Firth v Sutton - [2010] NSWCA 90

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Firth v Sutton [2010] NSWCA 90

HEARING DATE(S): 20 November 2009

JUDGMENT DATE:
30 April 2010

JUDGMENT OF: Allsop P at 1; Macfarlan JA at 198; Young JA at 199

DECISION: 1. On or before Friday 7 May, the parties file written submissions on the question of interest (including any agreed or competing calculations) and costs.
2. Stand the proceedings over to a date to be fixed for the making of final orders.

CATCHWORDS: TORTS – Negligence – professional negligence – solicitor failed to properly advise on availability of common law damages in workplace injury claim - WORKERS’ COMPENSATION – Entitlement to compensation for permanent impairment and pain and suffering – Workers Compensation Act 1987 (NSW) ss 66 and 67 – election to be made for damages under Workers Compensation Act or damages at common law – Workers Compensation Act 1987 (NSW) s 151A(2) - DAMAGES – Personal injury – measure and assessment of damages – loss of opportunity to pursue common law claim in preference to Workers Compensation Act entitlements – assessment of comparative worth of proceedings under Workers Compensation Act and common law – calculation of the value of the loss of a lump sum payment should include interest

LEGISLATION CITED: Workers Compensation Act 1987 (NSW) ss 40, 40A, 42, 65, 66, 67, 68A, 151, 151A, 151B, 151E-T

CATEGORY: Principal judgment

CASES CITED: Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426
Chamberlain v Ormsby [2005] NSWCA 454
Johnson v Perez [1988] HCA 64; 166 CLR 351
Nikolaou v Papasavas [1989] HCA 11; 166 CLR 394
Re-Car Consolidated Industries (Newcastle) Pty Ltd v Horner [1997] NSWSC 425; 42 NSWLR 574
Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332
Tabet v Gett [2010] HCA 12
Willis v The Commonwealth [1946] HCA 22; 73 CLR 105

PARTIES: Stephen Paul Firth (Appellant)
Renee Sutton (Respondent)

FILE NUMBER(S): CA 2009/298149

COUNSEL: G M Watson SC, I R Goodridge (Appellant)
K W Andrews (Respondent)

SOLICITORS: Firths - The Compensation Lawyers (Appellant)
Brennan Legal (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3309/05

LOWER COURT JUDICIAL OFFICER: Hungerford ADCJ

LOWER COURT DATE OF DECISION: 12 March, 17 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Sutton v Firth (No 2) [2009] NSWDC 53, Sutton v Firth (No 3) [2009] NSWDC 68

2009/298149

ALLSOP P
MACFARLAN JA
YOUNG JA
Friday 30 April 2010

FIRTH v SUTTON

Judgment

1 ALLSOP P: The appellant, a solicitor who is the principal of the firm Firths, appealed against a verdict and judgment of the District Court for $107,415.29 plus costs arising out of the found negligence in 1998 and 1999 of an employed solicitor, Mr James Govan, in the handling of a workplace personal injury claim.

2 In 1994, the respondent, Ms Renee Sutton, began working at the local supermarket near where she lived, run by a company called Go-Lo Distributions Pty Ltd (“Go-Lo”) when she was thirteen years old and still attending high school. From 1994 to 1998, she worked on Thursday evenings for four hours and on each Saturday for eight hours.

3 Her work involved lifting and moving boxes, some of which she described as “very heavy”, up to 15 to 20 kilograms. She was given no training or advice about safe procedures in lifting. She began feeling pain in her back about one year after commencing with Go-Lo, but she did not report it as she thought she could “handle it”. She continued at school, played sport and continued her work at Go-Lo.

4 On 12 February 1998, the pain in her back became intense. She was picked up from work by her mother, Ms Northey, who took her to their local general practitioner, Dr Jayadev. There was no frank incident on 12 February that caused the pain. Dr Jayadev, with the assistance of an x-ray carried out in March by Dr Fung, diagnosed a strained lumbosacral spine.

5 Ms Sutton resumed work at Go-Lo on light duties at the check out register, but she had difficulty remaining standing. She later ceased work at Go-Lo. She terminated her schooling in June 1998, about a month after turning 17. She did so because of the pain in her back which also prevented her playing sport in respect of which pastime she was a keen participant.

6 Ms Sutton was “an average student” with a strong work ethic, who exhibited competitiveness in her sport before her participation ceased. She had an ambition to become a flight steward employed by an airline.

7 Ms Sutton completed a workers compensation claim form on 21 April 1998.

8 After leaving school in June 1998, Ms Sutton commenced a six month full-time course in office administration at Bankstown TAFE, which she completed in early 1999. She was able to sit and stand at will at TAFE (unlike at school) which made the undertaking of the course practicable.

9 Around the time of completion of the TAFE course, in early 1999, Ms Sutton commenced full-time work with an advertising company as a receptionist, earning $240 per week.

10 Meanwhile, on 9 December 1998, Ms Northey contacted Firths to see what could be done for her daughter about any claim in respect of her back. Ms Northey spoke on the telephone to Mr Govan, who then undertook carriage of Ms Sutton’s claim. Proceedings under the Workers Compensation Act 1987 (NSW) (the “WC Act”) were thereafter commenced.

11 After this initial phone call, Mr Govan sent a letter dated 14 December 1998 to the plaintiff directed to workers compensation rights, pointing out that if the medical evidence supported a degree of permanent impairment to her back and legs she would be entitled to bring a claim for lump sum compensation in addition to her entitlements to payment of weekly compensation and reasonable and necessary medical expenses. The letter enclosed a costs agreement reflective of only proceedings under the WC Act being taken and authority forms to enable medical reports to be obtained.

12 Mr Govan wrote to Ms Sutton again on 15 December 1998 acknowledging receipt of a report of a CT scan in June 1998 and stating that on the basis of that report the firm would be confident of establishing an entitlement of lump sum compensation, although it would be necessary for the doctors to draw a causal nexus between the presenting pathology and the work at Go-Lo. The letter expressed confidence that any pre-existing degenerative causes would be unlikely to be related to the presenting problems.

13 Mr Govan did not arrange a conference with Ms Sutton or her mother and took no statements as to liability or quantum. He gave no advice prior to 1 September 1999 as to any claim for damages at common law as modified by the WC Act.

