed to make any findings about the existence of symptoms which were observable by the medical experts for themselves and which they took into account. Thirdly, he failed to assess the totality of the medical evidence in the light of the symptoms observed by medical experts which did not depend on the plaintiff’s own history and in the light of their professional experience and assessment of the probability that she was suffering from Q fever chronic fatigue syndrome.

33 If one then abandons the assumption that all the strictures which the trial judge made of the plaintiff are sound, and move to a detailed analysis of his reasoning, two difficulties arise. The first difficulty is that he failed to bear in mind that the plaintiff’s unsatisfactory testimony may have been caused by a genuine syndrome. Secondly, to some extent, he placed weight on trivial discrepancies and made misconstructions of the evidence in arriving at his credibility findings.

Misconstruction of Dr McGuirk

34 An important element in the trial judge’s approach was put thus (Red 52 paragraphs 14-15):

“It was the plaintiff’s case that the symptoms of post Q fever chronic fatigue syndrome have persisted to the time of the trial and will continue to persist in the future. Essentially the plaintiff’s complaints of fatigue, fever and headaches are subjective symptoms. Dr McGuirk, physician, who saw her on 7 March 1996 underscored the nature of these symptoms when he said:
‘In the absence of a true chronic Q fever, however, she could be described as having a diagnosis of post-Q fever syndrome. As has been documented previously, this is a clinical diagnosis and there is no way any objective test could either substantiate or disprove same.’
As I read the medical reports in evidence, Dr McGuirk’s statement is representative of all medical practitioners whose opinions are before the court.”

35 To infer from what Dr McGuirk said that there were no objective symptoms is to misread what he said. He, and others, said only that there were no objective tests. It is true that there was other evidence that to a large extent diagnosis depended on what the patient said about the symptoms, but the dependence was not total. To the extent that there were objective symptoms, there were some bases on which medical opinions could be pronounced.

Objective symptoms

36 There was some objective evidence which the medical experts took into account in forming their opinions. It was not discussed by the trial judge.

(a) Weight loss

37 First, there was a large fall in her weight. She told Professor Boughton and Dr McGuirk that before July 1994 she weighed 12-13 stone. She was never challenged on this in cross-examination and she frequently repeated it. Thereafter the following recordings of her weight were made. On 8 May 1995 Professor Boughton recorded her weight as 57.3 kilograms. On 4 December 1995 he reported it as 56 kilograms (8½ stone). On 7 March 1996 Dr McGuirk recorded 56 kilograms. On 11 May 1998 Professor Lloyd recorded 55 kilograms. On 3 March 1999 Dr Burke recorded 61 kilograms.

(b) Muscle and abdominal tenderness

38 Secondly, there was a consistent observation of muscle tenderness and abdominal tenderness which must have been extremely difficult to feign. On 4 December 1995 Professor Boughton noted: “The muscles were tender to pressure especially the trapezius ridges, calves etc. There was tenderness over the liver and spleen areas as well as the hypogastrium”. On 7 March 1996 Dr McGuirk said: “While there was no apparent hepatosplenonmegaly, there was certainly tenderness, particularly over the liver.” He said this was “somewhat of a worry”. On 11 November 1997 Dr Henke recorded:

“On palpation there were areas of tenderness of the muscles of the back of the shoulder girdle and upper thorax and there is some further slight tenderness of the muscles of the lower limbs.
… Resisted movements were performed somewhat weakly … . In the abdomen there was some slight epigastric tenderness but no enlargement of liver or spleen.”
On 11 May 1998 Professor Lloyd recorded: “The abdomen was generally tender.” On the same day Dr Kendall noted: “Some tenderness of muscles of the shoulder girdle and upper abdominal tenderness”. On 16 February 1999 Professor Boughton noticed that “There was tenderness of intercostal muscles and muscles generally, especially those of the trapezius ridge”. On 17 February 1999 Dr Sutherland conducted a physical examination.
“The dominant feature of the physical examination was the extreme muscle tenderness that [the plaintiff] reported on even light palpation of any muscle group, including areas such as the cheeks and temples where it would be extremely unusual to elicit muscle tenderness of this kind. Otherwise the general physical examination was unremarkable, but I would note that palpation of the abdomen was impossible to assess, as even the lightest pressure elicited reports of severe pain.”
On 2 March 1999 Dr Burke found that the plaintiff was “tender to light touch all over the abdomen”. On 22 February 2000 Professor Boughton noted “the marked tenderness of all muscles”.

39 This objective evidence confirms the plaintiff’s subjective complaints of muscle tenderness (for example, those she made to Dr Sutherland).

(c) Appearance and mood

40 Thirdly, the plaintiff was often observed to be pale, tired and depressed. On 7 March 1996 Dr McGuirk noticed that “She looked pale and depressed”. Dr Robertson said after interviewing her on 1 September 1998: “She impressed as mildly depressed for most of the interview”. On 16 February 1999 Professor Boughton said: “On examination she looked pale, tired and depressed”. On 30 August 2000 he said she “is markedly depressed”.

(d) Unreliability in recollection and concentration

41 Apart from physical symptoms of the condition observed by the medical experts, they also observed a mental symptom – unreliability in recollection and concentration. Professor Boughton noted that there were “difficulties in eliciting a reliable history” (on 22 February 2000). On the same day he also noted “impairment of mental concentration and memory”, and described it as “marked”. On 4 September 1998 Dr Robertson formed “the impression of some minor impairment of memory”. On 23 February 2000 Dr Robertson said, after speaking to the plaintiff on the telephone for ten or fifteen minutes, “her recollection of the events of 1994 was decidedly vague”. The plaintiff also failed to keep some medical appointments (for example with Dr Synnott on 17 July 1996), and Dr Kendall treated this as a symptom of the post-Q chronic fatigue syndrome. Though the doctors did not comment on this point, she told some of them things about her weight which reveal her poor memory in the sense that they were plainly wrong. She told Dr Sutherland that she weighed 16 stone before her illness, which cannot have been correct. On 11 November 1997 Dr Henke saw her and recorded: “Her weight continues to fluctuate. Currently she is significantly heavier than at the time of onset of her symptoms. Initially she had quite severe weight loss.” Either that is a mistake by Dr Henke (who described the plaintiff in the same report as “slim”) or it is evidence of the plaintiff’s impaired mental powers. No doctor who weighed her after February 1995 recorded any weight greater than 57.3 kilograms, which was much less than her pre-illness weight. It follows that her unreliability extended to accounts of her pre-illness and post-illness weight.

