Farrell v CSL Limited [2004] VSC 308

Supreme Court of Victoria|2004-08-26|Before: BONGIORNO J

Tort - negligence - medical treatment - duty of care - psychiatric injury - nervous shock - causation - foreseeability - communication of risk of contracting disease long after treatment complete - Creutzfeldt-Jakob Disease - connection to human pituitary gonadotrophin - fiduciary duty - relevance to personal injury claim.

1 Creutzfeldt-Jakob disease is a fatal degenerative disease of the brain. It is rare. It has a worldwide distribution of about 1:1,000,000 per annum. It was first described by Creutzfeldt in 1920 and by Jakob in 1923 although whether they were really describing what is now called Creutzfeldt-Jakob disease is regarded as uncertain. In its neuropathology it resembles the ovine disease, scrapie, and bovine spongiform encephalopathy, or so-called "mad cow disease". It is also similar to kuru, a fatal human disease associated with ritual cannibalistic funerary practices formerly engaged in by some groups of indigenous inhabitants of the New Guinea Highlands.

2 This case concerns a woman, Mrs Carol Farrell (formerly Carol Waugh), who, although she has not contracted CJD (and, on the evidence, has now no greater risk of contracting it than any other member of the Australian population) is claiming damages from CSL Limited and the Commonwealth for psychiatric injury she claims to have suffered as a result of their exposing her to the risk that she might contract CJD as a result of having been treated with a hormone, human pituitary gonadotropin or HPG[1]. This hormone is derived from pituitary glands harvested from human cadavers. Mrs Farrell claims that this psychiatric injury, which she says commenced when she was told she might have CJD in June 1993, has had a profound effect on her life, her happiness and her economic wellbeing and will continue to do so until she dies. The first defendant (in an earlier manifestation when it was the Commonwealth Serum Laboratories, an emanation of the Commonwealth) manufactured the HPG with which the plaintiff was treated and the second defendant, through the Department of Health and, specifically, the Human Pituitary Advisory Committee (HPAC) supervised the administration of the treatment programme. Mrs Farrell's actual treatment was effected by a series of intramuscular injections performed by a Perth obstetrician and gynaecologist, Dr (then Associate Professor) Peter Giles, between 1976 and 1978 when he conducted a fertility clinic at the King Edward Memorial Hospital for Women in Subiaco.

3 The Australian Human Pituitary Programme provided for human pituitary hormones to be made available, through appropriate medical practitioners, to patients, either because they were infertile women (who were treated with HPG) or children of abnormally small stature who received human growth hormone (HGH). Both hormones were manufactured by the Commonwealth Serum Laboratories using pituitary glands obtained from human cadavers, the subjects of autopsy in various coronial and similar mortuaries around the country. The programme resembled that carried out in many other western countries.

4 Rennick Gaynor Kiddle Briggs, the plaintiff's then solicitors, commenced this proceeding by filing a writ on 6 June 1994. Although this writ was filed in the plaintiff's name, without the assistance of a litigation guardian, shortly before the trial commenced the plaintiff's then solicitor, Mr Alan Stapleton, made an application for the plaintiff's former husband, Ronald Charles Waugh to be appointed as her litigation guardian because she was a person under a disability. Upon compliance by Mr Stapleton with RSC r 15.03 that application was granted and the proceeding has been conducted by Mr Waugh as the plaintiff's litigation guardian since. Both before and after he became her litigation guardian Mr Waugh has been actively engaged in prosecuting the plaintiff's case even to the extent of preparing documents and trying to act on her behalf.

5 On 15 April 2003 Mr Stapleton filed an amended statement of claim, by leave. From the commencement of the trial on 30 April 2003 until it was adjourned on 15 May the plaintiff's claim was put as formulated in that document by Mr Stapleton who acted as counsel for her. When the trial resumed on 29 September and Ms Alison Stenmark SC with Mr Phillip Misso appeared for the plaintiff an application was made to further amend the plaintiff's statement of claim by including a number of paragraphs alleging breaches of fiduciary duties owed by the defendants to her. As this proposed amendment did not appear to alter the factual basis of the plaintiff's claim I deferred consideration of the question as to whether it should be permitted until the end of the trial, inviting counsel to make submissions on that question in their final addresses. This they did. In the event I have determined that the amendment should not be permitted, although, having regard to the decision I have reached on the facts of this case, the question is now irrelevant.

6 Unlike the Canadian courts in cases such as M(K) v M(H);[2] J(La) v J(H)[3] and B(WR) v Plint[4] Australian courts have refused to apply the equitable principles relating to fiduciaries when the interests sought to be protected are non-economic: see Breen v Williams,[5] Paramasivam v Flynn[6] and Cubillo v Commonwealth..[7] This case concerns non-economic interests in that the plaintiff alleges personal injury and any claim for economic loss is a claim consequent upon that personal injury. Even if the plaintiff had been successful or partly so on the facts in this case she would have had no claim against either defendant as a fiduciary with respect to her. The amendment proposed would not have enhanced the plaintiff's case in any way and it should not be allowed.

7 The plaintiff's claims against the defendants, as formulated in her Amended Statement of Claim and in her proposed Further Amended Amended Statement of Claim, involve allegations of a failure by each of them to inform her of facts which she says each of them knew or ought to have known concerning the risk of contracting CJD from the HPG treatment she underwent. Some paragraphs might also suggest that a case of negligence against both defendants in respect of the manufacture of the hormone was also being pressed. As it is not seriously suggested that Mrs Farrell ever contracted CJD, allegations about the manufacture of the HPG which she received could not form the basis of a negligence claim by her although the evidence of alleged faults in that manufacturing process would be relevant to the actual or imputed knowledge of either or both of the defendants, which knowledge might itself found a claim in negligence for a failure to inform or warn in respect of the risk of infection. However that may be, having regarding to the conclusion which I have reached with respect to Mrs Farrell's claimed psychiatric illness and its causation there is no need for further consideration of the manufacturing process for HPG employed by the first defendant or of the Australian Human Pituitary Programme administered by HPAC for the second defendant.

8 The plaintiff said in her evidence that she was born on 26 May 1953. She lived in rural Western Australian until she was about 7 years of age when her family moved to Double View, a Perth suburb. She was interested in sport, dancing and callisthenics as a girl and upon completing her matriculation certificate and working for a short time at the ANZ Bank she took up a callisthenics scholarship for a year in Melbourne.

9 At the age of 18 she returned to Perth and married Ronald Charles Waugh. She and Mr Waugh then moved to Canberra where he was employed in the Commonwealth public service. Shortly after doing so the plaintiff was diagnosed as suffering from coeliac disease, a digestive complaint characterised by a sensitivity to gluten. At the time she was diagnosed with this condition she said that she was thin but that upon adopting a gluten free diet she recovered. She has remained on a gluten free diet since.

10 The plaintiff said that about a year after she was married she attended her GP, Dr Papaelias, who referred her to Dr Giles' clinic for the treatment of amenorrhea. Her treatment, with HPG, commenced on 8 October 1976. It finished in August 1978 when she abruptly stopped attending Dr Giles' clinic without explanation. Although Dr Giles wrote to her last known address in October 1978 he never received a reply and the plaintiff's treatment was never resumed. His records show that during the course of her treatment Mrs Farrell was induced to ovulate successfully on a number of occasions but did not become pregnant.

11 The plaintiff and her husband adopted a male child in 1979 and about five years later they adopted a female child. At about the time the plaintiff adopted her first child she said that she took up playing squash which she came to love and excel at. Between about 1984 and 1990 she said she travelled to England each year on the "squash circuit". She said she not only played in England but also played tournaments in Germany, Israel and Switzerland or "wherever there was an open tournament". She said she got good prize money and coached at three different private clubs in London.

12 In October 1987 Rosemore Pty Ltd purchased the Bassendean Squash Courts, in suburban Perth, for $185,000. At that time the plaintiff and her then husband were directors and shareholders of Rosemore which was a trustee of a family trust. Subsequently, the plaintiff and her children effectively became the only beneficiaries of that trust. The plaintiff said she operated the squash centre as her business.

13 After or about the time the Bassendean Squash Centre was purchased the plaintiff separated from Mr Waugh and eventually married the man whose name she now bears, Stedroy Farrell. She became pregnant to Farrell and in 1990 had a child, Ashby, but her relationship with Farrell soon became acrimonious and ended, probably some time early in 1991. Its end was traumatic, with allegations of violence, court orders and a suicide attempt on the plaintiff's part.

14 On 2 April 1991 Mrs Farrell made an application to the Department of Social Security for a sole parent's pension. In support of that application she was required to declare the truth of information given in answer to a series of questions on an application form. A penalty was provided for giving false or misleading information. Under cross-examination Mrs Farrell acknowledged her signature on the application and was challenged as to the truth of a number of the statements made in it. She gave her occupation in the application as "housewife" but conceded that at the time she signed it she was the effective owner and operator of the Bassendean Squash Centre with an after tax income of about $49,000 per annum. She made no disclosure of this income. She stated on the form that she had no court order or agreement for maintenance of herself or her two children. This answer was false. In fact she was a party to an agreement with her ex-husband Ronald Waugh, signed on 20 February 1989 and sanctioned by the Family Court of Western Australia entitling her to $250 per week maintenance from him for their children and the payment of mortgage payments in respect of the home in which she lived. She told the Department of Social Security that she had no investments or any other assets when she was effectively the beneficial owner of all the shares in a company, Aronmore Holdings Pty Ltd, which owned the house in the Perth suburb of City Beach in which she resided at the time as well as another home unit in Inglewood, another Perth suburb. The only bank or financial institution account she disclosed was one in a building society which had a credit balance of $4.60.

15 Although Mrs Farrell conceded that the home in which she resided at the time she made her application for a pension was owned by a company the shares in which were all beneficially owned by her, she claimed to have been paying $80 per week rent to her ex-husband (and now litigation guardian) Ronald Waugh. Although she denied that she had entered into a sham arrangement with Waugh in respect of these rental payments, she conceded that he had provided her with receipts for rent which she used to support her claim to the Department for rental assistance. She claimed that he did so as a director of Aronmore Holdings Pty Ltd. Two of such receipts were produced, dated 3 March and 17 March 1991 respectively. They made no reference to Avonmore Pty Ltd. They are almost certainly false.

