Fenton v AIA Australia Ltd [2017] VSCA 331

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

Resourcing

Financials - analyse and provide information to finance managers

Project planning and tracking.

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

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

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

December '09, NAB, Charles B Thompson, Head of Organisational Integration - Technology. Charles wanted me to start ASAP but given the situation is hoping I can commence on 4 January 2010.

We are currently in discussions because Charles is aware of my illness and knows that myself or a doctor cannot predict when I will be able to commence working again.

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

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

Very poor health with only approximately 15 per cent of days in month being 'good'.

I cannot commit to any position as I am unable to know when I'll be well and for how long.

Unpredictable illness - nausea, weakness, dizzy, light-headed, poor concentration, severe pain behind right eye.

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

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

Question: What were your daily activities during this period (whilst you were not working)?

Answer: Very little as I have been very unwell.

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

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

Solely due to Injury or Sickness, the plaintiff [applicant] as life insured from 7 September 2014 to date and continuing, was:

(a) unable to perform one or more duties of her occupation, that was important or essential to producing income;

(b) under the regular care of, and following the advice of, a Medical Practitioner; and

(c) not working (whether paid or unpaid).

PARTICULARS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Between 22 April 2010 and 4 May 2010, the applicant travelled to the Solomon Islands to visit a friend.

(b) Between 29 July 2010 and 31 August 2010, the applicant travelled to Switzerland, Northern Italy and Spain. The applicant attended a friend's wedding in Switzerland. The applicant gave evidence that she had five 'good days' out of the 30 or so days she was in Europe. On one day she felt good enough to climb a mountain.

(c) Between 7 October 2010 and 21 October 2010, the applicant travelled to Tonga to visit friends and relax.

(d) Between 14 February 2011 and 24 February 2011, the applicant again travelled to Tonga. The applicant gave evidence that her health fluctuated during this travel.

(e) On 3 March 2011, the applicant travelled to Los Angeles. She went on to visit New York for a couple of weeks. The applicant gave evidence that she experienced fluctuating symptoms during this trip.

(f) Between 1 July 2011 and 5 July 2011, the applicant travelled to Sydney.

(g) Between 3 March 2012 and 16 March 2012, the applicant travelled to Thailand and to Singapore. The trip to Thailand included bus travel and boat travel between islands.

(h) Between 22 May 2012 and 21 June 2012, the applicant travelled to Los Angeles, San Francisco, New York and Mexico. On this trip, the applicant attended a friend's wedding in the mountains of Mexico City and hired mini buses with friends.

(i) Between 8 August 2012 and 16 August 2012, the applicant travelled to New Caledonia.

(j) Between 28 August 2012 and 15 September 2012, the applicant travelled to Tonga.

(k) Between 22 April 2013 and 28 May 2013, the applicant travelled to Tonga.

(l) Between 28 April 2014 and 23 May 2014, the applicant travelled to New York for two to three weeks. The applicant stayed on 52nd Street, Mid Town. She visited the Staten Island ferry area and walked to Wall Street and the Freedom Tower. The applicant also saw the Statue of Liberty. In the course of her evidence about this trip, the applicant agreed that travelling is 'naturally exhausting'.

(m) In February 2015, the applicant travelled with family to Perth. The applicant was, however, unable to participate in trips to Rottnest Island and Margaret River because of her symptoms.

(n) Between 18 July 2015 and 11 August 2015, the applicant travelled to New York.

(o) In September 2015, the applicant travelled to Noosa for a friend's 40th birthday. She also went to the Gold Coast twice.[5]

(p) On 15 January 2016, the applicant travelled to the Gold Coast.

(q) Between 10 June 2016 and 20 July 2016, the applicant travelled to Singapore, Italy, Paris and Spain. While in Italy, the applicant attended a wedding. The applicant gave evidence that she had to rest a lot so that she had enough stamina to attend the wedding. The applicant gave evidence that, while in Paris, she was completely exhausted.

(r) In January 2017, the applicant travelled to Byron Bay. She gave evidence that she hired a surfboard but when she attempted to surf it was 'too strenuous'.