(e) Impression of sincerity

42 None of the medical experts cast any doubt on the plaintiff’s account of the symptoms or on her sincerity. If the trial judge’s findings were correct, it must follow that at all times from February 1995 the plaintiff was perfectly healthy, even though no medical expert thought she was. It would be strange if a condition of perfect health could be concealed from so many doctors over so many years. Indeed, not only did no doctor doubt her sincerity, but some of them were positively impressed by her credibility. Dr McGuirk, whose report was tendered by the defendant, said: “She gave quietly spoken answers to most questions without any hesitation and I have no reason to doubt her veracity.” Dr Robertson said: “At interview, she was co-operative, related well, and spoke quite freely and relevantly. She gave her history without evidence of exaggeration or embellishment.” Dr Sutherland said of his interview on 17 February 1999:

“In the course of the single interview with [the plaintiff], I was given no reason to doubt her veracity. At that time I considered her to be genuine in her complaints, and her perception that she was disabled by the symptoms complained of. I did not doubt that she perceived her illness to be the direct result of occupationally acquired Q fever, but it is clear now that the accuracy of this perception must be examined critically.”

43 While it is not the role of a medical practitioner to probe and question the details of the history given by a plaintiff in the way that counsel for a defendant cross-examining that plaintiff might do, there is little point in medical diagnosis unless the history under consideration by the medical adviser is thought to be correct. Further, it is common for doctors whom a plaintiff has seen at the request of a defendant not to show meek restraint if they have any doubt about that plaintiff’s genuineness. In this case several doctors saw the plaintiff at the defendant’s request. It is thus not without significance that no medical adviser doubted the history she gave, and Dr Sutherland’s challenge to the accuracy of the plaintiff’s perception related to diagnosis, not symptoms. Indeed, though the parties at the trial may have thought that the question whether the plaintiff had post Q chronic fatigue syndrome depended solely on her credibility about her symptoms, no medical expert in terms said anything as absolute as that.

(f) Possible presence of Q organism

44 Another factor which assumed a role in at least Dr Boughton’s thinking was that Professor Lloyd assumed that the plaintiff’s condition had come about because the Q organism was present in her cells: he tried to eradicate this by a triple course of antibiotics.

(g) Confirmation of plaintiff by other witnesses

45 To some extent the history given by the plaintiff was confirmed by others. Thus on or about 11 May 1998 the plaintiff told Dr Kendall: “Her condition fluctuates quite a lot, she might be quite reasonable for two weeks and then she might be quite ill and disabled for seven to ten days …” This was confirmed by the plaintiff’s mother to Dr Kendall. The plaintiff also told Dr Kendall that she had mood swings and her mother confirmed that as well. This tends to confirm the history she gave both to other doctors (for example Dr Henke) and to the court of mood swings.

(h) Experience of, and studies examined by, medical experts

46 There was a more general category of objective evidence not taken into account by the trial judge. There was incontestable and uncontested evidence that:

(a) The plaintiff “was exposed to a high risk of Q fever infection by virtue of her duties at the Inverell abattoir. Q fever is a common infectious hazard of the meat and pastoral industries. The organism is widespread in feral and domestic animals and particularly in sheep, cattle and feral goats. The most potent source of the organism Coxiella burnetii is the pregnant or parturient animal as the organism multiplies to extremely high concentrations in the gravid uterus and products of conception. Thus she was exposed to very high levels of the organism in foetal animals and the risk was increased by the procedure of mouth pipetting introducing the organism on a number of occasions into the mouth itself.” (b) The plaintiff actually contracted acute Q fever, and suffered from it between July 1994 and February 1995, as the trial judge found (and as the defendant did not deny). (c) “While Q fever is normally a self-limiting illness responding to appropriate chemotherapy …, there may be long-term sequelae in the form of chronic Q fever, for instance, Q fever endocarditis or Q fever hepatitis, or in 10-20% of Q fever sufferers, symptoms may continue in the form of post-Q chronic fatigue syndrome.”

47 The expert opinions of Professor Boughton appearing in the above quotations were not contradicted by any other medical expert. Indeed, they were generally supported. Thus Dr Robertson said:

“I tend to hold a quite sceptical position in regard to the long-standing controversy over the Chronic Fatigue Syndrome, and in particular to cases which appear to arise in the absence of any infection, or after trivial infections. A number of those whom I have seen have in fact suffered from a Major Depression, or from a Somatisation Disorder. However, I think that there is quite good evidence that following Q fever, a syndrome such as your client has may develop, and that this is on a purely organic basis. Emotional disturbance is a secondary consequence of the Fatigue Syndrome.”
Professor Burke said: “The problem faced is that about 20% of Q fever cases go on to develop chronic fatigue symptoms and that these last for a long time, sometimes for years.” Professor Lloyd diagnosed “a typical post infective fatigue syndrome following serologically documented Q fever”.

48 Professor Boughton, after referring to various studies of post Q chronic fatigue syndrome sufferers, said:

“in 1989 there was an outbreak of Q fever near Birmingham UK involving 147 people, resulting from wind blown organisms from a farm where a number of stock animals were infected with Q. Six years later, 83 who could be traced of the original 147, were followed up; among these people, there were prevalences of fatigue in 66%, joint aches in 69%, sleep disturbance in 65% and sweats in 53%. Other symptoms seen in CFS were of similar frequencies. In this series, compensation was not an issue clouding the picture, and no litigation was involved. These findings are not dissimilar from the other studies mentioned above.”