14 On 1 September 1999, Ms Sutton, Ms Northey and Mr Govan attended a conciliation conference at which a settlement of $27,500 was reached with Go-Lo’s workers compensation insurer for lump sum payments under the WC Act, ss 66 and 67. This was the first occasion that Ms Sutton and Ms Northey had met Mr Govan (or anyone else from Firths). By entering the settlement, the respondent made an election which prevented her from pursuing rights at common law against Go-Lo.

15 It is the loss of those common law rights about which Ms Sutton complained in the District Court. The primary judge (Hungerford ADCJ) found the appellant (through his employed solicitor, Mr Govan) negligent and awarded damages in the amount earlier referred to.

16 The appellant asserted in the appeal that Mr Govan was not negligent. The appellant also asserted that the advice, such as it was, explicit and implicit, was correct, or at least sufficiently close to the advice which a prudent and competent solicitor would have given as not to have been causative of any loss.

17 Given the assertion by the appellant of lack of negligence of Mr Govan it is necessary to deal in some detail with his handling of Ms Sutton’s claim. Though Mr Govan took no statements about liability and quantum, it should be stated at the outset that the workers compensation claim was attended to promptly and with efficiency by him. No complaint was made, nor could it be made, about the promptitude and efficiency of the service provided by Mr Govan in relation to prosecuting Ms Sutton’s workers compensation claim.

18 It is also necessary to say something about Mr Govan’s experience and his evidence in the case. The events took place in 1998 and 1999. Mr Govan began his legal studies in 1992 while employed part-time as a law clerk in a city firm of solicitors. He worked at that firm full-time while studying at night. The firm with which he worked had a general practice. Mr Govan did general clerking work attending to all manner of cases. After graduation, he commenced work as a solicitor with a firm specialising in personal injury work. He attended to personal injury cases from workplace accidents and became familiar with claims for workers compensation and modified common law damages. After approximately three years as a clerk and three years as a solicitor, Mr Govan moved to Firths (in April 1998) where he continued to specialise in personal injury claims, primarily workplace injury claims. Thus, by the end of 1998, Mr Govan had some three to four years experience as a solicitor attending principally to workplace injury claims (in addition to his experience as a clerk). When he came to give his evidence in February 2009, Mr Govan had the advantage of another nine years’ experience. He had moved firms, in the meantime, but had continued to practise in the personal injury field. He therefore brought to the witness box his experience of over 13 years working as a solicitor in workplace injury claims. To that extent, he brought a significant body of expertise to his evidence. His evidence was given without equivocation, straightforwardly and directly responsively to the questioning he underwent. At no time did he seek to prevaricate or be overly defensive. It is to his personal credit that he provided clear and responsive answers, sometimes against his interest, in circumstances where his conduct was the subject of professional criticism. It is appropriate to make these remarks for two reasons. First, the primary judge concluded that Mr Govan’s conduct of the file was less than could be expected from a reasonably prudent solicitor. For the reasons which follow, I agree with that conclusion of the primary judge. In those circumstances, it is appropriate to note how Mr Govan acquitted himself in the witness box. The second aspect of the importance of the comments is that the concessions against interest should be understood as frankly made by a now highly experienced solicitor and are to be given significant weight in assessing that solicitor’s conduct almost a decade before, when he did not have the advantage of the full body of experience that he had at the time of his evidence.

19 Mr Govan promptly and efficiently qualified a number of medical practitioners to take a full history, to examine Ms Sutton and to give their opinions on diagnosis, prognosis and permanent incapacity.

20 By letter of 28 January 1999, Mr Govan sought an opinion from an orthopaedic surgeon, Dr Rosenberg. The letter of request for a medical report asked for a diagnosis, a view as to the cause of the condition, a view as to total or partial incapacity and an assessment of any permanent impairment of the back. Dr Rosenberg, who practised at Bankstown, had seen Ms Sutton in June 1998, when he had prepared a report for MMI (which was, I assume, an insurer of Go-Lo). In substance, the report in June 1998 was as provided in late February 1999.

21 In late February 1999, Mr Govan received Dr Rosenberg’s two page report. After reciting the history, Dr Rosenberg referred to Ms Sutton’s pre-existing back condition saying the following:

“Clinically her spine was well aligned. She was stiff and uncomfortable forward flexing to her knees only. She extended slowly. She was maximally tender in her left buttock. Straight leg raising on the left reproduced her leg pain. Femoral nerve stretch test was negative. There was weakness on the left leg of toe dorsiflexion and ankle eversion. Reflexes however were present and symmetrical. Hips, knees and sacroiliac joints were unaffected.

Plain x-rays showed L5 pars defects with a spondylolisthesis at the lumbosacral level. The CT scan confirmed this finding and also a significant left sided L4/5 disc prolapse, impinging the L5 nerve foot. I believe the disc prolapse is the cause of her current state and this is directly the result of her job of bending and lifting. Pars defects are present in up to 8% of the population and obviously are pre-existing.

In fairness to Renee however, a heavy physical job with a lot of bending and lifting would reasonably have contributed to her back pain. Also with this relative weakness more strain would be placed on the disc above resulting in the disc prolapse.

She initially was advised to receive physiotherapy and also undergo a back strengthening regime. She was also suggested to change jobs to a lighter office type job, one that avoided heavy physical exertion on the back.

She was advised that in the worst case scenario, if her symptoms failed to settle she had an excellent chance of improvement in her left buttock and leg symptoms with excision of the L4/5 disc. In the future she is at higher risk of having ongoing problems with her back and in the worse case scenario would require a lumbar fusion.

I did not believe that she required this at present and the only surgery contemplated would be an L4/5 disc excision and neurolysis of the L5 nerve root.

I have not seen her since June over 8 months ago.

To summarise, I believe Renee Sutton’s current predicament of back and left leg pain is largely due to the L4/5 disc prolapse she has sustained. This is a direct result of the conditions of her work. She does have L5 pars defects with Grade 1 spondylolisthesis but that is not her problem at present.

Finally in response to point 8, when last seen I would have assessed the percentage permanent impairment of her lumbar spine at 10%.

I would have assessed a 5% permanent impairment of the left leg at and above the knee as a result of referred pain from her spine.

Finally, the natural history of a disc prolapse is to settle but it can be a lengthy process. The role of surgery is to aid in recovery if symptoms fail to settle.”

