Fenton v AIA Australia Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0074

AMANDA FENTON	Applicant
v
AIA AUSTRALIA LTD (formerly AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LTD)	Respondent

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JUDGES:	TATE, OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2017
DATE OF JUDGMENT:	17 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 331
JUDGMENT APPEALED FROM:	[2017] VCC 438 (Judge Kings)

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INSURANCE – Disability income insurance policy – Total disability policy – Total disablement benefit – Partial disablement benefit – Sickness – Whether insured, solely due to sickness, unable to perform one or more duties of occupation important in producing income – Whether judge erred in not accepting that applicant, solely due to sickness, was unable to perform one or more duties of her occupation important to producing income- No error established – Application for leave to appeal refused.

APPEAL – Application for leave to appeal – Applicant’s proceeding dependent upon credibility and reliability of applicant’s evidence – Advantages enjoyed by trial judge – Judge’s findings not glaringly improbable or contrary to compelling inferences – Different case advanced by applicant on appeal from case advanced at trial – Applicant not permitted to advance new case which could possibly have been met by further evidence at trial – Whisprun v Dixon (2003) 77 ALJR 1598 referred to.

WORDS AND PHRASES – Sickness – Totally disabled – Partially disabled – Unable to perform one or more duties of occupation important in producing income.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P B Murdoch QC with Mr A M Donald	Slater & Gordon
For the Respondent	Mr J J Gleeson QC with Mr D Christie	Moray & Agnew

TATE JA
OSBORN JA
BEACH JA:

On 25 February 2009, the applicant, Ms Amanda Fenton, entered into a Priority Protection Disability Income Policy (‘the policy’) with the respondent, AIA Australia Ltd. The policy provided for the payment of monthly disability benefits if the applicant suffered total disablement or partial disablement within the meaning of the policy.

On 20 October 2009, while the applicant was on holiday in Cuba, she ate a toxic piece of fish and became ill. Subsequently, the applicant travelled to New York where, on 4 November 2009, she was diagnosed as suffering from ciguatera poisoning.

On 21 December 2009, the applicant completed a disability income claim form under the policy. In January 2010, the applicant’s claim was accepted by the respondent. The respondent commenced to make payments, pursuant to the terms of the policy, on 20 January 2010, following the end of the waiting period provided for by the terms of the policy. Payments were made thereafter on the basis that the applicant was totally disabled from 20 January 2010 until 6 September 2014.

On 6 September 2014, the respondent reduced the applicant’s monthly disability payments by 30 per cent. In doing so, the respondent purported to invoke the partial disablement provisions of the policy, in reliance upon the opinion of a specialist in occupational medicine, Dr Mary Wyatt, that the applicant had a 30 per cent work capacity.

On 6 September 2015, the respondent ceased making payments, as the respondent determined that, at that time, the applicant no longer met the definition of either total disablement or partial disablement within the meaning of the policy. The respondent’s decision to terminate payments was made in reliance upon the opinions of a number of medical practitioners, including Dr Wyatt.

On 27 October 2015, the applicant commenced a proceeding in the County Court against the respondent seeking orders that she be paid disability benefits, on the basis that she was totally disabled within the meaning of the policy from 7 September 2014 ‘to date and continuing’. The applicant also sought (as an alternative remedy) damages from the respondent for breach of contract, alleging that, in not paying the disability benefits to which the applicant claimed to be entitled, the respondent breached the terms of the policy.

The applicant’s proceeding was heard by a judge in the County Court over seven days in February 2017. On 26 May 2017, the judge dismissed the applicant’s proceeding.[1]
[1]Fenton v AIA Australia Ltd [2017] VCC 438 (‘Reasons’).

The applicant now seeks leave to appeal and (if leave is granted) to appeal from the judge’s decision dismissing the proceeding. The applicant’s proposed grounds of appeal are as follows:

1.The trial judge erred in finding that the applicant’s sickness was not a sickness within the meaning of the policy wording.
2.The trial judge erred in preferring the opinion of the medico-legal infectious diseases consultant physician to that of the treating infectious diseases physician.
3.The trial judge erred by misconceiving the question of what constituted the applicant’s ability to perform one or more of the important or essential duties of her usual occupation in light of the fluctuating and unpredictable nature of her sickness frequently occurring.
4.The trial judge erred by rejecting the applicant’s evidence in circumstances where her evidence was corroborated by the evidence of observational and medical and other health professional witnesses (in respect of the latter whom over a number of years, the applicant, by and large, was recorded as being straightforward and credible on presentation to treating and medico-legal doctors and other health professionals).
5.The trial judge erred in that the rejection of the applicant’s evidence was not open on the evidence or was against the evidence or the weight of the evidence.
6.The trial judge erred in failing to consider whether the applicant’s disablement (whether total or partial) was ‘solely due to’ ciguatera poisoning in circumstances where the evidence established that — her disablement was associated with symptoms of chronic fatigue, and her chronic fatigue was either a continuing symptom of, or directly precipitated by, ciguatera poisoning.
7.The trial judge erred in failing to find that the applicant’s symptoms of chronic fatigue prevented her from performing one of the important duties of her occupation of project co-ordinator, that is, the duty to attend to her employment in a reliable and predictable manner.
8.The trial judge erred by not considering the question of the applicant’s partial disability.

Applicant’s background

The applicant was born on 31 December 1971. She was 37 years of age when she ate the fish that caused her ciguatera poisoning, and 45 years of age at the time of trial.

The applicant completed VCE in 1989. She then undertook a one-year secretarial course. The applicant then worked in a number of positions doing work of an administrative and/or secretarial nature.

Between April 2007 and September 2009, the applicant worked as a project coordinator with the ANZ Bank. The project involved the implementation of a software system. The applicant’s duties included assisting the program management team, tracking issues and risks, performing general office management, tracking timesheets and tracking costs. The applicant’s hours were from 8:30 am to 5:30 pm.

Prior to becoming ill on 20 October 2009, the applicant was in good health. The applicant gave evidence that she used to go to the gym for an hour every lunchtime with her work colleagues.

The applicant ceased work at the ANZ Bank in September 2009 when her contract came to an end. In October 2009, the applicant went on holiday to Cuba where she became ill after eating the toxic piece of fish to which we have referred. The applicant described her initial symptoms as including aching in her legs, an invisible rash on her chest, nausea, vomiting, diarrhoea, being weak and lethargic, having feelings of discomfort and a ‘light/heavy’ feeling.[2] She also described the development of other symptoms including the tip of her tongue feeling numb when she drank liquids, having hot flushes in her hands, burning in her feet, stomach pains, aching legs, fatigue and weakness.
[2]In evidence, the applicant said that this ‘light/heavy’ feeling was difficult to explain. The feeling related to her arms. The applicant gave an example of raising a spoon. When she did so, her arm would feel ‘very heavy, weighed down’, but the inside would feel ‘light, as in there was no strength inside’.

After becoming ill, the applicant travelled from Cuba to New York, via Mexico. In New York she consulted an infectious diseases specialist who told her that she could be suffering from ciguatera.

On 13 November 2009, the applicant returned to Melbourne. She consulted her general practitioner. In evidence, the applicant described feeling completely lethargic at the time of her return to Australia, and also of being in an ‘agony of discomfort’.

The applicant was referred to Dr Andrew Fuller, an infectious diseases physician and clinical microbiologist. The applicant saw Dr Fuller on 30 November 2009, 11 December 2009 and 7 January 2010. He later became her treating practitioner. On 7 January 2010, Dr Fuller completed a form headed ‘Medical Attendant’s Statement Disability Income’ (‘the Medical Attendant’s Statement’) in support of the applicant’s claim for disability benefits under the policy. In the Medical Attendant’s Statement, Dr Fuller identified two diagnoses:

1.Ciguatera poisoning — vomiting/diarrhoea, neuropathy of hands, arms, feet and tip of tongue. Aching legs. Severe lethargy and nausea.
2.Amoebic (parasitic) gastroenteritis — vomiting/diarrhoea and abdominal cramps.