49 In the same issue of The Lancet in which that study was reported, there appeared a report by Professor Marmion and others which said:

“The conventional view of acute Q fever is that it is an unpleasant, often severe, febrile illness but one from which patients make an uneventful recovery except for a minority who subsequently develop chronic endocarditis, chronic hepatitis, or ostoitis. Experience in Adelaide since 1980 and more recently Australia-wide suggests that this view is incorrect.
In 1982, Maddocks (unpublished) found that 64% of 109 laboratory-verified Q fever patients, in two south Australian abattoir-associated outbreaks, were still unwell 6-12 months after the acute attack with inappropriate fatigue, night sweats, pain in the muscles and joints, mood changes, interrupted, unrefreshing sleep patterns, and loss of libido.
During our clinical trials, 1981-1989, of Q fever vaccine (Q Vax CSL LTD) we saw many unvaccinated meat and agricultural workers who had had acute Q fever but still remained ill with ‘chronic Q fever’ or ‘recurrent Q fever’. Chronic endocarditis or hepatitis was excluded by standard clinical and laboratory examination and by acrotests for antibody to Coxiella burnetii phase I and II antigens. Patients mostly had only low levels of antibody to the latter as would be found after Q fever without sequelae. Rarely, persistent levels of IgM antibody to phase II antigen, or levels of phase I antibody short of those seen in endocarditis were observed. Before their acute Q fever most patients had been healthy, energetic, and, when assessed, free from psychiatric morbidity. 2 or more years after recovery from the acute illness they were still disabled with constant or remittent fatigue syndrome. Dominant symptoms were 1) an incapacitating fatigue requiring prolonged rest after simple tasks such as washing the car (tests on the treadmill showed that while some achieved the duration of exercise predicted for their age and weight they were exhausted afterwards; others achieved only 30-40% of predicted value, being limited by fatigue or muscle and joint pain); 2) nausea, and persistent headache needing frequent use of analgesics; 3) feeling feverish with profuse, odoriferous sweats at night requiring changes of bedclothes, usually afebrile; 4) myalgia in any muscle group; 5) intermittent fasciculation of muscle fibres and muscle tenderness on palpation; 6) arthralgia without swelling, in any joint including costochondrals; 7) a marked intolerance for ethanol compared with capacity before the acute Q fever; and 8) interrupted sleep patterns, excessive and unreasonable irritability, unreliable short-term memory, and poor concentration.”
These studies suggest that Professor Boughton’s 10-20% figure was conservative.

50 In another report, Professor Boughton, after referring to the fact that after being infected in July 1994, the plaintiff returned to work at the defendant’s abattoir, had a pregnancy terminated, and continued to work there until November 1994, and after reading Dr Sutherland’s first report, offered the following very strong opinion:

“She experienced hot and cold flushes, nausea, and daily headaches during the time from July to October [1994], was aware of her inability to cope adequately and was very upset about it, as she took a pride in her work and enjoyed it.
In the enclosed environment of the slink room, this girl was exposed to the highest possible risk of Q fever as the organism replicates to extremely high levels in the products of conception, the foetus, the membranes, liquor, placenta, uterus, and she was sprayed frequently each day with blood and liquor as the gravid uteri and contents slid down the chute from the evisceration floor above. Liquor often sprayed over her when the uteri were incised and sometimes she aspirated blood when mouth pipetting, a dangerous practice in this setting; all this material was highly infectious in Q infected animals. She had requested a syringe to avoid having to mouth pipette, but she said this was denied her.
In October she suffered another severe acute febrile illness which coincided with a second pregnancy and subsequent termination. Following this she was unable to continue at work and has been disabled since. Individuals who have been infected with Q organisms develop protective immunity; this is based on a combination of humoral (antibody development) and cellular immunity. The latter can be demonstrated most easily as a positive skin test to Q antigen. There are more sophisticated laboratory tests which are not [practicable] in the field which confirm the development of cellular immunity. In a few individuals, re-exposure to a heavy dose of Q antigen elicits a sensitivity response; this has been seen on occasion after the inadvertent vaccination of a previously Q infected person, when a severe local skin reaction may occur with ulceration, and a systemic reaction with fever, sweats, aches and pains, which have been followed by the development of post Q CFS (Marmion). In addition, both Marmion and myself have seen several workers with confirmed Q illness, in whom QCFS has followed a severe clinical relapse of Q, some weeks after the initial acute illness episode. It is likely that such relapses were precipitated by re-exposure to heavy doses of Q antigen. Sonya Dixon was exposed to very heavy repeated doses of antigen at a time when she was burdened with an unwelcome pregnancy and subsequent termination.
In response to your specific questions: …
2b. Mrs Dixon was repeatedly exposed to the Q organism in high doses in the daily course of her work. This most likely precipitated the severe episode in October/November.
3. It is known that Q fever can reactivate during pregnancy and the organism has been found in the placenta of infected animals including humans.
4. Dr Sutherland stated that CFS symptoms are most commonly triggered by an acute infection and continue on immediately after the acute phrase of the illness; this has been our experience. However in Q fever, we have seen QCFS follow a relapse of the original Q infection, most likely due to re-exposure to the antigen (see above).
In Mrs Dixon’s case, it seems that she did have significant symptoms of impairment following the July illness, which were then followed by the severe relapse in October 1994 and further deterioration in her condition. To attribute her CFS to an entirely separate infection, nature unknown, in October, strains credulity. This girl was re-exposed on a daily basis to very high doses of an infectious agent which is recognized to cause QCFS in up to 20% of those who contract it. It is far more likely than not, that the precipitant was Q.”
That last sentence might be right; it might be wrong; but it called for specific treatment at the trial. (i) Contrast between findings as to the plaintiff’s working conditions and evidence as to the plaintiff’s working conditions

51 One other matter emerges from the report of Professor Boughton just mentioned. Because it was evidently thought not necessary for the parties to explore the precise nature of the working conditions in the abattoir in the light of the defendant’s admission of liability just before the trial, the trial judge’s account of the plaintiff’s experiences there, which was based on the limited evidence given by the plaintiff in chief, was much blander than the vivid and disturbing impression conveyed by the history given to Professor Boughton: see in particular the second and third paragraphs of the passage which has just been quoted. As the law presently stands, the history given by the plaintiff to Professor Boughton about her workplace conditions, and the similar histories given to others such as Dr Sutherland, are evidence of the truth of their contents, yet the plaintiff was not cross-examined to suggest that that history was wrong, and the trial judge made no finding that that part of it was wrong.