22 In early February 1999 Mr Govan arranged an examination of Ms Sutton by Dr Wolfenden, a consultant neurologist. Mr Govan requested a full report from him as to history, diagnosis and prognosis, course of treatment, permanent impairment and causal relationship of the injury to work.

23 On 13 April 1999, Ms Sutton saw Dr Wolfenden. Dr Wolfenden’s report, in addition to describing his examination, provided his opinion as follows:

“She was working as a shop assistant for 3 years (Go-Lo) and ceased in February, 1998. She had to do everything including packing, cleaning and lifting heavy boxes. In 1997 she began getting back pain on and off aggravated by lifting but it became very bad in January and February, 1998. Pain was more often with cramps and trouble sleeping. Pain also goes into the left buttock and the left calf and she is getting cramps in the toes of both feet.

She hasn’t improved since she left the job but has started a job 2 weeks ago as a receptionist which is much easier.

She has had physiotherapy which made her worse and she requires Panadeine forte every day. The back is not improving. She used to do a lot of sports but can’t do this now.

Surgery has been suggested but she wants to avoid this.

Her general health is good. She had had no previous back trouble. She is single and lives with her parents. She used to help around the house but can’t do it now.

…

^th

^st

On this background the lifting strains described above when working as a shop assistant have led to disc protrusions and irritation of sacral nerve roots on the left with consequent left leg sciatica.

Unfortunately physiotherapy has not been of benefit though possibly some form of traction may help her. I don’t think many people would be keen to operate on the back of one so young but eventually, if back pain proves too constant and severe, a fusion operation may be required.

Miss Sutton is now completely unfit for all work involving bending and lifting and is quite unsuitable to return to her previous occupation. She is only fit for some sedentary occupation as she is at present doing.

I consider that she has a permanent impairment of her back equivalent to approximately 25% of a most extreme case and a 15% permanent loss of the efficient use of her left leg at or above the knee to include any impairment below the knee.

Of the total impairments as assessed above, I consider that 90% of them are attributable to the work performed as a shop assistant and 10% of them are attributable to the underlying constitutional defect in her lumbar spine.”

24 On 20 April 1999, Mr Govan wrote to Ms Sutton advising of Dr Wolfenden’s views. The letter stated that with the view of Dr Wolfenden “we are now able to duly make your claim for lump sum compensation in accordance with the Act and regulations and have done so by letter of even date to the employer and the insurer (copy enclosed).”

25 On 28 April 1999, Mr Govan wrote to Dr Blake, an orthopaedic consultant, providing information and seeking an opinion. Mr Govan’s letter stated the following:

“Our client presents with back and left leg injury sustained during the course of her employment as a shop assistant, originally in or about December of 1997 and possibly aggravated by her continued work up until February of 1998.

The treating orthopaedic specialist, Dr Rosenberg has not ruled out lumbar fusion as a future worse case scenario.

Dr Wolfenden who examined our client for medico-legal purposes assessed permanent impairment of the back at 25% and permanent loss of efficient use of the left leg at or above the knee at 15%.

There would appear to be a pre-existing constitutional problem in the lumbar spine which would appear to have been aggravated by the nature and conditions of her employment.

We look forward to receiving your complete report including the following:

a. The history given to you by our client.

b. Your diagnosis and prognosis.

c. Your recommended course of treatment.

d. Whether you believe the condition to have stabilised at the present time, and if so, assessments of permanent impairment of our client’s back and loss of efficient use of the left leg at or above the knee (and any other body part that may be affected).

e. Whether you accept our client’s presenting problems, in their entirety, to be related to the work injuries as described and if not, comments as to other contributing factors.

26 Ms Sutton saw Dr Blake in August 1999. Dr Blake provided an extremely full report of Ms Sutton’s history including work and school history, domestic and leisure activity and present complaints. His opinion included the following:

“(b) Diagnosis is of a major extrusion of the L4/5 disc in the lower back, occurring gradually, and producing pressure and slight damage to the left L5 nerve root. A developmental condition (defects of the arch at L5 with no apparent slip but developmentally small L5 vertebral body) is found but appears not to be the main source of her present symptoms particularly involving the nerve root to the left leg.

No injury as such has occurred, and symptoms have developed gradually. There is no indication that the disc prolapse was actually caused by her work, but the undertaking of physically demanding work in an immature spine from the age of 13, was associated 2 years later with the development of her symptoms. Significant disruption of her life has resulted, and she is not able to complete her HSC and go on to become an air hostess, or continue with her main sports. She has been able to train and undertake light office work. Significant pressure and irritation of the left nerve root – S1 – and in my opinion she is close to having operation advised (rather than just offered), particularly should there be any increase in nerve root tension and damage to the nerve root. Prognosis is uncertain, it is possible spontaneous improvement will occur. It is also possible some deterioration will occur, in which case surgical treatment will need more definite consideration. It is not possible to predict which way a particular person will go. At present she feels her condition is still deteriorating.

(c) Recommended course of treatment is to continue under her family doctor and with specialist assessment, to observe and monitor the neurological signs in the left leg in particular.

(d) At present she feels she is deteriorating. On the basis of just one examination it is not possible for me to comment firmly on this. It is now 1 year and 8 months since the onset of her first symptoms, and it is reasonable to consider her stabilised for the purpose of assessment, providing allowance is made for possible surgical treatment should deterioration continue. In my opinion Miss Sutton has 25% impairment of her back. This is in relation to a most extreme case. In my opinion Miss Sutton has 15% permanent loss of efficient use of the left leg at or above the knee, taking into consideration loss below the knee.

(e) In my opinion her present problems relate to the constitutional condition in her lower back brought to light and aggravated by her heavy work requirements.

(f) Miss Sutton is partially incapacitated for work. She is not fit for any work which places particular stress through her back in the form of heavy lifting or carrying, prolonged or repeated bending, or the need to sit or maintain any position for prolonged periods without the ability to get up and move about as required.”

27 In another report of the same day, Dr Blake opined:

“In terms of apportionment, this would be made on the basis of 50% of the total disability in her back and left leg relating to the pre-existing and constitutional condition involving weakness in the disc, and 50% due to the conditions of her work requiring repeated bending and lifting.”

28 The report of Dr Blake had an extensive history and commentary on the effects of the injury on Ms Sutton’s life. I will not set out this aspect of the report in detail, nevertheless to the extent that there can be criticism of Mr Govan for not interviewing Ms Sutton to obtain aspects of her personal history, that criticism can be met, at least in part, by the recognition of the detail of the information he had from Dr Blake’s report.

