Dunn v Firth

Case [2003] NSWCA 280
CITATION: DUNN v. FIRTH [2003] NSWCA 280
HEARING DATE(S): 20/06/2003
JUDGMENT DATE:
3 October 2003
JUDGMENT OF: Beazley JA at 1; Tobias JA at 70; Davies AJA at 71
DECISION: 1. Appeal allowed; 2. Set aside the judgment of Bell DCJ of 26 July 2002; 3. In lieu thereof enter verdict and judgment for the appellant in the sum of $15,953.26; 4. The respondent is to pay the costs of the proceedings below and of the appeal and to have with respect to the latter a certificate under the Suitors Fund Act, if applicable.
CATCHWORDS: APPEAL - WORKER'S COMPENSATION - NEGLIGENCE - breach of duty - liability of solicitor in failing to advise the plaintiff of her common law rights and election provisions under Workers Compensation Act 1987 - DAMAGES - whether trial judge erred in assessment of economic and non-economic loss.
LEGISLATION CITED: Workers Compensation Act 1987
CASES CITED: Johnson v Perez (1998) 166 CLR 351
Orford v Qi Ying He [2002] NSWCA 152
Radosavljevic v Radin [2003] NSWCA 217
Damberg v Damberg (2000) 52 NSWLR 492
House v The King (1936) 55 CLR 499
Ball v Masselos (unreported, NSWSC, Ireland J, 10 February 1995)

PARTIES :

 NATALIE DUNN (Appellant)
STEPHEN FIRTH t/as FIRTHS THE COMPENSATION LAWYERS
FILE NUMBER(S): CA 40726/2002
COUNSEL: J.D. Hislop QC/I McLachlan (Appellant)
K. Rewell SC/A. Beardow (Respondent)
SOLICITORS: R. J. Rimes (Appellant)
Connery Partners (Respondent)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 10143/00
LOWER COURT
JUDICIAL OFFICER : 		Bell DCJ


                          CA 40726/2002
                          DC 10143/2000

                          BEAZLEY JA
                          TOBIAS JA
                          DAVIES AJA

                          3 October 2003

NATALIE DUNN v STEPHEN FIRTH t/as FIRTHS THE COMPENSATION LAWYERS

FACTS

The appellant/plaintiff was injured during the course of her employment with the Home Care Service of New South Wales on 23 November 1994. She claimed weekly compensation and an award under s.66 of the Workers Compensation Act 1987 (the Act).

The respondent did not inform the appellant of any common law entitlements she might have or of the corresponding election provisions under s151A of the Act.

In proceedings brought by the appellant against the respondent in negligence Bell DCJ found the respondent was negligent in failing to advise her of her rights but entered a verdict for the respondent because he held that, in the hypothetical common law trial, she was not entitled to any damages.

HELD:

1. Appeal allowed.

2. Set aside the judgment of Bell DCJ of 26 July 2002.

3. In lieu thereof enter a verdict and judgment for the appellant in the sum of $15,953.26.

4. The respondent is to pay the costs of the proceedings below and of the appeal, and with regard to the latter may have a Certificate under the Suitors' Fund Act, if applicable



                          CA 40726/2002
                          DC 10143/2000

                          BEAZLEY JA
                          TOBIAS JA
                          DAVIES AJA

                          3 October 2003
NATALIE DUNN v STEPHEN FIRTH t/as FIRTHS THE COMPENSATION LAWYERS
Judgment

1 BEAZLEY JA: This is a plaintiff’s appeal from a decision of Bell DCJ in which his Honour rejected the plaintiff/appellant’s claim for…

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AGLC
Dunn v Firth [2003] NSWCA 280
Case
[2003] NSWCA 280
Decision Date

CaseChat Overview and Summary

The appeal in *Dunn v Firth* concerned a dispute arising from a solicitor's alleged negligence in advising a client regarding her workers compensation entitlements. The client, Ms. Dunn, had suffered an injury at work and sought legal advice from Mr. Firth. The core of the dispute revolved around whether Mr. Firth had adequately informed Ms. Dunn of her common law rights and the election provisions available to her under the *Workers Compensation Act 1987* (NSW). The appeal was heard by Beazley and Tobias JJA and Davies AJA.

The legal issues before the court were twofold. Firstly, the court was required to determine whether the solicitor, Mr. Firth, had breached his duty of care to Ms. Dunn by failing to properly advise her on her statutory entitlements and the implications of any election she might make under the *Workers Compensation Act 1987*. Secondly, the court had to consider whether the trial judge had erred in their assessment of both economic and non-economic loss awarded to Ms. Dunn.

The Court of Appeal found that the solicitor had indeed breached his duty of care. The reasoning focused on the solicitor's obligation to provide clear and comprehensive advice regarding the client's rights and the consequences of her choices under the relevant legislation. The court determined that the advice provided was insufficient, leading to a failure to properly protect the client's interests. Consequently, the court allowed the appeal, setting aside the original judgment and entering a new verdict and judgment in favour of the appellant, Ms. Dunn, for a specified sum. Ms. Dunn was also awarded costs for both the proceedings below and the appeal.

Orders

Orders of the court

1. Appeal allowed; 2. Set aside the judgment of Bell DCJ of 26 July 2002; 3. In lieu thereof enter verdict and judgment for the appellant in the sum of $15,953.26; 4. The respondent is to pay the costs of the proceedings below and of the appeal and to have with respect to the latter a certificate under the Suitors Fund Act, if applicable.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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