52 In short, there was evidence that the condition which most doctors diagnosed is a condition which the plaintiff had at least a 10-20% chance of contracting. That figure by itself does not satisfy the civil standard of proof, but it is a significant step in that direction. The level of frequency appears to have been a factor in the medical experts’ reasoning to the diagnosis of post Q chronic fatigue syndrome.

Failure to assess totality of medical evidence in the light of the objective symptoms and the objective history

53 In this type of litigation, an essential inquiry is whether, even though the facts assumed may not correspond “with complete precision” with the facts established, they are “sufficiently like” the facts established “to render the opinion of the expert of any value”: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; (1985) 59 ALJR 844 at 846. The relevance of that inquiry is not diminished by the fact that the common law of expert evidence has now been replaced by Part 3.3 of the Evidence Act 1995 (NSW). In HG v R (1999) 197 CLR 427 at [39] Gleeson CJ assumed that the type of inquiry compelled by the principles stated in the Paric cases remained appropriate, for he required experts to differentiate between the assumed facts and the opinions advanced, and one purpose of that differentiation is to enable the trier of fact to see how far the opinions can stand in the light of the particular facts found.

54 Given the strength of the medical opinions favouring a diagnosis of post Q fever chronic fatigue syndrome, and the unanimity of the medical opinions favouring some disease in the nature of a chronic fatigue syndrome, it was incumbent on those conducting the factual inquiry at trial to consider how far the medical opinions could stand if the admissions made by the plaintiff in cross-examination or the inferences flowing from the various films were taken into account. It was difficult to do this in view of the fact that no medical expert on either side was called to state how far his or her opinion would be affected by such matters. Rightly or wrongly, counsel for the plaintiff appeared to have submitted to the trial judge that the defendant should have put this type of inquiry to a doctor or doctors in cross-examination. The trial judge rejected that submission in the following words:

“While senior counsel for the plaintiff submitted that the matters going to credibility were not put to any doctor in cross-examination (all doctors evidence was received by way of reports) the fact is as I have earlier mentioned, that the ongoing symptoms from February 1995 are matters for which no objective tests can be performed by medical practitioners to ascertain whether the symptoms in fact exist.”
However, the submission had at least this important degree of merit – that doctors could have been asked why they assumed the symptoms to be as narrated and whether they adhered to their opinions despite the inroads made on the plaintiff’s reliability in cross-examination.

55 The plaintiff’s case threw up a curious and unusual problem. The plaintiff’s case on her condition before July 1994 was that she was very healthy. She had had three jobs – in the defendant’s abattoir, for three days a week at Coles, and at a fruit market on Saturdays. She still had two. She was working to pay off a home mortgage. She was an enthusiastic, reliable and responsible worker. She had had a daughter. Her relationship with her daughter, her de facto husband, his mother and other persons was happy. Until at least 1993 she played hockey, basketball and tip football. She swam. She rode horses. She weighed 12 stone. There was no existing medical condition before July 1994 which could have detrimentally affected her health thereafter. The plaintiff’s case in these respects shared common ground with that of the defendant in the sense that the plaintiff was not cross-examined to suggest the position was otherwise and common ground in the sense that it was the defendant’s case that the excellent condition of health she enjoyed before July 1994 resumed after February 1995. The trial judge found that the plaintiff then contracted acute Q fever for a period of six or seven months.

56 After February 1995, the parties no longer shared common ground. The plaintiff had certainly ceased to work, but whether she could work was controversial. She was on bad terms with her entire circle. She complained of appalling health. She had suffered very large weight loss.

57 What could account for the change? On the evidence, there were four possibilities. One possibility, advanced by Dr Sutherland, was that the plaintiff unquestionably had “some form of chronic state”, but it was not caused by the bout of acute Q fever. A second possibility was advanced by Dr Synnott, a psychiatrist: though he accepted that she suffered the symptoms complained of and that the Q fever “was the acute precipitant for the onset of the condition”, it had “psychological components and contributants”. Dr Synnott said:

I note that her father contracted Q fever and was sick for a long time, so there is the perception that this is what necessarily happens with Q fever – the modelling of one of her parents being invalided for a long period of time. There is the fact that she is being paid whilst ill, that some of her responsibilities (of a more onerous type) are being assumed by other people, also she can project responsibility and causality beyond herself for the entirety of her symptoms and disability.”
A third possibility was that the plaintiff’s complaints were genuine. A fourth possibility was that the plaintiff had decided around February 1995, well knowing what the symptoms of Q fever and its consequences could be because of the widespread effects of the defendant’s abattoir on the population of Inverell and because her father had had the disease, to begin to live a complete lie and maintain a consistent but wholly or largely mendacious story to be told to her family, her friends, her doctors, her lawyers and ultimately the court over a period of six years.

58 Of these four possibilities, the trial judge considered and implicitly rejected the first on rational grounds. Those grounds were that the plaintiff had given Dr Sutherland a history of her symptoms which erroneously dated the symptoms of acute Q fever to October or November 1994, when in fact there is clear evidence that they occurred in July 1994. The trial judge did not in terms reject Dr Sutherland’s proposition that the plaintiff had a chronic fatigue state but that it was not caused by the acute Q fever. But his conclusion that she did not have any of the symptoms complained of and his treatment of the history received by Dr Sutherland as being wrong as to dates are inconsistent with Dr Sutherland’s diagnosis.