16 In subsequent reviews of her pension entitlement throughout 1991 and beyond by the Department of Social Security Mrs Farrell never disclosed that she effectively owned the Bassendean Squash Centre or that she received an income of approximately $900 per week net from it. Nor did she ever disclose that after she sold the Bassendean Squad Centre in November 1993 for $275,000 she kept a large amount of the proceeds of sale (probably over $100,000) in cash which she regarded as hers, in a safe deposit box at the Commonwealth Bank. Each of these pension reviews required Mrs Farrell to answer a series of questions as to her assets, income and expenditure and each required a declaration as to its truth. Had those questionnaires been completed in accordance with their terms full disclosure of these matters would have been made by Mrs Farrell to the Department of Social Security. It was not.

17 In April 1994 Mrs Farrell bought a property in her name at Muston Grove, Churchlands in respect of which she, her ex-husband Ronald Waugh and two companies of which she was a director, and effective owner, Aronmore Holdings Pty Ltd and Rosemore Pty Ltd obtained finance of almost $400,000 from the Adelaide Bank.

18 On 4 May 1995 Mrs Farrell applied to the Department of Social Security for an invalid pension. Her application, in the form of a questionnaire was before the Court. In answers on that questionnaire she said that she suffered from coeliac disease, fibromyalgia, "CJD recipient" and depression. She said that all of these conditions affected her ability to work. Of particular significance, having regard to her engagement in active vigorous sport over many years was her assertion that the coeliac disease from which she suffered and in respect of which she was diagnosed some 19 years before this form was completed, caused her to be "very weak and thin poor level of concentration unable to do any physical work". In fact, she said in her evidence (as did her ex-husband Ronald Waugh) that her coeliac disease was completely controlled by diet and had been for many years. She claimed she had no driving licence and that she gets dizzy. She said she could not work. She said that she left school at the age of 16 years when she was in year 4 although she told this Court that she had matriculated. She said that she last worked in 1978 in a clerical position with the Reserve Bank and that she stopped work because of her coeliac disease. Nowhere on the form does she disclose that for some years she owned and operated the Bassendean Squash Centre. Her application made no disclosure of her shares in Aronmore Holdings Pty Ltd nor of any in Asia Pacific Finance Corporation Limited which she owned. It did not disclose the house at Muston Grove nor did it disclose any cash in the safe deposit box at the Commonwealth Bank although I am satisfied that there was a large amount of money, well over $100,000, there. Mrs Farrell was able to take $45,000 from what she described as "the safe" only six weeks later to pay to a Mr Fenwick in respect of a business transaction.

19 In answer to specific questions on the invalid pension application form Mrs Farrell denied owning any real estate although, under cross-examination, she said that at the time she signed the document she owned the property at Churchlands and another at Yaltara Road, City Beach but that they were mortgaged. Although Mrs Farrell conceded that she lived in the Yaltara Road property at that time, she said she didn't own it "because the mortgages were more than the property" and that Aronmore owned it anyway.

20 Mrs Farrell's application also contained a statement that she paid $250 rent per week to "Ace Computing". She explained that Ace Computing was a company owned by her ex-husband. She said the form should have said "Aronmore Holdings". In cross-examination she said that she had "no idea" whether she actually paid that rent or not.

21 The same application valued Mrs Farrell's household contents and personal effects at $1,000 and claimed that she owned no motor car. In fact, she conceded that at that time she owned a Rolls Royce motor car (albeit an old one) and at least one other car. On any view her statement of value of her chattels was false.

22 Whilst Mrs Farrell's invalid pension application and her answers to its supporting questionnaire is perhaps the most egregious example of this woman's preparedness to engage in duplicity and deceit for financial gain, it is not the only one. There were many other examples amply demonstrated over a long cross-examination.

23 Mrs Farrell was cross-examined as to an approach she made to a Mr Fenwick early in 1995 to borrow a sum of money. She said she could not remember whether she told him that she had two properties worth $1.3M which were mortgaged to a total of $785,000 but she did say that when she spoke to Fenwick she told him that she wanted to purchase the property at Wembley Downs in which she was living at the time of trial. She said she told him that she had $100,000 security deposit to pay and asked him whether she was going to be able to borrow enough money to purchase the property. In the same passage of cross-examination she acknowledged her handwriting on a document addressed to "Vince" which referred to a lease to a Mr and Mrs Tanaka, a lease to a Michael Ryan, assets of $100,000 in shares, antique furniture valued yearly at $150,000 and two references each of $125,000 to "dividend". Although undated, Mrs Farrell placed the document as having been created after March of 1996.

24 Mrs Farrell acknowledged her signature on a fax cover sheet dated 22 April 1997 which apparently accompanied a loan application to W.A. Home Loans, the applicants being Ellen Park Enterprises Pty Ltd the address of which was Mrs Farrell's address at the time she gave evidence, 13 Buntine Road, Wembley Downs and Khris Jane Wiaceck whose address was given as 24 Derby Road Shenton Park. The application was for $450,000 and referred to the purchase price of the property to be provided as security for the loan (13 Buntine Road, Wembley Downs) as $590,000. The application is accompanied by a photocopy of a passport in the name of Khris Jane Wiaceck. Although Mrs Farrell acknowledged her signature and her handwriting on the document she said that she could not recall the application for the loan or the company, Ellen Park Enterprises Pty Ltd. Khris Wiaceck was a name used at some stage by Mrs Farrell. It was also the name of a man with whom she had been romantically involved after her marriage to Stedroy Farrell.

25 The loan application itself is not completely filled in but it does contain financial information which shows gross salary/wages of between $200,000 and $300,000, a car valued at $88,000, furniture valued at $150,000, $40,000 in a savings account and notes a dispute with the Tax Department over an alleged taxation liability which is shown as $17,000. Whether these amounts refer to Mrs Farrell personally or to the company which appears to have been a co-applicant it is impossible to say. Mrs Farrell was, at this time, an invalid pensioner.

26 On 20 August 1996 Mrs Farrell signed a document as a director of Allregal Enterprises Pty Ltd and witnessed another signature on the same document of one "P. M. Ryan". Under her signature appear the words "CAROL FARRELL, 2 YALTARA ROAD CITY BEACH. WA, COY DIRECTOR. PROPERTY DEVELOPER." She denied that that writing was put on the document by her. She said it was written by Mr Ryan, the person whose signature she was witnessing. Having seen a large number of Mrs Farrell's documents in the course of this case, including documents written in block capitals, I am quite satisfied that Mrs Farrell wrote the words I have quoted above. I do not accept her evidence that they were written by Mr Ryan.

27 On 5 October 1998 Mrs Farrell wrote to a Mr William Porteous who, she said, was an estate agent. The letter complained of the level of service she was obtaining from Mr Porteous but acknowledged that at the time she originally retained him it was her intention "to make you responsible for my real estate portfolio in the future both selling and buying." The letter provides a Canberra telephone number for Mr Porteous to phone Mrs Farrell if he wished to contact her before she returned to Perth in November 1998. Although Mrs Farrell initially denied her signature on this document she later said that it probably was her signature and conceded that Mr Porteous had been to her home as the letter suggested. She then answered questions concerning the contents of the letter without further suggesting she had not written it.

28 Mrs Farrell was extensively cross-examined as to dealings in property which were said to have been evidenced by letters she wrote between about 1996 and 1998. A number of letters were produced. She was evasive and obstructive in answering questions about them. She eventually conceded her signature only when she had to and professed no knowledge of the matters contained in them. They related to buying and selling properties and businesses in respect of which she refused to concede that she had been engaged. On a number of occasions she implicated a Mr Michael Ryan in these matters although a number of the letters were written on behalf of Allregal Enterprises Pty Ltd, a company of which Mrs Farrell conceded she was a director.

29 The only conclusion possible with respect to Mrs Farrell's business dealings is that it is virtually certain that she has set out to mislead this Court as to the true state of her financial and other dealings, especially since mid-1993 but probably also before that time. Some light has been thrown upon them by a lengthy cross-examination but I am satisfied that the Court has by no means heard the whole story. Such information as has been exposed demonstrates clearly that Mrs Farrell's contention that since mid-1993 she has been psychiatrically disabled from engaging in income producing activity cannot be sustained.

30 The plaintiff played squash both before and after June 1993. In 1991 she won the Australian Open Masters Squash Tournament in Darwin. In 1993 she was runner up in the Hiline State Masters Tournament at Bunbury Western Australia from 8 to 10 July 1993, a matter of days after she was advised of the CJD problem. A month later she was runner up in the open section of the Australian Masters Championship in Launceston. In 1994 she competed again at Bunbury. She played in an Australian Masters Competition in Melbourne but could not say whether that was 1995 or not. She played squash in Canberra and in Adelaide in the Australian Masters in 1998. She could not remember whether she won that tournament but thought she might have. In 1999 she travelled to England and competed in the World Masters Squash Championship. She reached the semi-final of the singles and won the doubles. In August 2000 she competed in Darwin in the Australian Masters Championship. In September 2002 she competed at the Australian Masters Squash Championships in Tasmania. She agreed that it was rare for women of her age to play squash.

31 At the time of trial Mrs Farrell said she goes to the squash courts at least four times a week because she takes her son. She says she does not "have a hit" every time. It depends how she feels.

32 In the course of her cross-examination two video tapes of Mrs Farrell playing squash were put to her by Mr Stanley QC for the defendants.

33 The first video showed Mrs Farrell on a squash court with a partner whom she identified as a Mr Danny Zande who, she said, was ranked about number 8 in the men's squash ranking in the State of Western Australia. The video was taken on 26 March 2003, some five weeks before the date upon which Mrs Farrell was giving her evidence. Whilst the video was informative in demonstrating Ms Farrell's capacity to engage in continuous relatively strenuous exercise it was equally significant in enabling a comparison to be made between her appearance and capacity for active movement at that time as against her appearance, demeanour and apparent capacity to move as at the date she gave evidence.

34 In the witness box Mrs Farrell appeared as an extremely thin, almost cachectic, woman with bad posture and a gaunt appearance much older than her stated age. Her hair was cut extremely short (in the manner of a short crew cut) and was dyed or bleached totally white. When moving in the court room to and from the witness box and in and out of the court Mrs Farrell did so slowly and in the manner of someone in considerable discomfort if not pain. When she sat down she did so in a way which suggested that even that act produced discomfort or pain. She explained her need to almost shave her head as necessitated by hair loss she said she was suffering. I do not accept this explanation. Her hair, as I observed it, although extremely short, appeared to be of normal thickness. No alopecia was able to be observed.

