This passage, like the corresponding passage in Dr Kotsiou's report, is obscure about what "resolving" means. It is also obscure as to what purpose the liver function tests were to have. Dr McGuirk does not contradict the trial judge's view that the plaintiff had no chronic infection, or any infection, after February 1995. Indeed, the plaintiff accepted that Dr McGuirk's evidence did not "really take the matter very far". Even if Dr McGuirk raises a possibility that she did because of his reference to liver tests, and even if the trial judge failed to take that possibility into account, it does not follow that it would have changed his conclusion.
24 A further problem is that the medical evidence was almost unanimously to the effect that the plaintiff had post Q chronic fatigue syndrome rather than chronic Q fever.
25 There are thus various difficulties in the plaintiff's path in relation to the theory that she may have had chronic Q fever. It is true that the trial judge did not refer to the passages in the reports of Professor Boughton, Dr Kotsiou, Dr Harvey-Sutton and Dr McGuirk on which the plaintiff relied. It seems quite likely that this was because he was not specifically referred to them, and that he was not referred to them because the parties regarded the real issue as being whether the symptoms to which the plaintiff pointed as supporting the medical diagnoses of post Q chronic fatigue syndrome were genuine or feigned.
26 The defendant submitted that this Court ought not to consider the arguments in relation to chronic Q fever because the issue of whether the plaintiff had chronic Q fever was not run at the trial. None of the counsel who appeared on the appeal appeared at the trial, but counsel for the defendant (Mr R J Burbidge QC) informed this Court of what his predecessor (Mr W K L Dodd SC) had told him about the trial. This account was not controverted by counsel for the plaintiff (Mr D F Jackson QC).
27 However, for reasons that appear below, it is not necessary to decide whether the plaintiff's argument about chronic Q fever should be considered, and, if considered, upheld.
Credit
28 The plaintiff pointed out that there was a significant amount of medical evidence from several different experts that one effect of post Q chronic fatigue syndrome is memory impairment. If the plaintiff was suffering from that condition, it would explain to some extent the features of her testimony which the trial judge perceived to be unsatisfactory. The plaintiff rightly submitted that while the medical evidence about memory impairment increased the difficulty of the trial judge's task in assessing the plaintiff's credibility and arriving at factual findings, it was not referred to by him at all. The plaintiff also contended, adopting afresh its arguments on acute Q fever, that so far as there was evidence overlooked by the trial judge pointing to the survival of some Q fever after February 1995, that put the plaintiff at an unfair disadvantage in relation to the assessment of her credibility. Further, the plaintiff pointed out that there was medical evidence that one effect of post Q chronic fatigue syndrome is mood swings, and there was some independent evidence that the plaintiff experienced mood swings.
29 The overall posture of the plaintiff on appeal in relation to the credit findings was difficult to gauge. The plaintiff did not in terms assault them by saying that they should never have been made. Nor did the plaintiff's counsel deny that she had been shown in cross-examination to have been wrong in some respects, and to have gilded the lily. The plaintiff's submissions were largely not explicit. Often they went no further than to offer half-hints at implications which the court ought to make for itself. On occasion the submissions became subliminal. Taken by themselves, the arguments just described, so far as they were explicit, do not assist the plaintiff sufficiently to justify ordering a new trial, though if there were a new trial, their full development at that trial might well assist the plaintiff's cause. But those arguments are material, taken with other difficulties, in identifying certain weaknesses in the trial judge's reasoning now to be discussed.