59 The second possibility, that advanced by Dr Synnott, received no support from any other medical expert, except that Dr Sutherland, who called the supposed condition “Abnormal Illness Behaviour”, thought that it was a possibility which deserved investigation.

60 The third possibility, that the plaintiff was genuine, was rejected by the trial judge because he found parts of the plaintiff’s evidence so incredible as to justify rejection of the rest.

61 The fourth possibility was that accepted by the trial judge. That possibility required her to have deceived her parents, to have neglected her daughter, to have alienated her de facto spouse and his family, and to have given up many of her friends. In particular, it involved a fraudulent narration of largely consistent complaints to many different doctors on many different occasions. It would have been extremely difficult for a young and unsophisticated person to perform the latter task successfully unless the complaints were genuine. Yet on the trial judge’s findings she did perform that task. That does not by itself invalidate the trial judge’s findings. But in the light of his failure to examine the medical evidence, probably in turn caused by the failure of the parties to take him in detail to the medical evidence, his findings must come into question.

The trial judge’s approach to the plaintiff’s credit

62 The first example given by the trial judge of the deficiencies in the plaintiff’s testimony related to where she had been living. The trial judge said:

“For instance when challenged as to her agreement in chief that she still lived at her parents’ property she conceded when confronted with details of the transaction that in fact she is the owner of the land upon which the shed in which she lives, stands. When pressed as to why she had not revealed this in chief the following exchange occurred:
‘Q. Why didn’t you say, when you were asked about the shed having been done up but still being on your parents’ property, why didn’t you say, ‘No, it’s on my property’?
A. I’ve got no idea.”
The plaintiff’s evidence in chief was that around 1995 her relationship with her de facto husband broke up, she and her daughter moved to her parents’ house, and then they moved into a shed. The evidence in chief was:
“Q. I think the only movement in your accommodation is that you have moved out of your parents’ house into a shed --
A. That’s right.
Q. – that has been done up, but still on your parents’ property?
A. Yep.
Q. How far from the house is it?
A. Maybe 200 metres, I think. I’m not quite sure.
Q. It’s not far?
A. No.”

63 In cross-examination, after saying that she had sold the house in which she and her de facto husband had been living, the plaintiff’s evidence was:

“Q. Do you own any property at all?

A. I beg your pardon?

Q. Do you own any property at all?

A. Yeah, I had. I had.

Q. You had.

A. Yeah.

Q. Do you own any now?

A. Just a car and that, that’s it.

Q. You don’t own any real estate?

A. Oh, do you mean, like land or houses, is that what you mean?

A. Why did you say, when I asked you if you owned any property, ‘Just a car and that’?

A. I didn’t realise what you were saying, sorry.

Q. But surely you understood quite clearly; you indicated when I asked you if you owned any property, that you owned ‘just a car and that’?

A. I am sorry, I didn’t realise what you were saying.

Q. Well, what property do you own?

WEBB: Could the question be made precise, your Honour?

HIS HONOUR: Q. I think the question you are being asked is what real property do you own, like buildings and land et cetera. Do you understand what real property is?

A. Yes.

Q. You are being asked what real property do you own?

A. I own land.

DODD: How much land?

A. Not very much. I don’t know if it is 10 acres or hectares, I am not quite sure.

Q. Do you seriously tell his Honour that you own land and you don’t know what acreage it is?

A. Well, I haven’t went into that.

Q. When did you buy the land?

A. Oh, um, when – maybe two years ago, maybe. I am not quite sure exactly.

Q. And where is it situated?

A. In Inverell.

Q. Whereabouts in Inverell?

A. It is near my parents’. It is in, like, Doncaster Drive, sort of thing.

Q. Is it the property on which you live?

A. No.

Q. Is it vacant land or does it have a house on it?

A. It has got stables and that on it.

Q. And how large are the stables?

A. I am not quite sure. There is four stables.

Q. How many horses are stabled in the stables?

A. One – my daughter’s horse.

Q. Did you borrow money to buy that land?

A. Beg your pardon?

Q. Did you borrow money to buy that land?

A. Yeah, I have.

Q. And where did you borrow the money from?

A. At the State Bank, and then my mum referred it over to the ANZ Bank.

Q. And how much did you borrow?

A. Oh, I can’t remember exactly.

HIS HONOUR: Q. Would you just keep your voice up. I am finding it hard to hear you.

A. Sorry.

DODD: Q. How much did you pay for the land?

A. I think $50,000, I think.

Q. When you borrowed money, it was initially from the Colonial State Bank, was it?

A. Yes.

Q. And then you transferred the borrowing to the ANZ Bank?

A. That is right, yes.

Q. You borrowed $53,000 from the ANZ Bank, didn’t you?

A. It could have been around that, I am not quite sure. I know it was $50,000, maybe $50,000.

Q. Didn’t you borrow $53,000 from the ANZ Bank in May of last year?

A. Maybe that is when I transferred it over from the State Bank.

Q. And you were required to fill in an application for loan?

A. Yes, I would have been, yes.

Q. And did you give the bank details of your earnings?

A. Yes, I would have.

Q. What did you say you earned?

A. Um, what my wage, what I would have been paid.

Q. What were you being paid in May of 1999, just last year?

A. $300 and so a week, I think.

Q. Was that compensation, or were there other moneys?

A. No, that would have been just compensation.

Q. So the bank lent you $53,000 when you were in receipt of compensation, did they?

A. Yes.

HIS HONOUR: Q. Do you receive the single mother’s pension?

A. No, only you get $10 a week, $10.20 or something like that. It is like a child --

Q. A child endowment type of thing?

A. Yes, I think that is what it is.

DODD: Q. Do you own any other property other than that at Doncaster Drive?