35 On the video Mrs Farrell presented as an extremely active, physically fit woman much younger than her stated age with long, dark or even black hair tied in a ponytail. Her movements appeared effortless and, although she claimed that Mr Zande was not playing seriously and was merely returning the ball to her with each shot, she was able to cover the court in a way which one would expect of an experienced and skilful squash player. She also conceded that on at least two other occasions between the date upon which the video was taken and her giving evidence she had played squash at two other squash venues in Perth.

36 A second video shown to Mrs Farrell was taken on 21 March 2002 and 10 April 2002, about a year before the first video. This video showed the plaintiff playing squash on each of those days. Again she played with Mr Zande but denied that they were playing sets for points. She insisted that if Mr Zande had been so playing she would not have been able to return his shots. Overall it showed Mrs Farrell as being much the same in physical appearance and capacity for active movement as did the video taken more recently.

37 Whether Mrs Farrell was actually playing games of squash in each of the videos to which I have referred or whether she was merely exercising against Mr Zande matters little. This case is not about her squash playing capacity. It is about her contention that she has been totally disabled psychiatrically since mid-1993 with serious effects on her physical capacity as well. Other videos taken in February, April and November 2001, October 2002 and January and February 2003 show Mrs Farrell engaged in what appear to be business discussions, walking normally, driving her car, shopping, going swimming, entering and leaving the Squash Club and other similar activities without any hint of incapacity whatsoever. The comparison between the person displayed on them and the plaintiff as she appeared in court was startling.

38 As far as Mrs Farrell's squash playing is concerned, her protestations that her capacity has been diminished or extinguished by her psychiatric condition since 1993 are themselves somewhat diminished by the position she is taking in an ongoing dispute between her and the Kings Park Tennis Club concerning her exclusion from its women's pennant squash team. On 23 January 2003 Mrs Farrell wrote to the chairman of the Club and offered herself as being available for the 2003 squash pennant season to play "women's squash pennants" with the Club. Her letter refers to the fact that she had indicated her willingness and availability to play at that level "for the past nine seasons". She went on to explain in her evidence that she is currently suing the Club in the Supreme Court of Western Australia, claiming specific performance of a contract to consider her for selection in squash tournaments and competitions.

39 Mrs Farrell has apparently been disputing her squash ability with the Club for some years. On 3 August 1999 she wrote to the Club concerning her omission from the ladies competition squash team. In the course of that letter she said that she had already made it clear to the mens' Club Captain that she would be happy to play mens' B1 Grade if they needed an extra player and that she played at the club on most days. The letter referred to her intention to play in the Australian Masters to be held in Perth in October of that year and sought a meeting with the Secretary of the Club to discuss issues which she felt were preventing the Club from growing further. On 14 February 2000 solicitors, acting for the plaintiff, Michael Patterson and Associates, wrote a letter to the President of the Club which among other things, asserted that the plaintiff was the reigning "Masters' World Squash Doubles Champion". On 23 August of that year the plaintiff commenced the Supreme Court proceeding to which I have referred.

40 The significance of Mrs Farrell's failure to tell the truth in her dealings with the Department of Social Security, her preparedness to submit false declarations to that Department, her attempts to hide the extent of her business activities, her evasion, truculence, and prevarication in the witness box and the video and other evidence of her playing squash and engaging in other activities all combine to require a finding that no credence whatsoever can be placed upon her evidence. They also throw considerable doubt upon those medical opinions, which might be said to support her case at least to some extent, which rely for their validity upon an accurate and honest history. I am satisfied that just as she was prepared, repeatedly, to seek and obtain financial advantage by deception from the Department of Social Security she has not told the truth in her evidence in this Court. At times she appeared to invent answers as questions were asked. At other times she resisted answering at all until compelled to do so. Unfortunately, in resolving the issues in this case I have reached the conclusion that no credence can be put upon anything the plaintiff says unless it is corroborated.

41 Mrs Farrell's former husband and litigation guardian, Ronald Charles Waugh, gave some evidence in support of her case on 13 May 2003 in the first session of the trial. An application to recall him by Ms Stenmark when she became the plaintiff's counsel in the second session in September was ultimately not pressed.

42 Mr Waugh said that he was a computer consultant with the Commonwealth Department of Employment and Workplace Relations. He said he had degrees in science and mathematics and post-graduate qualifications. He generally corroborated his wife's account of their marriage and early married life, including her diagnosis with coeliac disease and her recovery from it when she controlled her diet. He said that he was at "all those visits" with Professor Giles and "there wasn't much explanation to what it was all about". This evidence was not elaborated upon.

43 Mr Waugh said he knew little or nothing of his former wife's situation after she was told about the relationship between her HPG treatment and CJD until about 1996. He said that from about 2000 he began assisting her with this case and prepared many of the documents which were filed. These documents included at least two different lists of special damages which were filed just before the trial commenced. The first, filed on 28 April 2003 claimed a total of $2.37M for economic losses of various kinds. On 30 April a second list was filed in which the figure was increased to $2.97M. Each of these claims was of breath-taking extravagance, and although Mr Waugh's lack of legal training must be taken into account, it is difficult to see how any honest litigant could have put forward such claims. In the event Mr Stepleton abandoned all those claims in May 2003 when he sought an adjournment of the trial although I later granted an application by Ms Stenmark to reinstitute a claim for economic loss based on more realistic premises when the trial resumed in September.

44 Among the many claims made in these documents by the plaintiff, or on her behalf by her ex-husband, were claims relating to her having to sell the Bassendean Squash Centre by reason of being unable to continue it after mid 1993 because of her psychiatric condition. However, in cross-examination, Mr Waugh conceded that he was involved with his former wife in obtaining valuations and preparing an investment proposal for the sale of the Bassendean Squash Centre before Dr Giles told her about CJD for the first time in June 1993, although the squash centre was not in fact sold until later that year.

45 Although Mr Waugh gave little evidence in the total context of this trial his evasion and prevarication in cross-examination, particularly as to his arrangements with his former wife concerning financial matters, leads me to conclude that he was no more reliable as a witness than she was. However, as his evidence did not go to the issues upon which I have decided this case it is not necessary to consider it any further.

The Treatment, The Problem And What The Plaintiff Was Told

46 Before considering Mrs Farrell's evidence which goes to her psychological condition after June 1993 and her capacity to work and function normally from that time, it is necessary to examine the treatment Mrs Farrell received, the discovery of a possible link between that treatment and CJD and what she was told.

47 As I have already said, Mrs Farrell received HPG treatment between October 1976 and August 1978. She maintained that this treatment was for amenorrhea, not because she wished to have a baby. This assertion is not correct.

48 Dr Giles said that he would not have treated Mrs Farrell had she not been seeking to become pregnant. He explained that HPAC would not have approved her for the HPG programme merely for the alleviation of amenorrhea. He regarded the treatment as scarce, expensive and not free of side-effects such that it would have been a waste of a most valuable drug to have used it for purposes other than achieving pregnancy.

49 On 2 March 2000 the plaintiff swore an affidavit in this proceeding on an application to cross-vest it to the Supreme Court of Western Australia. In that affidavit she swore that as a result of having difficulty in conceiving a child in 1975 she consulted Dr Papaelias who referred her to a specialist at the Royal Perth Hospital who, in due course, referred her to Dr Giles.

50 I do not accept the plaintiff's evidence in this trial as to the reason she consulted Dr Giles. She clearly did so because she wished to become pregnant. The course of treatment itself, as described by Dr Giles, which included a requirement that sexual intercourse take place at particular precise times leads inescapably to the conclusion that it was treatment for infertility, not amenorrhea. Further, Dr Papaelias was not Mrs Farrell's referring doctor in 1976. He did not commence seeing her until 1980. I regard Mrs Farrell's evidence as to the reason for her receiving the HPG treatment to be a deliberate falsehood told in the erroneous belief that her case would be improved if she could diminish the significance of the reason for seeking treatment. I reach this conclusion not only from the evidence but also from Mrs Farrell's demeanour at the time she gave her version of this aspect of her case and her pretended ignorance as to a connection between the requirement that she and her husband engage in sexual relations at times selected by Dr Giles and treatment for infertility.

51 Mrs Farrell's HPG treatment consisted of a series of intra-muscular injections of the hormone designed to induce ovulation. At the same time as the injections were administered she was closely monitored by Dr Giles who continuously assessed her reproductive status. He kept extensive records of this monitoring process, all of which were intact at the time he gave his evidence[8] and were produced to the Court. Dr Giles told the Court that Mrs Farrell received four courses of HPG, one each in October and November 1976 and April and August 1977. On two occasions she ovulated but did not achieve a pregnancy. Dr Giles described the onerous nature of the treatment, including its requirement for intercourse to occur at particular specified times and for invasive physical examinations such as that involved in examination of cervical mucus shortly after coitus. He also told the Court of the strict conditions placed upon the administration of the treatment by HPAC and its requirement that before administering HPG the patient be subjected to extensive treatment with an alternative fertility drug, clomiphene citrate, by way of a "work up" to see if a pregnancy could be produced without resort to HPG.

52 Dr Giles described in detail the advice he gave all his patients who were receiving HPG treatment. He said that he explained to them the physiology of the pituitary, its relationship to the ovary, how the follicle stimulating hormone (HPG) acted on the ovary to make it produce oestrogen and the steps he would take after that to seek to achieve ovulation. He said that he gave each patient a copy of the lecture notes he used when teaching medical students. He said that he specifically warned his patients of the only significant risk associated with the treatment of which he was aware, namely the possibility of multiple births.

53 Dr Giles said that he told Mrs Farrell nothing about any risk of contracting CJD as it was something he knew nothing about at the time. He believed that obstetricians generally knew nothing about it as being in any way connected with the hormone treatment he administered. He said that he had been involved, one way or another, in this type of treatment for over 10 years at the time he treated the plaintiff and that the same treatment was being used worldwide.

54 Not only did Mrs Farrell dispute Dr Giles' evidence as to the reason she was having HPG treatment she also denied that he gave her this information about it or that he explained the procedure itself. I do not accept any of Mrs Farrell's evidence in this respect for the reasons I have already expressed. Dr Giles impressed me as an extremely careful man who was conscious of the need for accuracy in his evidence. I prefer his version of what occurred between him and the plaintiff.

55 In August 1978 Mrs Farrell stopped attending Dr Giles' clinic without any explanation. He said that he wrote to her in October 1978 but never received a reply and her treatment was never resumed.