The trial judge's approach to the expert evidence
30 The essence of the trial judge's reasoning was to conclude that once the plaintiff's credit and her reliability was damaged in the ways he set out, no further inquiry was called for. He pointed to inconsistencies between the plaintiff's evidence in chief (or her account given to doctors in histories), on the one hand, and other evidence, on the other hand, in connection with whether her relationship with her de facto husband had broken up, and whether that was because of her mood swings; whether she was living on her parents' land or on land she owned adjacent to it; whether she could not help her daughter with riding; whether she had led a wholly sheltered life or engaged in some social activity; whether she became tired quickly from walking; whether she had been towed by motor boats in an inner tube or a jet ski; and how active she was at a wedding reception. The trial judge made findings which were generally adverse to the plaintiff on these matters. The trial judge made no reference to the large quantity of medical evidence, most of which pointed in one direction. The trial judge made no specific finding that the plaintiff did not have continuing headaches, hot and cold flushes, night time sweats, nausea, fatigue, muscle aches and pains, chest pain, sleep disturbances, reduced libido, impaired memory and concentration, agitation, irritability, restless and unrefreshing sleep and dizziness. He did, however, say in a global way that he was not satisfied "that the plaintiff has in fact suffered from the symptoms which she recounted to medical practitioners and in chief to this Court."
31 In effect, the trial judge used a common technique in assessing the credibility of witnesses. Having found a witness unsatisfactory in various respects which can be checked, triers of fact commonly infer that the witness is unsatisfactory in all respects unless there is some reason to accept particular parts of the witness's evidence. The trial judge was not so crass as to incant the hallowed formula: "The witness's evidence is not to be accepted save to the extent that it is corroborated or consists of admissions". But that was in essence his approach.
32 There is no doubt that the plaintiff was a witness whose evidence was unsatisfactory in the sense that it was difficult to place reliance on many of the things she said. She frequently used expressions like "I've got no idea", "I'm not quite sure", or "I can't remember". But even if it is assumed that all the strictures which the trial judge made of the plaintiff are sound (and the plaintiff's counsel conceded that to a degree some of them were), there are several errors in the trial judge' s approach. They may be summarised as follows. First, the trial judge's construction of the evidence which led him to the view that a conclusion about the plaintiff's condition could only rest entirely on her subjective symptoms was wrong. Secondly, he failed to make any findings about the existence of symptoms which were observable by the medical experts for themselves and which they took into account. Thirdly, he failed to assess the totality of the medical evidence in the light of the symptoms observed by medical experts which did not depend on the plaintiff's own history and in the light of their professional experience and assessment of the probability that she was suffering from Q fever chronic fatigue syndrome.
33 If one then abandons the assumption that all the strictures which the trial judge made of the plaintiff are sound, and move to a detailed analysis of his reasoning, two difficulties arise. The first difficulty is that he failed to bear in mind that the plaintiff's unsatisfactory testimony may have been caused by a genuine syndrome. Secondly, to some extent, he placed weight on trivial discrepancies and made misconstructions of the evidence in arriving at his credibility findings.
Misconstruction of Dr McGuirk
34 An important element in the trial judge's approach was put thus (Red 52 paragraphs 14-15):
"It was the plaintiff's case that the symptoms of post Q fever chronic fatigue syndrome have persisted to the time of the trial and will continue to persist in the future. Essentially the plaintiff's complaints of fatigue, fever and headaches are subjective symptoms. Dr McGuirk, physician, who saw her on 7 March 1996 underscored the nature of these symptoms when he said:
'In the absence of a true chronic Q fever, however, she could be described as having a diagnosis of post-Q fever syndrome. As has been documented previously, this is a clinical diagnosis and there is no way any objective test could either substantiate or disprove same.'
As I read the medical reports in evidence, Dr McGuirk's statement is representative of all medical practitioners whose opinions are before the court."
35 To infer from what Dr McGuirk said that there were no objective symptoms is to misread what he said. He, and others, said only that there were no objective tests. It is true that there was other evidence that to a large extent diagnosis depended on what the patient said about the symptoms, but the dependence was not total. To the extent that there were objective symptoms, there were some bases on which medical opinions could be pronounced.
Objective symptoms
36 There was some objective evidence which the medical experts took into account in forming their opinions. It was not discussed by the trial judge.