A. No.

Q. Do you own any property jointly with Mr Cross?

A. He went to help me, like, to get my application.

Q. Do you own any property jointly with Mr Cross?

A. In what way do you mean? Like, the deeds are in my name.

Q. Yes, in your name solely, aren’t they?

A. Yes.

Q. That is the Doncaster Drive property?

A. That is right.

Q. Do you own any other property, not just in your name but in the name of yourself and anyone else?

A. No.

Q. Is there only one horse on that property?

A. No, no. There’s other horses out in the paddocks.

Q. How many horses are on the property all told?

A. About two, yeah.

Q. Well, there is Sarah’s horse?

A. Yeah.

Q. Why do you say ‘about two’? Don’t you know how many horses are on the property?

A. No, there would be only two, yeah.

Q. Are you sure there is not more than that?

A. My parents have got horses on their property too.

Q. I am not talking about your parents’ property, I am talking about this property of yours?

A. Yeah, just two.

Q. Is there a shed on the property?

A. I beg your pardon?

Q. Is there a shed on the property?

A. Yeah.

Q. Is that the shed in which you live?

A. I beg your pardon?

A. Is that the shed in which you live?

A. Yeah, yeah.

HIS HONOUR: Q. Sorry, I am getting confused.

Q. So am I.

Q. The property you own, as I understand it from the questions you are being asked, is in a street called Doncaster Drive, is it?

A. Yeah.

Q. I thought you said that you live in a small dwelling on your parents’ property, is that right?

A. It’s all joined together.

Q. Now, is the dwelling – you know what I mean by that?

A. Yeah, that, like a shed, yeah.

Q. – in which you live, in the property you own or in the property owned by your parents?

A. We just have it run all together, and, like, I use – like, it’s all --

Q. Do you know whether the place in which you live is on the land owned by your parents or on the land owned by yourself?

A. Yeah, the mortgage that I’ve got, it’s --

Q. Where you live?

A. Yes, that’s right.

Q. You are being asked about the place in which you live with your daughter.

A. Yeah.

Q. What you are being asked is, is that dwelling on the land which you own yourself --

A. Yeah.

Q. – or on the land owned by your parents?

A. On mine.

Q. On your land?

A. Yeah.

Q. That is where you live?

A. Yeah, and I use the water and that, that runs across.

Q. But as I understand you, and you can correct me if I am misunderstanding --

A. Yeah, sorry about that.

Q. – your parents’ property adjoins, that is, is next to your property?

A. Yeah, and it runs all as one. Sorry.

Q. And are you saying that your parents have horses?

A. Yep.

Q. Is there any fence between your land and your parents’ land?

A. Yeah – no, there was not – there is not one, there is a bit and not some, if you know what I mean.

Q. There are a number of fences, are there?

A. Yes.

HIS HONOUR: Q. Back to you, Mr Dodd. I am just trying to clear it up in my own mind.

DODD: Q. Your property is divided from your parents’ property, isn’t it, by a fence?

A. Yeah, but there’s a fence that’s – yeah, half and half, sort of thing. It’s confusing.

Q. There is a fence dividing your property from your parents’ property, isn’t there?

A. Depends where you are looking from, I suppose.

Q. Now, the shed in which you live is on your property?

A. That’s right, yeah.

Q. The property, the size of which you don’t know?

A. I don’t know. I can’t remember.

Q. Yesterday Mr Webb asked you a series of questions, page 13, and he said:
‘Q. And did you remain living at your mother’s place with Sarah?
A. Yes.
Q. And have you remained on there since?
A. No – oh, since, yes.
Q. Since that time?
A. Yes.’
The next question was:
‘Q. I think the only movement in your accommodation is that you have moved out of your parents’ house into a shed?
A. That’s right.
Q. That has been done up, but still on your parents’ property?
A. Yep.’
Do you recall being asked those questions and giving those answers?
A. Yeah.
Q. Why did you say the shed was on your parents’ property when you have now told us it is on your property?
A. Because we run it all together, we do.
Q. Isn’t the answer, Ms Dixon, that you didn’t want the court to know that you own land yourself?
A. No, that’s not right.
Q. Well, why did you say you live on your parents’ property when you live on your own?
A. Because we run it all together, and it’s not right, I’m not lying to you.
Q. Why didn’t you say, when you were asked about the shed having been done up but still being on your parents’ property, why didn’t you say, ‘No, it’s on my property’?
A. I’ve got no idea.
Q. The reason is you didn’t want the court to know that you own property?
A. No, it’s not that. It’s not that.
Q. Why this morning, when I asked if you own property, did you say, ‘Only a car and that’?
A. I didn’t realise what you meant, like property, in lots of things, or what you were talking about.”

64 One reading of the difference between the evidence in chief and the cross-examination does not lead to the conclusion that it is sinister. The leading character of the first question quoted from the examination in chief is significant. So is the fact that the plaintiff was not extensively educated and apparently not very articulate. So is the fact that “property” is a concept which is not without ambiguity. And so is the fact that the plaintiff needed to seek and obtain unscheduled adjournments while giving evidence for physical reasons.

65 The next example which the trial judge pointed to was discussed by him in these words:

“However, as I have said, the bulk of the challenge to the plaintiff’s evidence in chief and indeed to the history she had given medical practitioners over the years was directed towards her activities. When taken to the history she had given Dr Burke involving walking around the swimming pool the following questions and answers eventuated:
‘Q. It is correct that as of March 1999 something as simple as walking around the pool with your daughter made you tired and exhausted?
A. No.
Q. Well, if it was not true, why did you say it to the doctor?
Q. It’s – I would have meant it in other ways, like, I wouldn’t have just said it like that.’”

66 The whole cross-examination was as follows:

Q. Could I take you back to Dr Bourke, the doctor you saw on 2 March 1998 at Broadmeadow?
A. Yeah.
Q. You said to him that performing exercise exhausted you and simply walking about the pool with your daughter tired you out and made you feel exhausted?
A. Mmm.
Q. Was that true in March of 1999?
A. Walking around the pool?
Q. Something as simple as walking around the pool with your daughter tired you out and made you feel exhausted?
A. Yeah, I do feel – get exhausted.
Q. With something as simple as walking around the pool with your daughter?

