Dunn v Firth

[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 damages due to the respondent’s negligence in the provision of legal advice in connection with a work place injury.

2 In 1992, the appellant was employed by Home Care Service of New South Wales [Home Care] as a field staff officer. From 1994 the appellant assisted Mr Chuc Van Tran as a patient of Home Care.

3 The appellant claimed that on 23 November 1994, whilst she was moving Mr Tran from a commode chair to his bed, she injured her back. Mr Tran was standing with the assistance of the appellant, he slumped and the appellant took Mr Tran’s entire weight on her left arm. The appellant felt a shooting pain in the side of her neck and shoulder.

4 On 22 March 1995, the appellant consulted Mr Sefton, a law clerk employed by the respondent. Mr Sefton informed the appellant of her right to make a claim under the Workers Compensation Act [the Act]. Mr Sefton did not inform the appellant of any common law entitlements she might have or of the election provisions under s151A of the Act. Mr Sefton formed the view that, because of the nature of the accident and the medical evidence available, the appellant’s “prospects of success [in a common law claim] were so negligible that [he] just omitted from sharing them with [the appellant]”.

5 On 17 May 1995, the respondent filed an Application for Determination under the Act on behalf of the appellant. This application was amended on 21 March 1996. On 27 February 1997, the application was heard and determined by Commissioner Grayson. The appellant received an award of weekly compensation for permanent impairment under s66 of the Act, but failed to obtain an award under s67 for pain and suffering where the permanent impairment is 10% or more. The amount awarded to the appellant under s66 was $11,388. When interest was added, the final award was $14,536.62.

6 The appellant received and banked a cheque from GIO in payment of the award monies. Under s151A of the Act the appellant had thus made an election not to pursue a common law claim for damages against Home Care. As already stated, the respondent had not warned the appellant that by banking this cheque she would be making such an election.

7 In September 1998, the appellant consulted another solicitor, Mr Rimes. Mr Rimes filed an application for commutation of the appellant’s workers compensation entitlements, as a result of which she received $40,000. The total benefits the appellant thus received under the Act amounted to $81,560, including the amounts she had received by way of weekly compensation payments.

8 On 19 April 2000, the appellant filed an Ordinary Statement of Claim in the District Court of NSW alleging negligence against the respondent. The appellant was unsuccessful in those proceedings because the trial judge held she had suffered no damage as a result of the respondent’s negligence.

9 The appellant submitted that the respondent failed to advise her as to her common law entitlements to sue Home Care for negligence and the effect of the election provision in s151A of the Act. The Appellant submitted that had she been properly advised as to her common law rights she would have instituted common law proceedings. The appellant further submitted that the respondent had denied her the opportunity to commence proceedings, which caused her the loss of the value of obtaining a verdict and judgment in her favour, or of negotiating a settlement of her claim.

10 At trial the respondent conceded that there was a duty of care owed to the appellant to advise her as to her common law rights and the effect of s151A of the Act, and that he had not so advised her. The respondent maintained, however, that had the appellant been so advised she would not have elected to commence common law proceedings against Home Care. Alternatively, if she had elected to commence common law proceedings, she would have failed to prove negligence against Home Care, and, even if negligence was established against Home Care, she would have failed to satisfy the thresholds as to damages prescribed by ss151G and 151H of the Act.

11 Bell DCJ found on the probabilities that had the advice of a competent solicitor been that the appellant had less than 50% prospect of success in a common law action against Home Care, that she would have lost the benefit of Commissioner Grayson’s award had she elected to take common law proceedings and that she would have suffered the financial burden that would follow if the litigation was unsuccessful, the appellant would not have proceeded at common law. However, he also found that if she had been advised that the prospects of success were 50% or better the appellant would have made an election and sued at common law. These findings were not challenged.

Appellant’s prospects of success

12 The trial judge conducted a hypothetical common law trial to determine what the appellant’s prospects of success in an action against Home Care were. As part of this hypothetical trial the parties agreed on a notional trial date of July 1999.

13 At trial His Honour made adverse credit findings against the appellant. In doing so, he concluded that the appellant was “a witness who will fabricate to enhance her position or allow a false picture to be presented if it is to her benefit”.

