Whisprun Pty Ltd v Dixon - [2003] HCA 48

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJ
WHISPRUN PTY LIMITED (Formerly   APPELLANT
Northwest Exports Pty Limited)
AND
SONYA LEA DIXON  RESPONDENT
Whisprun Pty Ltd v Dixon
[2003] HCA 48
3 September 2003
S216/2002
ORDER
1.   Appeal allowed with costs.
2.   Set aside the orders of the Court of Appeal of New South Wales made on 28 September 2001 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with S E Pritchard for the appellant (instructed by Hicksons Lawyers)
D F Jackson QC with K J Ryan for the respondent (instructed by Walker Kissane & Plummer)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Whisprun Pty Ltd v Dixon
Negligence – Damage – Respondent contracted Q fever while working in an abattoir – Whether respondent suffered chronic fatigue syndrome.
Appeal – Issue not raised at trial – Case on which respondent succeeded on appeal was not argued by respondent at trial or on appeal – Whether respondent should succeed on the basis of a new case on appeal.
Appeal – Powers of appellate court – Whether trial judge had properly considered the respondent's case – Whether there was objective evidence that respondent suffered chronic fatigue syndrome – Whether respondent's case depended entirely upon the credibility of her account of subjective symptoms.
Evidence – Medical reports – Whether medical reports had independent evidentiary value – Whether evidentiary value of medical reports depended on the respondent's credibility – Whether trial judge erred in not considering medical reports as independent evidence that the respondent suffered from chronic fatigue syndrome.
Workers Compensation Act 1987 (NSW), s 151G.
Supreme Court Act 1970 (NSW), s 75A.

GLEESON CJ, McHUGH AND GUMMOW JJ. This case is concerned with facts and the forensic tactics of the parties at trial and an appellate court's perception of them. Special leave to appeal was granted to determine whether a miscarriage of justice had occurred in the particular circumstances of the case and not because the case concerned any important principle of law.
The trial judge had dismissed the respondent's action for damages on the ground that her credibility was such that he was not satisfied that she suffered from chronic fatigue syndrome, the condition from which she claimed to suffer. The Court of Appeal of New South Wales set aside the judgment because it appeared to that Court that the trial judge had not satisfactorily considered the respondent's case. So the question for this Court is whether the Court of Appeal erred in holding that the trial judge had not properly considered the respondent's case. That, of course, depends on what the respondent's case was at the trial, not on a hypothetical construction of what could or should have been the respondent's case.
Despite its lack of legal significance, the appeal is a fascinating one. It illustrates how an appellate court can perceive a case in a way dramatically different from the case that was run at the trial. And it demonstrates how, when it is so perceived, the trial judge's reasons may not deal adequately with the reconstructed case and appear to have done less than justice to the losing party's case.
In arguing the present respondent's case in the Court of Appeal, Mr D F Jackson QC – who had not appeared at the trial – contended that a substantial miscarriage of justice would have occurred if "the evidence was there" and the judge in writing his judgment "overlooked relevant parts of it". In substance, the Court of Appeal adopted this submission. But the evidence that that Court saw as "overlooked" was different from the evidence that Mr Jackson argued had been "overlooked" by the trial judge. He was speaking of evidence concerning infection. The Court of Appeal's reasons deal with "evidence" concerning chronic fatigue syndrome. At the trial, the parties treated this "overlooked" evidence concerning chronic fatigue syndrome as having no relevant evidentiary value unless the trial judge substantially accepted the respondent's evidence as to her condition. Because that is so, the trial judge did not overlook "relevant parts" of the evidence, and there was no miscarriage of justice. Moreover, even if the "overlooked" evidence had relevant evidentiary value independently of the respondent's credibility, we are not convinced that it was sufficient to overcome the effect of the various matters that the trial judge used to make his finding concerning her credibility. Accordingly, this appeal must be allowed.
Statement of the case
Sonya Lea Dixon, the respondent, sued Whisprun Pty Ltd ("Whisprun") for damages in the Supreme Court of New South Wales claiming that it had breached the duty of care that it owed to her as her employer. She claimed that this breach had caused her to contract Q fever infection and that she now suffered from chronic fatigue syndrome as a consequence of the infection. Whisprun admitted that it had breached the duty of care owed to her and conceded that she had contracted Q fever infection. But it denied that she suffered from chronic fatigue syndrome. The case was tried by Newman J without a jury. His Honour rejected Ms Dixon's claim of chronic fatigue syndrome with the result that the damages he awarded to her for non-economic loss were lower than the minimum set by s 151G of the Workers Compensation Act 1987 (NSW). Because that was so, he was required to enter judgment in the action for Whisprun.
The Court of Appeal (Beazley and Heydon JJA and Davies AJA) allowed an appeal by Ms Dixon against that judgment. Acting under the power conferred by Pt 51 r 23 of the Supreme Court Rules 1970 (NSW), it ordered a new trial of the action. It did so on the ground that "it appears that some substantial wrong or miscarriage [of justice] has taken place in that the plaintiff's claim has not been properly considered." The Court of Appeal held that the trial judge had not given any weight to material in medical reports that were tendered in evidence.
Issues
The appeal gives rise to a number of related issues:
(1)Did the parties conduct the trial on the basis that, so far as chronic fatigue syndrome was concerned, the evidentiary value of the medical reports depended entirely on the judge accepting Ms Dixon's evidence? In other words, did the medical reports have evidentiary value on the chronic fatigue syndrome issue irrespective of what view the judge took of Ms Dixon's credibility?
(2)If the parties conducted the trial on the basis that the truth or validity of the statements and opinions in the medical reports depended on the trial judge accepting Ms Dixon's evidence, did the judge err in not considering whether the material in the medical reports assisted Ms Dixon's case?
(3)If the reports had independent evidentiary value, did they contain evidence of "objective symptoms" that should or could have induced the trial judge to find that Ms Dixon suffered from chronic fatigue syndrome?
The material facts
In April 1994, Ms Dixon contracted Q fever in the course of her employment with Whisprun at an abattoir at Inverell in New South Wales. By July 1994, symptoms of the fever had developed and she was diagnosed in that month as having Q fever after undergoing pathological tests. Q fever is an infectious disease that is prevalent in animals and can be transmitted to humans. Its symptoms are similar to influenza. Infection usually has an acute phase that can evolve into a chronic infection that may be demonstrated serologically, that is, by blood tests. There is a 10-20 percent chance that a sufferer from Q fever may also develop chronic fatigue syndrome. The distinction between chronic Q fever infection and chronic fatigue syndrome that may exist after chronic Q fever infection no longer exists is of great importance in this case. Whether or not chronic fatigue syndrome exists cannot be proved or disproved by an objective test. A diagnosis of the syndrome must rely on statements by the patient as to subjective symptoms.