A. No, but what I probably would have meant, too, is, like, Sarah would want me to jump in and swim around, and she’s just so active.

Q. Is it correct that as of March 1999 something as simple as walking around the pool with your daughter made you tired and exhausted?

A. No.

Q. Well, if it was not true, why did you say it to the doctor?

A. It’s – I would have meant it in other ways, like, I wouldn’t have just said it like that.

Q. Isn’t it the case, Ms Dixon, that when you saw Dr Bourke and when you have seen any other doctor for your case, you have not been honest with them?

A. No.

Q. As to how much activity you indulge in?

A. No, because I tell them what I do.

Q. And you tell them what you can’t do, don’t you?

A. They ask me. But I can’t do too – like, go out and run every day, and for hours, or things like that.

Q. Well, just assume that Dr Bourke in his report has said what you told him?

A. Yeah.

Q. Why did you tell him that something as simple as walking around the pool made you tired and exhausted?

A. I’ve got no idea.

Q. It was untrue, wasn’t it?

A. Well, like, it wouldn’t be like that, just keeping walking and walking around and around the pool.”

67 There is a significant difference between the cross-examiner’s questions and the passage in Dr Burke’s report on which they were based. Dr Burke said that the plaintiff:

“finds that performing exercise exhausts her and simple walking about the pool with her daughter who is trying to swim tires her out and makes her feel exhausted.”
The cross-examiner’s questions suggested that the relevant proposition was whether something as simple as walking around a pool with her daughter once made her exhausted. If that were the proposition claimed by the plaintiff, it would doubtless have been a very extreme claim. But the proposition appearing in Dr Burke’s history was a proposition which the plaintiff did not admit advancing to him. And the proposition in Dr Burke’s history was a proposition rather wider than that discussed with the plaintiff in cross-examination. Moving about a pool while a small girl learns to swim, over time, is not an activity which exhausts healthy adults, but it could easily exhaust a sufferer from a fatigue syndrome while leaving that sufferer in a position to carry on some of the operations of ordinary life.

68 The next examples given by the trial judge were, first, the plaintiff’s claim that the maximum distance she could walk comfortably was equivalent to the distance between the Newcastle courthouse and the railway station going downhill; and, secondly, the plaintiff’s statement that she could not remember attending any race meetings after she had left the abattoir. As to the first, the trial judge referred to a:

“video showed her walking briskly an extensive distance between Railway Square, Darling Harbour and streets of Sydney. When it was put to her that that walk involved her travelling some two if not three or more kilometres by foot, and that she was capable of so walking, she responded that she did not know and indeed would have sat down if she had walked that far.
Again, the plaintiff’s actions as depicted in that video were quite inconsistent with the picture she had painted of herself both in chief and in histories to doctors.”
As to the second, the trial judge referred to photographs and a video showing her attending race meetings at Inverell three times in two years, and of the fact that the video did not reveal her to be showing signs of fatigue despite her being there for at least four hours and twenty minutes.

69 So far as the plaintiff’s walk in Sydney is concerned, the plaintiff’s evidence included the following:

Q. Well, would you be able to walk, say, two or three kilometres?
A. I’m not quite sure. That’s a fair way. I know I would be exhausted when I got to where I was going.”
She said she had only been to Sydney for doctors’ appointments. She then said that on one occasion she left a motel near Central Railway Station just before 3.25pm.
Q. You walked across or down George Street and went into the Thomas Cook travel agents office, do you remember that?

A. Maybe I did. I can’t remember, no.

Q. And you walked down George Street to Paddy’s Market?

A. Paddy’s Market?

A. Down near Darling Harbour?

A. I can’t remember. I probably did, but I can’t remember. I don’t know where Paddy’s Market is.

Q. You and your mother wandered in and out of several women’s clothing shops?

A. Maybe.

Q. Do you remember that?

A. I can’t – no, I can’t really remember it. Maybe.

Q. It doesn’t stick out in your mind as being a particularly exhausting day?

A. I can’t remember these Paddy’s Markets or whatever.

…

Q. After you walked down to Paddy’s Market and went through the women’s clothing shops you and your mother went into a café and ate a meal?

A. Maybe.

Q. In there for a bit less than an hour. You then caught a taxi into the city?

A. Maybe.”
After the plaintiff was shown the video, the following evidence was given:
Q. Your ability to walk those distances is inconsistent with what you have told the doctors about fatigue, isn’t it?
A. No. Could you explain that a bit better.
Q. What I put to you is you were able to walk at least two, if not three or more kilometres with your mother?
A. I don’t think it was that far.
Q. Do you agree you could walk that distance?
A. I don’t know. I have no idea. I would have sat down if I walked that far.”

70 So far as the race meetings are concerned, the failure by a witness to remember a matter when it is first mentioned and the ability of that witness to remember it after detailed questioning and the production of photographs and film is not necessarily sinister in the case of an uneducated and nervous witness, particularly a witness suffering, if her case is sound, from a disease affecting her memory.

71 While the trial judge dealt with various other matters in his analysis of the plaintiff’s evidence, enough of that analysis has been looked at to illustrate the points already made, as well as the following points. In his reasoning, the trial judge made no express allowance for the fact that a person claiming to suffer chronic fatigue may well have good days as well as bad (as Dr Sutherland, without any sceptical note, recorded the plaintiff saying to him and as the plaintiff’s mother told Dr Kendall); may be able to do things she could not normally do under the impulse of necessity or sudden pleasure, like jumping at the sight of her horse winning or spending a long time at a friend’s wedding or walking for a significant period in the course of a shopping expedition during one of her rare visits to Sydney; and may pay heavily in ensuing days for the unusual activity. Some of the points accepted by the trial judge appear too trivial to justify the extreme step which he took of inferring from the various instances of unreliability in her evidence that her claim to suffer the physical symptoms she said she did was baseless.