56 On 29 May 1985 the Australian Human Pituitary Programme was suspended because of reports of three cases of CJD in the United States which might have been related to the use of HGH in short stature children. No such cases had, at that stage, been found in Australia nor had any case of CJD been linked to the use of HPG.

57 The Australian programme was never resumed, either in respect of HGH or HPG, as between about 1987 and 1991 four women who had received HPG in Australia died of CJD. None have died since. Approximately 2,100 people; 700 children with short stature and 1,400 women with infertility were treated with HGH and HPG in Australia whilst the programme operated.

58 Mrs Farrell's case is that since she was told of these CJD deaths in June 1993 she has been afflicted by a severe psychiatric illness manifesting itself in a number of different ways, including anxiety and depression, which has resulted in profound disability. She claims to be totally disabled from working and to have suffered very severely in all aspects of her life. As this case rests heavily on what she was told about her risk of contracting CJD as a result of the treatment she had had, from whom she received that information, when she received it and its effect upon her it is important to examine carefully the communications which she received in which information was conveyed to her.

59 In February 1992 Professor Giles began trying to contact those women he had treated with HPG to tell them of the cases of CJD which had, at that stage, been reported. He was extremely concerned by the deaths and wished not only to inform his former patients of them but also to assist them to deal with the information he was conveying. To assist him to make sure that he covered everything he considered relevant in his discussions with his former patients he devised a pro-forma check list of matters he needed to raise with each patient. As he spoke to each of them he made notes of the conversation on the pro-forma. This he did with Mrs Farrell when he eventually spoke to her.

60 Dr Giles wrote a letter to Mrs Farrell (under her then name of Mrs Carol Waugh) on 27 February 1992 at the only address he had for her in the Perth suburb of Inglewood. He received no reply. He wrote to the same address in April 1993 by certified mail but the letter was returned. Eventually he contacted her, through her mother-in-law, at the Bassendean Squash Centre which she was then operating. He spoke to her by telephone on 29 June 1993. His record of that conversation on the pro-forma sheet he devised is part of his medical record relating to Mrs Farrell. It is before the Court and he confirmed it in his evidence. He said that he told Mrs Farrell that there had been four deaths out of about 2,100 recipients of pituitary derived hormones. He told her what CJD was, what its symptoms were and that it was not transmitted by contact, sexual intercourse or from a mother to a child in pregnancy. He noted that she told him that she was not a donor in respect of organs, cornea or blood. He also noted that she said that she ". . . had had no energy lately . . ." and was being investigated for this by Dr Bill Reed. She said that her GP was Dr Louis Papaelias and Dr Simon Turner was her gynaecologist. Dr Giles said that she also told him that she had been the Australian squash champion for the last few years and that she had three children, two of whom were adopted. He said (and recorded in his pro-forma note) that the plaintiff did not sound introspective with respect to the news he had given her and he advised her that if she wished to contact him at any time for "follow up" she could do so at King Edward Memorial Hospital.

61 Two days later, on 1 July 1993, Dr Giles wrote to the plaintiff at her then address. In that letter he again invited her to contact him if she had any questions concerning the matters they had earlier discussed and he enclosed a document entitled "Plain facts about CJD" which he had been given by the Commonwealth Department of Health. He invited Mrs Farrell to keep his secretary informed of her current address so that he could contact her if there were any further developments. He concluded his letter by telling Mrs Farrell that he had written to Dr Reed and Dr Papaelias about her. He did this by writing to Dr Reed on the same day in similar terms to his letter to Mrs Farrell and sending a copy of that letter to Dr Papaelias.

62 The plaintiff's version of her conversation with Dr Giles on 29 June 1993 was that he told her that she may have CJD. She said she was devastated by this news and decided to take her own life. She denied he told her anything of the non-transmissibility of the disease by contact, through intercourse or from mother to child. She said she didn't remember what she told him.

63 Dr Giles' records of his treatment of Mrs Farrell, and his notes of each of his conversations with her in mid-1993, and subsequently, were meticulous. His oral recounting of these matters aided by these notes was cogent and measured so that, despite his advancing age and the long period which has elapsed since these events occurred I am satisfied that his evidence is accurate in all matters of importance. For reasons which I have already stated I found Mrs Farrell to be a very unsatisfactory witness in almost all aspects of this case. I am satisfied that in many instances she told deliberate lies. With respect to her conversations with Professor Giles in mid-1993 and again in 1994 and the consequences of them I am satisfied that she was at best confused and, at worst, deliberately reconstructing events with a view to improving her case. Where her evidence diverges from that of Dr Giles I unhesitatingly accept his account.

64 When she first gave evidence in this trial in April 2003 Mrs Farrell said that following her receipt of Dr Giles' letter of 1 July 1993 she phoned his secretary and asked for her medical records which, she said, the secretary then sent to her. Mrs Farrell said that they were accompanied by ". . . a lot of other peoples medical records that had been on the programme". In later evidence, on 15 May 2003, she produced a copy of the file she said she received from Dr Giles' secretary. However, even a cursory perusal of that bundle of documents revealed that it was not Dr Giles' record relating to Mrs Farrell at all, but rather a copy of a Department of Health file concerning her. It contained copies of correspondence between the Department and Dr Giles relating to his authority from HPAC to undertake Mrs Farrell's treatment and other correspondence. It was certainly not a treating doctor's record of treatment. Further, it contained copies of documents which well post-dated the time Mrs Farrell says she received it, including a copy of a very significant letter from a Dr Maynard dated May 1994. Her evidence as to her receipt of this file cannot be accepted.

65 Dr Giles said that after his conversation with her on 29 June 1993 he heard nothing further from Mrs Farrell until he read an article about her in the "West Australian" newspaper of 2 July 1994. As, in that article, Mrs Farrell was quoted as being concerned as to whether she had received HPG from the same batch or batches of hormone which had been given to the women who died, he wrote to her again, offering to provide the necessary information to her which, he said, was easily ascertainable from his records. He invited her to phone him. He eventually spoke to her on 21 July when he told her she had not received hormone from the same batch as any of the women who died. The following day he wrote to her informing her of the batch numbers which the unfortunate dead women had received and enclosed a copy of her record which clearly demonstrated that she had received a different batch. All of this information could have been conveyed to Mrs Farrell a year earlier had she requested it. I am satisfied that it was only after Dr Giles sent her medical record to her under cover of his letter of 22 July 1994 that Mrs Farrell first saw that record. I do not accept her evidence that she received it a year earlier as she asserted. I am also satisfied that Mrs Farrell did not receive the copy of the Department of Health file to which I have referred until she received it from her then solicitors, Rennick Gaynor Kiddle Briggs who sent it to her under cover of a letter dated 14 July 1994 after they received it from the Department. Having regard to the content of that letter it is also highly likely that they did so as a result of a request from Mrs Farrell.

66 Mrs Farrell told the Court that in May 1994, about a year after she said she got her medical records from Dr Giles, she received a letter by ordinary post from a Dr Graham Maynard of the Department of Health. She produced a photocopy of that letter,[9] the original of which she said came to her by ordinary post in an OHMS envelope addressed to her at her then address. At many points in her evidence she claimed that this letter, which she interpreted (incorrectly) as telling her she had received HPG from the same batch as one of the deceased women, was the main source of her anxiety. She referred to it as "the letter from the Government".

67 Dr Maynard's letter, which is dated 13 May 1994, is addressed not to Mrs Farrell but to Dr Papaelias at 779 Beaufort Street, Mount Lawley, a Perth suburb. It refers to an inquiry by the plaintiff of the Department concerning CJD and notes that she identified Dr Papaelias as the medical practitioner to whom she wished the information she sought to be sent. The plaintiff gave no evidence of ever having sought information from the Department. Whether she did or not she did see a copy of this letter at some stage and what is of significance now is not how it was procured but its contents and, even more importantly, when it got into Mrs Farrell's hands.

68 What is clearly the original of Dr Maynard's letter was produced to the Court during the trial as part of a bundle of documents produced under subpoena by Dr Papaelias, the plaintiff's general practitioner. As would be expected, it was part of his file of her treatment. It follows that it is highly unlikely that a second original of that letter was sent by Dr Maynard directly to the plaintiff, particularly having regard to the contents of the letter, its addressee and its purpose, namely to inform the plaintiff's general practitioner of a number of medical facts so that he could better advise, counsel and treat her.

69 Dr Papaelias himself gave evidence on video from Perth. For technical reasons, cross-examining counsel was unable to show him the Maynard letter produced from his file which was in Court, but he recalled receiving it. He said that he didn't contact the plaintiff about it nor did he provide her with any counselling or refer her to anyone else for counselling as a result of it. He said that he didn't tell the plaintiff that she had received one of the potentially contaminated batches of HPG and, although he was not specifically asked, it is a fair inference from his evidence that he did not post a copy of that letter to the plaintiff, either in an OHMS envelope or otherwise, so that she received it in her letterbox as she claimed. Much less did he send her the original.

70 Having regard to the highly unsatisfactory nature of much of the plaintiff's evidence, to the fact that a great deal of the history she has given the Court is at best inaccurate reconstruction and at worst invention and the general findings which I have made as to her lack of veracity generally I do not accept her evidence as to the receipt of Dr Maynard's letter. The more cogent explanation as to how a copy of it got into her hands is to be found in the letter to her from Rennick Gaynor Kiddle Briggs of 14 July 1994 which enclosed a copy of her whole Health Department file. That letter makes specific reference to Dr Maynard's letter (a copy of which was, appropriately, in that file) and to the fact that the file contained no information suggesting that she received HPG from the same batch as any of the women who had died of CJD. Accordingly, I am satisfied that Mrs Farrell first saw a copy of Dr Maynard's letter a few days after 14 July 1994 and not before.

71 Dr Maynard's letter is significant for two reasons. First, it informs Dr Papaelias of the batches of hormone which were approved by the Department for use by Mrs Farrell's treating doctor (Dr Giles) in the treatment of her infertility in these terms:-

"According to our records, a patient with the name of Carol Waugh, born 1953, was approved to receive hPG under the program. The Department's file lists the batches received by Carol Waugh as: 57 and 67. The records are of approvals and do not necessarily indicate that the patient actually received the hormone. To confirm whether the patient did receive the hormone it would be necessary to refer to the clinical records of the original treating doctor." (emphasis added)

Secondly, Dr Maynard informed Dr Papaelias in that letter that, among others, batches 67 and 25 were received by women who had since died of CJD but that as there was no single batch received by all four of those women other batches may possibly have been affected.

