Vasailes v Robertson; Vasailes v Tang

In *Vasailes v Robertson* and *Vasailes v Tang*, the New South Wales Court of Appeal considered appeals concerning the assessment of damages in personal injury claims. The primary dispute involved the plaintiff, Theo Vasailes, seeking damages for injuries sustained in separate incidents involving the defendants, Tracey Robertson and Eugene Tang. The appeals also addressed procedural issues arising from a retrial and the application of counterclaims.

The court was required to determine whether the trial judge erred in their assessment of damages, specifically regarding the rejection of the plaintiff's evidence, the weight given to independent witnesses, and the award of past economic loss. Furthermore, the appeals raised questions about the ability to offset damages paid under a previous verdict that had been set aside, the propriety of allowing counterclaims to be made after a retrial verdict, and whether the rules regarding the filing of counterclaims should be dispensed with.

The Court of Appeal found that the trial judge had failed to provide adequate reasons for rejecting certain evidence and had not given sufficient weight to the testimony of independent witnesses. The court also determined that the trial judge had erred in failing to award damages for past economic loss when future economic loss had been allowed. In relation to the procedural matters, the court allowed the filing of counterclaims nunc pro tunc, dispensing with the usual rules of the District Court concerning their filing, in order to achieve a just outcome.

Consequently, the appeals were allowed, and the original orders were set aside. In the *Robertson* case, judgment was entered for Theo Vasailes on his claim for $114,823, with a verdict and judgment for Tracey Robertson on her counterclaim for $101,588. In the *Tang* case, judgment was entered for Theo Vasailes on his claim for $16,692, with a verdict and judgment for Eugene Tang on his cross-claim for $85,760. Liberty to apply was reserved.