14 At trial the appellant had submitted that the success of her case was not reliant upon her credit, rather on Home Care’s failure to maintain a safe system of work. The appellant was partially successful in this argument, with Judge Bell finding that “Home Care was on notice that there were problems in attending to Mr [Tran]”; there was no proper risk assessment of the appellant’s working environment prior to the accident; there was a failure on behalf of Home Care to properly instruct field staff in how to deal with the various situations they might encounter; and Home Care failed to provide adequate assistance in lifting Mr Tran.

15 It followed on his Honours finding, that Home Care’s system of work was defective and that it was the negligence of Home Care that caused the appellant’s injury. He considered that such a case would be “hard fought”, particularly given the credit issues to which I have referred. However, he found that, “the objective assessment of the system of work would produce a result on liability in [the appellant’s] favour”. He concluded:

“Allowing for the possibility of a different interpretation of the evidence by another judge, and taking into account some adverse effect because of the plaintiff’s credit problems, I assess the range [of a chance of successfully suing Home Care] to be 70% to 75%.”


This finding was not challenged.

Whether respondent negligent

16 After concluding that the appellant would have pursued a common law action, Judge Bell found that the respondent had been negligent in failing to advise the appellant of her common law rights and the election provisions in s151A of the Act. He concluded that “as the prospect of success is so much higher than the assessment made by Mr Sefton … negligence in failing to make a competent assessment on liability is clearly established. [The appellant] should have been told of her right to make an election and of her substantial chance of success on liability”.

Value of the appellant’s loss

17 The question in issue on the appeal therefore is what was the value of any loss that would have been sustained by the appellant due to the respondent’s negligence.

18 In Johnson v Perez (1998) 166 CLR 351 Brennan J said at 372:

“The value of the lost cause of action cannot be assessed as though there were a market for doubtful causes of action in damages for personal injury… The plaintiff’s loss being whatever monetary compensation he would have received at the time he would have received it but for his solicitor’s negligence, the court must find whether or not he has lost something of value. If he would have failed in the original action, he has lost nothing; if he would have succeeded, he has lost what he would have received at the time he would have received it; if the action would have been compromised, he has lost what he would have been paid in settlement at the time when he would have been paid. Or, if it is doubtful whether or not he would have succeeded in the action and it is not probable that the action would have been compromised, the court assessing the damages must determine as best it can on the balance of probabilities whether the plaintiff would have succeeded (and, if so, to what extent) or failed.”

See also Orford v Qi Ying He [2002] NSWCA 152, Radosavljevic v Radin [2003] NSWCA 217.

19 Having found that the appellant had good prospects of success in a common law action against Home Care and that the respondent was negligent in not informing her of her rights under the Act, his Honour was required to determine the damages the appellant would have been awarded in a common law action under the Act against Home Care.

20 Damages for non-economic loss in a common law action in respect of a work-related injury are governed by s.151G. That section provides:

“151G …
(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.”

21 The maximum award at the time of the appellant’s claim was $216,950: s151G(3). If non-economic loss was assessed below $38,300, non-economic loss could not be awarded: s151G(4). If assessed to be between $38,300 and $51,050 the amount of non-economic loss to be awarded was calculated by applying a formula prescribed in the legislation: s151G(5). If it was assessed to be more than $51,050 the fully assessed amount was to be awarded.

22 Section 151H governs the award of economic loss in a common law action under the Act. Where damages for non-economic loss of $51,050 or more are awarded, damages for economic loss may also be awarded, but not otherwise.

23 As part of the hypothetical trial, Judge Bell assessed the appellant’s non-economic loss at 22.5% of the most extreme case. This resulted in an amount of non-economic loss of $42,055 being awarded to the appellant under s151G. It followed that under s151H no economic loss could be awarded.

24 The appellant challenged the trial judge’s assessment. In particular, she submitted that his Honour erred in failing to give sufficient weight to certain parts of the medical evidence and the evidence of the legal experts qualified by the appellant.

25 Alternatively, the appellant submitted that the trial judge erred in finding that there was no basis upon which Home Care would be prepared to make a settlement offer.