29 Meanwhile, in March 1999, Ms Sutton also saw Dr Limbers, an orthopaedic consultant, at the request of the insurer. He provided a report to the MMI Insurance Group on 20 March 1999. Mr Govan had this report on or before 1 September 1999. After setting out the history, Dr Limbers stated the following:

“Clinical and radiological examination confirm the presence of spondylolisthesis. She also has sciatica.

Spondylolisthesis is a constitutional condition, where part of the vertebral body fails to fuse. Aggravation has caused symptoms, and certainly sciatica.

The sciatica is thus a work related condition. However, the spondylolisthesis is not work related, but noting that this was symptomless, her present condition is work related.

She is fit for only selected duties and sedentary work.

I believe this young lady requires probable surgical treatment, which would entail discectomy, and spinal fusion.

Her x-rays also showed the presence of a marked disc bulge which is causing the sciatic pain.

The prognosis is not good.”

30 In a companion report of the same date Dr Limbers stated:

“Ms Sutton has a 20% permanent impairment of her back when compared to a most severe case. I believe that 15% of this impairment is due to the work related incident, and 5% is due to a pre-existing but asymptomatic condition.”

31 Apart from seeing the medical practitioners in the substantiation of her workers compensation claim, in 1999 Ms Sutton also saw her general practitioner, Dr Jayadev.

32 From early July 1999, negotiations began with MMI over lump sum payments for permanent loss compensation under the WC Act. On 6 July, 1999 MMI offered $12,000 being for 20% permanent impairment of the back for the purposes of the WC Act, s 66. Mr Govan wrote to Ms Sutton on 12 July 1999 stating:

“We refer to previous correspondence and enclose a copy of letter from MMI dated 6 July 1999 conveying an offer of settlement in respect of 20% permanent impairment of the back ($12,000).

No medical evidence has been served in support of that offer, nor is there an allowance for pain and suffering to which you would be entitled.

You will recall that our claim is based on the assessment of Dr Wolfenden who assessed 25% permanent impairment of the back ($15,000.00) and 15% permanent loss of efficient use of the left leg ($11,250.00) plus pain and suffering.

We would not recommend acceptance of the insurers offer and seek your instructions to reject it.”

33 On 29 July 1999, MMI made another offer in the following terms:

“It appears we miscalculated our previous offer and apologise for any inconvenience this may have caused. Please find our amended offer and the first page of Dr Limbers’ report attached.

We advise we are prepared to offer the sum of $20,000.00 being for 20% permanent impairment of lower back pursuant to Section 66 of the NSW Workers’ Compensation Act of 1987 as amended.

As the claim meets the relevant threshold pursuant to Section 67, we also offer $6,000 for pain & suffering.”

34 On 6 August 1999, the matter was listed for conciliation on 1 September 1999. On 12 August 1999, Mr Govan wrote to Ms Sutton providing her with MMI’s latest offer. The letter contained views and requested instructions as follows:

“We would be of the view that the offer is insufficient given the assessments of Dr Wolfenden. If Dr Wolfenden’s assessments are accepted by the court you will be likely to receive compensation in the vicinity of $35,000.00 to $40,000.00.

For the purpose of compromise, however, you might like to instruct us to attempt to negotiate a settlement mid-way between the insurer’s offer and the assessments of Dr Wolfenden.”

35 The plaintiff said that she was not advised of her rights at common law. The contest at the trial on this issue was summarised by the primary judge at [41] of his reasons, as follows:

“[41] The plaintiff was challenged forcefully in cross-examination that in fact Mr Govan on 1 September 1999 at the conciliation conference advised her about her options at either common law or for continued workers compensation and that he advised her the better option was workers compensation because of the difficulty in establishing fault against Go-Lo and her pre-existing medical condition. She maintained her primary evidence, specifically that she did not understand her common law likely entitlements until the later discussion in 2002 with Ms Ens of Kells Lawyers.”

36 Ms Northey gave evidence, recounted by the primary judge at [41] (sic: [42]) of his reasons, as follows:

“I just remember him saying that she – in her position, she – she could not go for common law whatever the common law thing was because, you’d have to prove negligence and it was something that just wouldn’t be able to be done. So, it was the workers compensation … No, he never even really spoke about common law … We were there for the settlement for the workers comp.”

37 The primary judge thought the above evidence of Ms Northey to be consistent with Ms Sutton’s evidence. That is debatable.

38 At [44] of his reasons, the primary judge set out a file note of Mr Govan of a conference on 1 September 1999 with Ms Sutton and Ms Northey prior to the settlement conference. The note contained the following:

“Advised re settlement.

(a) medicals continue as needed

(b) wages continue as needed

(c) common law rights extinguished

Re common law.

need negligence – can’t really see it here

need threshold – not quite there.

Client advised had been paid all weeklies.”

39 Later on that day (1 September 1999) a settlement was reached for lump sum compensation under the WC Act, ss 66 and 67 of $27,500. On the next day, 2 September 1999, Mr Govan wrote to Ms Sutton setting out his views of the satisfactory nature of the settlement. He stated:

“We refer to your attendance in our office and at conciliation conference on 1 September, 1999.

Ultimately, we were able to resolve your claim for lump sum compensation in the sum of $27,500.00.

We confirm our advice that your rights and entitlements to ongoing medical expenses and weekly benefits (if you are unable to work because of your injury) are unaffected by the settlement.

In addition if the condition significantly deteriorates in the future you may be entitled to bring a further claim for lump sum compensation.

We regard the settlement as most satisfactory, especially giving [sic] the findings of Dr Blake in his report of 27 August 1999, a copy of which is enclosed. Dr Blake assesses the same impairments as Dr Wolfenden, that is 25% for the back and 15% for the left leg and then proceeds to deduct 50% to take into account the pre-existing constitutional condition for which Dr Wolfenden only deducted 10%.

Section 68A of the Workers Compensation Act states that an employer/insurer is not liable to compensate a worker for that proportion of the impairment which is related to pre-existing constitutional condition.

The Respondent’s qualified specialist, Dr Limbers, assessed the deductable proportion at 25%, and if Dr Limbers’ assessment was accepted by the courts you would be entitled to a lump sum of $9,000.00 only.