Serological tests carried out in February 1995 indicated that, although Ms Dixon had had an acute episode of Q fever, she did not have chronic Q fever infection at that time. Nevertheless, she claimed that, even if the acute period of infection had ended by February 1995, she suffered chronic fatigue syndrome, as a consequence of the infection, for an extended period (at least up until the trial in August 2000).
Between 1994 and 2000, Ms Dixon saw many medical practitioners. She gave a consistent history of suffering from headaches, aches and pains, nausea and fatigue.
The approach of the trial judge
The trial judge accepted Whisprun's contention that the initial Q fever infection did not cause any symptoms after February 1995. His Honour held that Ms Dixon had recovered from Q fever by February 1995. He was not satisfied that thereafter she suffered from chronic fatigue syndrome as the result of her Q fever infection. Newman J said:
"When examined in chief, the plaintiff gave evidence which was consistent with the history of continuing symptoms which she had given to medical practitioners. Because the continuing symptoms are entirely subjective the only issue which arose in the case was whether the plaintiff's account of her continuing symptoms was credible. In other words has the plaintiff established on [the] balance of probabilities that she has had the symptoms of which she has complained?"
In his judgment, Newman J set out many inconsistencies between Ms Dixon's account of what she could and did do and what other evidence showed that she did do. This evidence showed her walking briskly around Sydney, attending race meetings, watching her daughter ride horses, riding a horse herself, driving cars and horse floats, riding on a jet ski and drinking and dancing at a wedding. The learned trial judge also took into account Ms Dixon's evidence that her relationship with Mr Cross, the father of her daughter, had broken up owing to her mood swings and that she told some of the doctors they were still together. His Honour concluded that "the matters raised in cross-examination with the plaintiff and her responses to them effectively destroyed her credibility." Because the existence of her symptoms depended on Ms Dixon's credibility, his Honour was not satisfied that she suffered from post Q fever chronic fatigue syndrome.
Having read the whole of Ms Dixon's evidence, we are not surprised that his Honour made the findings that he did in respect of her credibility. Indeed, as is so often the case, his Honour's summary of her evidence and his findings do not convey the full picture of her lack of credibility, a picture that can only be obtained from reading the whole of her evidence. By the time her lengthy cross-examination had finished, the picture of her state of health to which she had deposed in evidence-in-chief had been destroyed. She may well be sick – but it is certain that her illness does not affect her to the extent that she claimed in evidence and recited to doctors. Later, it will be necessary to return in detail to this evidence.
The Court of Appeal
The Court of Appeal held that Newman J had not properly considered Ms Dixon's case. The Court's reasons were prepared by Heydon JA, Beazley JA and Davies AJA simply agreeing with his judgment. The Court of Appeal held that Newman J had erred in:
.concluding that Ms Dixon's condition rested on subjective symptoms;
.failing to make any findings about the existence of symptoms which were observable by the medical experts for themselves, and which they had taken into account;
.failing to assess the totality of the medical evidence in light of the symptoms observed by medical experts which did not depend on Ms Dixon's own history, and in the light of their professional experience and assessment of the probability that she was suffering from Q fever chronic fatigue syndrome.
In particular, the Court of Appeal held that the trial judge had erred in failing to consider whether Ms Dixon had symptoms that were observable to medical practitioners. If such symptoms existed, then her case did not depend entirely on her credibility. The Court also held that, in assessing Ms Dixon's credibility, Newman J had placed undue weight on trivial discrepancies and had not taken account of the fact that her condition might have impaired her memory.
The Court of Appeal said that the "essence of the trial judge's reasoning was to conclude that once the plaintiff's credit and her reliability was damaged in the ways he set out, no further inquiry was called for." He "made no reference to the large quantity of medical evidence, most of which pointed in one direction." The Court said that, having found the witness unsatisfactory in various respects that could be checked, Newman J inferred that she was unsatisfactory in all respects.
Objective symptoms
In the forefront of the Court of Appeal's reasons for ordering a new trial was the view that the trial judge had erroneously thought that the existence of the symptoms of which Ms Dixon complained depended on her evidence. Newman J had relied on a statement by Dr McGuirk that "there is no way any objective test could either substantiate or disprove" whether Ms Dixon had the syndrome. But the Court of Appeal said that Dr McGuirk was not suggesting that there were no objective symptoms, and that there was objective evidence that the medical experts had taken into account in forming their opinions that Ms Dixon had the syndrome. The objective symptoms included weight loss, abdominal tenderness, pallor and depression and memory impairment. In addition, the trial judge had not referred to the opinions of various doctors that she had chronic fatigue syndrome, the statistical probability of her having the syndrome or considered an explanation for her lack of credibility.
The conduct of the trial
The trial commenced on circuit at Newcastle on 29 August 2000 and was adjourned on 30 August. It resumed at Sydney on 3 October 2000. Ms Dixon's evidence-in-chief and much of her cross-examination was heard in Newcastle. The plaintiff and the defendant each was represented by senior counsel whose long and extensive experience in the conduct of trials of actions for damages for personal injury was reflected in an appreciation that the best advocacy is selective and economical. Given the medical evidence concerning Q fever infection and chronic fatigue syndrome arising from that infection, it is not surprising that counsel for Ms Dixon saw the real issue at the trial as whether Ms Dixon was credible when she claimed to be suffering from symptoms that were consistent with that syndrome. Given the mass of surveillance data concerning Ms Dixon, it is not surprising that Whisprun's counsel saw the issue of her credibility as its best chance of succeeding in the action.