72 After Dr Maynard wrote his letter to Dr Papaelias and before Mrs Farrell saw a copy of that letter the article of 2 July 1994, which was read by Dr Giles, appeared in the "West Australian" about the plaintiff. It was entitled: "The Agony Of Life On Hold". When Dr Giles eventually spoke to Mrs Farrell about the article on 21 July he recorded his conversation with her in detail. The relevant extract from his note reads:

"Spoke to her at 10.40am. She says Dr in Canberra wrote to Dr Papaelias giving Batch 57 & Batch 67 as the Batches she had been given. She received a copy of the letter. I told her that I had her original treatment sheets and that she has had only Batch 57. I also told her that even if she had had Batch 67 it is unlikely to be the infected Batch because only one of the four women who died was given 67 (in addition to 45 & 60; especially as 3 of the women who died were given 44 or 45). She asks if I would send her a copy of her notes - I said I would send a photocopy of each of the 5 courses that she had. I said that I would also write to Dr Papaelias her GP. I spoke to her about `Helping her life to be Better' and suggested that `Balya Group' may be of help to her. She does ballroom dancing and various other dances. (My Master File shows that I gave Batch 067 to none of my patients. Also my records of Stocks show Waugh got 5 courses of 057.)"

73 By 21 July 1994 the plaintiff should have been in no doubt that the only batch of HPG to which she had been subjected was batch 057 and that that batch had not been given to any of the women who died. In terms of Dr Maynard's letter to Dr Papaelias which the plaintiff claims as the effective source of her anxiety, Dr Giles was the only person who could authoritatively advise her as to the batch or batches of HPG that she received. This he did on 21 July 1994 although, of course, if Mrs Farrell had accepted his invitation to seek further information from him which he issued orally on 29 June 1993 and confirmed by letter of 1 July of that year she could have received this information a year earlier.

74 In fact, as it happened, there was an error in Dr Maynard's letter of 13 May 1994. It should have made no reference to batch 067 at all. That batch was never in fact approved for Mrs Farrell's use and was included in the letter by reason of a transcription error from a computer print out. The error was corrected by Dr Maynard in a letter to Dr Papaelias dated 22 July 1994. However, as Dr Maynard's original letter did no more than designate batches of HPG approved for Mrs Farrell's use the error is immaterial. Dr Maynard had made it clear that only Dr Giles could say what actual batches were administered to Mrs Farrell.

75 The effect of the evidence analysed above is that, at worst, Mrs Waugh could have been under a misapprehension as to what batches of HPG had been approved for her use between a date after 14 July when she received her Department of Health file (including Dr Maynard's letter) from Rennick Gaynor Kiddle Briggs and 21 July when Professor Giles told her what batch she had actually received and confirmed that she had not shared any HPG with any of the women who died. This conclusion is important having regard to the plaintiff's claim of ongoing psychiatric disability from June 1993 to the present time and continuing and to the fact that the psychiatric and other medical evidence upon which the plaintiff relies as establishing that claim was all given by doctors who had been incorrectly told as part of the plaintiff's history (by the plaintiff and sometimes by her ex-husband and litigation guardian Ronald Waugh) that she had received HPG from a batch or batches which had been given to women who had subsequently died of CJD.

76 Before leaving the issue of what information Mrs Farrell received and when she received it, another aspect of her case with respect to the cause of her alleged psychiatric disability needs close examination.

77 It was part of Mrs Farrell's case, as she deposed in her evidence, that shortly after her conversation with Dr Giles on 29 June 1993 she received her complete medical records from his secretary. Those records, she said, informed her that she had received HPG from a batch designated as "batch 25". The relevant notation was identified on folio 43 of that record. But the record was not, as I have already found, Mrs Farrell's medical record received from Dr Giles' secretary in mid-1993: it was her Health Department file received by her from her then solicitors in mid July 1994. And whilst it is true that folio 43 in that file does contain the notation "FSH 25", that notation has nothing whatsoever to do with any batch of HPG which Mrs Farrell received.

78 In 1993 DocImage Business Services, a business operated by the then Australian Securities Commission contracted with the Commonwealth Department of Health to convert paper files held by it into electronic format and to deliver them back to the Department as a set of CD-ROMS. The files were typical government files in cardboard file covers each relating to an individual patient. The work was to be done at the ASC office at Traralgon, Victoria to which site the files were taken in a large number of boxes accompanied by a document which detailed each box and the contents of it by reference to file numbers. This list was compiled by the Department of Health before the files were given to the ASC.

79 Anthony Joseph Smith, the Manager of DocImage Business Services, told the Court that the document upon which Mrs Farrell placed so much reliance was a photocopy of a cover sheet attached to a Health Department file by Mr Smith's organisation and that the notation "FSH 25" on folio 43 meant simply that that file was to be found in box number 25 of those boxes sent by the Health Department to the ASC for data processing. The word "Batch" followed by the numbers "57233" on the same page were explained by Mr Smith as having been put there by DocImage to denote the data processing batch to which that file belonged. It had no medical significance whatsoever. The number 76/6762 which also appeared on the page was Mrs Farrell's Health Department file number. It was the only notation on the page which had any connection with her. It identified the file as being hers.

80 Mr Smith said that the project was completed about the end of August 1993 at which time the CDs (and presumably the paper files) would have been returned to the Department of Health. Although Mr Smith did not know what the prefix "FSH" before the box number on this cover sheet referred to it is a reasonable inference that it was in fact a reference to "follicle stimulating hormone", an alternative name for HPG. Mrs Farrell's file was merely one of a large number in that series.

81 It is clear from the discussion concerning the real provenance of the file which Mrs Farrell said she got from Dr Giles that she could not have seen it before about mid July 1994 so that nothing in it could have affected any psychiatric condition she might have had before that time and, even if she did see it then and drew the conclusion which she said she did as to the meaning of the notation on folio 43, any misapprehension she was under as a result of that conclusion ought to have been dispelled within a few days, at the most, by the conversation she had with Dr Giles on 21 July 1994. Nothing in Dr Giles' note of that conversation or his evidence suggests that she mentioned the notation on folio 43 to him in that conversation although it would appear that she did refer to Dr Maynard's letter. She did so, not as having been written to her as she maintained in her evidence, but as having been written to De Papaelias, as was the fact.

82 However that may be, her conversation with Dr Giles of 21 July and the provision to the plaintiff of Dr Giles' file, which clearly confines her treatment to batch 57, immediately thereafter, ought to have put an end to any misapprehension she might have even entertained as to her having been treated with batches of HPG which were also used to treat women who died of CJD.

83 It is the plaintiff's contention to which she returned again and again in her evidence that the psychological condition from which she now claims to be suffering commenced in mid-1993. It is accordingly necessary to examine the evidence as to the medical treatment Mrs Farrell sought, the treatment she received and the activities she engaged in after mid-1993 to test her claim that since that time she has been effectively psychologically disabled. It is also necessary to examine the real cause of that disability to determine whether it is related to some act or omission for which the defendants can be made liable, in the context of determining the content of any duty of care which they owed to her.

84 The first time Mrs Farrell saw a doctor after 29 June 1993 when she had the conversation with Dr Giles was on 15 July. But that was for a pre-arranged sterilisation procedure which had nothing to do with any reaction she might have been suffering to the information Dr Giles gave her, although it is not without some little significance that "sterilisation" is the first injury pleaded in the plaintiff's Amended Statement of Claim as having been caused by the defendants' negligence!

85 The next time Mrs Farrell saw a doctor was not until 1 February 1994 when she consulted a general practitioner who had been her family doctor since 1980, Dr Louis Papaelias. On that day he treated her for a sebaceous cyst in her groin caused by an ingrown hair. Later in February she attended the same general practice and had an excision of what was described as a fibrotic lesion in her left groin. Dr Papaelias' notes on each of those occasions make no reference to CJD or to any psychological condition from which Mrs Farrell might have been suffering.

86 Mrs Farrell returned to see Dr Papaelias on 29 August 1994 and told him that she wanted to apply for an invalid pension because she had "chronic fatigue". Initially he thought she might be suffering from fibromyalgia and referred her to a Dr Mastaglia. Subsequently he referred her to an immunologist, Dr Peter Hollingsworth, at the Sir Charles Gairdner Hospital.

87 On 20 December 1994 Dr Hollingsworth reported on her chronic fatigue. He noted that this had had a gradual onset over six months during 1992. Dr Hollingsworth said that the plaintiff described herself as a ". . . perfectionist, not only in sport but also, for example, in sewing and in household maintenance and in her business". He referred to her telling him that she could not rely on employees to work properly and would usually dismiss them and do the work herself. (During the whole of the period to which Dr Hollingsworth is referring Mrs Farrell was receiving a Department of Social Security pension.) It is particularly significant, however, that Mrs Farrell told him that she had been treated with HPG batches 57 and 67 for the promotion of fertility, one of which batches was associated with Creutzfeldt-Jakob disease, and that she did so after Dr Giles had provided her with his records and told her that this was not so. In Dr Hollingworth's report the only mention of any psychological or psychiatric component in Mrs Farrell's then presenting problems was a reference to depression associated with "many great stresses and insults in her life, not made any easier by her perfectionist personality". He also referred to the death of her mother in 1992 and the absence of her estranged husband.

88 At the consultation with Mrs Farrell on 29 August 1994 Dr Papaelias prescribed a trial of Zoloft, an anti-depressant. He maintained the Zoloft at subsequent consultations in that year and on 8 November noted that she was "brighter". In January 1995 Dr Papaelias referred Mrs Farrell to Dr David Smith, a psychiatrist, although she did not actually see Dr Smith until March of that year. Dr Papaelias' referring letter to Dr Smith was in these terms:

"Would you kindly review this lady whose problem is persistent fatigue. I enclose a letter from Pip Hollingsworth who summarises her problem nicely. I felt she was depressed initially with physiological shift. She is certainly looking brighter on Zoloft 100/day but still has her symptoms. I would be grateful for your review."

89 Neither Dr Papaelias' notes nor that referring letter make any reference to any problem Mrs Farrell might have been suffering as a result of her being told of an association between her HPG treatment and CJD, although Dr Hollingworth's letter, referred to and enclosed by Dr Papaelias, does perpetuate the falsehood to Dr Smith that Mrs Farrell was treated with hormone from a particular batch that was directly associated with CJD.

90 The sole reference to CJD in the whole of Dr Papaelias' clinic's notes is in an entry on 23 February 1999 in these terms:

"Noticed probs (with) vision recently And headache High risk of CJD (indecipherable) + depressed Since she found out about it - 1995 (sic)."