We confirm our advice that our legal expenses are to be paid separately by MMI and will not be deducted from the settlement money.

We are in the process of completing the necessary Registration of Agreement forms and will advise when this has been completed.”

40 As I said earlier, no criticism was levelled at Mr Govan in relation to the workers compensation settlement, as such.

41 The history of the preparation of Ms Sutton’s claim that I have set out reveals a clear concentration upon vindication of rights under the WC Act. Although there was no conference with Ms Sutton exploring the aspects of her evidence that might have touched upon a common law claim, but not one under the WC Act (in particular, general damages other than pain and suffering), the detailed histories, comments and opinions of the doctors, especially Dr Blake, provided a significant body of information to Mr Govan.

Relevant provisions of the WC Act

42 Critical, of course, were the relevant provisions of the WC Act modifying common law damages. The following provisions were of particular importance.

(a) Part 3 Div 4 dealt with compensation for non-economic loss (“permanent loss compensation” for the purposes of s 151A), which included compensation for loss, or proportionate loss, of parts of the body in a table of maims: ss 65, 66 and 68 and the Table in the Division (up to $100,000) and for pain and suffering: s 67 (up to $50,000). The pain and suffering compensated under s 67 was for the loss compensated for by the Table, not for the injury as such which caused that loss.

(b) Section 68A provided for deduction for previous injury or pre-existing condition or abnormality. Relevantly, it provided that in determining compensation in Part 3 Div 4 there was to be a deduction for any proportion of the loss that was due to any pre-existing condition or abnormality: see generally Re-Car Consolidated Industries (Newcastle) Pty Ltd v Horner [1997] NSWSC 425; 42 NSWLR 574.

(c) Under the WC Act, s 151 the liability of an employer in respect of an injury to a worker independently of the Act was not affected, except to the extent that the WC Act expressly otherwise provided.

(d) Under s 151A(2) Ms Sutton was not entitled to both “permanent loss compensation” under Part 3 Div 4 of the Act (relevantly, compensation under ss 66 and 67) and damages at common law. An election had to be made.

(e) The election involved was made by either commencing a common law claim or by accepting payment of common law damages (s 151A (3)(a)) or by accepting permanent loss compensation (s 151A (3)(b)). Ms Sutton made her election on 1 September 1999, by accepting permanent loss compensation. (The gravamen of Ms Sutton’s complaints was that Mr Govan did not explain clearly to her the choice to be made, nor seek her instructions on what to do with both options explained in full.)

(f) The election was irrevocable except as provided for by s 151A: s 151A(4). One aspect of the requirements of s 151A for revocation of the election was that there be no reasonable cause to believe at the time of the election that further deterioration of the injury could occur: s 151A(5)(c). That was plainly not the case here in the light of the medical reports. Thus Ms Sutton’s election on 1 September 1999 was effectively irrevocable.

(g) Under s 151B, if damages at common law were recovered, all rights to compensation under the WC Act ceased and all payments made were to be deducted: s 151B(1). This did not apply to someone who recovered damages for non-economic loss, but not any damages for economic loss because of the operation of s 151H: s 151B (2). A person who recovered damages for economic loss, but not non-economic loss because of s 151G was not prevented from recovering, and was not required to deduct, compensation under Part 3 Div 4, except s 67 compensation for pain and suffering: s 151B(3). Regard had also to be paid to s 151B(4).

(h) Part 5 Div 3 (ss 151E to 151T) dealt with modified common law damages against an employer.

(i) Section 151G dealt with damages for non-economic loss. At the time, it was relevantly in the following terms:

s 151G Damages for non-economic loss

(1) (Repealed)

(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.

(3) The maximum amount which may be awarded for non-economic loss is $204,000, but the maximum amount may be awarded only in a most extreme case.

(4) If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded.

(5) If the amount of non-economic loss is assessed to be between $36,000 and $48,000, the amount of damages to be awarded for non-economic loss is as follows:

Damages = [Amount so assessed - $36,000] x 4

(6) (Repealed)

(7) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amounts of $204,000, $36,000 and $48,000 were adjustable amounts and were referred to in section 81(1). However, section 80(2) does not apply to the amounts of $36,000 and $48,000.

(8) If an amount mentioned in this section:

(a) is adjusted by the operation of Division 6 of Part 3, or

(b) is adjusted by an amendment of this section,

the damages awarded are to be assessed by reference to the amount in force at the date of injury.”

“s 151H No damages for economic loss unless injury serious

(2) …

Workers Compensation (Benefits) Amendment Act 1991

(a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 25 per cent of the maximum amount from time to time referred to in section 66(1), or

(b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66).

(3) (Repealed)

(4) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amount of $48,000 were an adjustable amount and were referred to in section 81(1). However, section 80(2) does not apply to the amount of $48,000.

(5) For the purposes of determining whether an injury is a serious injury, the court has the powers under this Act of the Compensation Court relating to the reference of a matter to a medical referee or medical panel for report.

(6) If an amount mentioned in this section:

(a) is adjusted by the operation of Division 6 of Part 3, or

(b) is adjusted by an amendment of this section,

the damages awarded are to be assessed by reference to the amount in force at the date of the injury.”

43 It was common ground at the trial that the relevant indexed sums for these sections by reason of s 151G(8) and s 151H(6) were $40,000, $53,350 and $226,650.

44 It is to be noted that it was not argued on appeal that at the relevant time s 151H (2A)(a) was likely to be satisfied.

45 Thus, the assessment for non-economic loss at the respective thresholds being 17.66 and 23.5 per cent, of a most extreme case, for the purposes of s 151G became critical for the comparative worth of proceeding under the WC Act or at common law.

46 Under the WC Act, Ms Sutton would be compensated for all medical expenses and (given her likely modest income level) all likely ongoing wage loss caused by the work injury. In addition, she was entitled to lump sums under the table of maims and for pain and suffering under ss 66 and 67.

47 If she commenced a common law claim she elected, by that very act, to give up “permanent loss compensation” under Part 3 Div 4 of the WC Act, such as under ss 66 and 67.

48 If she took (as she did) permanent loss compensation under ss 66 and 67, she elected to give up common law damages.

49 In practical terms, Ms Sutton had to make up her mind in about mid-1999. This was when the promptly arranged settlement conference was scheduled. This promptitude was also reflected in the parties’ agreement at the hearing that the notional trial of the common law claim would have taken place on or about 1 July 2000.