Because of the way that the parties appear to have conducted their cases, unsurprisingly, Newman J said "the only issue which arose in the case was whether the plaintiff's account of her continuing symptoms was credible." (emphasis added) Because that was so, counsel for each side obviously took the view that going to the expense of calling medical witnesses was irrelevant. If Ms Dixon's evidence was substantially accepted, she suffered from chronic fatigue syndrome and was entitled to substantial damages. If her evidence was not credible, there was no halfway house that would enable the judge to find that she was sick, but only a little bit sick. Upon what evidentiary basis could the trial judge refuse to accept that she was suffering as she claimed and yet find that she suffered from a lesser condition that she did not identify? In some cases, a tribunal of fact may properly refuse to accept either party's case and work out for itself "a view of the case which did not exactly represent what either party said."[1] This case did not fall into that category. Ms Dixon's case was conducted on the basis that what she said in her evidence-in-chief and what she had consistently told the doctors was true.
[1]Williams v Smith (1960) 103 CLR 539 at 545.
Moreover, behind the conduct of the case was the dark shadow cast by s 151G of the Workers Compensation Act. At the relevant time, that section provided that no damages for non-economic loss could be recovered unless Ms Dixon recovered more than a specified minimim amount for non-economic loss. This statutory threshold made it imperative from Ms Dixon's viewpoint that the trial judge accept that she had suffered and continued to suffer from a debilitating chronic fatigue syndrome.
Ms Dixon's evidence
In her evidence-in-chief, Ms Dixon said that, after working in Sydney, she returned to Inverell where she worked at Coles stacking shelves and at the abattoirs as a casual worker packing meat. She had a relationship with Mr David Cross, became pregnant, and in 1992 had a daughter, Sarah. After the birth of her daughter, she worked at three jobs: at Coles, at the abattoir and at a fruit and vegetable shop. She and Mr Cross bought a house for $89,000 financed by a mortgage of about $80,000. At the abattoirs, she obtained a full-time job that involved sucking foetal blood into a pipette from unborn calves' hearts. It was doing this work that caused her to be infected with Q fever. She also worked up to four shifts each week at Coles from 3.30pm onwards to near midnight. She also worked on Saturday morning at the fruit and vegetable shop. She continued to work at these jobs until July 1994 when she became sick and was diagnosed as having Q fever. Before the infection, she had taken part in sporting activities – playing hockey, touch football and riding horses.
On contracting Q fever, she felt very sick and had headaches and nausea, similar to the flu. She went back to work after eight days but she felt very sick and had to get help at work. In September 1994, she gave a certificate of unfitness to her employer. Her employment was terminated on 21 September 1994. However, she later went back to work although she had difficulty working a full week and had time off because she was sick. She had nausea, vomiting, hot and cold sweats all the time and her head was "just aching". After a day's work, she felt terrible and "just went straight to bed." Her relationship with Mr Cross broke up because "of my being sick, he couldn't cope with my mood swings." She thought that occurred in 1995. She moved in with her parents; the house that she and Mr Cross had bought was sold. Later, she moved out of her parents' house into a shed about 200 metres away. The "shed" has a small kitchen, a bathroom, a laundry and toilet, a small lounge room and two bedrooms. Asked if the "shed" was "still on your parents' property", she replied, "Yep."
Since 1994, her condition "fluctuates up-and-down" but it was not as bad as when she first got Q fever. There has been only a little improvement and she has "some fluctuations from day to day and from week to week". She gets headaches a lot, probably three times a week. They could last a couple of hours or all day. When her headaches are really bad, she stays in bed. She gets pains in the joints in the knees, the back and her elbows. In the good weeks, headaches may occur "once or twice". She takes Panadeine Forte and Panadol. When she gets a really bad headache, she gets chest pains and hot and cold flushes and sweats a greal deal. The sweating leaves the bedclothes saturated and has a bad odour. She still vomits and has nausea. On some days, she does not vomit or have headaches but such days are rare. She gets very tired and loses energy. Although she tries, she does not always get the housework done. Even on her best days, she is not able to stand all day on her feet. She gets tired and runs out of energy and always sleeps for some period during the day for "an hour, maybe three hours." She sees Dr Thatcher once or twice a fortnight. He prescribes medication including anti-depressants that sometimes help her. Her appetite is not very good. She has not really had much social life in the last few years although she had been out to a dinner with her parents the previous June for her daughter's birthday. She doesn't feel like going out because afterwards she gets tired and it takes a couple of days for her to recover. In her mood swings, she is snappy, yells and screams and gets agitated. She also has difficulty in sleeping and has had problems with dizziness. She now has trouble with her memory.

Thus, in evidence-in-chief, Ms Dixon presented a picture of a woman who since July 1994 had been severely disabled, had had virtually no social life and had been forced to live with her daughter in a shed on her parents' property. She was unable to work in gainful employment, was in constant pain and discomfort, was regularly nauseated, was tired and lacked energy, was having difficulty in sleeping and was so moody that her unpleasantness had broken up her relationship with Mr Cross. This picture of her condition was entirely consistent with what she had told a number of doctors over several years.
The picture that emerged in cross-examination and from three video films and other evidence was different. Initially, when asked whether she owned any property at all, Ms Dixon said, "Yeah, I had. I had." This answer seemed to be a reference to the fact that she and Mr Cross had owned a house which had been sold. Asked whether she owned "any now", she replied, "Just a car and that, that's it." When asked whether she owned any real estate, she admitted that she owned land that she had purchased two years ago with $50,000 she had borrowed. There were four stables on this land and there were two horses there. Asked whether she owned any other land, she said that she did not. However, although the matter is not clear, further cross-examination appeared to reveal that this land contained the "shed" where she lived. Asked why she had not said in her evidence-in-chief that the shed was on her property, she said "I've got no idea." She denied that she did not want the Court to know that she owned property.
Ms Dixon said that the only time that she had been on a horse since leaving the abattoir was "when Sarah has had to go to the toilet or something like that, I have held the horse." She said that Sarah had asked her to show her how "I used to ride when I was younger, and I couldn't." Ms Dixon also said that she could not "remember when I last rode a horse." Pressed, she conceded that she had ridden a horse "this year" but could not remember how often. She said that she wasn't quite sure how many times. Cross-examined further, she said that it would rarely be the case that she would ride several times each week. She claimed that she rode only because her daughter hassled her.
Cross-examined as to her attendances at pony clubs where Sarah was riding, Ms Dixon said "mostly I sit" and that she could only stand for "maybe an hour". After seeing a video of Ms Dixon at an equestrian event, Newman J commented that she showed "no signs of fatigue on this occasion".