Dr Fuller expressed the opinion that the ciguatera poisoning was ‘improving steadily [and] should resolve in six weeks’ and that the amoebic infection had resolved with treatment.
The policy

As we have already observed, on 25 February 2009, the applicant entered into the policy with the respondent. The policy provided for the payment of an agreed monthly benefit of $8,412 (being the agreed amount at the time the policy was entered into) if the applicant became totally disabled within the meaning of the policy. Clause 5.1.1 of the policy provided:

5.1.1 Total Disablement Benefit
If the Life Insured is totally disabled for longer than the Waiting Period selected, the monthly benefit will be payable from the end of the Waiting Period and will continue to be paid throughout the Benefit Period selected as long as the Life Insured continues to be totally disabled. The benefit is calculated on a daily basis and paid monthly in arrears. The amount of the Total Disablement benefit may be subject to claim offsets (see condition 5.1.9).
The Life Insured is totally disabled if He or She satisfies the definition of total disablement relevant to the income protection benefit selected and the occupation category of the Life Insured at the commencement date of the benefit.
If the Disability Income benefit is selected, the relevant definitions are Total Disablement (Disability Income) applicable to occupation categories AAA, AA, A, B, C & D … .

Under the policy, the applicant’s occupation category was AAA, defined in cl 2.27 of the policy to cover:

Professional white collar workers, other than those in medical and allied occupations, who must have tertiary qualifications, eg lawyers and accountants. Other successful high income earning white collar workers such as senior executives who have longstanding experience in their field of business are also considered as category AAA.

In addition to dealing with total disablement benefits, the policy also dealt with partial disablement benefits. Clause 5.1.2 of the policy provided:

5.1.2 Partial Disablement Benefit
Applicable for occupational categories AAA, AA and A only:
The Partial Disablement benefit will be paid if the Life Insured
·has been continuously disabled (totally or partially) during the Waiting Period; and
·has been continuously disabled (totally or partially) since the end of the Waiting Period; and
·is now partially disabled.
…

The Life Insured is partially disabled if He or She satisfies the definition of partial disablement relevant to the income protection benefit selected. The relevant definitions are Partial Disablement (Disability Income) … as defined in condition 8.

Clause 8 of the policy contains definitions of the capitalised terms in the policy. The terms ‘Total Disablement (Disability Income)’ and ‘Partial Disablement (Disability Income)’ found in cls 5.1.1 and 5.1.2 of the policy are defined in cl 8 as follows:

‘TOTAL DISABLEMENT (DISABILITY INCOME)’ means that, solely due to Injury or Sickness, the Life Insured is:
·   unable to perform one or more duties of His or Her occupation, that is important or essential in producing income; and
·   under the regular care of and following the advice of a Medical Practitioner; and
·   not working (whether paid or unpaid).
…

The Life Insured is ‘Totally Disabled (Disability Income)’ if the Life Insured satisfies the definition of Total Disablement (Disability Income).
‘PARTIAL DISABLEMENT (DISABILITY INCOME)’ means that, solely due to Injury or Sickness, the Life Insured is:
·   unable to work in His or Her own occupation at full capacity but working in a reduced capacity in any occupation; and
·   earning a monthly Income which is less than His or Her pre-disablement income; and
·   under the regular care of and following the advice of a Medical Practitioner.

Where the Life Insured is capable of working in a reduced capacity in any occupation, but is not working, We may deem the Life Insured to be entitled to the Partial Disablement Benefit.
The Life Insured is ‘Partially Disabled (Disability Income)’ if the Life Insured satisfies the definition of Partial Disablement (Disability Income).

In the event of partial disablement, the policy provides for the reduction of the monthly benefit by reference to a formula contained in the definition of ‘Partial Disablement — Disability Income Capability Clause’. The formula is set out in the following definition in cl 8 of the policy:

‘PARTIAL DISABLEMENT – DISABILITY INCOME CAPABILITY CLAUSE’
Partial Disablement Benefit Amount (Agreed Value and Indemnity Value).
The initial benefit payable will be:
(A-B)/A x Insured Monthly Benefit, where
A = Life Insured’s monthly predisablement income, and
B = Life Insured’s Income from all sources for the month in which the partial disablement benefit is being paid.
When the Life Insured is partially disabled but not working or not working to their optimum capacity, ‘B’ will be calculated on the monthly income it would be reasonable for the Life Insured to earn if working to the extent of His or Her optimum capability.
In determining what the Life Insured could reasonably be expected to earn if the Life Insured were working to the extent of His or Her optimum capability, the following will be taken into account:
·   All available medical evidence from the Life Insured;
·   All available medical evidence from the Life Insured’s Medical Practitioner; and
·   Any additional information that directly relates to the Life Insured’s medical condition.

… .

‘Sickness’ is defined in cl 8 of the policy as follows:

‘SICKNESS’ means illness or disease which Manifests itself after the policy is in force and which results in total or partial disablement.

‘Manifests’ is defined in cl 8:
‘MANIFESTS’ means that symptoms exist which would cause an ordinary prudent person to seek diagnosis, care or treatment, or that medical advice or treatment has been recommended by or received from a Medical Practitioner.

The waiting period under the policy (see cl 5.1.1) after which benefits would commence to be paid was 90 days. The policy had an expiry date of 25 February 2036. Clause 5.1.3 of the policy provided that if the insured became totally disabled for longer than the waiting period then the respondent would waive premiums from the end of the waiting period until the end of the benefit period or until total disablement ceased (whichever occurred first).

The applicant’s claim under the policy

In her original claim form (dated 21 December 2009), in answer to a question about the nature of her sickness, the applicant said:

I have ciguatera, a disease caused by eating toxic fish. I also have parasites which are currently being treated with antibiotics.

The applicant described her then current symptoms as:
Chronic fatigue, exhaustion, bouts of nausea, headaches every so often, stomach cramps every so often, burning hands and sore hands when placed under cold water or touching something cold. Dizziness. Difficulty concentrating and remembering.

One of the questions on the claim form was whether the applicant had a return to work plan, or had discussed a return to work plan with her doctor. The applicant answered No and gave the following reasons for not having a return to work plan:

One of the symptoms of ciguatera is chronic fatigue and nausea. I am currently too weak to get myself to work. While I have some days better than others, I still wouldn’t have the strength to work. I never know which days I will be better or worse and ciguatera does not have a cure. On the days I thought I was improving, I have applied for positions hoping I would be better in weeks, but I haven’t felt well or confident enough to accept a new position. I am a contractor.

In the claim form, the applicant described herself as a project coordinator who worked 40 hours per week in an office and had the responsibilities of:

Resourcing
Financials — analyse and provide information to finance managers
Project planning and tracking.

The claim form asked the applicant to list the work duties she could do and the work duties she could not do. The applicant did not identify any work duties that she could do. Under the heading ‘Work Duties You Cannot Do’, the applicant said:

All. Due to the chronic fatigue I constantly feel (some days worse than others) I wouldn’t have the energy to get to the office and work. I wouldn’t have the energy or the concentration required.

One of the questions on the claim form was whether the applicant had applied for any jobs since ceasing work. The applicant ticked ‘Yes’ and provided the following details about a potential position with the National Australia Bank (‘NAB’):

December ’09, NAB, Charles B Thompson, Head of Organisational Integration — Technology. Charles wanted me to start ASAP but given the situation is hoping I can commence on 4 January 2010.
We are currently in discussions because Charles is aware of my illness and knows that myself or a doctor cannot predict when I will be able to commence working again.

The terms of the policy required the applicant to submit monthly supplementary reports about her condition. The forms that the applicant was required to complete asked questions about treatment received, activities performed by the applicant, restrictions that the applicant then suffered from, work duties that the applicant was and was not able to perform, and whether the applicant had a return to work plan (or had discussed a return to work plan with her doctor). In each of the monthly supplementary reports submitted by the applicant, the applicant stated that she was unable to perform all of the work duties of her usual occupation. In March 2010, the reasons given by the applicant for this inability were:

Chronic fatigue, dizziness, drowsiness, nausea, poor concentration, need to sleep most afternoons, sometimes feel out of breath, weak. This is caused from the ciguatera fish poisoning I have.

In January 2011, the reasons given were:
Very poor health with only approximately 15 per cent of days in month being ‘good’.

In February 2011, the applicant gave the reason:
I cannot commit to any position as I am unable to know when I’ll be well and for how long.

In January 2012, the applicant gave the reason:
Unpredictable illness — nausea, weakness, dizzy, light-headed, poor concentration, severe pain behind right eye.

In January 2014, the applicant gave the reason ‘As before’. In other monthly forms, the applicant gave reasons expressed in like terms to those just described.