50 The risk Ms Sutton took by commencing proceedings at common law was that if she was assessed for non-economic loss at less than 23.5 per cent of a most extreme case, she received no damages for economic loss; but, in that case, s 151D(2) meant that she was still entitled to compensation under the WC Act (but not permanent loss compensation: s 151A).

51 Of course if Ms Sutton were to obtain non-economic loss of 23.5 per cent or more of a most extreme case she became entitled to economic loss as well as non-economic loss.

52 A more acute danger, however, was that if she were to obtain non-economic loss in damages less than 17.66 per cent of a most extreme case, not only would no damages for economic loss be awarded, but neither would damages for non-economic loss. In such a case, she would be thrown back on to the WC Act for compensation entitlements, but not permanent loss compensation which she would have lost forever by the election to sue at common law. She would also be exposed to an order for costs in the common law claim.

53 It should also be noted that if she obtained more than 17.66 per cent of a most extreme case in non-economic loss but less than 23.5 per cent and so she was disentitled to economic loss at common law, she would be exposed to costs of at least part of the common law case in which she recovered only non-economic loss.

Events from 1999, in particular those causing Ms Sutton to seek further advice

54 From about February 1999, after her parents moved to live on the Central Coast, Ms Sutton went to live with her grandmother and an aunt until late 2001.

55 Ms Sutton remained in work as a receptionist at the advertising firm full-time until about October 2001. She gave birth to her first child in January 2002. From late 2001 to March 2002 Ms Sutton lived with her partner and his brother.

56 The primary judge accepted ([14] and [21] of his reasons) that from February 1999 Ms Sutton was prevented by her back problem from doing “most housework”, but she did do dishwashing, clothes washing and vacuuming of floors.

57 When she moved to a house in Punchbowl with her son in March 2002, when she had no assistance with no one else living with her, Ms Sutton did all the housekeeping duties.

58 During 2002, for about six months, Ms Sutton was employed as a receptionist, though her back was painful.

59 On 9 April 2002, while cleaning the floor at her home in Punchbowl, Ms Sutton suffered an incident during which she became unable to straighten her back. She obtained assistance from her former partner’s mother who lived nearby. She went to Bankstown Hospital where she was an in-patient for three days.

60 Ms Sutton remained at her receptionist job until late 2002. In September 2002, she consulted Firths again. She gave evidence that she was told “there is nothing we can do”. She consulted another law firm.

61 Ms Sutton obtained part-time work at her physiotherapist from

6 September 2004 where she remained in employment until September 2007 when she ceased working there because of unavailability of work.

62 Ms Sutton had her second child in November 2004 and her third in July 2008. Ms Sutton is not employed. She looks after her young children. She is in receipt of a Commonwealth pension of $1100 a fortnight. She gave evidence that she plans to return to the workforce when the children are older.

63 Ms Sutton remains in pain. She is active in exercising in order to strengthen her back. She has stopped medication and medical treatment.

64 Ms Sutton lives with her three children in a rented house. She obtains domestic assistance from her mother twice a week for four hours in total. Her former partner mows the lawn weekly or fortnightly. Otherwise, she maintains the household.

65 After Ms Sutton had consulted the lawyers referred to above, she saw further specialists to whose reports I will come. Proceedings were commenced in August 2005 against Firths (almost six years after the 1 September 1999 conciliation conference).

The case against Mr Govan

66 The further amended statement of claim upon the basis of which the hearing before the learned primary judge was conducted alleged the existence of a case for negligence against Go-Lo. The negligence and breach of retainer of Firths were particularised in a long and repetitive set of particulars. The essential complaint was that Firths failed to advise Ms Sutton that she had a worthwhile claim for common law damages and failed to prepare the case properly to permit advice to be given to Ms Sutton in order to allow her to choose between common law damages and workers compensation.

67 At the hearing, expert evidence, in the form of a report from an occupational health and safety consultant, was led as to Go-Lo’s lack of a reasonably safe system of work. It was agreed at the hearing that Ms Sutton had a 70 per cent chance of establishing that her injury was caused by Go-Lo’s breach of a duty of care to her.

68 A solicitor, Mr Peter Clarke, gave evidence as to the conduct of the retainer by Mr Govan. In his report, Mr Clarke expressed the view that a reasonably prudent solicitor would not have approached the matter as a purely workers compensation claim. Such a solicitor would have taken instructions about facts concerning Go-Lo’s systems and likely breach of duty.

69 When asked whether a prudent solicitor would have briefed counsel he expressed the following views:

“If the solicitor had doubts as to whether any negligence existed or did not feel confident in embracing this aspect of the instructions a reasonably prudent solicitor exercising due care and skill would have briefed counsel to advise as to the possibility of common law liability and the benefits at common law compared with those in respect of purely workers compensation entitlements.

It may well have been that the damages at common law were no more advantageous to her than her worker’s compensation entitlements. But she should have been given the opportunity to decide that issue after having been properly informed of her options.”

70 When asked as to consultation with the client as to compensation under the WC Act, ss 66 and 67 and the comparison with common law damages, he said:

“In the advice given to the client in conference a reasonably prudent solicitor would have discussed her entitlements pursuant to Section 66 and Section 67 and her entitlements at common law and compared the two so that the client was fully informed before making a decision.

A solicitor may have felt more confident in making those comparisons after medical evidence had been obtained and there could be no criticism on a solicitor following that path but nevertheless that conference should have occurred at some stage in the proceedings, preferably as early as possible, and certainly before the final decision was made.”

71 When asked as to consultation with, and advice to, the client as to workers compensation and common law claims he said:

“At an early stage a reasonably prudent solicitor would have advised the plaintiff as to the likely verdict she would have received had she been successful in her common law damages claim against Go-Lo and would also have advised her of the likely outcome she would have had in a purely workers compensation claim or lump sums.

The client could then compare the benefits of each path and make an informed decision as to the one she preferred.”

72 Mr Clarke said that an expert should have been qualified to advise on the negligence of Go-Lo if any doubt existed as to it.