Assessment of Non-Economic Loss

26 The appellant submitted that given her age, the nature and extent of her injury, and her difficulties in maintaining employment and carrying out housework, the appropriate assessment for the non-economic loss suffered by the appellant was in the range of 30 – 35% of a most extreme case. [AS 35]

27 The respondent submitted that the trial judge’s assessment of 22.5% was not so unreasonable as to require appellate intervention.

28 Heydon JA, with whom Spigelman CJ and Sheller JA agreed, held in Damberg v Damberg (2000) 52 NSWLR 492 at para 88 that “it is incumbent upon a party seeking to challenge findings of fact … not merely to persuade an appellate court that that court might have come to different findings from the trial judge had the appellate court been the court of trial, but rather to demonstrate appealable error in the reasoning of the trial judge”.

29 Appealable error is that which is described in House v The King (1936) 55 CLR 499 at 505:

“There must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

Medical Evidence

30 The trial judge considered that Dr Bleasel’s report “most favoured” the appellant. Dr Bleasel, neurosurgeon, found that the appellant had suffered a cervical disc rupture at C5/6 and that this produced a 25% permanent impairment of the neck and a 20% permanent loss of efficient function of the left arm. When he first saw her in 1995, he considered that the appellant was “quite unfit to return to her pre-injury employment”. Dr Bleasel considered the appellant’s condition to be unchanged over the period 1995. His Honour made no reference to Dr. Bleasel’s assessment of the appellant’s work capacity.

31 Dr Patrick, surgeon, made a similar assessment of the appellant’s condition. He considered she had suffered permanent impairment of 20% of the neck and 15% permanent loss of efficient use of the left arm. Dr Patrick considered that the appellant “has been genuinely incapacitated for her former work”. His Honour did not refer to this aspect of Dr. Patrick’s assessment in his judgment.

32 Dr Giblin, orthopaedic surgeon, concluded that the appellant had suffered an impairment of the neck of 15% and of the left arm of 10%. Dr Giblin concluded that the appellant was permanently unfit for a job that required “heavy and repetitive use of her upper limbs or holding the neck in the forward flex position”. His Honour made no reference to this finding in his judgment.

33 Dr McGee-Collett, neurological surgeon, who saw the appellant on one occasion concluded there was an impairment of the neck of 15% and no impairment of the arm.

34 Dr Bodel, orthopaedic surgeon, had seen the appellant 6 times over the period 1995 to 1998. He considered the appellant suffered a disc rupture at C5/6 (being the same diagnosis made by Dr. Bleasel) but only assessed a 12% permanent impairment of the function of the neck and a 5% overall loss of efficient use of the upper left arm.

35 Dr Ellis, surgeon, also accepted that the appellant had a C5/6 inter vertebral disc lesion with brachialgia and C6 nerve root pressure. He assessed impairment at 15% for both the neck and arm.

36 The trial judge disregarded the opinions of Dr Scarf, as being ‘out of step’ with the other reports.

37 Dr Tan, the appellant’s general practitioner, concluded that there was a loss of neck function of 5 – 10%. He did not refer to injury to the left upper arm.

38 The final medical evidence to be considered by the trial judge was the reports of Dr Singh, who was also a general practitioner who had seen the appellant. Dr Singh concluded that the appellant would not be able to work as a nursing assistance in the future, however, he also concluded that she would improve, in time, without any complications.

39 The trial judge accepted that the appellant had suffered a rupture injury to the disc at the C5/6 level. However, he also found that “the extent to which that injury affects the [appellant’s] life depends upon her credibility”; “[and that] acceptance of the [appellant’s] complaint of left arm problems also depends upon the [appellant’s] credibility”; and “the [appellant’s] numerous credit issues adversely affect her medical assessment where the doctor places reliance upon the subjective condition”. The appellant submitted, however, that her credit was not relevant to the assessment of the medical evidence as there was both objective medical evidence and available evidence of complaint consistent with the medical evidence.

40 The appellant submitted that the trial judge erred in failing to take into account the medical evidence that she could not return to the job she had had with Home Care prior to the accident. However, to the extent that this submission is relevant to the assessment of non-economic loss, his Honour did find that the appellant was restricted in her ability to undertake tasks such as lifting weights and that these restrictions would stay with her for the rest of her life.

