Whisprun Pty Ltd v Dixon

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

WHISPRUN PTY LIMITED (Formerly   APPELLANT
Northwest Exports Pty Limited)

AND

SONYA LEA DIXON  RESPONDENT

Whisprun Pty Ltd v Dixon

[2003] HCA 48
3 September 2003
S216/2002

ORDER

1.   Appeal allowed with costs.

2.   Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with S E Pritchard for the appellant (instructed by Hicksons Lawyers)

D F Jackson QC with K J Ryan for the respondent (instructed by Walker Kissane & Plummer)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ, McHUGH AND GUMMOW JJ.   This case is concerned with facts and the forensic tactics of the parties at trial and an appellate court's perception of them.  Special leave to appeal was granted to determine whether a miscarriage of justice had occurred in the particular circumstances of the case and not because the case concerned any important principle of law.

  2. The trial judge had dismissed the respondent's action for damages on the ground that her credibility was such that he was not satisfied that she suffered from chronic fatigue syndrome, the condition from which she claimed to suffer.  The Court of Appeal of New South Wales set aside the judgment because it appeared to that Court that the trial judge had not satisfactorily considered the respondent's case.  So the question for this Court is whether the Court of Appeal erred in holding that the trial judge had not properly considered the respondent's case.  That, of course, depends on what the respondent's case was at the trial, not on a hypothetical construction of what could or should have been the respondent's case.

  3. Despite its lack of legal significance, the appeal is a fascinating one.  It illustrates how an appellate court can perceive a case in a way dramatically different from the case that was run at the trial.  And it demonstrates how, when it is so perceived, the trial judge's reasons may not deal adequately with the reconstructed case and appear to have done less than justice to the losing party's case.

  4. In arguing the present respondent's case in the Court of Appeal, Mr D F Jackson QC – who had not appeared at the trial – contended that a substantial miscarriage of justice would have occurred if "the evidence was there" and the judge in writing his judgment "overlooked relevant parts of it".  In substance, the Court of Appeal adopted this submission.  But the evidence that that Court saw as "overlooked" was different from the evidence that Mr Jackson argued had been "overlooked" by the trial judge.  He was speaking of evidence concerning infection.  The Court of Appeal's reasons deal with "evidence" concerning chronic fatigue…

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Details
Case
[2003] HCA 48
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Appeal of New South Wales concerning a claim for damages for negligence. The respondent, Ms Dixon, contracted Q fever while employed by the appellant, Whisprun Pty Ltd, at an abattoir. Ms Dixon alleged that she subsequently developed chronic fatigue syndrome as a consequence of this infection. The central dispute revolved around whether Ms Dixon had established, on the balance of probabilities, that she suffered from chronic fatigue syndrome and whether the medical reports tendered in evidence had independent evidentiary value beyond the credibility of Ms Dixon's subjective account of her symptoms.

The legal issues before the High Court included whether the trial had been conducted on the basis that the evidentiary value of the medical reports concerning chronic fatigue syndrome was entirely dependent on the trial judge accepting Ms Dixon's evidence. Further, the court considered whether, if the reports had independent evidentiary value, they contained evidence of objective symptoms that could have supported a finding of chronic fatigue syndrome, irrespective of Ms Dixon's credibility. The court also examined whether the trial judge erred in not considering the medical reports as independent evidence assisting Ms Dixon's case.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal. Their Honours reasoned that the trial judge had correctly determined that Ms Dixon's case regarding chronic fatigue syndrome rested entirely on her credibility, as the syndrome itself could not be objectively proven and the medical reports' value was contingent on her subjective account. The trial judge's finding that Ms Dixon had recovered from Q fever by February 1995 and was not satisfied she suffered from chronic fatigue syndrome thereafter was upheld. The Court of Appeal had erred in finding that the medical reports possessed independent evidentiary value that the trial judge had failed to consider. Consequently, the High Court ordered that the appeal to the Court of Appeal be dismissed.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