It is necessary to mention one further monthly supplementary report: the report covering the period 7 June – 6 July 2015. This report formed part of the material upon which the judge made unfavourable findings concerning the applicant’s credit. On 29 June 2015, the applicant completed the monthly supplementary report for the period 7 June – 6 July. In the report, the applicant gave the following answer to the following question:

Question: What were your daily activities during this period (whilst you were not working)?
Answer: Very little as I have been very unwell.

As it transpired, the evidence at trial was that during the week commencing 17 June 2015, rather than doing ‘very little’, the applicant attended a Melbourne rugby game on the Monday, a golf lesson on the Tuesday, a State of Origin rugby match on the Wednesday, a ball at Crown Casino on the Thursday and a Richmond AFL game on the Friday.[3]
[3]Reasons [182].

The trial

The essence of the applicant’s claim at trial is found in paragraph 9 of her statement of claim. Paragraph 9 provided:

Solely due to Injury or Sickness, the plaintiff [applicant] as life insured from 7 September 2014 to date and continuing, was:
(a)unable to perform one or more duties of her occupation, that was important or essential to producing income;
(b)under the regular care of, and following the advice of, a Medical Practitioner; and
(c)not working (whether paid or unpaid).
PARTICULARS

The plaintiff was born on 31 December 1971. She worked as a project coordinator. She operated as an independent contractor. The plaintiff contracted ciguatera and amoebic gastroenteritis in October 2009 in Cuba. She suffered chronic fatigue, nausea, vomiting, diarrhoea, headaches, stomach cramps, dizziness, pain, aching, sensitivity, difficulty concentrating and remembering. She ceased work in October 2009 because of her condition and has been unable to work since.

At trial, the applicant gave evidence in support of her claim. The applicant’s credit was the subject of a significant attack by the respondent.

In support of her claim, the applicant also called evidence from Ms Janice Hill, a physiotherapist who treated the applicant from 5 September 2011 to the end of 2015, and again from October 2016 to the date of trial; Dr Fuller, who had seen the applicant on approximately 50–60 occasions for treatment; and Ms Carmel Fenton, Ms Beverley Fenton and Ms Christine Millane, who were respectively the applicant’s sister, mother and cousin, and who gave evidence as to their observations of the applicant before and after she contracted ciguatera.

As part of its case, the respondent called Dr Wyatt, who saw the applicant on 22 February 2013 and 24 January 2014; Dr Peter Stevenson, a consultant physician who saw the applicant on 6 September 2010 and 26 March 2015; Mr Martin Jackson, a clinical neuropsychologist who saw the applicant on 21 August and 25 September 2012; Dr Dielle Felman, a consultant psychiatrist who saw the applicant on 10 July 2015; Associate Professor Tilman Ruff, an infectious diseases specialist with expertise in ciguatera, who saw the applicant for approximately two hours on 10 July 2015; Dr Matthew Paul, an occupational physician who also examined the applicant (as part of a multidisciplinary panel comprising Dr Felman, Associate Professor Ruff and Dr Paul); Ms Aelan Bradley, a consultant rehabilitation counsellor who undertook an employability assessment of the applicant at the request of the respondent; and Dr Karen Hitchcock, a general physician who specialised in acute and general medicine, and who examined the applicant on 16 April 2013.

The applicant’s evidence

The applicant gave evidence about her background, the circumstances in which she contracted ciguatera, her initial symptoms, her claim for benefits under the policy, and the subsequent development of her condition and its effects on her. We have already described much of this evidence.

The applicant gave evidence that, in March 2010, she first developed pain in her right eye and ‘head pains’. The applicant described her eye pain:

It is mainly in my right eye, every so often I will get it in the left, but maybe over the last five years I have only ever had it in the left side three times. But in the right side it is quite common and it feels like someone is just squeezing your eyeball and if you can take the eye out the pain would be gone. Also what happens is around the bone underneath my eyebrow, if I touch it — because what I will try to do to get rid of the eye pain is to massage around my eye. Touching or pushing on that area underneath my eyebrow it feels like pushing a bruise, that’s the best way I can describe the sensation.

When asked about her condition as it was in January 2015, the applicant said that her bouts of illness were the same as she had described them in the past:

[B]ut I also have a terrible problem with my eyes and forehead … where I get this incredible tightness across my forehead which then makes my eyes close over, and they go puffy. I have an intense feeling of grogginess, sometimes I am very dizzy, I therefore find it difficult to walk, I’m off balance. I have the weakness where just by going to the toilet takes effort. Then I have days where I just feel completely sick all over whether it be a nausea or just this agony of discomfort where I just don’t know where to put myself. If I lie on the bed I still just feel horrendous, if I move to the couch I still [feel] horrendous. There is nothing more that I can do than just wait for it to pass.

The judge summarised the applicant’s evidence about her symptoms as follows:

Throughout the period of 2009 to date, she described in Court her symptoms from ciguatera to include yellow hands and face, nausea, lethargy, the tip of her tongue felt numb when she drank fluids, hot flushes in her hands, burning in her feet, stomach pains and cramps, aching legs, fatigue, weakness, breathlessness, an agony of discomfort, grogginess in the head, mushy brain, head filled with water, concentration and memory problems, bouts of nausea, headaches, burning hands when touching something cold or when under cold water, dizziness, a ‘need to eat’ or would feel horrendously sick and insides tremor or shake when waking up, combined with blood pulsing around.[4]

[4]Ibid [65].

As to the possibility of engaging in employment after the applicant contracted ciguatera, the applicant gave evidence about the position (referred to in her original claim form as extracted above at [28]) that she was due to take up with the NAB in January 2010. The applicant gave evidence that she did not take up the position with the NAB because she was too unwell (although the applicant admitted that she did not make that decision on medical advice).

On 1 July 2010, the applicant’s GP (Dr Samuel Birman) certified that the applicant could perform the duties of her usual occupation for 20 hours per week. On the same day, however, the applicant sent an email to the ANZ Bank withdrawing an application she had made for a position with the ANZ Bank, saying:

I returned to the doctor’s today and was advised not to commence work as yet as the bouts of nausea and fatigue I am still experiencing are too unpredictable and frequent. Thank you for considering me for the role, however I will have to withdraw my application as I would hate to start and then be unreliable.

The applicant gave evidence that she did not look for work after 2010. She said that it was embarrassing to go to interviews, win the job and then have to say that she was too sick to work.

The applicant gave evidence about a number of overseas and interstate trips that she undertook between 2010 and 2017. A copy of the applicant’s passport was tendered at trial to show the various dates of the applicant’s overseas travel. In summary:

(a)Between 22 April 2010 and 4 May 2010, the applicant travelled to the Solomon Islands to visit a friend.
(b)Between 29 July 2010 and 31 August 2010, the applicant travelled to Switzerland, Northern Italy and Spain. The applicant attended a friend’s wedding in Switzerland. The applicant gave evidence that she had five ‘good days’ out of the 30 or so days she was in Europe. On one day she felt good enough to climb a mountain.
(c)Between 7 October 2010 and 21 October 2010, the applicant travelled to Tonga to visit friends and relax.
(d)Between 14 February 2011 and 24 February 2011, the applicant again travelled to Tonga. The applicant gave evidence that her health fluctuated during this travel.
(e)On 3 March 2011, the applicant travelled to Los Angeles. She went on to visit New York for a couple of weeks. The applicant gave evidence that she experienced fluctuating symptoms during this trip.
(f)Between 1 July 2011 and 5 July 2011, the applicant travelled to Sydney.
(g)Between 3 March 2012 and 16 March 2012, the applicant travelled to Thailand and to Singapore. The trip to Thailand included bus travel and boat travel between islands.
(h)Between 22 May 2012 and 21 June 2012, the applicant travelled to Los Angeles, San Francisco, New York and Mexico. On this trip, the applicant attended a friend’s wedding in the mountains of Mexico City and hired mini buses with friends.
(i)Between 8 August 2012 and 16 August 2012, the applicant travelled to New Caledonia.
(j)Between 28 August 2012 and 15 September 2012, the applicant travelled to Tonga.
(k)Between 22 April 2013 and 28 May 2013, the applicant travelled to Tonga.
(l)Between 28 April 2014 and 23 May 2014, the applicant travelled to New York for two to three weeks. The applicant stayed on 52^nd Street, Mid Town. She visited the Staten Island ferry area and walked to Wall Street and the Freedom Tower. The applicant also saw the Statue of Liberty. In the course of her evidence about this trip, the applicant agreed that travelling is ‘naturally exhausting’.
(m)In February 2015, the applicant travelled with family to Perth. The applicant was, however, unable to participate in trips to Rottnest Island and Margaret River because of her symptoms.
(n)Between 18 July 2015 and 11 August 2015, the applicant travelled to New York.
(o)In September 2015, the applicant travelled to Noosa for a friend’s 40^th birthday. She also went to the Gold Coast twice.[5]
(p)On 15 January 2016, the applicant travelled to the Gold Coast.
(q)Between 10 June 2016 and 20 July 2016, the applicant travelled to Singapore, Italy, Paris and Spain. While in Italy, the applicant attended a wedding. The applicant gave evidence that she had to rest a lot so that she had enough stamina to attend the wedding. The applicant gave evidence that, while in Paris, she was completely exhausted.
(r)In January 2017, the applicant travelled to Byron Bay. She gave evidence that she hired a surfboard but when she attempted to surf it was ‘too strenuous’.