41 The appellant challenged the trial judge’s finding that surgery was not an option for her. She submitted that there was medical evidence that surgery was an option. She relied in particular upon the evidence of Drs Giblin, Ellis and Gibbs to support her submission. Dr Giblin stated that “an operation on her neck would be better for the doctor, than it would be for the patient. In addition there would be life long ramifications which would be most unhelpful for the patient”, although he was unable to rule surgical intervention out completely. Dr Ellis stated that, while surgery would relieve some of her symptoms, her symptoms were not currently so severe to justify the operation. [B 85] Dr Bodel concluded that he did not “anticipate that [the appellant] will require surgery but it is a possibility in the future”. The respondent submitted that the trial judge’s finding was a fair summary of the doctor’s reports. I agree. There was no definitive evidence that the appellant would come to surgery and overall the evidence indicated it was not likely. There was no error in his Honour’s finding which was clearly open.

42 The appellant next challenged the trial judge’s conclusions that “no specialist medical practitioner has recorded any significant complaint of pain”. The appellant cited parts of the reports of Doctors Bleasel, Bodel and Ellis where the appellant’s complaints of pain are recorded. The appellant also challenged the trial judge’s use of the word ‘discomfort’, as compared to ‘pain’, to explain the appellant’s condition. She submitted that the effect of these findings was that trial judge ‘distorted’ the appellant’s condition. His Honour was required to assess the evidence as a whole. There was a range of descriptions of the appellant’s subjective complaints, including ‘discomfort’, and his Honour was entitled in making his assessment of her condition to adopt the ‘mildest’ of these descriptions.

43 The appellant also made a number of submissions in connection to the trial judge’s treatment of the expert legal evidence. The appellant qualified Mr Hoeben SC and Mr Turner. Mr Hoeben gave a written assessment of non-economic loss of 30-35% of a most extreme case. This upper figure was modified in cross-examination to 33% to take into account the appellant’s improvement in health. Mr Turner gave evidence that, in his opinion, the appellant had suffered non-economic loss of 25-35% of a most extreme case.

44 The evidence of Mr. Hoeben SC and Mr. Turner was evidence in the case to be assessed with and in light of the appellant’s own evidence and medical evidence. His Honour was not required to accept their views.

45 There was no error, in my opinion, in his Honour’s consideration of this evidence.

46 The appellant challenged the trial judge’s finding that “the [appellant’s] evidence of restricted ability to do household chores is exaggerated”. The appellant submitted that the appellant’s husband assisted her with the housework when, because of the effects of the accident, the need arose. In making this submission the appellant referred to the appellant’s husband’s evidence in re-examination that the appellant attempted housework, however, when the work “got too much she’d just leave it”. This evidence does not, however, disclose any appealable error in his Honour’s judgment. It is merely some of the evidence on the issue.

47 The appellant also submitted that the trial judge overstated the extent to which she was able to “fully care for her two children” and “engage in the family business”. The appellant acknowledged in oral argument that this was not a particularly strong submission I agree. The argument goes no further than saying that the trial judge should have reached a different conclusion. That is not an appealable error.

48 In oral argument, senior counsel for the appellant submitted that there were two ways of approaching the trial judge’s findings on non-economic loss. The first approach, as outlined above, challenged the trial judge’s factual findings with the purpose of demonstrating that, had the trial judge not made the errors it was submitted he made, he would have found a total impairment of higher than 23.6% of a worst case, that is, higher than the threshold for damages for economic loss. As found above the trial judge’s findings were open on the totality of the evidence. This submission must therefore fail. The consequence for the appellant of his Honour’s assessment is significant. Had it been 1.1% greater the appellant would have been entitled to damages for economic loss.

49 The appellant submitted alternatively that there was clearly a chance that, “because there was powerful evidence a figure in excess of 23.6 % would have been open to the court”, his Honour should have assessed the appellant’s claim on the basis of the loss of that chance.

