Whisprun Pty Ltd v Dixon

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,McHugh,Gummow JJ,Kirby J,Callinan J
• Judgment Date: 03 September 2003
• Neutral Citation: 2003-0903 HCA A,[2003] HCA 48
• Docket Number: S216/2002
• Date: 03 September 2003

[2003] HCA 48

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ

S216/2002

Whisprun Pty Limited (Formerly Northwest Exports Pty Limited)

Appellant

and

Sonya Lea Dixon

Respondent

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)

Workers Compensation Act 1987 (NSW), s 151G.

Supreme Court Act 1970 (NSW), s 75A.

Whisprun Pty Ltd v Dixon

Negligence — Damage — Respondent contracted Q fever while working in an abattoir — Whether respondent suffered chronic fatigue syndrome.

Appeal — Issue not raised at trial — Case on which respondent succeeded on appeal was not argued by respondent at trial or on appeal — Whether respondent should succeed on the basis of a new case on appeal.

Appeal — Powers of appellate court — Whether trial judge had properly considered the respondent's case — Whether there was objective evidence that respondent suffered chronic fatigue syndrome — Whether respondent's case depended entirely upon the credibility of her account of subjective symptoms.

Evidence — Medical reports — Whether medical reports had independent evidentiary value — Whether evidentiary value of medical reports depended on the respondent's credibility — Whether trial judge erred in not considering medical reports as independent evidence that the respondent suffered from chronic fatigue syndrome.

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.

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 syndrome. At the trial, the parties treated this ‘overlooked’ evidence concerning chronic fatigue syndrome as having no relevant evidentiary value unless the trial judge substantially accepted the respondent's evidence as to her condition. Because that is so, the trial judge did not overlook ‘relevant parts’ of the evidence, and there was no miscarriage of justice. Moreover, even if the ‘overlooked’ evidence had relevant evidentiary value independently of the respondent's credibility, we are not convinced that it was sufficient to overcome the effect of the various matters that the trial judge used to make his finding concerning her credibility. Accordingly, this appeal must be allowed.

Statement of the case

5 Sonya Lea Dixon, the respondent, sued Whisprun Pty Ltd (‘Whisprun’) for damages in the Supreme Court of New South Wales claiming that it had breached the duty of care that it owed to her as her employer. She claimed that this breach had caused her to contract Q fever infection and that she now suffered from chronic fatigue syndrome as a consequence of the infection. Whisprun admitted that it had breached the duty of care owed to her and conceded that she had contracted Q fever infection. But it denied that she suffered from chronic fatigue syndrome. The case was tried by Newman J without a jury. His Honour rejected Ms Dixon's claim of chronic fatigue syndrome with the result that the damages he awarded to her for non-economic loss were lower than the minimum set by s 151G of the Workers Compensation Act 1987 (NSW). Because that was so, he was required to enter judgment in the action for Whisprun.

6 The Court of Appeal (Beazley and Heydon JJA and Davies AJA) allowed an appeal by Ms Dixon against that judgment. Acting under the power conferred by Pt 51 r 23 of the Supreme Court Rules 1970 (NSW), it ordered a new trial of the action. It did so on the ground that ‘it appears that some substantial wrong or miscarriage [of justice] has taken place in that the plaintiff's claim has not been properly considered.’ The Court of Appeal held that the trial judge had not given any weight to material in medical reports that were tendered in evidence.

Issues

7 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

8 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.

9 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).

10 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

11 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?’

12 In his judgment, Newman J set out many inconsistencies between Ms Dixon's account of what she could and did do and what other evidence showed that she did do. This evidence showed her walking briskly around Sydney, attending race meetings, watching her daughter ride horses, riding a horse herself, driving cars and horse floats, riding on a jet ski and drinking and dancing at a wedding. The learned...