[5]Ibid [60]. While the judge records the year of this travel as being 2015, the transcript of the applicant’s evidence at trial refers to 2016. In any event, whether this travel was in 2015 or 2016 is of no moment so far as the present proceeding is concerned.

In cross-examination, the applicant agreed that from time to time Dr Fuller had encouraged her to go back to work. The applicant gave evidence that she did not ignore this advice, but that when she spoke to Dr Fuller about the challenges that she would face in going back to work ‘he agreed it wasn’t the right time’.

The evidence of Ms Hill, Ms C Fenton, Ms B Fenton and Ms Millane

The judge summarised the evidence of Ms Hill (the physiotherapist), Ms C Fenton (the applicant’s sister), Ms B Fenton (the applicant’s mother) and Ms Millane (the applicant’s cousin) in her reasons for judgment.[6] It is not necessary to set out that evidence in any detail here. In substance, these witnesses were supportive of the applicant’s claim in that they gave evidence of their observations of the applicant and her complaints that was consistent with the applicant’s account of her symptoms and difficulties. In particular, Ms B Fenton observed the applicant, when unwell, sitting on a chair or lying down on her bed.
[6]Reasons [74]–[81], [102]–[106].

Ms Hill gave evidence of the symptoms that the applicant told her that the applicant was experiencing from time to time. Ms Hill agreed that most of these symptoms were subjective. The applicant’s sister, mother and cousin all acknowledged in evidence that they did not possess medical training and that they relied upon what the applicant told them as to how she felt and how her illness impacted upon social and work opportunities.[7]
[7]Ibid [106].

The evidence of Dr Fuller

As mentioned, Dr Fuller is an infectious diseases physician and clinical microbiologist. At the time of trial, he had been practising as such at the Alfred Hospital for 25 years. In November 2009, the applicant came under his care and he has treated her ever since (50–60 occasions).

Dr Fuller diagnosed the applicant as suffering from ciguatera poisoning. While there is no clinical test available to detect ciguatera, Dr Fuller said that the subjective symptoms that the applicant reported to him were characteristic of ciguatera poisoning. Dr Fuller gave evidence that while it was unusual for ciguatera poisoning to go on for the amount of time it had in the applicant, he had ‘no doubt’ that the applicant still suffered from ciguatera poisoning.

Dr Fuller was extensively cross-examined on his opinion that the applicant continued to suffer from ciguatera poisoning at the time of trial. During the course of this cross-examination, Dr Fuller was questioned in detail about the opinion of Associate Professor Ruff. As to their respective levels of experience and expertise, Dr Fuller said:

I am a very, very experienced clinician and I agree that Associate Professor Tilman Ruff is a very, very good doctor and a very good expert on ciguatera.

More specifically, Dr Fuller gave evidence that Associate Professor Ruff was, as far as ciguatera is concerned, ‘the best in Australia’.

It was Associate Professor Ruff’s opinion (as disclosed in a report written by him) that the applicant was no longer suffering from ciguatera, but had developed chronic fatigue. This was put to Dr Fuller. Dr Fuller’s response included:

So here’s the thing, she still has neurological symptoms and still has hot/cold reversal on the hands and things. … She reports that … . Now, at the end of the day, you get to know your patients pretty well and you get to — I have seen her many times. You get to know them and I think you can tell whether someone is malingering or not. I don’t believe she is malingering and I think this is a real illness that she’s got that’s been going on now for seven years and four months. Now, we can argue about whether the ciguatera toxin is still in her body or not but she does still have symptoms. Unfortunately, there are no tests available. Even nerve conduction studies do not pick up hot/cold reversal fibres, so that is well recognised that the nerve conduction in ciguatera patients does not pick up the hot/cold reversal fibres. We have no way of detecting those fibres on nerve conduction studies in Australia. So it is a clinical diagnosis and it all comes down to clinical acumen. The treatment for chronic fatigue with patients after ciguatera is pretty much what we’re doing with her with amitriptyline and regular hydrotherapy, and at the end of the day it is what the patient tells you, what you believe.
…
So [it is Associate Professor Ruff’s assessment] that it [ciguatera] is not a perpetuating factor. I still think that she has — she’s still not well after seven years. She still has hot/cold reversal on her hands and still has the same sort of symptomology that fluctuates as it did in year 1 and year 2, she’s still not got the energy levels to get back to full-time work and so I still think she still has symptoms attributable to ciguatera toxin and chronic fatigue has developed; that’s what I think so I’m not changing my tune in any way.

Dr Fuller gave evidence that, on various occasions during the course of his treatment of the applicant, he encouraged the applicant to attempt a return to work. In cross-examination, Dr Fuller said that he thought the applicant was capable of going back to part-time work but not full-time work.

The respondent’s witnesses

So far as the resolution of the present application is concerned, the evidence of most importance for the respondent is the evidence that was given by Associate Professor Ruff and, in particular, Associate Professor Ruff’s evidence about whether, in the period leading up to and at the time of trial, the applicant suffered from ciguatera. The other medical witnesses called by the respondent (Dr Wyatt, Dr Stevenson, Mr Jackson, Dr Felman, Dr Hitchcock and Dr Paul), while giving some evidence relevant to the question of whether the applicant continued to suffer from ciguatera, gave evidence that primarily related to the question of the applicant’s capacity to perform work or particular work activities. Ms Bradley (the consultant rehabilitation counsellor) gave evidence that was confined to the applicant’s capacity for employment.

The evidence of Associate Professor Ruff

At the time of trial, Associate Professor Ruff was an infectious diseases specialist employed at the Nossal Institute for Global Health with the University of Melbourne. He was a consultant physician in infectious diseases, a public health practitioner and an international medical adviser with the Australian Red Cross. During the course of his professional career, Associate Professor Ruff had made major scientific contributions in relation to ciguatera. Associate Professor Ruff had written on the topic and had been published in the Lancet. Additionally, he had treated patients with ciguatera poisoning, written papers about the clinical and public health aspects of ciguatera poisoning and was sought out by colleagues who were treating patients with this illness. As the judge observed, the evidence was that Associate Professor Ruff is regarded as the preeminent expert on ciguatera poisoning in Australia.[8]
[8]Ibid [135].

On 10 July 2015, for approximately two hours, Associate Professor Ruff examined the applicant. He also read through an extensive amount of documentation provided by the applicant’s treating practitioners.

Associate Professor Ruff took a history from the applicant as follows:

She described never returning completely to her baseline pre-illness level of wellbeing and functioning, with a maximum of 70 to 80 per cent energy. Her symptoms were described as fluctuating wildly between essentially zero and 70 or 80 per cent, with quite dramatic changes which could be multiple within the course of a single day, as well as from day to day and week to week. … She was adamant that overall there had been no secular trend of improvement or worsening, but that her symptoms essentially were persisting overall unchanged.
…
She did describe that warm water under a shower had a scorching sensation but that this had only developed this year [2015].