(a) Weight loss
37 First, there was a large fall in her weight. She told Professor Boughton and Dr McGuirk that before July 1994 she weighed 12-13 stone. She was never challenged on this in cross-examination and she frequently repeated it. Thereafter the following recordings of her weight were made. On 8 May 1995 Professor Boughton recorded her weight as 57.3 kilograms. On 4 December 1995 he reported it as 56 kilograms (8½ stone). On 7 March 1996 Dr McGuirk recorded 56 kilograms. On 11 May 1998 Professor Lloyd recorded 55 kilograms. On 3 March 1999 Dr Burke recorded 61 kilograms.
(b) Muscle and abdominal tenderness
38 Secondly, there was a consistent observation of muscle tenderness and abdominal tenderness which must have been extremely difficult to feign. On 4 December 1995 Professor Boughton noted: "The muscles were tender to pressure especially the trapezius ridges, calves etc. There was tenderness over the liver and spleen areas as well as the hypogastrium". On 7 March 1996 Dr McGuirk said: "While there was no apparent hepatosplenonmegaly, there was certainly tenderness, particularly over the liver." He said this was "somewhat of a worry". On 11 November 1997 Dr Henke recorded:
"On palpation there were areas of tenderness of the muscles of the back of the shoulder girdle and upper thorax and there is some further slight tenderness of the muscles of the lower limbs.
… Resisted movements were performed somewhat weakly … . In the abdomen there was some slight epigastric tenderness but no enlargement of liver or spleen."
On 11 May 1998 Professor Lloyd recorded: "The abdomen was generally tender." On the same day Dr Kendall noted: "Some tenderness of muscles of the shoulder girdle and upper abdominal tenderness". On 16 February 1999 Professor Boughton noticed that "There was tenderness of intercostal muscles and muscles generally, especially those of the trapezius ridge". On 17 February 1999 Dr Sutherland conducted a physical examination.
"The dominant feature of the physical examination was the extreme muscle tenderness that [the plaintiff] reported on even light palpation of any muscle group, including areas such as the cheeks and temples where it would be extremely unusual to elicit muscle tenderness of this kind. Otherwise the general physical examination was unremarkable, but I would note that palpation of the abdomen was impossible to assess, as even the lightest pressure elicited reports of severe pain."
On 2 March 1999 Dr Burke found that the plaintiff was "tender to light touch all over the abdomen". On 22 February 2000 Professor Boughton noted "the marked tenderness of all muscles".
39 This objective evidence confirms the plaintiff's subjective complaints of muscle tenderness (for example, those she made to Dr Sutherland).
(c) Appearance and mood
40 Thirdly, the plaintiff was often observed to be pale, tired and depressed. On 7 March 1996 Dr McGuirk noticed that "She looked pale and depressed". Dr Robertson said after interviewing her on 1 September 1998: "She impressed as mildly depressed for most of the interview". On 16 February 1999 Professor Boughton said: "On examination she looked pale, tired and depressed". On 30 August 2000 he said she "is markedly depressed".
(d) Unreliability in recollection and concentration
41 Apart from physical symptoms of the condition observed by the medical experts, they also observed a mental symptom - unreliability in recollection and concentration. Professor Boughton noted that there were "difficulties in eliciting a reliable history" (on 22 February 2000). On the same day he also noted "impairment of mental concentration and memory", and described it as "marked". On 4 September 1998 Dr Robertson formed "the impression of some minor impairment of memory". On 23 February 2000 Dr Robertson said, after speaking to the plaintiff on the telephone for ten or fifteen minutes, "her recollection of the events of 1994 was decidedly vague". The plaintiff also failed to keep some medical appointments (for example with Dr Synnott on 17 July 1996), and Dr Kendall treated this as a symptom of the post-Q chronic fatigue syndrome. Though the doctors did not comment on this point, she told some of them things about her weight which reveal her poor memory in the sense that they were plainly wrong. She told Dr Sutherland that she weighed 16 stone before her illness, which cannot have been correct. On 11 November 1997 Dr Henke saw her and recorded: "Her weight continues to fluctuate. Currently she is significantly heavier than at the time of onset of her symptoms. Initially she had quite severe weight loss." Either that is a mistake by Dr Henke (who described the plaintiff in the same report as "slim") or it is evidence of the plaintiff's impaired mental powers. No doctor who weighed her after February 1995 recorded any weight greater than 57.3 kilograms, which was much less than her pre-illness weight. It follows that her unreliability extended to accounts of her pre-illness and post-illness weight.