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

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

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

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

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

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

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

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

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

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

So here's the thing, she still has neurological symptoms and still has hot/cold reversal on the hands and things. ... She reports that ... . Now, at the end of the day, you get to know your patients pretty well and you get to - I have seen her many times. You get to know them and I think you can tell whether someone is malingering or not. I don't believe she is malingering and I think this is a real illness that she's got that's been going on now for seven years and four months. Now, we can argue about whether the ciguatera toxin is still in her body or not but she does still have symptoms. Unfortunately, there are no tests available. Even nerve conduction studies do not pick up hot/cold reversal fibres, so that is well recognised that the nerve conduction in ciguatera patients does not pick up the hot/cold reversal fibres. We have no way of detecting those fibres on nerve conduction studies in Australia. So it is a clinical diagnosis and it all comes down to clinical acumen. The treatment for chronic fatigue with patients after ciguatera is pretty much what we're doing with her with amitriptyline and regular hydrotherapy, and at the end of the day it is what the patient tells you, what you believe.

...

So [it is Associate Professor Ruff's assessment] that it [ciguatera] is not a perpetuating factor. I still think that she has - she's still not well after seven years. She still has hot/cold reversal on her hands and still has the same sort of symptomology that fluctuates as it did in year 1 and year 2, she's still not got the energy levels to get back to full-time work and so I still think she still has symptoms attributable to ciguatera toxin and chronic fatigue has developed; that's what I think so I'm not changing my tune in any way.

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

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

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

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

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

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

...

She did describe that warm water under a shower had a scorching sensation but that this had only developed this year [2015].

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

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

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

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

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

58 He further elaborated the basis of his opinion as follows:

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

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

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

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

At this stage, I believe Ms Fenton has the capacity for work. As suggested earlier by Dr Stevenson, commencing part-time and graduating to full-time work would be a sensible approach, noting the totality of the situation and the duration of time Ms Fenton has been off work.

A range of everyday administrative tasks would be a sensible approach. I have read the Employability Assessment and broadly agree with the conclusions drawn.

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

Ms Fenton reports her day to day activities as highly variable. She described herself in fact as frequently bed bound. When I asked the simple question of how many days or weeks very approximately over the last year she was bed-bound, she objected this was an unfair question which could not possibly be asked or understood by anyone who had not personally experienced chronic ciguatera poisoning. However, she then described herself in fact as bed-bound for periods up to three months or often unable to do anything for twelve days. This is clearly without medical explanation and inconsistent with the medical literature.

...

A graduated return to work is neither necessary nor helpful. It would only justify the incorrect assumption that she still suffers from a physical condition from which she requires rehabilitation. Ms Fenton is a pleasant lady but she has no physical disease.

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

Amanda was a project officer with a bank and has life-long income protection.

Amanda has provided me with a list of her symptoms which I will have scanned into the system. They are many and variable. However, despite what read as severe and disabling physical and mental symptoms, Amanda tells me that she feels good, is happy with her life, and is positive about being single. She says she doesn't miss work nor socialising. She still manages to travel regularly and has recently been to Mexico, Noumea, Thailand and Tonga.

My impression here today is that we have very little to offer Amanda. She has ongoing physiotherapy, has had psychological review, and currently has what she feels is a good life.

...

I have asked her to consider whether a stimulant medication would add to her quality of life and if she felt it would and it was not contraindicated, then I would be happy to see her again here in this clinic and discuss institution of that therapy.

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

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

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

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

Medically, she appears to meet the criteria for chronic fatigue syndrome/SEID, but her levels of reported activity are not consistent. Consistency is important in this condition when determining level of disability. There is no medical condition that will be worsened by a return to activity and work. In fact, structured activity is considered treatment for chronic fatigue and a return to work would benefit (as it is structured activity), also there are significant health benefits of work and health risk of long term worklessness.

...

Ms Fenton reports her condition has a variable impact on her daily functioning; some days she is very active while other days she reports being bed-bound and feeling short of breath from moving in the bed.

Her reported level of symptoms and activity are not consistent, however, and given the lack of any objective sign of impairment, they should not be relied upon when assessing work capacity.

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

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

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

68 The judge commenced her reasons for judgment with a description of the background to the proceeding. Having set out the critical terms of the policy,[10] the judge identified the issues to be determined as:

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

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

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

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

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

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

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

In essence, counsel for the plaintiff submitted that there should be judgment for the plaintiff on the basis that:

• The plaintiff is an honest, straightforward and credible witness;
• The evidence of Dr Fuller, that the plaintiff still suffered from ciguatera poisoning, should be preferred as the treating practitioner compared to Associate Professor Ruff, who saw the plaintiff on one occasion and who is not a practising clinician; and
• Associate Professor Ruff acknowledged the plaintiff was suffering from a 'continuing illness' based on chronic fatigue, which is an established symptom of ciguatera poisoning.