Associate Professor Ruff expressed the opinion that, while ciguatera was the initial and precipitating factor in the applicant’s illness, it was no longer a perpetuating factor:

The history I obtained from Ms Fenton is very consistent with the history described in the documentation from both treating and assessing doctors provided. Some vagueness and minor inconsistencies on some of the detail, particularly in relation to the early phase of this illness, is consistent with the several years that have elapsed in the meantime. The initial diagnosis of ciguatera seems clear with a gastrointestinal and neurological illness quite typical of ciguatera occurring in consistent temporal association with ingestion of fish in Cuba. …

Ciguatera may certainly cause persistent illness particularly related to neurological and constitutional features, including fatigue. Though it is not possible to put a precise upper time limit on the duration of ciguatera symptoms, persistence beyond 1–2 years is quite uncommon and not well established. However, close to six years after illness onset, with no trend for improvement, extreme fluctuations in symptomology over a time course of hours and days and lack of specific precipitants associated with ciguatera, together, in my assessment, make Ms Fenton’s continuing illness implausible to attribute to direct continuing effects of ciguatera toxicity. Thus I would assess ciguatera to have been the initial and precipitating factor in this prolonged illness, but not now a perpetuating factor. The onset of dysesthesia on exposure to warm water in the shower this year cannot in my assessment be attributed to ciguatera with onset in 2009.

Associate Professor Ruff was cross-examined about his opinion in an attempt to show that the applicant was still suffering from ciguatera or, at least, chronic fatigue that was said to be ‘part of ciguatera’. During the course of this cross-examination, Associate Professor Ruff said:

Chronic fatigue syndrome is a complex diagnosis of exclusion, and I’m not an expert. I claim considerable expertise in ciguatera, I’m not an expert on the current assessment and management of chronic fatigue syndrome although obviously I have some knowledge of it and I think it is important to be clear. My assessment of what is going on here I think might be slightly different from Dr Fuller’s. I do not have any doubt that in 2009 in Cuba Ms Fenton developed ciguatera fish poisoning. The history, the reports of all her treating doctors are entirely consistent with that, and this prolonged illness that she has had since that time dates from that illness. However, I don’t think that the continuing effects of ciguatera toxins can explain after seven plus years an illness which is not improving and which has a number of features that are atypical, unusual, not consistent with ciguatera. So my assessment as I documented in 2015 is that it seems clear that at present Ms Fenton’s illness is in the category of fatigue syndromes, and that ciguatera was the precipitant for that but I don’t believe that ciguatera is a perpetuating factor seven years plus later in this continuing illness.

He further elaborated the basis of his opinion as follows:

I have said that I believe that some aspects of her chronic illness are inconsistent with ciguatera and I haven't yet elucidated why I think that is the case and I feel as if I should in providing a comprehensive picture for the court. So I have mentioned that the lack of a trend for improvement more than seven years later is really difficult to reconcile with an acute toxic event seven years ago. One of the possible reasons for that which would be repeated exposure to fish. One of the curious things about ciguatera is people who have had it seem to be more sensitive to getting it again and to having relapses of symptoms even when eating non-toxic fish. So sometimes exacerbations of symptoms may be related to fish ingestion. In her case she was very conscious and absolutely meticulous by her account of avoiding not only fish but eggs and chickens that may have been fed with fish products so that the possibility of being repeatedly exposed to either toxic fish or non-toxic fish didn't seem to be present. People with ciguatera often describe alcohol also as exacerbating their symptoms and that certainly wasn't present in her case. And although the symptoms of ciguatera fluctuate, the very dramatic changes in well-being from nearly well to totally incapacitated and bed bound within the course of a day over the space of an hour or two, that sort of extreme fluctuation is in my experience not really consistent with ciguatera. And then the final thing is that some of the symptoms that you describe, in particular she would describe to me a sensation of scorching of the skin when she went under a warm shower which could be part of the disordered sensation of ciguatera, that only developed in 2015. Now, it's not consistent with poisoning in 2009 to be developing new symptoms related to ciguatera in 2015. So those are sort of essentially the reasons why I feel that this extreme duration of ciguatera was a precipitating factor but I don't believe is plausibly a perpetuating factor for this chronic illness.

In re-examination, Associate Professor Ruff said that there were ‘some inconsistencies’ with what the applicant was able to undertake and the applicant’s reported levels of symptoms. Associate Professor Ruff then referred to sporting events and social activities that the applicant had participated in, and the fact that the applicant was able to travel overseas for holidays at the same time when less demanding activities were said to be difficult for her.

The respondent’s remaining witnesses

Each of the respondents’ remaining witnesses (Dr Wyatt, Dr Stevenson, Mr Jackson, Dr Felman, Dr Hitchcock, Dr Paul and Ms Bradley) gave evidence in accordance with reports they had written prior to trial. It was the opinions expressed in the reports of Dr Wyatt, Dr Stevenson, Mr Jackson, Dr Felman and Dr Paul (together with the opinion expressed by Associate Professor Ruff) that the respondent relied upon to terminate the applicant’s monthly payments from 6 September 2015 on the basis that the applicant no longer met the definition of either total disablement or partial disablement under the policy.[9]
[9]Letter from the respondent to the applicant dated 26 August 2015.

In answer to a question about whether the applicant had any capacity to perform the usual duties of a project coordinator, Dr Wyatt, following her second examination of the applicant on 24 January 2014, said:

At this stage, I believe Ms Fenton has the capacity for work. As suggested earlier by Dr Stevenson, commencing part-time and graduating to full-time work would be a sensible approach, noting the totality of the situation and the duration of time Ms Fenton has been off work.
A range of everyday administrative tasks would be a sensible approach. I have read the Employability Assessment and broadly agree with the conclusions drawn.

Dr Stevenson examined the applicant on two occasions. He described the applicant’s presentation at his second examination (26 March 2015) as being that of ‘a vigorous animated healthy woman’. Dr Stevenson expressed the view that the applicant appeared to have ‘an inappropriate disease conviction used to justify long term occupancy of the invalid role’. Dr Stevenson also said:

Ms Fenton reports her day to day activities as highly variable. She described herself in fact as frequently bed bound. When I asked the simple question of how many days or weeks very approximately over the last year she was bed-bound, she objected this was an unfair question which could not possibly be asked or understood by anyone who had not personally experienced chronic ciguatera poisoning. However, she then described herself in fact as bed-bound for periods up to three months or often unable to do anything for twelve days. This is clearly without medical explanation and inconsistent with the medical literature.
…
A graduated return to work is neither necessary nor helpful. It would only justify the incorrect assumption that she still suffers from a physical condition from which she requires rehabilitation. Ms Fenton is a pleasant lady but she has no physical disease.

Dr Hitchcock gave evidence that she is a physician who was, in April 2013, employed in the Fatigue Outpatient Clinic at the Alfred Hospital. She saw the applicant at the Fatigue Outpatient Clinic on 16 April 2013. She then wrote a letter to the applicant’s GP (Dr Birman):

Amanda was a project officer with a bank and has life-long income protection.
Amanda has provided me with a list of her symptoms which I will have scanned into the system. They are many and variable. However, despite what read as severe and disabling physical and mental symptoms, Amanda tells me that she feels good, is happy with her life, and is positive about being single. She says she doesn’t miss work nor socialising. She still manages to travel regularly and has recently been to Mexico, Noumea, Thailand and Tonga.
My impression here today is that we have very little to offer Amanda. She has ongoing physiotherapy, has had psychological review, and currently has what she feels is a good life.
…
I have asked her to consider whether a stimulant medication would add to her quality of life and if she felt it would and it was not contraindicated, then I would be happy to see her again here in this clinic and discuss institution of that therapy.

Dr Hitchcock gave evidence that she did not see the applicant again after this occasion.

Mr Jackson gave evidence that he was a neuropsychologist. Following his examinations of 21 August and 25 September 2012, he concluded that, ‘from a purely neuropsychological perspective’, the applicant was fit to return to work on a full-time basis in her usual occupation. He conceded, however, that the applicant’s claimed fatigue was not something that is specifically tested on a neuropsychological examination.

Dr Felman (consultant psychiatrist) and Dr Paul (occupational physician) were the two other medical practitioners who, along with Associate Professor Ruff, examined the applicant on 10 July 2015. Following their examinations, Dr Felman expressed the opinion:

From a psychiatric perspective, Ms Fenton is not currently receiving any active treatment. Given the lack of evidence to support a psychiatric diagnosis, it is my opinion that no psychiatric treatment is required;

and Dr Paul expressed the opinion:
Medically, she appears to meet the criteria for chronic fatigue syndrome/SEID, but her levels of reported activity are not consistent. Consistency is important in this condition when determining level of disability. There is no medical condition that will be worsened by a return to activity and work. In fact, structured activity is considered treatment for chronic fatigue and a return to work would benefit (as it is structured activity), also there are significant health benefits of work and health risk of long term worklessness.
…
Ms Fenton reports her condition has a variable impact on her daily functioning; some days she is very active while other days she reports being bed-bound and feeling short of breath from moving in the bed.
Her reported level of symptoms and activity are not consistent, however, and given the lack of any objective sign of impairment, they should not be relied upon when assessing work capacity.