(e) Impression of sincerity
42 None of the medical experts cast any doubt on the plaintiff's account of the symptoms or on her sincerity. If the trial judge's findings were correct, it must follow that at all times from February 1995 the plaintiff was perfectly healthy, even though no medical expert thought she was. It would be strange if a condition of perfect health could be concealed from so many doctors over so many years. Indeed, not only did no doctor doubt her sincerity, but some of them were positively impressed by her credibility. Dr McGuirk, whose report was tendered by the defendant, said: "She gave quietly spoken answers to most questions without any hesitation and I have no reason to doubt her veracity." Dr Robertson said: "At interview, she was co-operative, related well, and spoke quite freely and relevantly. She gave her history without evidence of exaggeration or embellishment." Dr Sutherland said of his interview on 17 February 1999:
"In the course of the single interview with [the plaintiff], I was given no reason to doubt her veracity. At that time I considered her to be genuine in her complaints, and her perception that she was disabled by the symptoms complained of. I did not doubt that she perceived her illness to be the direct result of occupationally acquired Q fever, but it is clear now that the accuracy of this perception must be examined critically."
43 While it is not the role of a medical practitioner to probe and question the details of the history given by a plaintiff in the way that counsel for a defendant cross-examining that plaintiff might do, there is little point in medical diagnosis unless the history under consideration by the medical adviser is thought to be correct. Further, it is common for doctors whom a plaintiff has seen at the request of a defendant not to show meek restraint if they have any doubt about that plaintiff's genuineness. In this case several doctors saw the plaintiff at the defendant's request. It is thus not without significance that no medical adviser doubted the history she gave, and Dr Sutherland's challenge to the accuracy of the plaintiff's perception related to diagnosis, not symptoms. Indeed, though the parties at the trial may have thought that the question whether the plaintiff had post Q chronic fatigue syndrome depended solely on her credibility about her symptoms, no medical expert in terms said anything as absolute as that.
(f) Possible presence of Q organism
44 Another factor which assumed a role in at least Dr Boughton's thinking was that Professor Lloyd assumed that the plaintiff's condition had come about because the Q organism was present in her cells: he tried to eradicate this by a triple course of antibiotics.
(g) Confirmation of plaintiff by other witnesses
45 To some extent the history given by the plaintiff was confirmed by others. Thus on or about 11 May 1998 the plaintiff told Dr Kendall: "Her condition fluctuates quite a lot, she might be quite reasonable for two weeks and then she might be quite ill and disabled for seven to ten days …" This was confirmed by the plaintiff's mother to Dr Kendall. The plaintiff also told Dr Kendall that she had mood swings and her mother confirmed that as well. This tends to confirm the history she gave both to other doctors (for example Dr Henke) and to the court of mood swings.
(h) Experience of, and studies examined by, medical experts
46 There was a more general category of objective evidence not taken into account by the trial judge. There was incontestable and uncontested evidence that:
(a) The plaintiff "was exposed to a high risk of Q fever infection by virtue of her duties at the Inverell abattoir. Q fever is a common infectious hazard of the meat and pastoral industries. The organism is widespread in feral and domestic animals and particularly in sheep, cattle and feral goats. The most potent source of the organism Coxiella burnetii is the pregnant or parturient animal as the organism multiplies to extremely high concentrations in the gravid uterus and products of conception. Thus she was exposed to very high levels of the organism in foetal animals and the risk was increased by the procedure of mouth pipetting introducing the organism on a number of occasions into the mouth itself."
(b) The plaintiff actually contracted acute Q fever, and suffered from it between July 1994 and February 1995, as the trial judge found (and as the defendant did not deny).