Counsel for the defendant directed the Court's attention to the following issues:

• The plaintiff was not a convincing witness, particularly given her extensive overseas travel and ability to engage in social activities that flies directly in the face of her complained level of functioning;
• Associate Professor Ruff's evidence, that the plaintiff is no longer infected with ciguatera, should be preferred to Dr Fuller, as he has the eminent and superior qualifications;
• By 6 September 2015, the plaintiff was not Totally Disabled or Partially Disabled because she was able to work in her occupation at full capacity based on the defendant's medical evidence; and
• The plaintiff did not have an inability to work solely due to ciguatera as there were numerous other factors including prioritising other

• areas of her life, lack of motivation to return to work and playing the 'sick role'.[15]

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

Associate Professor Ruff gave evidence in a straightforward manner and made appropriate concessions. He impressed me as an articulate, intelligent and knowledgeable witness who was objective. Whilst he does not currently regularly practice, he is an Associate Professor with the University of Melbourne and an international medical advisor with the Australian Red Cross. Associate Professor Ruff made a major scientific contribution in relation to ciguatera, he is a published author on the topic and is regarded as the pre-eminent expert on the illness in Australia.

Counsel for the plaintiff said that the Court should prefer the evidence of Dr Fuller as the primary treating doctor since November 2009, who has seen the plaintiff on approximately fifty to sixty occasions compared to Associate Professor Ruff, who saw the plaintiff once for a one-hour examination.[17] Further, that Dr Fuller is an infectious disease physician who has practiced for twenty-five years.

The credit of Dr Fuller was called into question to an extent by counsel for the defendant. He appeared to be sympathetic to the plaintiff as his long-term patient and as someone who had her best interests at heart. As Dr Fuller's evidence in cross-examination continued in Court, he appeared to become defensive and less convinced of his diagnosis in light of reading Associate Professor Ruff's report. Nonetheless, I accept he was a conscientious and skilled doctor who referred the plaintiff to other specialties for assessment to ensure he did not miss any diagnoses. Ultimately, Dr Fuller said the plaintiff was suffering ciguatera induced chronic fatigue. Associate Professor Ruff accepted the plaintiff was unwell and diagnosed chronic fatigue.

Significantly, in cross-examination, Dr Fuller acknowledged that Associate Professor Ruff had more expertise in ciguatera poisoning than he did himself. Further, that Associate Professor Ruff was the most expert person on ciguatera poisoning in Australia.

In considering the whole of the evidence, I am inclined to rely upon the evidence of Associate Professor Ruff where it conflicts with Dr Fuller. This is due to the fact Dr Fuller acknowledged Associate Professor Ruff's expertise in ciguatera poisoning was greater than his own, that Associate Professor Ruff is the Australian expert in ciguatera poisoning and that he provided an objective and well-reasoned report, which was consistent with Dr Stevenson's assessment.

Accordingly, based on Associate Professor Ruff's opinion, I accept that the plaintiff did not suffer from ciguatera poisoning as at 10 July 2015.[18]

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

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

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

(a) the judge erred generally in rejecting the applicant's evidence;

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

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

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

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

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

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

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

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

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

'Sickness': what was the applicant's case at trial?

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

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

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

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

Going back to paragraph 18, in my respectful submission your Honour ought to find that the plaintiff suffered a sickness within the meaning of the contract after the commencement date of the contract ... in that the plaintiff suffered from ciguatera poisoning having eaten fish in Cuba in October 2009.

...

We submit, and your Honour ought find, ... that solely due to the sickness, that is the ciguatera poisoning, the plaintiff was and is ... unable to perform one or more duties of her occupation as a project manager that is important or essential in producing income ... .[25]

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

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

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

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

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

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

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

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

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

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

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

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

The resolution of the application for leave to appeal

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

On appeal, the Court is required to undertake a 'real review' of the evidence in respect of the findings made by the judge, and the reasons for the judge's conclusions. Where the finding, that is under review, depended on the acceptance or rejection by the trial judge of the evidence of a particular witness or witnesses, the appellate court should only set aside that finding if, after making due allowance for the advantages enjoyed by the trial judge, that finding is 'glaringly improbable' or 'contrary to compelling inferences'. On the other hand, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are undisputed, or which have been established by the evidence. In deciding the proper inference to be drawn, the appellate court should, however, give respect and weight to the conclusion of the judge, but, having reached its own conclusion, it must give effect to it.