Ms Dixon said that she had to sleep every day and that her mother had to help her with housework because headaches forced her to lie down. But she admitted that she had been at a wedding from 3.00 pm until the bride and groom left. When it was put to her that she was there until 1.00 am the following morning, Ms Dixon said she was "not quite sure". She said that she had "a couple of dances" and "a couple of drinks". She admitted that a photograph of her with the bride showed that she did not look depressed and that she was not depressed that night.
Ms Dixon was shown a video of the wedding and other videos. After that, the case was adjourned. It did not resume for nearly five weeks. When the cross-examination resumed, Ms Dixon admitted that she was "not fatigued" at the wedding, that she was "dancing vigorously" and was "drinking beer out of a bottle". But in re-examination she sought to offer an explanation for her vibrant behaviour claiming that the bride had told her that she had put an amphetamine in her drink. When the bride, Michelle Mair, testified, she denied that she had done so or had a conversation to that effect. In his judgment, Newman J refers to this explanation and, although he did not expressly find that Ms Dixon had invented this explanation, his judgment makes it plain that he did not accept it or at all events was sceptical as to its truth. Newman J said that the video of the wedding "demonstrated her to be very active both in terms of dancing and socialising and drinking."
Ms Dixon was also cross-examined concerning her ability, while on a visit to see doctors, to walk from a hotel in George Street, Sydney to the Darling Harbour area. However, the cross-examination led nowhere when she said that she could not place where these areas were. She conceded that on one day – it was suggested to her the next day – after seeing a doctor she and her mother caught a taxi to a Wax Works and that they had gone into the Sydney Casino and an aquarium. Mr W K Dodd SC, counsel for Whisprun, suggested that these places were near Darling Harbour. When he suggested to Ms Dixon that she had been on her feet "several hours that day", she replied that she would not have been on her feet "all that day" and that she would have been "sitting and walking". After she had seen a video film of her walking on this visit to Sydney, she conceded that she was "able to walk briskly". When it was put to her that she had walked "three or more kilometres", she said, "I don't think it was that far." Newman J said that the video "showed her walking briskly an extensive distance between Railway Square, Darling Harbour and streets of Sydney." His Honour said that her "actions as depicted in that video were quite inconsistent with the picture she had painted of herself both in chief and in histories to doctors."
Asked whether she had gone to race meetings, Ms Dixon said she could not remember going to a race meeting since she left the abattoir. When shown newspaper photographs of herself at race meetings, she admitted that she had been at meetings at Inverell in October 1997, January 1998 and January 2000 with Mr Cross. She conceded that she was at the January 1998 meeting for four and a half hours but claimed that she would have been sitting down. After being shown a video of the January 1998 meeting, she admitted that she was "walking briskly" when walking around the course. She also agreed that on occasions she was standing while others were sitting, that she went to the bar area and purchased drinks and that she "jumped with exuberance" when she backed a winner. Asked whether she showed any tiredness in the video, she answered "I can't answer that question, I am sorry." Newman J noted in his judgment that Ms Dixon had conceded that she was present at this meeting "for no less that four hours and twenty minutes." His Honour said that the video demonstrated that Ms Dixon was "showing no signs whatsoever of fatigue and was demonstrative of the plaintiff enjoying herself at that meeting."
Ms Dixon was cross-examined as to whether she had been to Copeton Dam, a place used for watersports. Her initial answers indicated that she had been there only once at Christmas time with her parents and her daughter. She could not remember indulging in watersports like swimming "or other things". When asked whether she had been "towed behind a speedboat on an inner tube", her guarded answer was "I have been in Nick and Shelly's speedboat, when Sarah was on a tube." When it was put to her that she had been on the tube, she answered "[o]nly in the water, like, not towed." She also denied driving a jet ski. Pressed further about the tube, she said, "I sat on the tube but I couldn't handle it because I don't like swimming in water when I can't see." Asked whether she had been towed any distance, she said, "No, not that I can remember, because I don't like it. They were scaring me." Asked again whether she drove a jet ski, she said, "I got on, I said, with Shelly, and we only went from there to there and I said stop, I can't handle it."
Shelly was Michelle Mair. In evidence, Mrs Mair said that in November 1999 she and her husband and Ms Dixon, Mr Cross and Sarah went tubing which involved a boat towing one to three rubber tubes. She said that Ms Dixon was in a tube next to her and that they went for 20 minute runs on four or five occasions. A Mr Andrew Pelja gave evidence about Ms Dixon tubing and driving a jet ski. He said that in tubing "[i]t's up to the boat driver to put them into a whip to bounce over the wake and everything and have a lot of fun." He said that on one occasion – alleged to be the same one Mrs Mair spoke about – Ms Dixon "was on the tube for about 10 or 15 minutes." He was one of those driving the boat. Mr Pelja also testified that at Christmas 1999 Ms Dixon had driven a jet ski. She was "[j]ust riding around on it like we all do, just not as hard as we do." She had ridden as a pillion passenger at first "to show her the ropes and how to use the jet ski and then by herself." Newman J said that he "formed the view that Mr Pelja was a witness of truth." His Honour also said that "the evasive nature of the evidence she gave in relation to her activities with [the Mairs] at the Copeton Dam did not enhance her credibility."
Ms Dixon was also cross-examined about driving, shopping and doing other things in Inverell. She said that such trips would not "exceed more than four or five days" a week. She was taken through a week of car trips she had taken in August 2000. She agreed that on the Wednesday she had left home about 9.30 am and driven to a property where a woman was looking after one of her horses. She left the property at 10.40 am. The following day she left home about 12.25 pm and went into town to a bank where she used an ATM. She then went to Coles supermarket where she met her mother. They went to lunch at the Bridge Cafe. At 1.25 pm she left her mother and drove to a brake centre where she paid a bill. She then drove to a bowling club and paid her father's membership subscription. She then went to a convenience store before driving home. The following day she again drove into town, met her mother at Coles at 11.15 am and again went to lunch with her at the Bridge Cafe. When it was suggested to her that this was "hardly the lifestyle of someone who is stuck at home doing nothing all day", she replied "[w]e would have been doing things, and fixing up errands or something, that was it." After lunch, she and her mother walked to a bank and used an ATM. She then drove home. When it was suggested to her that she did not "dawdle in a very slow fashion as though you were tired or lethargic", she replied, "[j]ust normal, like, I didn't drag my feet." Newman J said that "a video showing the plaintiff moving around the town of Inverell at times in company with her mother, was demonstrative only of the fact that the plaintiff was exhibiting no fatigue."