(c) "While Q fever is normally a self-limiting illness responding to appropriate chemotherapy …, there may be long-term sequelae in the form of chronic Q fever, for instance, Q fever endocarditis or Q fever hepatitis, or in 10-20% of Q fever sufferers, symptoms may continue in the form of post-Q chronic fatigue syndrome."
47 The expert opinions of Professor Boughton appearing in the above quotations were not contradicted by any other medical expert. Indeed, they were generally supported. Thus Dr Robertson said:
"I tend to hold a quite sceptical position in regard to the long-standing controversy over the Chronic Fatigue Syndrome, and in particular to cases which appear to arise in the absence of any infection, or after trivial infections. A number of those whom I have seen have in fact suffered from a Major Depression, or from a Somatisation Disorder. However, I think that there is quite good evidence that following Q fever, a syndrome such as your client has may develop, and that this is on a purely organic basis. Emotional disturbance is a secondary consequence of the Fatigue Syndrome."
Professor Burke said: "The problem faced is that about 20% of Q fever cases go on to develop chronic fatigue symptoms and that these last for a long time, sometimes for years." Professor Lloyd diagnosed "a typical post infective fatigue syndrome following serologically documented Q fever".
48 Professor Boughton, after referring to various studies of post Q chronic fatigue syndrome sufferers, said:
"in 1989 there was an outbreak of Q fever near Birmingham UK involving 147 people, resulting from wind blown organisms from a farm where a number of stock animals were infected with Q. Six years later, 83 who could be traced of the original 147, were followed up; among these people, there were prevalences of fatigue in 66%, joint aches in 69%, sleep disturbance in 65% and sweats in 53%. Other symptoms seen in CFS were of similar frequencies. In this series, compensation was not an issue clouding the picture, and no litigation was involved. These findings are not dissimilar from the other studies mentioned above."
49 In the same issue of The Lancet in which that study was reported, there appeared a report by Professor Marmion and others which said:
"The conventional view of acute Q fever is that it is an unpleasant, often severe, febrile illness but one from which patients make an uneventful recovery except for a minority who subsequently develop chronic endocarditis, chronic hepatitis, or ostoitis. Experience in Adelaide since 1980 and more recently Australia-wide suggests that this view is incorrect.
In 1982, Maddocks (unpublished) found that 64% of 109 laboratory-verified Q fever patients, in two south Australian abattoir-associated outbreaks, were still unwell 6-12 months after the acute attack with inappropriate fatigue, night sweats, pain in the muscles and joints, mood changes, interrupted, unrefreshing sleep patterns, and loss of libido.
During our clinical trials, 1981-1989, of Q fever vaccine (Q Vax CSL LTD) we saw many unvaccinated meat and agricultural workers who had had acute Q fever but still remained ill with 'chronic Q fever' or 'recurrent Q fever'. Chronic endocarditis or hepatitis was excluded by standard clinical and laboratory examination and by acrotests for antibody to Coxiella burnetii phase I and II antigens. Patients mostly had only low levels of antibody to the latter as would be found after Q fever without sequelae. Rarely, persistent levels of IgM antibody to phase II antigen, or levels of phase I antibody short of those seen in endocarditis were observed. Before their acute Q fever most patients had been healthy, energetic, and, when assessed, free from psychiatric morbidity. 2 or more years after recovery from the acute illness they were still disabled with constant or remittent fatigue syndrome. Dominant symptoms were 1) an incapacitating fatigue requiring prolonged rest after simple tasks such as washing the car (tests on the treadmill showed that while some achieved the duration of exercise predicted for their age and weight they were exhausted afterwards; others achieved only 30-40% of predicted value, being limited by fatigue or muscle and joint pain); 2) nausea, and persistent headache needing frequent use of analgesics; 3) feeling feverish with profuse, odoriferous sweats at night requiring changes of bedclothes, usually afebrile; 4) myalgia in any muscle group; 5) intermittent fasciculation of muscle fibres and muscle tenderness on palpation; 6) arthralgia without swelling, in any joint including costochondrals; 7) a marked intolerance for ethanol compared with capacity before the acute Q fever; and 8) interrupted sleep patterns, excessive and unreasonable irritability, unreliable short-term memory, and poor concentration."