Finally, Ms Bradley, the consultant rehabilitation counsellor, gave evidence of vocational options she recommended as suitable for the applicant based on the applicant’s education, training and experience. These included:

·Program or Project Administrator/Project Support Officer/Coordinator;
·Systems Analyst; and
·Various work from home jobs, including positions in systems analysis, sales, telemarketing, data processing and administration support.

In cross-examination, Ms Bradley agreed (as had the various medical witnesses) that full-time employment required dedicated days and times to perform certain duties and that there were similar requirements for part-time employment.

The judge’s reasons

The judge commenced her reasons for judgment with a description of the background to the proceeding. Having set out the critical terms of the policy,[10] the judge identified the issues to be determined as:
[10]At Reasons [11], the definition of ‘sickness’ incorrectly contains the definite article immediately before the word ‘illness’. A similar error was made in the applicant’s written outline of closing submissions. Whether this was a mere typographical error, or whether the judge was led into error by one of the parties is unknown. In any event, for reasons that will appear, the incorrect insertion of the definite article in the definition set out by the judge is of little moment.

(a) whether the plaintiff [applicant] suffered from a ‘Sickness’, that is, ciguatera poisoning;

(b) whether the plaintiff was unable to perform one or more duties of her occupation that was essential in producing income; and

(c) whether the plaintiff’s ability to perform that or those duties was solely due to the injury or sickness, that is, ciguatera poisoning.

As the judge observed, these issues fell to be determined for both of the periods alleged by the applicant, being 7 September 2014 to 7 September 2015, and 7 September 2015 to date.[11]

[11]Reasons [14].

Next, the judge carefully summarised the evidence called and tendered at trial by the parties.[12] The judge then turned to the issue of the applicant’s credit.[13] Ultimately, the judge concluded that the applicant was ‘not a convincing and reliable witness’.[14] In coming to that conclusion, the judge made reference to:

·the applicant turning down a position at the NAB on 14 January 2010 due to illness, despite not having consulted a doctor on or around that date;
·the applicant withdrawing her application for employment at the ANZ Bank in July 2010 on the basis that she was advised by her doctor not to commence work, whereas her GP had certified her as having a capacity for 20 hours of work per week on the very day she withdrew her application;
·the extensive amount of overseas travel, resulting in the applicant being overseas for 69 days in 2010, 34 days in 2011, 69 days in 2012, 36 days in 2013, 25 days in 2014, 24 days in 2015 and 40 days in 2016; and
·the applicant’s ability to engage in social activities in a manner which was inconsistent with the level of functioning that she reported. Specifically, the judge referred to the rugby game, golf lesson, State of Origin match, ball and AFL game that the applicant attended in a week period during which she later said that she was unable to perform all her work duties and was ‘very unwell’.

[12]Ibid [15]–[165].

[13]Ibid [166]–[187].

[14]Ibid [187].

The judge then summarised the submissions of the parties at trial as follows:

In essence, counsel for the plaintiff submitted that there should be judgment for the plaintiff on the basis that:
·The plaintiff is an honest, straightforward and credible witness;
·The evidence of Dr Fuller, that the plaintiff still suffered from ciguatera poisoning, should be preferred as the treating practitioner compared to Associate Professor Ruff, who saw the plaintiff on one occasion and who is not a practising clinician; and
·Associate Professor Ruff acknowledged the plaintiff was suffering from a ‘continuing illness’ based on chronic fatigue, which is an established symptom of ciguatera poisoning.

Counsel for the defendant directed the Court’s attention to the following issues:
·The plaintiff was not a convincing witness, particularly given her extensive overseas travel and ability to engage in social activities that flies directly in the face of her complained level of functioning;
·Associate Professor Ruff’s evidence, that the plaintiff is no longer infected with ciguatera, should be preferred to Dr Fuller, as he has the eminent and superior qualifications;
·By 6 September 2015, the plaintiff was not Totally Disabled or Partially Disabled because she was able to work in her occupation at full capacity based on the defendant’s medical evidence; and
·The plaintiff did not have an inability to work solely due to ciguatera as there were numerous other factors including prioritising other
areas of her life, lack of motivation to return to work and playing the ‘sick role’.[15]

[15]Ibid [188]–[189].

Next, the judge observed that, in order for the applicant to succeed, the applicant had to establish that she suffered (and suffers) from a sickness within the meaning of the policy — the sickness pleaded being ‘ciguatera poisoning’.[16] The judge resolved that issue primarily by reference to the evidence of the two acknowledged experts, Dr Fuller and Associate Professor Ruff. Ultimately, the judge preferred the evidence of Associate Professor Ruff where it conflicted with the evidence of Dr Fuller. The judge said:

Associate Professor Ruff gave evidence in a straightforward manner and made appropriate concessions. He impressed me as an articulate, intelligent and knowledgeable witness who was objective. Whilst he does not currently regularly practice, he is an Associate Professor with the University of Melbourne and an international medical advisor with the Australian Red Cross. Associate Professor Ruff made a major scientific contribution in relation to ciguatera, he is a published author on the topic and is regarded as the pre-eminent expert on the illness in Australia.
Counsel for the plaintiff said that the Court should prefer the evidence of Dr Fuller as the primary treating doctor since November 2009, who has seen the plaintiff on approximately fifty to sixty occasions compared to Associate Professor Ruff, who saw the plaintiff once for a one-hour examination.[17] Further, that Dr Fuller is an infectious disease physician who has practiced for twenty-five years.
The credit of Dr Fuller was called into question to an extent by counsel for the defendant. He appeared to be sympathetic to the plaintiff as his long-term patient and as someone who had her best interests at heart. As Dr Fuller’s evidence in cross-examination continued in Court, he appeared to become defensive and less convinced of his diagnosis in light of reading Associate Professor Ruff’s report. Nonetheless, I accept he was a conscientious and skilled doctor who referred the plaintiff to other specialties for assessment to ensure he did not miss any diagnoses. Ultimately, Dr Fuller said the plaintiff was suffering ciguatera induced chronic fatigue. Associate Professor Ruff accepted the plaintiff was unwell and diagnosed chronic fatigue.
Significantly, in cross-examination, Dr Fuller acknowledged that Associate Professor Ruff had more expertise in ciguatera poisoning than he did himself. Further, that Associate Professor Ruff was the most expert person on ciguatera poisoning in Australia.
In considering the whole of the evidence, I am inclined to rely upon the evidence of Associate Professor Ruff where it conflicts with Dr Fuller. This is due to the fact Dr Fuller acknowledged Associate Professor Ruff’s expertise in ciguatera poisoning was greater than his own, that Associate Professor Ruff is the Australian expert in ciguatera poisoning and that he provided an objective and well-reasoned report, which was consistent with Dr Stevenson’s assessment.
Accordingly, based on Associate Professor Ruff’s opinion, I accept that the plaintiff did not suffer from ciguatera poisoning as at 10 July 2015.[18]

[16]Ibid [192]–[194].

[17]While the judge referred to the applicant’s counsel’s submission in final address that the applicant’s consultation with Associate Professor Ruff was a ‘one-hour examination’, in his report, Associate Professor Ruff described his consultation with the applicant as a 90-minute consultation; and in his evidence, he described the consultation as having taken ‘about two hours’.

[18]Reasons [200]–[205].

The judge concluded that the applicant failed to establish that she suffered from ciguatera poisoning at any time after 10 July 2015.[19] That conclusion was sufficient to dispose of the applicant’s claim. The judge, however, went on to consider whether the applicant established that she was unable to perform one or more duties of her occupation that was essential in producing income during the period 7 September 2014 to 7 September 2015. The judge concluded that the applicant failed to establish that proposition — relying primarily upon the evidence of Dr Wyatt.[20] The judge did not expressly deal with the question of whether the applicant established that she was unable to perform one or more duties of her occupation that was essential in producing income between 7 September 2015 and the time of trial.
[19]Ibid [205], [226]–[239].
[20]Ibid [208]–[224].