50 It is not clear whether this submission was put at trial, although the pleadings are wide enough to encompass such a claim. Nothing was advanced in the appellant’s written submissions on the issue. It seems to me, however, that this part of the claim is not available. The proper approach to the assessment of damages in a claim of this nature is to determine the prospects of successfully prosecuting a claim and to then assess the value of the claim. This is the approach taken by the trial judge and no relevant error in doing so has been demonstrated.

Lost Chance of Settlement

51 At trial, the appellant submitted that, in addition to losing the opportunity to obtain a verdict and judgment against Home Care, she lost the opportunity of negotiating a settlement of her claim. The trial judge found that, having regard to the final result, “[He was] not able to see any basis upon which the notional defendant Home Care would have been prepared to make any offer, even a ‘commercial one’”. The appellant challenges that finding.

52 The appellant submitted that she had good prospects of receiving a favourable settlement offer. The factors she submitted which would support that proposition were that she was 22 years of age when the accident happened; as the trial judge found, there was a reasonable chance of her succeeding in a common law claim on liability; and that she was permanently injured and unable to return to her pre-injury employment. The appellant also referred to the evidence of Mr Hoeben SC and Mr Turner that, while Work Cover, the respondent’s insurer, is often resistant to settlement where there might be difficulties in reaching the thresholds as to damages, Work Cover does often settle cases.

53 The appellant referred the Court to Ball v Masselos (unreported, SCNSW, Ireland J, 10 February 1995) where the possibility of a settlement offer being made and accepted was one of a number of factors that were taken into account when reducing the verdict sum by 25%. The appellant referred to this decision in support of the proposition that the Court may consider the effects of the loss of a chance of accepting a settlement offer. However, in this case, she submitted, such an offer would have been above the damages found by the trial judge, particularly as the respondent faced a “potential liability of over $300,000” at trial. The appellant submitted that this loss of a chance caused her damage.

54 The respondent submitted that it was unlikely that the appellant would have been made a settlement offer, particularly in a context where the appellant had already been paid weekly workers compensation payments and her medical expenses had been paid. They further submitted that the issues with the appellant’s credit, which they argued were apparent from early in the trial, and the potential that the appellant would not be able to satisfy the thresholds as to damages, would have provided further disincentives to making a settlement offer.

55 The respondent also submitted that it was impossible to make an assessment of the size of a potential settlement. Further, they submitted, that the application of Ball v Massellos, in the manner suggested by the appellant, would have the effect that “the defendant can never win”. By this submission, it appears, the respondent is arguing that, in cases such as this, which include a hypothetical trial, even if the plaintiff is unsuccessful on liability they can be awarded damages for the loss of a chance of a settlement offer.

56 Whether or not a settlement offer would be made is a question of fact. His Honour found that fact adversely to the appellant No error has been demonstrated in the trial judge’s finding and accordingly I would reject this submission.

57 Senior counsel for the appellant also submitted in oral argument that the appellant should have been awarded damages on a Griffiths v. Kerkemeyer basis. There was no formal ground of appeal on this issue and the argument was put faintly. Given the trial judge’s assessment of the appellant’s disability and her retained ability, I do not consider this challenge has been made good.

Assessment of Damages

58 That leaves the question of damages. The damages to which the appellant is entitled is that amount, if any, assessed to be the appellant’s award of damages in the hypothetical common law trial against Home Care. The trial judge found that the damages in the hypothetical trial were the amount of non-economic loss awarded to the appellant, $42,055, less the deduction of the compensation already paid to her under the Act. The trial judge found that the appellant had received $81,560 in total in compensation and thus, there would be, in a common law trial, a verdict in favour of the Home Care’s insurer of almost $40,000. He concluded that “although the [appellant] has succeeded in establishing a substantial probability she could prove negligence against Home Care, she has not established that there has been something of value lost to her because of the [respondent’s] failure to advise her about her common law entitlements”.

59 The respondent conceded that the trial judge was in error in finding that he was required, under the Act, to deduct from the assessment of common law damages the whole of the compensation amounts paid to the appellant pursuant to the Act. Further, as the appellant had not satisfied the threshold for damages for economic loss she would not have been required under s151B of the Act to deduct the weekly compensation payments received by her. The respondent acknowledged that the result of the common law action would mean that the appellant’s rights to weekly compensation payments would not have been extinguished.