These studies suggest that Professor Boughton's 10-20% figure was conservative.
50 In another report, Professor Boughton, after referring to the fact that after being infected in July 1994, the plaintiff returned to work at the defendant's abattoir, had a pregnancy terminated, and continued to work there until November 1994, and after reading Dr Sutherland's first report, offered the following very strong opinion:
"She experienced hot and cold flushes, nausea, and daily headaches during the time from July to October [1994], was aware of her inability to cope adequately and was very upset about it, as she took a pride in her work and enjoyed it.
In the enclosed environment of the slink room, this girl was exposed to the highest possible risk of Q fever as the organism replicates to extremely high levels in the products of conception, the foetus, the membranes, liquor, placenta, uterus, and she was sprayed frequently each day with blood and liquor as the gravid uteri and contents slid down the chute from the evisceration floor above. Liquor often sprayed over her when the uteri were incised and sometimes she aspirated blood when mouth pipetting, a dangerous practice in this setting; all this material was highly infectious in Q infected animals. She had requested a syringe to avoid having to mouth pipette, but she said this was denied her.
In October she suffered another severe acute febrile illness which coincided with a second pregnancy and subsequent termination. Following this she was unable to continue at work and has been disabled since. Individuals who have been infected with Q organisms develop protective immunity; this is based on a combination of humoral (antibody development) and cellular immunity. The latter can be demonstrated most easily as a positive skin test to Q antigen. There are more sophisticated laboratory tests which are not [practicable] in the field which confirm the development of cellular immunity. In a few individuals, re-exposure to a heavy dose of Q antigen elicits a sensitivity response; this has been seen on occasion after the inadvertent vaccination of a previously Q infected person, when a severe local skin reaction may occur with ulceration, and a systemic reaction with fever, sweats, aches and pains, which have been followed by the development of post Q CFS (Marmion). In addition, both Marmion and myself have seen several workers with confirmed Q illness, in whom QCFS has followed a severe clinical relapse of Q, some weeks after the initial acute illness episode. It is likely that such relapses were precipitated by re-exposure to heavy doses of Q antigen. Sonya Dixon was exposed to very heavy repeated doses of antigen at a time when she was burdened with an unwelcome pregnancy and subsequent termination.
In response to your specific questions: …
2b. Mrs Dixon was repeatedly exposed to the Q organism in high doses in the daily course of her work. This most likely precipitated the severe episode in October/November.
3. It is known that Q fever can reactivate during pregnancy and the organism has been found in the placenta of infected animals including humans.
4. Dr Sutherland stated that CFS symptoms are most commonly triggered by an acute infection and continue on immediately after the acute phrase of the illness; this has been our experience. However in Q fever, we have seen QCFS follow a relapse of the original Q infection, most likely due to re-exposure to the antigen (see above).
In Mrs Dixon's case, it seems that she did have significant symptoms of impairment following the July illness, which were then followed by the severe relapse in October 1994 and further deterioration in her condition. To attribute her CFS to an entirely separate infection, nature unknown, in October, strains credulity. This girl was re-exposed on a daily basis to very high doses of an infectious agent which is recognized to cause QCFS in up to 20% of those who contract it. It is far more likely than not, that the precipitant was Q."
That last sentence might be right; it might be wrong; but it called for specific treatment at the trial.
(i) Contrast between findings as to the plaintiff's working conditions and evidence as to the plaintiff's working conditions
51 One other matter emerges from the report of Professor Boughton just mentioned. Because it was evidently thought not necessary for the parties to explore the precise nature of the working conditions in the abattoir in the light of the defendant's admission of liability just before the trial, the trial judge's account of the plaintiff's experiences there, which was based on the limited evidence given by the plaintiff in chief, was much blander than the vivid and disturbing impression conveyed by the history given to Professor Boughton: see in particular the second and third paragraphs of the passage which has just been quoted. As the law presently stands, the history given by the plaintiff to Professor Boughton about her workplace conditions, and the similar histories given to others such as Dr Sutherland, are evidence of the truth of their contents, yet the plaintiff was not cross-examined to suggest that that history was wrong, and the trial judge made no finding that that part of it was wrong.