73 When asked about obtaining the views of an occupational therapist for s 151K recovery for domestic assistance he said:

“I don’t think that a reasonably prudent solicitor would have necessarily at that time enquired of an occupational therapist as to what future needs of the woman may be having regard to the benefits available under Section 151K of the Workers Compensation Act 1987 as a determination as the possible outcome could have been achieved from the medical reports and economic loss documents. The occupational therapist report may have been of benefit had the solicitor been instructed to take common law proceedings. It would have assisted in ascertaining the amount of damages which were claimable as part of the common law proceedings.”

74 Mr Clarke’s summary views were as follows:

“Even if the solicitor did not consider common law at an earlier stage it is something that he could have and should have visited after medical reports were to hand and before entering the agreement to settle for permanent impairment and pain and suffering.

The plaintiff was never given the opportunity to consider whether she would prefer to proceed at common law or exercise her rights under the Workers Compensation Act. Had she been given that opportunity she may have well elected to proceed under the Workers Compensation Act rather than proceed at common law. However that opportunity was never extended to her. Further she was never advised that by settling her claim in the way she did that she terminated any rights she had in respect of common law.

A reasonable prudent solicitor exercising due care and skill would have conferred personally with the solicitor and taken a full and accurate statement regarding the circumstances of the accident and advised her both of her workers compensation entitlements and her common law entitlements for work injury damages giving her the opportunity to determine the course which suited her best.”

75 At no point did Mr Clarke hazard an opinion as to what a prudent solicitor would or could reasonably have advised as to common law damages. On two occasions, he opined that Ms Sutton may well have elected to proceed under the WC Act. It is fair to say that Mr Clarke’s criticism of Mr Govan’s handling of Ms Sutton’s claim was that he thought Mr Govan should have investigated the negligence of Go-Lo and he should have advised Ms Sutton on the choice she had between a common law claim and a workers compensation claim.

Mr Govan’s evidence

76 The primary judge dealt with Mr Govan’s evidence most importantly at [47]-[51] where his Honour said:

“[47] Mr Govan was tested extensively under cross-examination of his actions in preparing the plaintiff’s case in those respects where he omitted to take necessary steps in respect of a potential common law damages claim. He agreed he dealt with her case primarily as a workers compensation claim even though he understood when speaking on the telephone to the plaintiff and her mother on 9 December 1998 it was for the purpose of them obtaining advice from him as to what the plaintiff’s rights and options were; that is, as he agreed, to guide and advise them on what they could do in relation to compensation - as a solicitor, Mr Govan accepted that that was the job undertaken on behalf of the plaintiff.

[48] The following significant evidence emerged from Mr Govan as to the necessary and prudent steps to follow, but which he did not do here, in handling the plaintiff’s case:

‘ Q. By that date, that is, by the time you went to the conciliation, you had no medical evidence which would allow you to quantify any claim for domestic assistance, is that right?

A. I can’t recall what was in the Blake report.

Q. Well if you assume Blake doesn’t address it, then that would be correct, wouldn’t it?

A. Yes.

Q. No evidence to quantify future out-of-pocket expenses, is that right?

A. Yes.

Q. You had no evidence as to what the plaintiff’s intentions were in relation to her working career immediately prior to February 1998, is that correct?

A. Yes.

Q. You had no description of how the incident occurred apart from the fact it involved lifting, is that right?

A. I cannot recall if we had the claim form and documents from the insurer at that stage.

Q. Even if you had the claim form, it would have been prudent to at least have a detailed statement from the plaintiff as to the system of work adopted, is that right?

A. Yes.

Q. It would have been prudent to have a detailed statement from the plaintiff of exactly how the accident occurred, is that right?

A. Yes.

Q. It would have been prudent to have from the plaintiff details as to exactly when she noticed any pain or discomfort in what she was doing at the time, is that right?

A. Yes.

Q. And it would be prudent to know from the plaintiff exactly what instruction, induction or other safety systems were used within the worksite, is that right?

A. Yes.

Q. And you had none of that information before the conciliation, did you?

A. So it seems.

Q. I want to suggest to you that what ought to have occurred following that first telephone conversation is the plaintiff’s claim needed to be investigated to determine each of those things, that is each of the components that she may have been entitled to in a modified common law scheme, do you agree with that?

A. Yes, I do.

Q. And that what should have then taken place is the plaintiff should have had explained to her the difference between the two schemes, do you agree with that?

A. Yes.

Q. The difference in potential damages between the two schemes, do you agree with that?

A. Yes.

Q. The probable damages that she may expect to receive pursuant to both schemes, do you agree with that?

A. Yes.

Q. And the nature of the evidence which supported each of those claims, do you agree with that?

A. Yes.

Q. And that would then allow the plaintiff to come to a rational and informed decision as to what she wanted to do in relation to her claim, wouldn’t it?

A. Yes.’

[49] In what was a very telling admission by Mr Govan in the process followed was his acceptance that what ought to have happened after the initial telephone enquiry was for him to have arranged a conference with the plaintiff and her mother and taken a detailed statement from her as to exactly how the accident occurred and how it was impacting her day-to-day life. He conceded such a course was regularly adopted by him today and it was the sort of practice followed well prior to 1999. He saw no reason in this case why such a conference was not arranged.

[50] Notwithstanding the identified omissions in what Mr Govan did or did not do, he maintained that on 1 September 1999 the plaintiff was able to make a reasonably informed decision which was, ultimately, to give him instructions to accept the lump sum offer based on his opinion, albeit without any quantification of modified common law damages, as he said, ‘No, not in any - certainly not in any - with any precision’. That answer is to be seen in the light that Mr Govan agreed that at the time he had no details of what the plaintiff was earning, the domestic assistance she was receiving or any quantification from the medical reports of future out-of-pocket expenses; and he had not obtained any expert report to address the question whether Go-Lo was negligent in the system of work laid down as affecting causation by the work or her pre-existing congenital condition.

Workers Compensation Act

77 The above are clearly telling remarks on Mr Govan’s conduct of the retainer. Mr Govan can clearly be criticised for failing, in 1999, to address the question of breach of duty by Go-Lo. He had no basis, other than intuition and a belief that “nature and conditions” claims were harder to prove than frank injury claims, to conclude anything about prospects of proving negligence. A conference with Ms Sutton would have elicited that she had never received any training about lifting weights and boxes. There was no basis to consider that Mr Govan’s advice on 1 September 1999 as to doubt about proving negligence was reasonable.

78 Mr Govan’s assessment of her prospects of success on damages was, however, more fully based in evidence. He had four detailed reports, in particular the report from Dr Blake.