Background

Background to the litigation

The appeal gives rise to a number of related issues:(1)Did the parties conduct the trial on the basis that, so far as chronic fatigue syndrome was concerned, the evidentiary value of the medical reports depended entirely on the judge accepting Ms Dixon's evidence? In other words, did the medical reports have evidentiary value on the chronic fatigue syndrome issue irrespective of what view the judge took of Ms Dixon's credibility?(2)If the parties conducted the trial on the basis that the truth or validity of the statements and opinions in the medical reports depended on the trial judge accepting Ms Dixon's evidence, did the judge err in not considering whether the material in the medical reports assisted Ms Dixon's case?(3)If the reports had independent evidentiary value, did they contain evidence of "objective symptoms" that should or could have induced the trial judge to find that Ms Dixon suffered from chronic fatigue syndrome?The material facts In April 1994, Ms Dixon contracted Q fever in the course of her employment with Whisprun at an abattoir at Inverell in New South Wales. By July 1994, symptoms of the fever had developed and she was diagnosed in that month as having Q fever after undergoing pathological tests. Q fever is an infectious disease that is prevalent in animals and can be transmitted to humans. Its symptoms are similar to influenza. Infection usually has an acute phase that can evolve into a chronic infection that may be demonstrated serologically, that is, by blood tests. There is a 10-20 percent chance that a sufferer from Q fever may also develop chronic fatigue syndrome. The distinction between chronic Q fever infection and chronic fatigue syndrome that may exist after chronic Q fever infection no longer exists is of great importance in this case. Whether or not chronic fatigue syndrome exists cannot be proved or disproved by an objective test. A diagnosis of the syndrome must rely on statements by the patient as to subjective symptoms. Serological tests carried out in February 1995 indicated that, although Ms Dixon had had an acute episode of Q fever, she did not have chronic Q fever infection at that time. Nevertheless, she claimed that, even if the acute period of infection had ended by February 1995, she suffered chronic fatigue syndrome, as a consequence of the infection, for an extended period (at least up until the trial in August 2000). Between 1994 and 2000, Ms Dixon saw many medical practitioners. She gave a consistent history of suffering from headaches, aches and pains, nausea and fatigue. The approach of the trial judge The trial judge accepted Whisprun's contention that the initial Q fever infection did not cause any symptoms after February 1995. His Honour held that Ms Dixon had recovered from Q fever by February 1995. He was not satisfied that thereafter she suffered from chronic fatigue syndrome as the result of her Q fever infection. Newman J said:"When examined in chief, the plaintiff gave evidence which was consistent with the history of continuing symptoms which she had given to medical practitioners. Because the continuing symptoms are entirely subjective the only issue which arose in the case was whether the plaintiff's account of her continuing symptoms was credible. In other words has the plaintiff established on [the] balance of probabilities that she has had the symptoms of which she has complained?"

Evidence

Evidence Before The Court

Moreover, behind the conduct of the case was the dark shadow cast by s 151G of the Workers Compensation Act. At the relevant time, that section provided that no damages for non-economic loss could be recovered unless Ms Dixon recovered more than a specified minimim amount for non-economic loss. This statutory threshold made it imperative from Ms Dixon's viewpoint that the trial judge accept that she had suffered and continued to suffer from a debilitating chronic fatigue syndrome.Ms Dixon's evidence In her evidence-in-chief, Ms Dixon said that, after working in Sydney, she returned to Inverell where she worked at Coles stacking shelves and at the abattoirs as a casual worker packing meat. She had a relationship with Mr David Cross, became pregnant, and in 1992 had a daughter, Sarah. After the birth of her daughter, she worked at three jobs: at Coles, at the abattoir and at a fruit and vegetable shop. She and Mr Cross bought a house for $89,000 financed by a mortgage of about $80,000. At the abattoirs, she obtained a full-time job that involved sucking foetal blood into a pipette from unborn calves' hearts. It was doing this work that caused her to be infected with Q fever. She also worked up to four shifts each week at Coles from 3.30pm onwards to near midnight. She also worked on Saturday morning at the fruit and vegetable shop. She continued to work at these jobs until July 1994 when she became sick and was diagnosed as having Q fever. Before the infection, she had taken part in sporting activities – playing hockey, touch football and riding horses. On contracting Q fever, she felt very sick and had headaches and nausea, similar to the flu. She went back to work after eight days but she felt very sick and had to get help at work. In September 1994, she gave a certificate of unfitness to her employer. Her employment was terminated on 21 September 1994. However, she later went back to work although she had difficulty working a full week and had time off because she was sick. She had nausea, vomiting, hot and cold sweats all the time and her head was "just aching". After a day's work, she felt terrible and "just went straight to bed." Her relationship with Mr Cross broke up because "of my being sick, he couldn't cope with my mood swings." She thought that occurred in 1995. She moved in with her parents; the house that she and Mr Cross had bought was sold. Later, she moved out of her parents' house into a shed about 200 metres away. The "shed" has a small kitchen, a bathroom, a laundry and toilet, a small lounge room and two bedrooms. Asked if the "shed" was "still on your parents' property", she replied, "Yep." Since 1994, her condition "fluctuates up-and-down" but it was not as bad as when she first got Q fever. There has been only a little improvement and she has "some fluctuations from day to day and from week to week". She gets headaches a lot, probably three times a week. They could last a couple of hours or all day. When her headaches are really bad, she stays in bed. She gets pains in the joints in the knees, the back and her elbows. In the good weeks, headaches may occur "once or twice". She takes Panadeine Forte and Panadol. When she gets a really bad headache, she gets chest pains and hot and cold flushes and sweats a greal deal. The sweating leaves the bedclothes saturated and has a bad odour. She still vomits and has nausea. On some days, she does not vomit or have headaches but such days are rare. She gets very tired and loses energy. Although she tries, she does not always get the housework done. Even on her best days, she is not able to stand all day on her feet. She gets tired and runs out of energy and always sleeps for some period during the day for "an hour, maybe three hours." She sees Dr Thatcher once or twice a fortnight. He prescribes medication including anti-depressants that sometimes help her. Her appetite is not very good. She has not really had much social life in the last few years although she had been out to a dinner with her parents the previous June for her daughter's birthday. She doesn't feel like going out because afterwards she gets tired and it takes a couple of days for her to recover. In her mood swings, she is snappy, yells and screams and gets agitated. She also has difficulty in sleeping and has had problems with dizziness. She now has trouble with her memory.

Decision

Reasons for decision

HUGH AND GUMMOW JJ KIRBY J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HUGH AND GUMMOW JJ,

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