52 In short, there was evidence that the condition which most doctors diagnosed is a condition which the plaintiff had at least a 10-20% chance of contracting. That figure by itself does not satisfy the civil standard of proof, but it is a significant step in that direction. The level of frequency appears to have been a factor in the medical experts' reasoning to the diagnosis of post Q chronic fatigue syndrome.
Failure to assess totality of medical evidence in the light of the objective symptoms and the objective history
53 In this type of litigation, an essential inquiry is whether, even though the facts assumed may not correspond "with complete precision" with the facts established, they are "sufficiently like" the facts established "to render the opinion of the expert of any value": see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; (1985) 59 ALJR 844 at 846. The relevance of that inquiry is not diminished by the fact that the common law of expert evidence has now been replaced by Part 3.3 of the Evidence Act 1995 (NSW). In HG v R (1999) 197 CLR 427 at [39] Gleeson CJ assumed that the type of inquiry compelled by the principles stated in the Paric cases remained appropriate, for he required experts to differentiate between the assumed facts and the opinions advanced, and one purpose of that differentiation is to enable the trier of fact to see how far the opinions can stand in the light of the particular facts found.
54 Given the strength of the medical opinions favouring a diagnosis of post Q fever chronic fatigue syndrome, and the unanimity of the medical opinions favouring some disease in the nature of a chronic fatigue syndrome, it was incumbent on those conducting the factual inquiry at trial to consider how far the medical opinions could stand if the admissions made by the plaintiff in cross-examination or the inferences flowing from the various films were taken into account. It was difficult to do this in view of the fact that no medical expert on either side was called to state how far his or her opinion would be affected by such matters. Rightly or wrongly, counsel for the plaintiff appeared to have submitted to the trial judge that the defendant should have put this type of inquiry to a doctor or doctors in cross-examination. The trial judge rejected that submission in the following words:
"While senior counsel for the plaintiff submitted that the matters going to credibility were not put to any doctor in cross-examination (all doctors evidence was received by way of reports) the fact is as I have earlier mentioned, that the ongoing symptoms from February 1995 are matters for which no objective tests can be performed by medical practitioners to ascertain whether the symptoms in fact exist."
However, the submission had at least this important degree of merit - that doctors could have been asked why they assumed the symptoms to be as narrated and whether they adhered to their opinions despite the inroads made on the plaintiff's reliability in cross-examination.
55 The plaintiff's case threw up a curious and unusual problem. The plaintiff's case on her condition before July 1994 was that she was very healthy. She had had three jobs - in the defendant's abattoir, for three days a week at Coles, and at a fruit market on Saturdays. She still had two. She was working to pay off a home mortgage. She was an enthusiastic, reliable and responsible worker. She had had a daughter. Her relationship with her daughter, her de facto husband, his mother and other persons was happy. Until at least 1993 she played hockey, basketball and tip football. She swam. She rode horses. She weighed 12 stone. There was no existing medical condition before July 1994 which could have detrimentally affected her health thereafter. The plaintiff's case in these respects shared common ground with that of the defendant in the sense that the plaintiff was not cross-examined to suggest the position was otherwise and common ground in the sense that it was the defendant's case that the excellent condition of health she enjoyed before July 1994 resumed after February 1995. The trial judge found that the plaintiff then contracted acute Q fever for a period of six or seven months.
56 After February 1995, the parties no longer shared common ground. The plaintiff had certainly ceased to work, but whether she could work was controversial. She was on bad terms with her entire circle. She complained of appalling health. She had suffered very large weight loss.
