State of New South Wales v. Gee (aka Michaels) [2002] NSWCA 326

New South Wales Court of Appeal

CITATION : State of New South Wales v. Gee (aka Michaels) [2002] NSWCA 326 FILE NUMBER(S) : CA 40066/02 HEARING DATE(S) : 27 August 2002 JUDGMENT DATE : 25 September 2002

PARTIES : State of New South Wales - appellant Brett Douglas Gee (also known as Michaels) - respondent JUDGMENT OF : Giles JA at 1; Hodgson JA at 4; Young CJ in Eq at 42

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT SC20223/00 FILE NUMBER(S) : LOWER COURT Grove J JUDICIAL OFFICER :

COUNSEL : Mr. J.D. Hislop QC with Mr. P.R. Sternberg for appellant Mr. D.A. Wheelahan QC with Mr. G.M. Radburn for respondent SOLICITORS : I.V. Knight, Crown Solicitor for appellant Walter, Solicitors, Lismore for respondent CATCHWORDS : DAMAGES - Frontal lobe epilepsy causing blackouts and aggressiveness - Residual earning capacity assessed at 35% of uninjured capacity, itself assessed as being a capacity to earn average weekly earnings - Whether defendant liable for whole 65% difference, with 15% allowance for vicissitudes. CASES CITED: Rosniak v. Government Insurance Office (1997) 41 NSWLR 608 DECISION : 1. Appeal allowed. 2. Judgment for the respondent against the appellant in the sum of $616,918.00, in lieu of the sum of $826,023.00 awarded by the primary judge. 3. Respondent to pay the appellant's costs of the appeal, and to have a suitors' fund certificate if otherwise entitled.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40066/02 SC 20223/00

GILES JA HODGSON JA YOUNG CJ in Eq