Ms Dixon also denied that she and Mr Cross lived together and could not recall telling doctors in 1998 and 1999 that she lived in a de facto relationship with him. But she conceded that after Mr Cross left Inverell she had gone to the Gold Coast and lived with him for three months in 1995. She also conceded that sometimes he spends "night after night" at her place although she claimed he "comes and goes, because Sarah always wants him." She agreed that she and Mr Cross and two other persons had gone to the wedding to which we have referred "as a group". Asked whether she and Mr Cross were living together, she said, "Like I said David comes and goes." Evidence of them being together at the wedding, at the races and at Copeton Dam also suggested that the relationship was far from over. And if her statements to doctors as recorded in the medical reports in evidence have any probative value, they contain admissions that in 1998 and 1999 she and Mr Cross lived together in a de facto relationship. Mr Nicholas Mair also gave evidence that he regularly visited Ms Dixon's property and that Mr Cross "lives there."
Other evidence also suggested that as late as the year of the trial the relationship between Mr Cross and Ms Dixon was a close one. Mr Pelja gave evidence that, when a dispute arose between Ms Dixon and the Mairs during the year 2000, Mr Cross had gone with her to the Mair's house and that she made threats while carrying an iron bar. Ms Dixon denied that she had threatened Mr Mair and claimed that "David jumped out of the ute with this bar" and that she had taken the bar away from him. Mr Mair also claimed that Ms Dixon had threatened him with the iron bar. The evidence concerning this incident is not only inconsistent with Ms Dixon's claimed condition but it suggests that her account of her relationship with Mr Cross if not false was much closer than she had claimed in her evidence-in-chief. Newman J thought that her evidence concerning her relationship with Mr Cross went to her credibility.
The video films, the admissions and evasions of Ms Dixon in cross-examination and the evidence of Mr Pelja made an overpowering case for rejecting the account that Ms Dixon gave in evidence-in-chief and to the doctors concerning her condition. And when that account was rejected, there was no alternative account that could take its place.
The Court of Appeal proceedings
Despite the many factors that Newman J referred to in rejecting Ms Dixon's case, the Court of Appeal held that he had not properly considered her case. The Court concluded that Newman J had erred in:
.concluding that Ms Dixon's condition rested entirely on subjective symptoms;
.failing to make any findings about the existence of symptoms which were observable by the medical experts for themselves, and which they had taken into account;
.failing to assess the totality of the medical evidence in light of the symptoms observed by medical experts which did not depend on Ms Dixon's own history, and in the light of their professional experience and assessment of the probability that she was suffering from Q fever chronic fatigue syndrome.
The transcript of the argument in the Court of Appeal shows that the point of no proper consideration of the medical evidence concerning chronic fatigue syndrome came from the Court itself. Mr D F Jackson QC adopted a suggestion from the Court that "there wasn't a proper trial because appropriate attention wasn't given to all the factors that bore on the issues in [the credibility finding]". But Mr Jackson's argument did not rely on the reasons on which the Court of Appeal later relied. Instead, his argument was directed to establishing that the trial judge had erred in considering evidence as to whether Ms Dixon had Q fever infection after February 1995. As Mr Jackson said in argument:
"The ... medical reports to which I've gone don't really suggest that it's right to say that the medical evidence showed no relevant serology after February 1995. That's really essentially what we would seek to say in relation to the appeal proper ...".
The Notice of Appeal on which the Court of Appeal acted was the third Amended Notice of Appeal filed in the appeal. It was filed on the morning of the appeal hearing. Yet it contained no ground that the trial judge had failed to consider the contents of the medical reports as evidence of chronic fatigue syndrome. Instead, the grounds of appeal were directed to his Honour's finding that Ms Dixon had recovered from the infection by February 1995.
Ground 1 asserted that his Honour misunderstood and misconstrued the serological data in evidence and the medical opinion thereon. Ground 2 asserted that the finding that Ms Dixon had recovered from an acute episode of Q fever by February 1995 was not medically justifiable. Ground 3 asserted that his Honour's findings concerning non-economic loss based on a closed period of Q fever infection to February 1995 was not sustainable on the evidence. Grounds 4 and 5 dealt with the effect of fresh evidence upon which Ms Dixon sought to rely. Ground 6 asserted that the trial judge had failed to take into account the serological tests done on 4 December 1995 and commented upon by Professor Boughton in his report. Ground 7 asserted that his Honour failed to take into account the opinions of three doctors in respect of his finding that the appellant had recovered from Q fever infection in February 1995. Ground 8 asserted that his Honour failed to take into account Professor Boughton's opinion that impairment of mental concentration and memory made the eliciting of a reliable history difficult in reaching his assessment of Ms Dixon's credibility. Ground 9 asserted that his Honour failed to take into account Professor Boughton's opinion in finding that Ms Dixon's acute Q fever infection ceased in February 1995 and the consequential assessment of damage under s 151G of the Workers Compensation Act.
Only Ground 8 had the remotest bearing on the issue of credibility or chronic fatigue syndrome. None of the grounds suggested, as the Court of Appeal found, that a miscarriage of justice had occurred because the trial judge had concluded that Ms Dixon's condition rested on subjective symptoms. No ground suggested that it had occurred because he had failed to make findings about the existence of symptoms that were observable by the medical experts. No ground suggested that it had occurred because he had failed to assess the totality of the medical evidence in light of the symptoms observed by medical experts which did not depend on Ms Dixon's own history. No ground suggested it had occurred because he had failed to consider the observations in the light of their professional experience and assessment of the probability that she was suffering from Q fever chronic fatigue syndrome.
Indeed, at the appeal a question arose as to whether even the matters raised in the grounds of appeal were run at the trial. During the hearing of the appeal, Heydon JA pointed out that Mr R J Burbidge QC, who appeared for Whisprun, objected to Mr Jackson's arguments concerning the failure to consider the infection issue because of Coulton v Holcombe[2] – a leading case on the right of parties to run a new case on appeal. Heydon JA asked Mr Jackson whether he had "any instructions or material which would give a rebuttal to Mr Burbidge's point?" Mr Jackson replied:
"I can't point to material that either supports what he is for or supports absolutely what we say ...
However, all this material, all the medical evidence was before the judge and the situation in our submission was this ... and the matter with which we wouldn't disagree is this: What he said was because the continuing symptoms were entirely subjective the only issue which arose in the case was whether the plaintiff's account of her continuing symptoms was credible.