57 What could account for the change? On the evidence, there were four possibilities. One possibility, advanced by Dr Sutherland, was that the plaintiff unquestionably had "some form of chronic state", but it was not caused by the bout of acute Q fever. A second possibility was advanced by Dr Synnott, a psychiatrist: though he accepted that she suffered the symptoms complained of and that the Q fever "was the acute precipitant for the onset of the condition", it had "psychological components and contributants". Dr Synnott said:
I note that her father contracted Q fever and was sick for a long time, so there is the perception that this is what necessarily happens with Q fever - the modelling of one of her parents being invalided for a long period of time. There is the fact that she is being paid whilst ill, that some of her responsibilities (of a more onerous type) are being assumed by other people, also she can project responsibility and causality beyond herself for the entirety of her symptoms and disability."
A third possibility was that the plaintiff's complaints were genuine. A fourth possibility was that the plaintiff had decided around February 1995, well knowing what the symptoms of Q fever and its consequences could be because of the widespread effects of the defendant's abattoir on the population of Inverell and because her father had had the disease, to begin to live a complete lie and maintain a consistent but wholly or largely mendacious story to be told to her family, her friends, her doctors, her lawyers and ultimately the court over a period of six years.
58 Of these four possibilities, the trial judge considered and implicitly rejected the first on rational grounds. Those grounds were that the plaintiff had given Dr Sutherland a history of her symptoms which erroneously dated the symptoms of acute Q fever to October or November 1994, when in fact there is clear evidence that they occurred in July 1994. The trial judge did not in terms reject Dr Sutherland's proposition that the plaintiff had a chronic fatigue state but that it was not caused by the acute Q fever. But his conclusion that she did not have any of the symptoms complained of and his treatment of the history received by Dr Sutherland as being wrong as to dates are inconsistent with Dr Sutherland's diagnosis.
59 The second possibility, that advanced by Dr Synnott, received no support from any other medical expert, except that Dr Sutherland, who called the supposed condition "Abnormal Illness Behaviour", thought that it was a possibility which deserved investigation.
60 The third possibility, that the plaintiff was genuine, was rejected by the trial judge because he found parts of the plaintiff's evidence so incredible as to justify rejection of the rest.
61 The fourth possibility was that accepted by the trial judge. That possibility required her to have deceived her parents, to have neglected her daughter, to have alienated her de facto spouse and his family, and to have given up many of her friends. In particular, it involved a fraudulent narration of largely consistent complaints to many different doctors on many different occasions. It would have been extremely difficult for a young and unsophisticated person to perform the latter task successfully unless the complaints were genuine. Yet on the trial judge's findings she did perform that task. That does not by itself invalidate the trial judge's findings. But in the light of his failure to examine the medical evidence, probably in turn caused by the failure of the parties to take him in detail to the medical evidence, his findings must come into question.
The trial judge's approach to the plaintiff's credit
62 The first example given by the trial judge of the deficiencies in the plaintiff's testimony related to where she had been living. The trial judge said:
"For instance when challenged as to her agreement in chief that she still lived at her parents' property she conceded when confronted with details of the transaction that in fact she is the owner of the land upon which the shed in which she lives, stands. When pressed as to why she had not revealed this in chief the following exchange occurred:
'Q. Why didn't you say, when you were asked about the shed having been done up but still being on your parents' property, why didn't you say, 'No, it's on my property'?
A. I've got no idea."
The plaintiff's evidence in chief was that around 1995 her relationship with her de facto husband broke up, she and her daughter moved to her parents' house, and then they moved into a shed. The evidence in chief was:
"Q. I think the only movement in your accommodation is that you have moved out of your parents' house into a shed --
A. That's right.
Q. - that has been done up, but still on your parents' property?
A. Yep.
Q. How far from the house is it?
A. Maybe 200 metres, I think. I'm not quite sure.
Q. It's not far?
A. No."
63 In cross-examination, after saying that she had sold the house in which she and her de facto husband had been living, the plaintiff's evidence was:
"Q. Do you own any property at all?
A. I beg your pardon?