72 The defendant submitted that the deficiencies in the plaintiff’s testimony could not be explained by reference to the possibility of the alleged disease having affected her memory, because most of the deficiencies related to matters which no witness could forget. The defendant gave as examples the frequency with which the plaintiff saddled her daughter’s horse, the extent to which she went out for social activity, and the extent to which she could walk without resting. The difficulty of the submission is that the issue is a medical one, and the only medical evidence on it, though not insignificant, is rather general.

73 The defendant also submitted that the assessment of the plaintiff’s credibility was a matter peculiarly for the trial judge and that his adverse conclusions appear in part to be demeanour-based. In those circumstances it was submitted that this Court should not interfere with them or question them lightly. That is certainly a forceful submission. But there are numerous factors causing doubts about the correctness of the outcome of the trial. Some rest on matters of detail in the trial judge’s handling of parts of the plaintiff’s evidence. But most concern the failure to deal satisfactorily with the medical evidence. One aspect of that medical evidence not explicitly taken into account was the fact that the plaintiff’s deficiencies as a witness might themselves be symptoms of the disease she was supposedly suffering from. In the circumstances the trial judge’s characterisation of the plaintiff as a witness who lies about her external activities had been exposed so fully by a “searching” cross-examination as to justify complete rejection of what she said about her physical symptoms is open to question. At the trial the defendant was represented by Mr W K L Dodd SC – one of the ablest cross-examiners at the Inner Bar. The plaintiff was cross-examined with his characteristic fairness, firmness and skill. But it did not necessarily follow from his undoubted success in exposing numerous errors in the plaintiff’s position that her claims to suffer from nausea, headaches and other physical symptoms, to which she adhered rigorously, were to be rejected outright, or that the central aspects of the medical evidence were to be rejected in total.

74 In all the circumstances there are sufficient doubts and questions about the trial in this case to make it just to order a new trial. In the language of Pt 51 r 23(1) of the Supreme Court Rules, it appears that some substantial wrong or miscarriage has taken place in that the plaintiff’s claim has not been properly considered.

75 Nothing in what has been said above is intended to suggest that the case of either side has any particular level of weakness or strength. What happened at the first trial raises doubts and questions about the justice of its outcome, but the criticisms to be made of it do not suggest any particular answers to those questions. What the answers should be are matters to be determined at the new trial.

76 No medical expert was cross-examined at the trial. It seems clear that the trial judge was not taken to the medical reports in any detail. That seems clear because it appeared to be common ground that the matters which the plaintiff relied on to suggest that acute Q fever continued beyond February 1995 were not referred to the trial judge, and because the trial judge appears to have summarised faithfully the submissions that were put to him. It is appreciated that many personal injury cases are conducted without calling any medical experts; that calling them increases costs and is inconvenient to them personally; and that on occasion trial courts are hostile to that course. Those who conducted the first trial and those who will conduct the second are in a much better position to judge how a trial of the plaintiff’s complaints can justly be conducted than this Court is. However, it does seem strange that an inquiry into the relationship between the plaintiff’s past life and her present complaints could be conducted, given that there was some reason to question her reliability and given that on her case the disease in early adulthood has ruined a significant part if not all of her life, without the assistance of any oral evidence from a medical expert in a position to comment on a range of possible findings of primary fact, from the potentially high level of the plaintiff’s claims to the potentially lowest level of her unreliability as exposed in cross-examination.

Further evidence

77 In the course of the appeal, the plaintiff sought to tender a letter of Dr Thatcher dated 19 October 2000, a report of Professor Marmion dated 7 November 2000 and a report of Professor Boughton dated 8 November 2000. All of this material was brought into existence after the trial. Dr Thatcher’s letter was a request for further testing of the plaintiff. In the light of that testing, Professor Marmion concluded that the plaintiff “continues to harbour the Q fever organism”, and that this was causing her to suffer from post Q fever fatigue syndrome. Professor Boughton took objection to the trial judge’s handling of his evidence at trial and confirmed Professor Marmion’s diagnosis. The plaintiff also relied on an affidavit of 10 September 2001 by the plaintiff’s solicitor seeking to explain why the further testing recommended by Professor Boughton on 12 December 1995 had not been undertaken. In addition the plaintiff relied on a report by Professor Marmion dated 11 September 2001 answering a post-trial report of Dr Sutherland’s dated 17 June 2001: the defendant had given notice of an intention to rely on it on the appeal but it did not in fact do so.

78 The plaintiff advanced arguments in support of the proposition that the discretion of the court to receive further evidence under s 75A(7) of the Supreme Court Act 1970 was wide, and was only limited by s 75A(8). She referred to CDJ v VAJ (1998) 197 CLR 172. Though no application was made in terms for the court to overrule its own existing authorities on s 78A(8) (eg Akins v National Australia Bank (1994) 34 NSWLR 155 at 160), the arguments might be difficult to accept unless they were.

79 The defendant pointed out with considerable power that no explanation had been given for why the further testing and Professor Marmion’s conclusions based on it had not been carried out before and reported on before the trial.

80 In certain respects the plaintiff’s arguments were attractive, at least in the particular circumstances of this case. Their acceptance, though not necessarily outside the discretion conferred by s 75A(7)-(8), might have a revolutionary effect in practice by opening up the possibility of further evidence going to central questions in litigation which, though vitally significant, could have been tendered at trial.

81 In view of the fact that a new trial should be ordered on other grounds, it is not necessary to consider whether the plaintiff’s application to tender the further evidence should be granted, and it is not desirable to examine, even tentatively, the merits of the arguments underlying it.

Orders

82 The orders proposed are:

1. The appeal is allowed. 2. The judgment and orders of the trial judge are set aside. 3. A new trial is ordered. 4. The respondent is to pay the appellant’s costs of the appeal. 5. The respondent is to have a certificate under the Suitors Fund Act , if qualified. 6. The costs of the first trial are to be in the discretion of the trial judge at the second trial.

: I agree with Heydon JA.