Vasailes v Robertson; Vasailes v Tang & Anor [2002] NSWCA 177

Vasailes v Robertson; Vasailes v Tang & Anor [2002] NSWCA 177

The appeals were allowed because the District Court's orders offsetting earlier payments were procedurally wrong and should instead be treated as restitutionary counterclaim or cross-claim relief, and because in the Robertson case the evidence established that the appellant worked as a painter before and after the 1986 accident and suffered limitations causing past economic loss. Given the acceptance of a long-term soft tissue injury and an award for future economic loss, it was erroneous to award no amount for past economic loss over the period to judgment. Apart from that past economic loss error, no further error in the trial judge's assessment of damages was established.

Jurisdiction
Australia
Judgment Date
20 June 2002
Procedural Posture
Personal Injury Damages Appeals / Appeal From District Court Judgments After a New Trial on Damages Ordered by the Court of Appeal
Outcome
Appeals allowed; District Court orders set aside; substituted verdicts and judgments entered on the appellant's claims and on the respondent's counterclaim or cross-claim; liberty to apply reserved.
Legal Topics
['assessment of Damages' 'past Economic Loss' 'future Economic Loss' 'contributory Negligence' 'adequacy of Reasons' 'appellate Review of Fact Finding' 'recovery of Money Paid Under Judgment Set Aside on Appeal' 'counterclaim and Cross Claim Procedure' 'costs and Offers of Compromise']
['personal Injury' 'civil Procedure' 'restitution' 'damages'] ['assessment of Damages' 'past Economic Loss' 'future Economic Loss' 'contributory Negligence' 'adequacy of Reasons' 'appellate Review of Fact Finding' 'recovery of Money Paid Under Judgment Set Aside on Appeal' 'counterclaim and Cross Claim Procedure' 'costs and Offers of Compromise']

Case Brief

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Procedural Posture

Personal Injury Damages Appeals / Appeal From District Court Judgments After a New Trial on Damages Ordered by the Court of Appeal

Legal Issues

  1. 1 ["Whether the trial judge gave adequate reasons for rejecting or discounting the appellant's evidence and medical evidence." "Whether the trial judge failed to give sufficient weight to independent witnesses' evidence about the appellant's work incapacity." 'Whether the trial judge erred by awarding damages for future economic loss arising from the 1986 accident but no damages for past economic loss.' 'Whether the District Court could offset sums paid under earlier judgments that were later set aside, or whether the respondents required a counterclaim or cross-claim in restitution.' 'What costs orders should be made in light of offers made by the respondents.']

Ratio Decidendi

The appeals were allowed because the District Court's orders offsetting earlier payments were procedurally wrong and should instead be treated as restitutionary counterclaim or cross-claim relief, and because in the Robertson case the evidence established that the appellant worked as a painter before and after the 1986 accident and suffered limitations causing past economic loss. Given the acceptance of a long-term soft tissue injury and an award for future economic loss, it was erroneous to award no amount for past economic loss over the period to judgment. Apart from that past economic loss error, no further error in the trial judge's assessment of damages was established.

Court Disposition

Appeals allowed; District Court orders set aside; substituted verdicts and judgments entered on the appellant's claims and on the respondent's counterclaim or cross-claim; liberty to apply reserved.

Orders

  • ['In the Robertson case, appeal allowed.' 'In the Robertson case, the orders below were set aside.' 'In the Robertson case, on the claim, verdict and judgment for Theo Vasailes against Tracey Robertson in the sum of $114,823 with the costs of the proceedings below.' 'In the Robertson case, the Rules of the District...