Having found that the applicant did not suffer from ciguatera after 10 July 2015 and that the applicant had not established an inability to perform one or more duties of her occupation that was essential in producing income during the period 7 September 2014 to 7 September 2015, the judge dismissed the applicant’s proceeding.

The applicant’s contentions

The applicant submitted that the judge erred in not finding that the applicant had established at trial her entitlement to receive payments under the policy on the basis that she was totally disabled from 7 September 2014 onwards. The applicant contended:

(d) the judge erred generally in rejecting the applicant’s evidence;

(e) the judge erred specifically in not holding that the applicant’s evidence should be accepted, her evidence having been corroborated by other witnesses who had observed her over the years (including medical witnesses who had recorded the applicant as being straightforward and/or credible in her presentation at consultations);

(f) rather than preferring Associate Professor Ruff’s evidence to Dr Fuller’s evidence, the judge should have preferred the evidence of Dr Fuller who had seen the applicant on 50–60 occasions, and not on a mere single occasion as was the case with Associate Professor Ruff;

(g) the judge should have accepted that the applicant suffered from chronic fatigue (or a chronic fatigue syndrome) and that this constituted ‘sickness’ within the meaning of the policy, even if the applicant was no longer suffering from ciguatera;

(h) the judge erred in failing to find that the applicant’s symptoms prevented her from performing one or more duties of her occupation that was essential in producing income as a project coordinator — the applicant’s symptoms having been shown to prevent her from being able to undertake employment in a way that was sufficiently reliable to permit her to engage in her occupation of project coordinator; and

(i) in any event, the judge failed to consider whether the evidence established that the applicant suffered from a partial disability within the meaning of the policy after 7 September 2015.

The respondent’s contentions

The respondent contended that leave to appeal should be refused, the applicant’s proposed appeal having no real prospect of success.[21] In support of that contention, the respondent submitted that the success of the applicant’s claim involved an acceptance of her evidence of her subjective symptoms and their effects on her. The medical opinions relied upon by the applicant were submitted to be similarly based upon an acceptance of her histories to the relevant medical witnesses. The judge had the advantage of seeing and hearing the applicant and the various witnesses. There is, it was submitted, no basis for this Court to overturn the judge’s conclusions in relation to the applicant and her witnesses. To do so would involve this Court committing an error of the kind referred to by the majority of the High Court in Whisprun Pty Ltd v Dixon.[22]
[21]See s 14C of the Supreme Court Act 1986.
[22](2003) 77 ALJR 1598, 1609 [60] (‘Whisprun’).

Moreover, the respondent submitted, the case the applicant sought to advance in this Court involved a substantial departure from the case advanced at trial, and the applicant should not now be permitted to depart from that case.[23] The case advanced at trial was that the sickness was ciguatera poisoning. To now advance a case that either no diagnosed sickness was required (a collection of symptoms being sufficient to attract liability under the policy), or that the diagnosed sickness was chronic fatigue (or chronic fatigue syndrome), should not now be permitted. If the applicant had advanced at trial the case she now seeks to advance, the respondent would have pursued lines of cross-examination that it did not need to pursue on the applicant’s pleaded case. Moreover, it is likely that the respondent would have called additional evidence to meet a case based upon chronic fatigue or chronic fatigue syndrome.
[23]Ibid 1608 [51].

The respondent contended that, on all of the evidence, there was no basis for overturning the judge’s conclusions that led to the dismissal of the applicant’s claim. Having regard to the judge’s conclusion that the applicant was not suffering from ciguatera poisoning after 10 July 2015, it was not necessary for the judge to consider the question of whether the applicant had a partial disability after 7 September 2015, notwithstanding that the respondent had made partial disablement payments until 6 September 2015.

The respondent also sought to support the judge’s order dismissing the applicant’s proceeding by contending (in a notice of contention) that the applicant failed to establish at trial that, for the period from 7 September 2015 onwards, she was, solely due to sickness, unable to perform one or more duties of her occupation that was important or essential in producing income.

‘Sickness’: what was the applicant’s case at trial?

In her statement of claim, the applicant pleaded that she was entitled to benefits under the policy because, in the terms of the policy, the applicant ‘solely due to injury or sickness … was … unable to perform one or more duties of her occupation, that was important or essential to producing income; under the regular care of, and following the advice of, a medical practitioner; and not working’. While the applicant did not plead any ‘injury’, she particularised her claim to be entitled to benefits ‘solely due to sickness’, by stating that she contracted ciguatera poisoning and amoebic gastroenteritis. The particulars in the applicant’s statement of claim then went on to list the symptoms that the applicant has suffered, being chronic fatigue, nausea, vomiting, diarrhoea, headaches, stomach cramps, dizziness, pain, aching, sensitivity, and difficulty concentrating and remembering.

In her written outline of closing submissions, the applicant put her case as follows:

The plaintiff suffered a sickness within the meaning of the contract after the commencement date of the contract namely 25^th February 2009 in that the plaintiff suffered from ciguatera poisoning having eaten fish in Cuba in October 2009.[24]

[24]Emphasis added.

In final address, counsel for the applicant submitted to the judge:

Going back to paragraph 18, in my respectful submission your Honour ought to find that the plaintiff suffered a sickness within the meaning of the contract after the commencement date of the contract … in that the plaintiff suffered from ciguatera poisoning having eaten fish in Cuba in October 2009.
…
We submit, and your Honour ought find, … that solely due to the sickness, that is the ciguatera poisoning, the plaintiff was and is … unable to perform one or more duties of her occupation as a project manager that is important or essential in producing income … .[25]

[25]Emphasis added.

A little later in the applicant’s final address, counsel said:

She [the applicant] can’t do those jobs because she is sick and the sickness she has is ciguatera poisoning, and the fluctuating nature of that sickness and the unpredictable nature of that sickness debilitates her to the point that she cannot commit to regular employment.[26]

[26]Emphasis added.

Later in final address, counsel for the applicant referred to Dr Fuller’s evidence, concluding with the passage where Dr Fuller said:

I still think she’s suffering from ciguatera poisoning, your Honour, so I can’t be clearer than that.

Immediately upon counsel for the applicant finishing reading this passage of Dr Fuller’s evidence, counsel said ‘and nor can I, if your Honour pleases’.

Still later in final address, counsel for the applicant dealt with Dr Paul’s evidence concerning the applicant’s capacity for employment as follows:

It is quite clear Dr Paul has no expertise in infectious diseases and he wasn’t in any way qualified to opine about the effects of ciguatera poisoning. It is plain when he opined the plaintiff was not disabled by any medical condition that that opinion was not based on expertise held by him.

In our opinion, it is plain from an analysis of the whole of the evidence given at trial and the submissions made to the trial judge that the applicant’s case at trial was that she continued to suffer sickness within the meaning of the policy and the sickness was ciguatera or ciguatera poisoning. That was the case presented by the applicant. It was the case the respondent met at trial. And it was the case the judge understood was being advanced by the applicant.[27] That some different case, relying upon chronic fatigue or chronic fatigue syndrome as sickness within the meaning of the policy, was not run at trial may, in part, be explained by the evidence concerning the applicant’s attendance at the Fatigue Outpatient Clinic in April 2013,[28] which evidence was, at least, suggestive of a lack of any serious chronic fatigue condition being suffered by the applicant at that time.
[27]Reasons [192]–[194].
[28]See [63] above.

Should the applicant now be permitted to depart from the case she ran at trial?

As was observed in Whisprun:[29]

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination.[30]

[29](2003) 77 ALJR 1598.

[30]Ibid 1608 [51]. See further, McMahon v National Foods Milk Ltd (2009) 25 VR 251, 268–9 [25]; Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181 [64]; Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd [2017] VSCA 326.

In our view, the applicant should not now be allowed to advance a case different from the one she advanced at trial. First, we accept the respondent’s contention that if the applicant had advanced a case that her sickness was chronic fatigue or chronic fatigue syndrome, the respondent would have sought to adduce additional evidence from the witnesses who were called at trial (either in chief from its own witnesses or in cross-examination of the applicant’s witnesses) to meet such a case. Moreover, if it had been apparent before trial that the applicant’s case was not one confined to ciguatera and its consequences, there is a real possibility that the respondent would have retained and/or called other witnesses with more specific expertise in chronic fatigue or chronic fatigue syndrome.