When we're speaking of the only issue we're speaking about the matters to which the oral evidence was directed and we're speaking there of the continuing symptoms, the issue was whether her account was credible. In determining that issue he had to take into account – and there was nothing to suggest that we said otherwise – all the medical evidence and the consequence of the condition if she had it on the mental processes. He is entitled to find that she's overstating, it's a different thing."
[2](1986) 162 CLR 1.
Even if Mr Jackson's reply is seen as including a reference to the medical evidence concerning chronic fatigue syndrome – and the context is against such a construction – two matters are clear. First, he had no instructions and was unable to point to any evidence to the effect that Ms Dixon's case at the trial was that the medical evidence had probative value on the fatigue issue independently of the judge accepting her evidence. Instead, reversing the onus, he contended that nothing in the case pointed to the opposite conclusion. Second, at no stage did he argue – apart from in relation to memory lapse – that the trial judge had overlooked the matters that the Court of Appeal held that Newman J had overlooked.
The Court of Appeal seems to have assumed that the entire contents of the medical reports – including the histories and complaints – constituted independent evidence that was to be treated as if it had been given in the witness box. It seems to have assumed that, independently of Ms Dixon's credibility, the opinions in the reports were in themselves evidence of chronic fatigue syndrome. Indeed, because the medical experts were not called and their reports were not challenged, the Court of Appeal appears to have treated the contents of the reports as important benchmarks against which the parties' cases were to be tested. If the parties had so conducted their cases as to treat the reports as not depending on Ms Dixon's credibility, the failure of the judge to treat the reports in this way or to mention it would be an extraordinary omission. This is particularly so after the judge referred to the evidence of Ms Dixon's mother and Mr Cross's mother as providing some corroboration of Ms Dixon's evidence. It is in the highest degree improbable that Newman J would have mentioned this evidence as corroboration and omitted reference to the medical reports if counsel for Ms Dixon had placed any reliance on them as corroborative evidence of chronic fatigue syndrome which was not dependent upon Ms Dixon's evidence. The record does not disclose any support for the proposition that the case for Ms Dixon ran at trial was that later formulated by the Court of Appeal.

Furthermore, it is inherently unlikely that counsel for Whisprun would have accepted that the opinions of the doctors and the complaints to them had independent evidentiary value on the issues respecting chronic fatigue syndrome without insisting on cross-examination of the doctors. It is hard to credit that counsel would have failed to seek admissions from these witnesses that, if the evidence adduced by Whisprun were accepted, Ms Dixon did not have chronic fatigue syndrome or, at all events, that there was a strong probability that she did not.
The course taken by Mr W K Dodd SC, counsel for Whisprun, concerning the tender of the medical reports – and for that matter by Mr P Webb QC who appeared for Ms Dixon at the trial – is consistent with counsel accepting that, so far as chronic fatigue syndrome was concerned, everything in the reports depended on the trial judge accepting Ms Dixon as truthful. It is, or at all events was, a common enough practice in New South Wales in cases concerned with psychiatric conditions for psychiatric reports to be tendered on the assumption that the opinion expressed in them depended on the histories in them being proved in the witness box. That is the course that appears to have been taken in this case where no objective test existed to determine whether Ms Dixon had the symptoms of which she complained. Purists may decry this approach to expert evidence, but it saves time and expense. The days are long gone in civil trials in New South Wales when expert witnesses would sit through the whole of a party's or witness's evidence before expressing an opinion on that evidence. Here it seems plain that counsel proceeded on the basis that, if the credibility of Ms Dixon – the person who gave the histories recorded in the reports – was destroyed, the opinion of each doctor "may have little or no value, for part of the basis of it has gone"[3].
[3]Ramsay v Watson (1961) 108 CLR 642 at 649; cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1174 [49]; 198 ALR 59 at 70.
Apart from the fact that the medical reports were admitted in evidence, there is really no evidence that the case formulated by the learned judges of the Court of Appeal was ever the case that Ms Dixon ran at trial. And the notice of appeal – the third notice of appeal – did not suggest it.
Moreover, Ms Dixon's written submissions tell strongly against the way that the Court of Appeal saw the case. Those submissions were filed on 2 May 2001, over four months before the appeal was heard in September 2001. They were signed by Mr Jackson and contained no inkling that the trial judge had erred in the manner that the Court of Appeal subsequently found. The thrust of those submissions was the same as those found in the Third Amended Notice of Appeal.
In our opinion, the case formulated by the Court of Appeal was never run at the trial. Several matters point to this being so:
.The statement by the trial judge as to the only issue in the case. The reasons of the trial judge are usually the best indication of what matters were in issue at the trial.
. The omission of the parties to call the medical witnesses.
.The failure of the Third Amended Notice of Appeal to suggest that the trial judge had not properly considered the case of chronic fatigue syndrome.
.The focus in the Third Amended Notice of Appeal, the written submissions and the argument in the Court of Appeal on the issue of persisting Q fever infection.
.The lack of any evidence – apart from the existence of the medical reports – to suggest that Ms Dixon's case at trial was as the Court of Appeal's reasons imply that it was.
Accordingly, this appeal must be allowed. 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[4]. 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. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action[5]. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
[4]University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 8-9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; 179 ALR 321 at 330-331; Water Board v Moustakas (1988) 180 CLR 491 at 496-497; cf R v Birks (1990) 19 NSWLR 677 at 683-685.
[5]Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646.
As Water Board v Moustakas[6] makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is "necessary to look to the actual conduct of the proceedings"[7]. Thus in Water Board, the plaintiff's case at trial had been that his employer was negligent in failing to prevent traffic from crossing in to the lane in which he was working. On appeal, the Court of Appeal of New South Wales allowed the plaintiff to raise a case that the employer was negligent in failing to provide a barrier to prevent the plaintiff from straying into the adjoining lane. This Court held that, although this alternative case was within the particulars, it had not been the plaintiff's case at the trial and the Court of Appeal had erred in allowing it to be raised on appeal.
[6](1988) 180 CLR 491 at 498.
[7]Water Board v Moustakas (1988) 180 CLR 491 at 497.