60 However, the respondent submitted that the $11,338 awarded by Commissioner Grayson as lump sum compensation would need to be deducted from the assessment of common law damages, as the receipt of such an award precluded the institution of common law proceedings under the election provisions of s151A of the Act. This deduction would leave damages in the sum of $30,667 from the common law action.

61 The respondent then submitted that the $40,000 commutation of the appellant’s weekly compensation payments and medical expenses pursuant to the Act would not have been awarded to the appellant by Home Care’s insurer, as the common law proceedings would already have been listed for the notional trial date in July 1999. They submitted that, having regard to the findings and result of the common law trial, Home Care’s insurer would not have continued to pay weekly compensation payments and would not have given the appellant the opportunity to commute her rights to weekly compensation. As a result, the respondent submitted that the award of $40,000 should also be deducted from the assessment of common law damages.

62 Further, the respondent submitted that before deducting the workers compensation benefits from the award of common law damages the trial judge should have reduced this award to reflect his finding that the appellant had a 70 – 75% prospect of success in a common law action. The respondent argued that “this reinforces the conclusion that the inevitable result was a judgment for the Respondent”.

63 The appellant made the same submission as the respondent, that the trial judge’s deduction of the commutation from the award of damages should only have occurred if both economic and non-economic loss were awarded, see s151B(1) of the Act.

64 In oral submissions, senior counsel for the appellant acknowledged that the common law damages award of non-economic loss would need to be reduced to take into account the trial judge’s finding of the prospects of success of the appellant in a common law action. He also acknowledged that the correct application of ss151A and 151B involved the deduction of the lump sum compensation awarded by Commissioner Grayson from the award of damages. It is accepted by both parties that the correct deduction is the amount awarded by Commissioner Grayson plus interest, giving a total amount to be deducted of $14,536.62.

65 The appellant submitted that even if these reductions and deductions were to occur there remains a verdict and judgment in favour of the appellant.

66 The trial judge found that the appellant had a non-economic loss of 22.5% of a most extreme case. Whilst this figure does not meet the threshold for damages for economic loss, it is not an insubstantial award. The evidence as accepted by the trial judge is that the appellant has various restrictions that will affect her working capacity. The appellant will likely be affected for the rest of her life by the effects of this injury. The respondent has not provided any evidence to support the submission made in the notice of contention that the appellant’s workers compensation rights were of no value or of a lesser value.

67 The appellant submitted, in reply to the respondent’s notice of contention, that there was no evidence before the trial judge that she would not have been offered the commutation of her weekly compensation payments of $40,000 after the common law trial. The appellant submitted that she was 22 years of age when the accident occurred, she is now unfit to return to her pre-injury employment, and in such circumstances there is an obligation under the Act to make future payments. The appellant submitted that there was no basis to argue that her workers compensation rights were of no or a lesser value. I agree, and in any event consider that the issue raised by the respondent’s contention is a matter that requires evidence. There was none.

68 As both parties acknowledge the trial judge made a number of errors in his award of damages, these need to be corrected. In my opinion, however, there should be no reduction for the commutation amount awarded to the appellant. On my calculations the proper award of damages is $18,017.26 calculated as follows: the award of $42,055 for non-economic loss should be reduced to 72.5% of the original award to take into account the appellant’s prospects of success; from that figure Commissioner Grayson’s award of $14,536.62 should then be deducted, leaving a figure of $15,953.26 as the damage to the appellant caused by the respondent’s negligence.

69 I propose the following orders:

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.

70 TOBIAS JA: I agree with Beazley JA

71 DAVIES AJA: I agree with Beazley JA and with the orders proposed.

72 I should add that I suspect that, if Ms Dunn had been advised as to the prospects of a common law claim, she would have been advised that the prospects of recovering substantial damages were so small and the costs and difficulties of a common law trial so great that common law proceedings ought not to be instituted. I suspect that Ms Dunn would have heeded that advice.

73 However, no challenge was made to the ruling of the trial Judge that common law proceedings would have been instituted if the prospects of establishing liability were 50% or more.

74 Ms Dunn is therefore entitled to the damages which Beazley JA has assessed.

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Last Modified: 10/09/2003