Dixon v Whisprun Pty Ltd

The appeal concerned a workers compensation claim brought by the plaintiff, Mr Dixon, against his employer, Whisprun Pty Ltd. Mr Dixon alleged he had suffered a personal injury resulting in ongoing illness. The primary dispute revolved around the severity of his illness and the extent of the damage caused, and whether these aspects of his claim had been adequately considered by the trial judge.

The Court of Appeal was required to determine whether a substantial wrong or miscarriage of justice had occurred at the trial, pursuant to rule 23 of Part 51 of the *Supreme Court Rules 1970* (NSW). This involved assessing the effect of the plaintiff's credibility and his own evidence on the factual findings regarding his ongoing illness, as well as the impact of the medical opinion evidence and other adduced evidence on those same factual findings.

The Court found that the trial judge had failed to adequately consider the plaintiff's evidence and the medical opinion evidence in relation to the ongoing nature and severity of his illness. The Court held that this failure constituted a substantial wrong or miscarriage of justice. Consequently, the Court of Appeal ordered a new trial.