As in Water Board, the case for Ms Dixon as formulated in the Court of Appeal is not the case that she ran at the trial. Moreover, it is a virtual certainty that, if such a case had been run at the trial, Whisprun would have wished to cross-examine the doctors. Because that is so, the Court of Appeal erred in considering this alternative case. No miscarriage of justice occurred because the trial judge considered the case that Ms Dixon ran at the trial. It follows that the Court of Appeal should have dismissed the appeal by Ms Dixon.
The case formulated by the Court of Appeal
In any event, we are not convinced that the matters upon which the Court of Appeal relied would have affected the conclusion that Newman J reached concerning Ms Dixon's credibility or her failure to persuade him that she had established that she was suffering from chronic fatigue syndrome. The Court of Appeal held that the trial judge had erred in failing to consider whether Ms Dixon had symptoms that were observable to medical practitioners. The Court said that if such symptoms existed, then her case did not depend entirely on her credibility. However, with great respect to their Honours, none of these symptoms was "objective". They depended on what Ms Dixon told the doctors. Nor can it be said that the only possible cause of these symptoms was chronic fatigue syndrome.
Weight loss
The Court of Appeal regarded Ms Dixon's weight loss as significant. Ms Dixon reported that she had originally weighed 12‑13 stone, and that this dropped to around eight and a half stone. This evidence depends of course on Ms Dixon telling the truth about her earlier weight. But accepting that she did lose three and a half stone in weight, it says very little, if anything, concerning whether she was suffering from chronic fatigue syndrome after February 1995. No one disputes that she had Q fever infection and that it persisted for at least ten months. The infection itself is sufficient to explain the weight loss. What is more significant is evidence that subsequently she put on four and a half kilograms. A weight of nine stone or 57 kilograms (having regard to her height etc) hardly indicates ill health. A photograph of her at Inverell races does not suggest that Ms Dixon was underweight. Weight loss in and of itself does not necessarily point to Ms Dixon having chronic fatigue syndrome.
Abdominal tenderness
The Court of Appeal also considered that Ms Dixon's complaints of abdominal tenderness particularly around the liver supported her case. Abdominal tenderness is consistent with chronic fatigue syndrome. But it is not conclusive of it. There are many other explanations that could account for this tenderness. And the existence of the abdominal tenderness itself appears to depend on the truth of Ms Dixon's responses. The medical reports are silent as to whether a doctor can actually tell by touch or experience whether a patient has such tenderness. If a diagnosis of abdominal tenderness depends upon the truth of what the patient says, her abdominal "tenderness" is not objective evidence. A patient may be untruthful or may falsely believe that she has the tenderness. The possibility of a psychosomatic illness of some sort also cannot be ignored. The evidence indicates that, by reason of the poor safety practices of Whisprun, a significant number of its employees have suffered from Q fever infection and chronic fatigue syndrome. Indeed Ms Dixon's father had so suffered. Nor should one ignore the fact that the symptoms of chronic fatigue syndrome largely coincide with the symptoms of Q fever infection from which Ms Dixon undoubtedly suffered for at least ten months. She was undoubtedly aware of the indicia of chronic fatigue syndrome. Her claim of abdominal tenderness, if accepted, supports her case but it falls well short of establishing that she suffered from chronic fatigue syndrome or that her condition was anywhere near as bad as her evidence-in-chief painted.
Pale and depressed
The Court of Appeal also saw an objective symptom in the observations of doctors who thought that Ms Dixon looked pale and depressed. No doubt her paleness is more "objective" than some of the other symptoms to which the Court of Appeal referred. Nevertheless, Ms Dixon could have been pale and depressed for reasons other than the syndrome. And more importantly, the trial judge saw Ms Dixon in the witness box over a lengthy period undergoing an extensive cross-examination. Compared to his Honour's opportunities to observe Ms Dixon under the stress of cross-examination, the observations of doctors – particularly at times when she was undoubtedly suffering from Q fever infection – seem of little significance.
Memory impairment
The Court of Appeal also classified as an objective symptom the fact that a number of doctors suggested some impairment of Ms Dixon’s memory. But Newman J heard and observed Ms Dixon give evidence under the stress of cross-examination. He was in a better position than the doctors to form an opinion as to whether there was any impairment of her memory. No doubt some of her answers, as they appear in the transcript, suggest a lack of recollection. But his Honour was in the best position to judge whether this vagueness of recollection represented evasions or genuine lapses of recollection. Moreover, at different points of the cross-examination Ms Dixon's recollection seemed remarkably clear. She seemed to have no difficulty recalling the details of her visits to Inverell on which she was cross-examined. Significantly, at one point she corrected Mr Dodd when he suggested to her that she had taken an envelope into a forklift hire building. She said "you don't mean a forklift – it was – my mum gave me a bill to go and pay for her [at] a brake centre".
In any event, even if she was forgetful it does not necessarily mean that she had chronic fatigue syndrome. She had other worries during the relevant periods. She had had a pregnancy terminated which she concealed from her parents. This was obviously a matter of some concern to her: she claimed that after she had fallen out with her friend, Mrs Mair, she had threatened to tell Ms Dixon's mother about the termination.
Failure to consider objective symptoms
Contrary to the stance adopted by the Court of Appeal, there was no reason why Newman J was required to give any weight to the doctors' opinions that Ms Dixon was suffering from chronic fatigue syndrome. The opinions themselves seem premised on an acceptance of Ms Dixon's account of her history and complaints. His Honour was entitled to take the view – which we would take ourselves – that their opinions were contingent on Ms Dixon suffering from the problems of which she complained. If she did not, there was nothing in the reports, with the exception of the abdominal tenderness and her paleness, that gave any support for the opinions expressed.
The Court of Appeal also considered that the trial judge should have considered that there was a statistically significant chance of Ms Dixon having chronic fatigue syndrome. But Newman J was entitled to take the view that the statistical probability of her having the condition was of no significance after what he had seen and heard from the cross-examination, the videos, the photographs and the evidence called by Whisprun.
It is not readily to be supposed that the various matters upon which the Court of Appeal placed so much weight would have induced Newman J to accept that Ms Dixon's condition was as she testified in her evidence-in-chief and as she reported to the doctors. Further, it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
However, it is unnecessary to determine whether the matters to which the Court of Appeal referred were or should have been considered by the trial judge. For the reasons that we have given, they were not part of Ms Dixon's case. To suggest that a trial judge has not properly considered a party's case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty. With great respect to the learned judges of the Court of Appeal, we do not think that the evidence met that standard.