91 In his evidence Dr Papaelias recalled Mrs Farrell as being concerned about contamination from CJD and that he thought it became "all consuming to a point". Although he was somewhat vague as to when she mentioned it to him, he recalled discussing the matter with her on 29 August 1994 and agreed that he told her that Dr Giles' records showed that she had not received a contaminated batch. The effect of Dr Papaelias' evidence was that he thought that on that occasion when she left his room she was "convinced that there was no problem at all". Dr Papaelias' view may be deduced from a statement he made in his letter of referral of Mrs Farrell to Dr Hollingsworth on 8 December 1994:

"In addition, she had a scare about Creutzfeldt-Jakob disease following HPG injection for infertility. However, Professor Giles assures us that her batch had been free of JC disease."

92 Dr Papaelias said his assumption as at December 1994 was that Mrs Farrell would have "gotten past that". He was referring to the CJD "scare".

93 Finally, Dr Papaelias provided a report to the Department of Social Security on 3 May 1995 in the form of answers to a questionnaire concerning Mrs Farrell in which he described his diagnoses of her medical condition as coeliac disease since childhood, chronic fatigue and secondary depression since 1992 (sic) and general musculoskeletal pain since 1994-95. He said that her work ability was limited by "easy fatigubility" (sic) and that her fatigue and depression should slowly resolve over "the next few years". She was not, in his opinion, fit for anything other than part time non-physical work. He makes no mention of CJD, but four months later Mrs Farrell played in the World Masters Squash Tournament in Melbourne.

94 Dr David Smith, who is now an old age psychiatrist practising in the United Kingdom first treated Mrs Farrell in March 1995. He continued to do so until he retired in 2000 and saw her some 164 times. Initially he diagnosed her as suffering from anxiety and depression but, as treatment progressed, he came to consider her diagnosis was predominantly one of depression. He thought it was complicated by issues of compensation and on-going court matters. He considered that there was a possibility Mrs Farrell might get better once this litigation was over, but she might not.

95 Dr Smith said that Mrs Farrell displayed symptoms of fatigue, generalised aches and pains, disturbances of mood, chronic unhappiness and anxiety, night wakefulness and a loss of enjoyment in pleasurable activities. In the early part of her treatment she developed some suicidal ideation. He accepted her history that her symptoms of fatigue first manifested themselves after she was told of the CJD risk. In fact, as Dr Hollingworth's report (which Dr Smith had access to) had noted, Mrs Farrell had told him her symptoms dated from 1992 and Dr Papaelias reported similarly to the Department of Social Security in May 1995.

96 Over the five or six years that Dr Smith treated Mrs Farrell he said that her condition fluctuated. At times her symptoms would be quite severe and she told him that she would take to her bed for a number of days. At other times she would be more active, particularly with regard to social and sporting activities.

97 In his evidence Dr Smith spoke of Mrs Farrell's difficulties with motivation from time to time. She also told Dr Smith that on two occasions she had driven her car dangerously as if engaged in some form of attempted self-harm.

98 Dr Smith recounted Mrs Farrell's history as she told it to him including her two marriages, domestic violence which she suffered at the hands of her second husband, her good general relationship with her family, her past psychiatric history around the time of her second marriage, an attempted suicide attempt in 1990 and her apparent belief, as she told Dr Smith, that she was really suffering from CJD. In particular, she told Dr Smith that her symptoms dated from the time she was told of her exposure to CJD and, consistently with what she told other treating doctors, that she had received hormone from a particular infected batch. Dr Smith said that he was not concerned to write down things like batch numbers, leading to the inference that he could not recall whether Mrs Farrell mentioned actual batch numbers to him or not. But he did have a copy of Dr Hollingworth's report which referred to batches 57 and 67.

99 Dr Smith described Mrs Farrell's belief that she had CJD as irrational. He also said at one stage that Mrs Farrell believed that she would get CJD at some time in the future. The doctor agreed that there were many matters in Mrs Farrell's history that she did not tell him but he said that history was only one factor in a psychiatric diagnosis.

100 Dr Smith said he could not recall whether Mrs Farrell had told him that Dr Giles had told her that the batch of hormones she received was not infected. He agreed that his notes of his many consultations with Mrs Farrell contained far more references to relationship problems, failed marriage problems and business issues than they did to CJD. When he was asked whether he thought it odd that a pensioner with a health card should be engaging in building development and other business activity the plaintiff had described to him he said that he had learnt "over the years" to stay away from such issues!

101 Dr Smith expressed the view that the principal cause of Mrs Farrell's depression whilst he was treating her was that she had been exposed to infection by CJD. He said he came to that view notwithstanding that he considered causation in psychiatry to be a "grey area". He thought that her depression was contributed to by certain personality traits which she displayed, notably those of a narcissistic nature. He said that people who are successful at sport often have narcissistic personality traits. In Mrs Farrell's case he considered that these traits had a great deal to do with her "business success and her sport success".

102 Dr Smith accepted that Mrs Farrell was genuine but said that he did not conduct a forensic examination. He was treating her, not qualifying himself to give evidence. I infer that Dr Smith accepted what Mrs Farrell told him at face value and conclude that he did not really concern himself with the aetiology of Mrs Farrell's problems. He was merely engaged in an ongoing support role.

103 A number of times in the course of his evidence Dr Smith referred to Mrs Farrell as being a person who did well in business and also referred to her being a squash champion. He considered that there was a certain secretiveness or guardedness about her and he thought that there were things that she may not have told him. He said that she spoke to him about her property dealing and sought his assistance with respect to difficulties she had in dealing with issues associated with it. In June 1996 he noted that she was now "... more even on Zoloft and better attitude to squash and business". He said that the plaintiff had told him that she had been very successful in operating a squash court and that she bought other courts and then sold all of them and with the profits from that sale more or less worked as a property investor.

104 In 1997 Dr Smith considered prescribing Lithium for the plaintiff but did not do so and considered that Zoloft, which was a moderate anti-depressant, would be adequate medication. At the same time the plaintiff, in her consultations with Dr Smith, mentioned difficulties she was having with a man called Michael Ryan and court cases that she was involved in associated with those difficulties. He thought that they were "exacerbating her symptoms".

105 By July 1999 Dr Smith was recording in his notes that the plaintiff was "continuing to do well". He said that she referred to a property deal she was undertaking which, so far as he could recall, related to the construction of a block of units in South Perth. She complained to him of being upset with tenants whom she regarded as dishonest.

106 When Dr Smith retired from practice in Perth he referred Mrs Farrell to another psychiatrist, Dr Obiri-Boateng. He said that at the time he stopped treating her he was not optimistic about her long term outlook but added the caveat that firm prognostication in psychiatry is always difficult and he agreed that she might get better when this litigation is completed.

107 In the course of his evidence Dr Smith referred to a report that he said he had from Dr Paul Kornan, a Melbourne psychiatrist which had been provided by the Australian Government Solicitor. He said he was assisted by that report. The report itself was never proved or tendered and Dr Kornan was not called as a witness. In the context of this case I do not consider the absence of Dr Kornan as being of any particular significance.

108 Dr Smith's evidence does no more, in my opinion than establish that the plaintiff has displayed a set of complaints to him consistent with a diagnosis of depression. However, his diagnosis must be viewed against a background of the plaintiff's gross exaggeration amounting to mendacity in the witness box what I regard as her deliberate lying on a number of important matters and the fact that since before she commenced consulting Dr Smith and during the whole of the period she did so she has been pursuing this claim which, as she knew, involved an allegation of psychiatric injury which Dr Smith could support. Dr Smith, for his part, was prepared to keep seeing Mrs Farrell regularly and prescribing a moderate anti-depressant for her without affecting any apparent long term change in her condition. He stayed away from discussing what he regarded as difficult issues with her and although he said he believed her to be honest I do not accept that he particularly turned his mind to this question during her therapy. Even if he did, his assessment was made in a therapeutic psychiatric setting where the emphasis is on treatment not the investigation of aetiology. His diagnosis of depression must also be viewed against his apparent acceptance of Mrs Farrell's capacity to engage in complex business affairs and play quite high level sport for her age consistently with that diagnosis, from which I infer that the depression described and apparently accepted by Dr Smith was a long way removed from the psychological state described by Mrs Farrell in this Court which, as she would have it believed, totally destroyed her earning capacity, her enjoyment of life, her relationships and much else besides.

109 Mrs Farrell had a strong motive to obtain support from Dr Smith for her contention that she had a psychiatric problem arising from her HPG treatment and the consequent receipt of information as to a possible connection between such treatment and CJD. This proceeding was commenced on 6 June 1994 which, according to the evidence, was before Mrs Farrell had ever consulted any medical practitioner about any psychiatric problem associated with her HPG treatment, much less a psychiatrist. Notwithstanding this fact, the injuries pleaded in her statement of claim when the proceeding was commenced were:

"Severe stress syndrome severe psychiatric reaction depression, anxiety, sleeplessness and shock."

No explanation was ever forthcoming during the trial as to how and by whom the diagnoses necessary to support this pleading were arrived at.

110 After Dr Smith retired Mrs Farrell had a short period of psychiatric treatment from a Dr Obiri-Boateng who was not called as a witness. However since 19 April 2001 her psychiatric treatment has been undertaken by Dr Nada Raich, another Perth psychiatrist.

111 The initial history which Dr Raich took from Mrs Farrell in April 2001 was similar to that given to Dr Smith although she probably complained to Dr Raich of greater physical symptoms than she had to him. These complaints involved muscle fasciculation or twitching, problems with her sight and of hair loss. Dr Raich said that she never saw signs of any of these symptoms for herself and was reliant upon Mrs Farrell's reporting of them to her. Mrs Farrell also complained of lethargy but, once again, Dr Raich conceded that she never saw any objective evidence of this.

112 Dr Raich accepted Mrs Farrell's history that her problems commenced in 1993 after she received a letter notifying her of the possible risk of developing CJD. She also appears to have accepted Mrs Farrell's complaints that she could not handle her financial affairs since that time and that she had to rely on her ex-husband, Ron Waugh, to handle all manner of business and correspondence for her. Dr Raich also noted that Mrs Farrell appeared to be "financially constrained" as she has been on a disability pension for years and that this situation was quite different to her financial situation when she was working when, as Dr Raich understood it, she was very comfortably off.

