Brown v Dato Pty Ltd

(2006) 31 WAR 460; [2006] WASCA 170

Western Australia Court of Appeal

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Catchwords

1. Appeal
2. › Assessment of damages for personal injuries
3. › Appellate review of findings of fact
4. › Whether trial judge's findings reasonably open on the evidence
5. › Functions of appellate court where findings not based on credibility or demeanour
1. Practice and Procedure
2. › Procedural fairness at trial
3. › Rule in Browne v Dunn
4. › Failure to put adverse credibility findings to witness in cross-examination
5. › Whether trial judge bound to accept unchallenged evidence
6. › Whether adverse findings fairly open where not raised by either party
1. Damages
2. › Personal injuries
3. › Loss of earning capacity
4. › Past and future economic loss
5. › Deduction for contingencies
6. › Whether deduction for contingencies appropriate for past loss of earning capacity
7. › Whether evidence supported specific adverse contingencies
1. Damages
2. › Personal injuries
3. › Gratuitous services
4. › Rule in Sullivan v Gordon
5. › Overruling by CSR Ltd v Eddy
6. › Whether award for past gratuitous services excessive

Quick Take

A trial judge may not make adverse credibility findings against a plaintiff in a personal injury case where those matters were not put to the plaintiff in cross-examination, the defendant conceded the plaintiff's credibility, and the judge did not give notice of the proposed adverse findings. Where such findings are set aside and the original findings were not based on demeanour or impression of the witness, the appellate court may reassess damages rather than order a retrial. The rule in Sullivan v Gordon (gratuitous services for family members) is no longer good law following CSR Ltd v Eddy.