Fenton v AIA Australia Ltd [2017] VSCA 331

Fenton v AIA Australia Ltd [2017] VSCA 331 - VSCA 2017 case summary — Zoe

[37]

(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'.

[60]

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.

[91]

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]

[125]

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]

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Cases Cited (7)