Order
The appeal should be allowed with costs. The orders of the Court of Appeal should be set aside. In their place should be substituted orders that the appeal to that Court be dismissed with costs.
KIRBY J. This appeal concerns the boundaries of appellate power. Specifically, it relates to the powers of an appellate court, conducting an appeal by way of rehearing, to reverse factual conclusions reached by a primary judge who states or implies that such conclusions were based on an assessment of the credibility of a party.
Considerations of this kind are not necessarily fatal to appellate reversal of the primary judge's conclusions. It always remains for the appellate court to undertake the appeal by way of rehearing. Such an appeal "should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it"[8].
[8]Warren v Coombes (1979) 142 CLR 531 at 553.
However, normally, to secure reversal of a primary judge's credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge's decision was erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings[9]. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq)[10] ("SRA"). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge's conclusion. Such was also the case in Fox v Percy[11] where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge's conclusion.
[9]Voulis v Kozary (1975) 180 CLR 177; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; 160 ALR 588; cf Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd Trading as "Uncle Bens of Australia" (1992) 27 NSWLR 326 at 349-350.
[10](1999) 73 ALJR 306; 160 ALR 588.
[11](2003) 77 ALJR 989; 197 ALR 201.
Although, in the present case, the appellate court pointed to certain evidence of uncontested or undisputed facts to help establish the proposition that an incompatibility could be shown (similar to the foregoing cases), that evidence fell short of an objective demonstration that the primary judge "got it wrong". The question therefore arising, in the circumstances of the trial and of the primary judge's reasons in this case, is whether the appellate court's conclusion "that some substantial wrong or miscarriage has taken place in that the plaintiff's claim has not been properly considered"[12] was correct and can stand compatibly with the grounds of appeal under consideration, the issues that were addressed in the appeal, the applicable law and, in particular, the rule of restraint upon the reversal of a primary judge's conclusions based, wholly or in part, upon findings about the credibility of critical evidence.
[12]Dixon v Whisprun Pty Limited (formerly known as Northwest Exports Pty Limited) [2001] NSWCA 344 at [74].
The facts
The basic facts are set out in the reasons of Gleeson CJ, McHugh and Gummow JJ[13] ("the joint reasons") and in the reasons of Callinan J[14]. As is normal in a case of this kind, questions were asked, and evidence was tendered at trial, designed to probe the true extent of the disability of Ms Sonya Dixon (the respondent) in respect of the condition for which she claimed damages for negligence against her former employer, Whisprun Pty Ltd (the appellant).
[13]Joint reasons at [8]-[10].
[14]Reasons of Callinan J at [129]-[131], [133]-[139].
The essential ingredients giving rise to the respondent's claim were not disputed. Before she was exposed to infection with Q fever at the appellant's abattoir in 1994, the respondent was "very healthy"[15]. This was not simply her own assessment. It was confirmed by her family and friends and by two medical practitioners (Drs Hall and Thatcher). They had seen her professionally before and following the infection. Moreover, it was confirmed by the fact that the respondent, at the time she was exposed to Q fever, held down three jobs – in the appellant's abattoir, at a local supermarket for three days a week and at a fruit market on Saturdays. She was described thus:
"She was working to pay off a home mortgage. She was an enthusiastic, reliable and responsible worker. She had had a daughter. Her relationship with her daughter, her de facto husband, his mother and other persons was happy. Until at least 1993 she played hockey, basketball and tip football. She swam. She rode horses. She weighed 12 stone. There was no existing medical condition before July 1994 which could have detrimentally affected her health thereafter."[16]
[15]Dixon v Whisprun [2001] NSWCA 344 at [55].
[16]Dixon v Whisprun [2001] NSWCA 344 at [55].

Furthermore, as the judgment of Kirby J[98] explains, there are numerous cases in which, despite a strong impression which a trial judge may have formed, circumstances justifying interference by an appellate court may exist. I did not take his Honour to be saying in that case that the categories of cases for appellate intervention with respect to factual matters were closed.
[98]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 at 331-332 [93]; 160 ALR 588 at 620-622.
Nor do I think that the observations that I made in that case are irrelevant to this one, that a failure to give the significance to particular evidence that it plainly deserves may, of itself, particularly when other indications of error, even only minor ones are present, will also warrant intervention by an appellate court[99].
[99]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 at 338-344 [139]-[154]; 160 ALR 588 at 630-636.
Nothing that I have said should be taken to mean that deference, indeed a great deal of it, should not be accorded to findings of fact at first instance, particularly those based upon demeanour and impression. Nor should it be taken to mean that plaintiffs are not obliged to discharge the onus of proof of their damages. There will be very few cases in which the complaints and disabilities are not provable objectively, and in which the plaintiff has not by his or her own evidence persuaded the court of their existence, that an appellate court will be entitled to intervene.
This case is however one such case. The reasons why in summary I would dismiss this appeal are that, first, there were some quite significant objective pieces of evidence identified by Heydon JA in the Court of Appeal which should have been, but were not considered and weighed by the primary judge. Secondly, the Court of Appeal did not err in holding, as in effect it did, that the strongly adverse finding of the primary judge, that the respondent's evidence was unacceptable, had too fragile a basis to support it, particularly in the absence of a complete and careful examination of all of the evidence. Such an examination would have revealed, among other things the serious question concerning the aetiology of the respondent's illness to which the subsequent recurrence of a severe acute febrile illness was highly relevant. A further reason why the appeal should be dismissed is that, in my opinion the Court of Appeal properly carried out its function and duty, without discernible error, that s 75A of the Supreme Court Act requires it to perform.
An appellate court in a civil case is not bound in terms to review the evidence at first instance to see whether the result there is "unsafe or unsatisfactory" as it is sometimes obliged to do in a criminal appeal. But there may be cases, and this the Court of Appeal not erroneously took to be one, in which it is apparent that the whole of the evidence, and the relationships between the respective parts of it have not been adequately considered and analysed at first instance, with the result that the outcome of the trial is unsatisfactory, and requires that, pursuant to s 75A of the Supreme Court Act an appellate court intervene.
I would dismiss the appeal with costs. I would however make one further order with respect to costs and that is, whether the respondent succeed or not on the retrial which has been ordered by the Court of Appeal, the respondent should not have her costs of the first trial. Each party, by joining in conducting the trial in the way in which each did, contributed to its unsatisfactory outcome.