Klahn v Audeh

[2001] WASCA 336

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Evidence
3. › Credibility findings
4. › Issue not raised by parties or trial judge
5. › Whether trial judge entitled to make adverse credibility findings on issues not raised
6. › Natural justice
1. Evidence
2. › Witnesses
3. › Credibility
4. › Whether trial judge entitled to make adverse findings about plaintiff's truthfulness
5. › Requirement to put issues to witness before making adverse findings
1. Damages
2. › Measure of damages in actions for tort
3. › Motor vehicle accident
4. › Whiplash injury
5. › Non-pecuniary loss
6. › Past and future loss of earning capacity
7. › Future medical expenses
1. Appeal
2. › Reassessment of damages
3. › Whether appellate court can reassess damages or must order new trial
4. › Party not entitled to pursue on appeal case different from that at trial

Quick Take

A trial judge may not make adverse credibility findings against a party on issues that were not raised by the opposing party or by the judge during the course of the evidence; natural justice requires that the party be on notice that such findings are possible. Where a trial judge's assessment is vitiated by such findings, the appellate court may reassess damages itself rather than ordering a new trial, particularly where the respondent did not raise the credibility issue at trial and cannot be permitted to pursue a different case on appeal.