In applying those principles, however, it is important to bear in mind that there is a necessary interrelationship between the finding of a particular primary fact or facts, and the drawing of a conclusion or inference. That relationship was described by this Court in Box Hill Institute of TAFE v Johnson in the following terms:

... while an inference is a conclusion based on established facts, nevertheless the interplay between the finding of a particular fact or facts, and the drawing of a conclusion, is not entirely discrete. The drawing of an inference, or reaching of a conclusion, is necessarily affected by precisely how and for what reasons a judge may have accepted, or rejected, a particular piece of evidence which is important to the drawing of that inference or conclusion. Secondly, in a civil proceeding, a judge may only draw an inference or reach a conclusion in favour of a party on whom the onus of proof lies, if that inference or conclusion is the more probable inference or conclusion available on the facts of which the judge is satisfied. The question whether an inference is more probable than another may be affected by the judge's view of particular facts relied on in support of any competing inference, or of facts relied on to contradict the inference ultimately formed by the judge.[32]

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

91 The credibility and reliability of the applicant's evidence was of critical importance in the applicant's case. In that regard, there are parallels between the facts of the applicant's case and the facts in Whisprun.[34] As in Whisprun, the medical opinions given in evidence at the present trial were also premised on an acceptance of the applicant's complaints from time to time and upon her evidence.

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

93 In our view, the judge was entitled to prefer Associate Professor Ruff's evidence on whether ciguatera poisoning was still a cause of any illness, for the reasons given by Associate Professor Ruff. Associate Professor Ruff, it is to be remembered, gave evidence that 'close to six years after illness onset, with no trend for improvement, extreme fluctuations in symptomology over a time course of hours and days and lack of specific precipitants associated with ciguatera' made it 'implausible' to attribute the applicant's continuing illness to ciguatera. The judge did not simply accept Associate Professor Ruff's opinion ipse dixit.[36] Her Honour considered his reasoning and its basis. She concluded that Associate Professor Ruff's opinion was objective, well-reasoned and consistent with that of Dr Stevenson. Having conducted a full review of the evidence for ourselves, we would have come to the same conclusion as the trial judge about the preference for Associate Professor Ruff's evidence and that after 10 July 2015 the applicant did not suffer from ciguatera poisoning.[37]

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

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

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

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

[1] Fenton v AIA Australia Ltd [2017] VCC 438 ('Reasons').

[2] In evidence, the applicant said that this 'light/heavy' feeling was difficult to explain. The feeling related to her arms. The applicant gave an example of raising a spoon. When she did so, her arm would feel 'very heavy, weighed down', but the inside would feel 'light, as in there was no strength inside'.

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

[6] Reasons [74]-[81], [102]-[106].

[9] Letter from the respondent to the applicant dated 26 August 2015.

[10] At Reasons [11], the definition of 'sickness' incorrectly contains the definite article immediately before the word 'illness'. A similar error was made in the applicant's written outline of closing submissions. Whether this was a mere typographical error, or whether the judge was led into error by one of the parties is unknown. In any event, for reasons that will appear, the incorrect insertion of the definite article in the definition set out by the judge is of little moment.

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

[21] See s 14C of the Supreme Court Act 1986.

[22] [2003] HCA 48; (2003) 77 ALJR 1598, 1609 [60] ('Whisprun').

[28] See [63] above.

[29] [2003] HCA 48; (2003) 77 ALJR 1598.

[30] Ibid 1608 [51]. See further, McMahon v National Foods Milk Ltd [2009] VSCA 153; (2009) 25 VR 251, 268-9 [25]; Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181 [64]; Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd [2017] VSCA 326.

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

[34] See, in particular, Whisprun [2003] HCA 48; (2003) 77 ALJR 1598, 1609 [60]. As to the importance of a plaintiff's evidence where personal injuries are in question, see also Mobilio v Baliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Gjorgovska v AFM Cleaning Services [2006] VSCA 104 [27]; Veljanovska v Verduci [2014] VSCA 15; (2014) 42 VR 222, 231-2 [39]-[40].

[36] Cf Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34, 39-40 (Lord President Cooper), cited with approval by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 729-30 [59].

[38] See s 14C of the Supreme Court Act 1986.