113 Dr Raich accepted that Mrs Farrell has had a restriction of physical activity since 1993 and seems to have accepted that Mrs Farrell:

" ... could not compete in tennis and squash at the lowest level because her stamina and energy are so low, and she says that her friends humour her when they play with her so that she can get some exercise and because it's good for her mental state."

114 Dr Raich said that Mrs Farrell's situation tends to fluctuate and that, at the time she was writing a report in September 2003, Mrs Farrell was suffering from severe anxiety and anger associated with court appearances.

115 Dr Raich made no mention of any other significant stresses in Mrs Farrell's life which might have caused or contributed to any depression or anxiety she might be suffering. She was content to attribute what she described as a "chronic generalised anxiety disorder and reactive depression" which Mrs Farrell was suffering to being entirely associated with her being notified that she may be at risk of developing CJD. Dr Raich considered that whatever batches of hormone Mrs Farrell had received she believed she was at great risk although the doctor was not, herself, familiar with batch numbers and the like.

116 Dr Raich accepted, in cross-examination, that from the first time she met Mrs Farrell she told her that she had received a contaminated batch of HPG from which other women had died. Dr Raich accepted Mrs Farrell's assertion and has treated her on that basis since.

117 So far as Mrs Farrell's squash ability is concerned Dr Raich was completely unaware of the extent to which Mrs Farrell had played squash since 1993 and had understood that such squash playing as she had engaged in was of a "hit and giggle" standard. Similarly she knew little or nothing of Mrs Farrell's business affairs nor of any detail of earlier failed litigation in which she had been involved in relation to a finance company of which she had been a director. Dr Raich said that, whilst she knew about a bad relationship the plaintiff had had with a Michael Ryan at a time when she was particularly vulnerable, she was unsure as to whether Mrs Farrell had told her of any pending litigation. Dr Raich conceded that she knew little of Mrs Farrell's failed second marriage other than that the end of it was very traumatic and she knew nothing of a suicide attempt in 1990 until recently.

118 Dr Raich said that at the time she took over Mrs Farrell's treatment she did not know that she was a "medico-legal case". If she had known this she said she would have taken a different history. She was seeing Mrs Farrell for support and treatment only.

119 Dr Raich, even more than Dr Smith, accepted Mrs Farrell's complaints and her attribution of her condition to her being told about the CJD risk in 1993 without any adequate examination of the large number of other matters in Mrs Farrell's history which could have played a significant part in the aetiology of any condition from which she is presently suffering. I do not accept Dr Raich's opinion that Mrs Farrell's present problems can be attributed to her having been told of a risk of CJD in 1993. This conclusion, which is based on an acceptance by Dr Raich that all of Mrs Farrell's symptoms date from July of that year, that they have precluded her from engaging in almost any activity since that time and that she had no past relevant history is unsustainable on the evidence I have heard in this Court. Dr Raich plays a supportive therapeutic role because Mrs Farrell continues to consult her. She will continue to do so until Mrs Farrell stops attending. I am satisfied that Dr Raich is little interested in the aetiology of any psychiatric condition from which Mrs Farrell is suffering and her expressions of opinion must be seen in that light as well.

120 Dr Frank Mastaglia, to whom Mrs Farrell was referred for neurological opinion, did not give evidence. However a letter which he wrote to Professor W D Reed, another of Mrs Farrell's treating doctors, dated 18 October 1993 was tendered. It refers to having seen Mrs Farrell (presumably shortly before it was written) concerning what was said to be "quite widespread aches and pains". It notes a history of recurrent miscarriages and "administration of human pituitary gonadotrophins 18 years ago". Professor Mastaglia noted that Mrs Farrell was "otherwise in good health and there is no family history of muscle disease".

121 There is no reference in Dr Mastaglia's letter to any concern Mrs Farrell had as to having contracted CJD or being exposed to the risk of doing so. There is no reference to any complaint by her of having suffered devastating psychological problems since the middle of that year as she now maintains. On the contrary, Dr Mastaglia notes that Mrs Farrell told him that she had been an outstanding athlete in the past and was still playing squash four or five days a week for periods up to an hour or so. Dr Mastaglia saw Mrs Farrell at a time, on her evidence, shortly after she had seriously contemplated (if not actually decided upon) suicide and was devastated by the news Dr Giles had given her.

122 Dr Papaelias referred Mrs Farrell to another neurologist, Professor Sasson Gubbay in March 2000. He saw her on 27 March when she complained of an episode of visual loss lasting for a few days. She told him that it began on the left side of her vision and over a few minutes it spread from the left eye to the right. She was unable to see enough to read or drive during those few days and was virtually confined to her bed. In the two months before she saw Professor Gubbay she said there had been three further attacks each lasting three or four hours. She also complained of severe hair loss over the previous six months but that this had improved with cortisone injections.

123 Mrs Farrell told Professor Gubbay that she had seen an eye specialist who had found nothing wrong with her eyes. Also, in the month before Mrs Farrell saw Professor Gubbay (and presumably whilst she was having periodic episodes of loss of vision) her solicitor had written to the Kings Park Tennis Club pointing out that she was the reigning Masters World's double squash champion and the third seeded in the world Masters ranking as a singles squash player, as well as having been appointed a director of a major subsidiary company within the Chambers Capital Growth Group. He was complaining, on Mrs Farrell's behalf, that she was not being chosen in the Kings Park Tennis Club women's squash pennants team. Within a month of seeing Professor Gubbay (between 22 and 24 April 2000 to be precise) she was runner up in a women's open squash tournament played at Esperance.

124 Professor Gubbay wrote a report dated 25 June 2002 in which he expressed the opinion that Mrs Farrell was suffering from anxiety. He wrote the report, which was addressed to Mrs Farrell's former husband, Mr Ron Waugh, in response to a 16 page fax which Mr Waugh had sent him on 24 June. That fax was never produced to the Court so the information contained in it is not in evidence. One thing, however, is clear and that is that Professor Gubbay was told, along with every other doctor who has treated or expressed an opinion in respect of Mrs Farrell since July 1994, that she received HPG from a batch or batches which had been implicated in the deaths of two other women.

125 The only neurological finding which Professor Gubbay made was that the plaintiff had benign fasciculations in her muscles which he related to anxiety. He quite properly deferred to psychiatric opinion with respect to that anxiety and was content to attribute it to the problem of which she complained; namely her exposure to drugs which had caused the death of other women. He did not explore or investigate the real cause of any anxiety she was displaying. Nor, having regard to his speciality, ought he to have done so. Professor Gubbay's opinion does not assist the plaintiff in establishing any loss or damage following her phone call with and letter from Dr Giles in mid-1993.

126 In September 2000 Mrs Farrell was investigated in the Department of Neurology at the Royal Perth Hospital. A report signed by a Dr Poh-Sien Loh, a neurology registrar, diagnosed Mrs Farrell as having a myokemia with progressive discharge of the small muscles of the right hand. He reassured her that she did not have CJD although he also laboured under the mistaken belief that "two of the batches (of HPG) she was exposed to resulted in documented deaths from CJD". Dr Poh-Sien Loh did not attribute Mrs Farrell's myokemia to any particular event and certainly did not implicate any event in 1993. In the month before Dr Poh-Sien Loh investigated Mrs Farrell's neurological status she had been runner up in the Australian Masters Squash Tournament nothing in this report assists Mrs Farrell's case.

127 It is axiomatic to Mrs Farrell's establishing any entitlement to damages that she prove that she suffered damage as a result of a breach of a duty of care owed to her by the defendants. However that duty of care is expressed and whatever be its content, unless Mrs Farrell suffered loss of a kind that was reasonably foreseeable in a general way and was causally connected to such breach she is not entitled to a judgment in her favour.

128 That the relationship between the plaintiff and each of the defendants gave rise to the imposition of duties of care upon them is beyond argument. The first defendant owes, at least, the duty of care imposed by law on a manufacturer of drugs for human consumption. The Commonwealth, in providing a therapeutic medical programme for infertile women in the discharge of its governmental responsibilities, is in a not dissimilar position to a health provider such as a public hospital which owes a duty of care to its patients. However, as is often the case in actions such as this, the exact content of each of those duties of care and whether the defendants discharged them, having regard to that content, was a matter of great debate. The resolution of those questions, had it been necessary to resolve them, would have required an extensive examination of a large body of evidence going to questions concerning the relationship between human pituitary derived hormones and CJD, the state of medical knowledge as to CJD and that relationship in the 1970's and 1980's, whether that relationship, if it existed, ought to have been known to HPAC earlier than it was, whether manufacturing processes used by the Commonwealth Serum Laboratories were adequate and many other allied questions. However, for present purposes, the question of whether Mrs Farrell has established liability for damages in the defendants can be determined without the necessity of examining the extent of each of the relevant duties of care in this case or the specific content of those duties. Nor is there any need to consider whether either or both defendants were in breach of its duty of care. Unfortunately for the plaintiff, even if it is assumed that all of these issues would have been decided in her favour, (which is by no means necessarily so) her case fails on even more fundamental issues. It fails because she has failed to prove the psychiatric illness she alleged and on issues of causation and/or foreseeability.

129 To demonstrate the fatal flaws in the plaintiff's case it is necessary, first, to set out exactly what damage, if any, the evidence establishes Mrs Farrell suffered and the manner of its occurrence. Then the foreseeability issue can be determined.

130 I am satisfied that on the evidence which I accept that the plaintiff's case of psychiatric disability between the end of June 1993 and July 1994 is not made out. It follows that her case of physical disability over this period consequent upon that psychiatric disability also fails.

131 The plaintiff's case on this aspect largely depends upon her own word which I am not prepared to accept for reasons already expressed. She sought no medical or similar treatment during the period under discussion, nor did she satisfy me that her psychiatric or physical capacity was in any way diminished or different from what it had been prior to June 1993. I am not satisfied that her sale of the Bassendean Squash Centre was necessitated by any diminution of her capacity to run it or, for that matter, to play and teach squash. Her histories to those doctors she did see after mid-1994 all refer to any problems she had such as fatigue and the like as arising before 1993. In her first conversation with Dr Giles, on 29 June 1993, she told him she had had "no energy lately" and Dr Papaelias reported a similar situation when he provided information to the Department of Social Security in 1995. Her squash playing activities after June 1993 appear to have been unchanged from what they were before. In short, the plaintiff has failed to establish any psychiatric disability which commenced after Dr Giles' conversation with her on 29 June 1993.