Secondly, the applicant’s attempt to establish sickness in this Court by reference to chronic fatigue, a pleaded symptom of ciguatera, must fail for the same reason. Additionally, as was submitted by the respondent, if the applicant was permitted to advance a case that her sickness was constituted by one of the pleaded ciguatera symptoms then (even assuming the terms of the policy permitted this course) the respondent would have been placed in the position of having to defend each of the applicant’s pleaded symptoms. Quite how this might work in respect of symptoms such as ‘pain’ and ‘aching’ was never explained by the applicant.

The resolution of the application for leave to appeal

The principles governing appeals by way of rehearing to this Court were recently summarised in Southern Colour (Vic) Pty Ltd v Parr[31] as follows:

On appeal, the Court is required to undertake a ‘real review’ of the evidence in respect of the findings made by the judge, and the reasons for the judge’s conclusions. Where the finding, that is under review, depended on the acceptance or rejection by the trial judge of the evidence of a particular witness or witnesses, the appellate court should only set aside that finding if, after making due allowance for the advantages enjoyed by the trial judge, that finding is ‘glaringly improbable’ or ‘contrary to compelling inferences’. On the other hand, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are undisputed, or which have been established by the evidence. In deciding the proper inference to be drawn, the appellate court should, however, give respect and weight to the conclusion of the judge, but, having reached its own conclusion, it must give effect to it.
In applying those principles, however, it is important to bear in mind that there is a necessary interrelationship between the finding of a particular primary fact or facts, and the drawing of a conclusion or inference. That relationship was described by this Court in Box Hill Institute of TAFE v Johnson in the following terms:
… while an inference is a conclusion based on established facts, nevertheless the interplay between the finding of a particular fact or facts, and the drawing of a conclusion, is not entirely discrete. The drawing of an inference, or reaching of a conclusion, is necessarily affected by precisely how and for what reasons a judge may have accepted, or rejected, a particular piece of evidence which is important to the drawing of that inference or conclusion. Secondly, in a civil proceeding, a judge may only draw an inference or reach a conclusion in favour of a party on whom the onus of proof lies, if that inference or conclusion is the more probable inference or conclusion available on the facts of which the judge is satisfied. The question whether an inference is more probable than another may be affected by the judge’s view of particular facts relied on in support of any competing inference, or of facts relied on to contradict the inference ultimately formed by the judge.[32]

[31][2017] VSCA 301 (Santamaria, Kaye and Ashley JJA).

[32]Ibid [78]–[79].

In careful and detailed reasons, the judge explained why she found that the applicant was ‘not a convincing and reliable witness’.[33] It cannot be said that her Honour’s findings in relation to the applicant are ‘glaringly improbable’ or ‘contrary to compelling inferences’. With respect, it seems to us that the judge’s conclusions about the applicant’s credit and reliability were well open to her. The fact that the applicant was able to call lay witnesses whose observations of the applicant were consistent with the applicant’s complaints, or that the medical practitioners who had seen the applicant over the years accepted that she was ‘genuine’ and ‘not malingering’, does not detract from the trial judge’s ability to make her own assessment of the applicant based upon the whole of the evidence and the judge’s observations of the applicant during the course of the applicant’s evidence.
[33]Reasons [166]–[187].

The credibility and reliability of the applicant’s evidence was of critical importance in the applicant’s case. In that regard, there are parallels between the facts of the applicant’s case and the facts in Whisprun.[34] As in Whisprun, the medical opinions given in evidence at the present trial were also premised on an acceptance of the applicant’s complaints from time to time and upon her evidence.
[34]See, in particular, Whisprun (2003) 77 ALJR 1598, 1609 [60]. As to the importance of a plaintiff’s evidence where personal injuries are in question, see also Mobilio v Baliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Gjorgovska v AFM Cleaning Services [2006] VSCA 104 [27]; Veljanovska v Verduci (2014) 42 VR 222, 231–2 [39]–[40].

As to the applicant’s complaint about the judge preferring the evidence of Associate Professor Ruff to the evidence of Dr Fuller, again we see no error in the judge’s carefully expressed reasons for this preference.[35] While there is some force in the proposition that a medical practitioner who sees a patient on 50–60 occasions is more likely to be in a better position to assess a patient’s condition than a medical practitioner who only sees the patient on one occasion, it is to be remembered that the relevant conflict between Associate Professor Ruff’s evidence and Dr Fuller’s evidence was not so much as to the extent of the applicant’s disability, but rather as to whether (on all of the history and evidence) it was ciguatera poisoning that was still a cause of the applicant’s disability years after she ate the toxic fish. A medical opinion about the level or extent of a patient’s disability may be strengthened or fortified by the number of consultations a particular medical expert has had the benefit of conducting, on the basis that the greater the number of consultations performed, the greater the reliability of the opinion about the level and extent of the relevant disability. A medical opinion on an issue of causation, however, may not necessarily be strengthened by the fact that the medical expert has had multiple opportunities to examine the patient. Questions of medical causation often require analysis by reference to scientific criteria relevant to the particular medical condition, including questions as to the consistency of the nature and duration of symptoms with a particular diagnosis, rather than by reference to whether the patient presents as ‘genuine’.
[35]Reasons [199]–[204].

In our view, the judge was entitled to prefer Associate Professor Ruff’s evidence on whether ciguatera poisoning was still a cause of any illness, for the reasons given by Associate Professor Ruff. Associate Professor Ruff, it is to be remembered, gave evidence that ‘close to six years after illness onset, with no trend for improvement, extreme fluctuations in symptomology over a time course of hours and days and lack of specific precipitants associated with ciguatera’ made it ‘implausible’ to attribute the applicant’s continuing illness to ciguatera. The judge did not simply accept Associate Professor Ruff’s opinion ipse dixit.[36] Her Honour considered his reasoning and its basis. She concluded that Associate Professor Ruff’s opinion was objective, well-reasoned and consistent with that of Dr Stevenson. Having conducted a full review of the evidence for ourselves, we would have come to the same conclusion as the trial judge about the preference for Associate Professor Ruff’s evidence and that after 10 July 2015 the applicant did not suffer from ciguatera poisoning.[37]
[36]Cf Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34, 39–40 (Lord President Cooper), cited with approval by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 729–30 [59].
[37]Reasons [205].

There being no error in the judge’s conclusion that the applicant did not establish that she suffered from ciguatera poisoning after 10 July 2015, it is only necessary to consider whether the applicant established that during the period 7 September 2014 to 7 September 2015 (when the applicant was on partial disability benefits) she was unable to perform one or more duties of her occupation, as a project coordinator, that was important or essential to producing income. Critical to that question was, again, the credibility and reliability of the applicant’s evidence. Such opinions as were tendered or expressed at trial as to relevant incapacity were all premised upon an acceptance of the applicant’s complaints and evidence. For the reasons we have already given, the judge was entitled not to accept the applicant’s evidence, and thus entitled to conclude that the applicant did not establish that during the period from 7 September 2014 to 7 September 2015 the applicant was unable to perform one or more duties of her occupation that was essential to producing income.

As to the applicant’s complaint that the judge failed to consider the question of any partial disability, it need only be said that, given the judge’s findings about the absence of ciguatera poisoning after 10 July 2015 and the fact that partial incapacity payments were made until 6 September 2015, the judge was not required to give any further consideration to the issue of partial incapacity. The respondent made partial disability payments to the applicant during the period when, on the judge’s findings, the applicant was not totally disabled (7 September 2014 to 10 July 2015) and then went on to make payments until 6 September 2015 in circumstances where the applicant was not suffering from ciguatera poisoning. Ciguatera poisoning not having been established after 7 September 2015, the question of the applicant’s disability level (partial or total) became irrelevant.

Finally, having regard to our views expressed above, it is not necessary for us to deal with the respondent’s notice of contention. That said, while the judge did not expressly find that the applicant failed to establish, for the period from 7 September 2015 to the date of judgment, that the applicant was, solely due to sickness, unable to perform one or more duties of her occupation that was important or essential in producing income, such a finding is at least arguably implicit in her Honour’s findings in relation to the period from 7 September 2014 to 7 September 2015 on this issue.

Conclusion

Having now reviewed all of the evidence and having heard full argument, we would conclude, especially for the reason that the applicant impermissibly sought to advance a new case on the proposed appeal, that the applicant’s proposed appeal does not have a real prospect of success.[38] Accordingly, the application for leave to appeal must be refused.
[38]See s 14C of the Supreme Court Act 1986.

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[2017] VSCA 331

17 November 2017