132 However, even if Mrs Farrell had established some diminution of her psychiatric health over this period, whether accompanied by physical impairment or not, I would not be satisfied to the requisite standard that any such diminution had anything to do with what Dr Giles told her, having regard to her psychological and psychiatric history over the years immediately preceding 1993. There is no acceptable evidence which establishes the necessary causal link on the balance of probabilities.

133 I accept Dr Giles' evidence that upon being given the news he conveyed to the plaintiff she displayed no immediate response which would even raise a suspicion that she might be subsequently psychiatrically effected nor did she take up Dr Giles' offer to assist her which he made orally on 29 June and confirmed by letter shortly after. She sought no treatment between June 1993 and July 1994 for any psychological or psychiatric problem from any other doctor although, during that period, she had treatment for other, unrelated matters. I conclude that, on no view, can Mrs Farrell succeed in her claim for damages against the defendants in respect of any injury suffered by her between June 1993 and July 1994.

134 In June 1994 Mrs Farrell commenced this proceeding. As I have already said, amongst other things she alleged in her statement of claim that she had suffered psychiatric injury as a consequence of the defendants' negligence. There is no basis in the evidence for her having done this. No diagnosis had been made by any medical practitioner at that time of any such injury and she has not satisfied me that she was in fact suffering from any such injury at that date.

135 In July 1994 Mrs Farrell received her Health Department file from her then solicitors and, although they advised her that it contained no information which supported a suggestion that she had received HPG from the same batch as any of the women who died of CJD, she adopted a position that she had received HPG from such a batch. Of course she claimed in her evidence that she had "known" of this fact since she got her records from Dr Giles which she, erroneously, claimed to have received a year earlier. She seized on batch 67 as being the infected batch which she received because it was mentioned in Dr Maynard's letter to Dr Papaelias of 13 May 1994. At some point, which must have been about the same time (and could not have been earlier although she maintains it was), she misinterpreted an innocent filing system notation on another copy document in the Health Department file as demonstrating that she had received HPG from batch 25, a batch which Dr Maynard's letter said had also been received by a woman who died. Despite Dr Giles telling her on 21 July that she had received only batch 57 - a batch not implicated in the death of any woman - and giving her a full copy of his notes which recorded that fact, she and her ex-husband persistently maintained subsequently that she had received HPG from a batch or batches of hormone which had also been given to women who died of CJD. She refused to accept Dr Giles' notes as being true or that what he told her excluded her from exposure to those batches which had been used to treat women who died.

136 The only difference on the evidence between Mrs Farrell's psychiatric health after July 1994 and her psychiatric health between June 1993 and that date is that in August 1994 she claimed to be depressed and was given Zoloft by Dr Papaelias and in March of the following year she commenced her regular visits to Dr Smith, the psychiatrist. The situation was much the same with regard to her physical health: investigations were either negative or inconclusive. However her squash playing seemed to continue unabated and included a trip to England in 1999 to compete in the World Masters Championship as well as well as regular trips interstate and to country Western Australia over the whole period for similar tournaments. It can be inferred that between competing in tournaments Mrs Farrell must have maintained her capacity to compete by regular training. Further she has engaged in an indeterminate number of business activities over the years since 1994 which have included becoming a director of a finance company, acting as a director of other companies, engaging in real estate transactions and property development, letting real estate and, on at least one occasion, representing herself in a protracted tenancy dispute before a tribunal. Closer to the present time she has vividly demonstrated her squash playing capacity and is apparently still intent on playing pennant squash with her squash club.

137 The plaintiff's case is almost totally uncorroborated. Taking the whole of the evidence in this case into account, whilst it is possible that the plaintiff has been suffering from some psychiatric condition intermittently since 1994 it is equally possible that her complaints of psychiatric disability and its physical consequences have been feigned, either for financial gain or some other more obscure motive. Thus, the plaintiff has failed to establish an essential element in any cause of action which she claims to have against either defendant, namely damage flowing from a breach of a duty of care.

138 Even if, contrary to my finding, Mrs Farrell did suffer some psychiatric condition after mid-1994 or, for that matter, at some later time, it is clear that any such condition is and always has been considerably less severe than Mrs Farrell would have the Court believe. Even if Dr Smith's diagnosis is accepted it, itself, acknowledges a considerable residual capacity in the plaintiff not only for playing squash but also for engaging in business activities. On no basis does it support anything approaching a total loss of earning capacity or total disability in other respects as the plaintiff claims.

139 But even more importantly, even if (contrary to my finding) the plaintiff did have some psychiatric disability which has afflicted her at any time since mid-1994 then such psychiatric condition has been caused, not by her being merely told that HPG treatment has been associated with CJD. If that had been the cause of the psychiatric illness she would have suffered that illness in 1993 which I am satisfied she did not.

140 Assuming that the plaintiff has suffered from a genuine psychiatric condition for the whole or part of the period between mid-1994 and the time of trial, I am satisfied that such psychiatric condition was caused, in the legal sense, by her fixed belief (if that belief was honest) that she was treated with HPG between 1976 and 1978 which had come from one or, perhaps, two batches of HPG which had also been used to treat women who died of CJD. In turn, that belief was engendered by one or more of the following circumstances:-

* Her refusal to accept Dr Giles' assurance that she had only been treated with batch 57, a batch with which no one who contracted CJD and died was also treated; and/or

* Her misreading of Dr Maynard's letter of 13 May 1994 as informing her that she was treated with batches 57 and 67, the latter of which was also used to treat a woman who died; and/or

* Her misinterpretation of the file cover at folio 43 of her Health Department file as meaning that she had been treated with batch 25, another batch which, Dr Maynard said, had been used to treat a woman who died.

Perhaps there could be added to these factors the failure of the plaintiff to make appropriate enquiries of Dr Giles or, for that matter, the Health Department with respect to the notation on folio 43 of her Health Department file although, it could be confidently predicted because of her refusal to believe Dr Giles in respect of her treatment with batch 57 that she would not have believed him or the Health Department in respect of this matter had she made inquiries and received the explanation given by the ASIC officer to this Court.

141 The issue of causation in negligence is established in a plaintiff's favour if the defendants' breach of a relevant duty of care is a cause of the plaintiff's injury.[10] In other words, was the defendant's culpable conduct a causally relevant factor? To determine this question it is necessary to decide whether the intervention of the factors to which I have referred above were sufficiently important to the question of causation to render any prior negligence in the defendants no longer relevant. Do those factors constitute either individually or in combination constitute what might be called a novus actus interveniens or an intervening new act?

142 Where an intervening cause can fairly be considered a not abnormal incident of the risk created by the defendants' breach of duty its existence would not normally deprive that breach of duty of its causal effect in respect of the plaintiff's injury.[11] However, in this case the plaintiff's unreasonable response to information given to her so far overshadowed any breach of duty on the part of one or other or both of the defendants that it rendered such breach of duty no longer a cause of any psychiatric condition from which she might have suffered after mid-1994. As a matter of common sense her unreasonable belief concerning the HPG given to her was the sole effective cause of such psychiatric condition.[12]

143 Mrs Farrell suffered no psychiatric injury before July 1994. I believe she has suffered no psychiatric injury since that time but even if she had, the only event which occurred after Dr Giles wrote his letter to her on 1 July 1993 which could have been a cause of that injury was the formation of her fixed, erroneous belief that she had been treated with HPG from batches which had also been used to treat women who had died from CJD. As this belief was not engendered by any act on the part of either of the defendants but rather by the plaintiff's unreasonable refusal to accept what she was told by the only person in a position to tell her definitively the number of the batch of HPG with which she was treated, namely Dr Giles. Thus, any claim she might have had in respect of any psychiatric injury from which she suffered after July 1994 fails because it was not caused by any breach of duty of either of the defendants.

144 Finally, it is necessary briefly to consider the issue of foreseeability. Even if it could be said that a breach of duty by one or other or both of the defendants was a cause of any psychiatric condition from which the plaintiff suffered after July 1994 such condition would only be compensable in damages if it was reasonably foreseeable in a general way that as a result of the defendants' breach of duty the plaintiff might suffer injury of the kind and in the general way that she did: Chapman v Hearse.[13]

145 It might be reasonably foreseeable that there was a risk that someone might suffer injury of a psychiatric nature if she was told that others who had received similar drug treatment to her had died of a disease thought to be caused by contamination of that drug. But that is not what happened here. Had Mrs Farrell's psychiatric deterioration followed her conversation with Dr Giles in June 1993 or his immediately subsequent letter, the question of foreseeability may well have been answered favourably to her but, as I have already determined, Mrs Farrell suffered no psychiatric injury in 1993 or subsequently as a result of what Dr Giles told her. If she suffered any such injury (which I do not accept she did) she did so after mid-1994 and because of her erroneous belief as to the batches of HPG with which she was treated. For the foreseeability issue with respect to such a psychiatric condition to be determined in her favour it would be necessary for it to be reasonably foreseeable by a person in the position of the defendants that their breach of duty in failing to give allegedly appropriate information to the plaintiff about HPG would create a risk that she would embrace a false belief as to what happened to her with the consequence that she suffered a psychiatric injury. The risk of that occurring is "far fetched and fanciful"; Wyong Shire Council v Shirt.[14] It was not, accordingly, a foreseeable risk for which the defendants could be made liable. The boundary of any liability which could be attributed to them is drawn short of such a fantastic scenario.

146 Mrs Farrell did not establish on the trial of this proceeding that she suffered any injury as a result of any breach of duty on the part of either or both of the defendants. They are entitled to judgment.

[1] Human pituitary gonadotropin is sometimes abbreviated to hPG and sometimes referred to as follicle stimulating hormone or FSH or human pituitary follicle stimulating hormone or HPFSH.

[8] The trial of this proceeding commenced on 29 April 2003 but was adjourned on 15 May on the application of the plaintiff's solicitor who was then appearing for her. As it could not resume until 29 September, Dr Giles' convenience was accommodated, by consent of the parties, by taking his evidence de bene esse in Melbourne on 20 May 2003.

[9] This letter was dated 13 May 1994. It was marked as Exhibit E on the trial and erroneously noted in the transcript as having been dated 3 March 1994.

[10] See McLean v Bell (1932) 147 L.T. 262.

[11] For example Caterson v Commissioner for Railways [1973] HCA 12; (1973) 128 CLR 99; Sayers v Harlow UDC [1958] 1 WLR 623; Colvilles Ltd v Devine [1969] UKHL 11; [1969] 2 All ER 53.

[12] March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 528.

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Cases Cited (9)