79 Mr Govan accepted that he should have explained the differences between the two schemes with a full appreciation of all matters relevant to each.

80 Mr Govan did, however, direct his mind to recovery at common law for the purposes of the 1 September conference. Though Mr Govan had no independent recollection of Ms Sutton, he was taken through the file and was able to explain his views by reference to the material on the file.

81 Mr Govan said that he was particularly concerned about the pre-existing condition. He was taken to the reports of the doctors. He said that he had the view that Dr Wolfenden was (and could be seen as) “reasonably generous”. Dr Wolfenden’s view was that permanent impairment of the back was 25 per cent of a most extreme case and there was a 15 per cent loss of use of the left leg. These were attributable, in his view, at 10 per cent to the underlying condition.

82 Mr Govan said Dr Blake “had credibility” though would provide as generous an assessment as he could. Dr Blake’s overall assessment was the same as Dr Wolfenden’s: 25 per cent back and 15 per cent left leg. Importantly, however, Dr Blake’s opinion was that 50 per cent of this was due to the underlying condition. Mr Govan said that he was very concerned by Dr Blake’s opinion. He said that it raised the very prospect that Ms Sutton would not receive the lower minimum threshold. This would have led to the consequences to which I have adverted: no non-economic loss, no economic loss and a loss of entitlement to permanent loss compensation because of the commencement of common law proceedings and the liability for payment of legal costs in the common law proceedings.

83 As to Dr Rosenberg’s assessments (10 per cent permanent back and 5 per cent left leg) these were low assessments. Mr Govan thought that Ms Sutton would fail the lower threshold on these and not even get to a level to be entitled to pain and suffering under s 67.

84 As to the insurer’s doctor, Dr Limbers, his assessments were 20 per cent back impairment divided 1 per cent due to work and 5 per cent due to a pre-existing asymptomatic condition. He gave no allowance for loss of the left leg. Mr Govan did not think that Ms Sutton would reach the lower minimum threshold on this evidence.

85 Thus on two of the four doctors’ reports Mr Govan thought that the lower minimum threshold might not be reached. On the most generous of the doctors (Dr Wolfenden) he thought that it was likely that the higher of the thresholds would be reached, but if one took into account Dr Blake’s views about underlying condition Ms Sutton might not reach the lower minimum threshold.

86 These can be seen as important opinions. It is therefore important to understand how these opinions were dealt with in cross-examination.

87 The cross-examination amply revealed, as the learned primary judge found, that the claim was treated as a workers compensation claim only. Matters necessary for the assessment and prosecution of a common law claim were not considered.

88 Mr Govan conceded that he had no evidence to address the question as to whether or not Ms Sutton’s condition “would have been” rendered symptomatic by what had occurred at work, leaving aside any congenital problem. He also conceded that he had no evidence to indicate how her condition would impact upon her earning capacity in the future. He accepted that he asked nothing of Dr Rosenberg about the relationship between the incident in February 1998 and Ms Sutton being rendered symptomatic or being asymptomatic. (He was not asked, but he did not, in fact, ask this of any doctor.)

89 The cross-examiner addressed the question of the effect of the WC Act, s 68A which Mr Govan had referred to in his evidence in chief. The following exchange took place:

“Q. Now, you’ve indicated in the course of your evidence-in-chief that section 68A requires a deduction to be made in relation to the congenital or degenerative condition which the plaintiff had?

A. That’s right.

Q. That same deduction does not necessarily apply in the modified common law damages scheme, does it?

A. No, that’s right.

Q. So again to fully advise the plaintiff, you would have needed to have some medical opinion addressing that issue?

A. That’s a reasonable assumption – proposition.

Q. And once again you, in evidence-in-chief, said ‘If the common law found was a temporary aggravation, there would be no claim’, and that’s because of the provisions in sections 151G and H, isn’t it?

A. That’s right.

Q. But once again you didn’t know whether or not the symptoms which the plaintiff displayed as at January 1999 were caused by the congenital problem or the injury specifically, did you?

A. I don’t believe so.

Q. You didn’t follow up Dr Rosenberg’s report asking any of those questions, is that right?

A. That’s – that appears to be correct.”

90 There are important answers, in particular in the light of the later obtained medical evidence directed to recovery under a common law claim. They reflect the subtle, but real, inadequacy of the information Mr Govan had before him upon which to make any assessment as to common law damages.

91 A little later Mr Govan was asked to assume “that the nature and conditions of [Ms Sutton’s] employment had caused her pain and discomfort, and that the pain and discomfort was not the result of a congenital or degenerative condition. On this assumption he said that it would “possibly” be that in these circumstances she would have had non-economic loss exceeding 23.5 per cent of a most extreme case.

92 Mr Govan insisted in cross-examination that he did not totally lack information about assessing Ms Sutton’s position. He accepted that he had insufficient information for a precise assessment. But his view was that the medical evidence allowed him to make a reasonably informed decision on 1 September 1999.

Mr Govan’s conduct of the retainer and what a reasonably prudent solicitor would or could, acting reasonably, have done

93 This is a professional negligence case. It was necessary in judging Mr Govan’s conduct to understand what behaviour was acceptable by reference to a standard of reasonable care reflective of a solicitor reasonably skilled in personal injury work in 1999.

94 Lying behind the conduct of such a retainer is the recognition that additional investigation, in particular that which involves the engagement of, or the longer and more complex engagement of, skilled professionals costs money. Nevertheless, if prudence and due care require a course of action to be considered, the client should be consulted as to what course to follow.

95 It is undoubted that Mr Govan approached this matter as a workers compensation claim. He briefed medical practitioners promptly, but for that limited purpose. Those practitioners obtained full histories. They did not, however, address all aspects that they could have addressed had Mr Govan wished for more complete evidence for the common law claim. Further, he made no attempt to investigate the employment of Ms Sutton by Go-Lo and its lack of proper training or system.

96 The primary judge tested Mr Govan’s conduct by reference to the pithy statement of Tobias JA in Chamberlain v Ormsby [2005] NSWCA 454 at [111]:

“The simple fact is that the appellant was entitled to have his common law entitlements properly investigated, appropriate medical evidence obtained and advice … All these matters would need to have been explained to him in a manner that enabled him to come to a rational and informed decision...”

97 The primary judge, correctly in my view, concluded that Mr Govan had not discharged his duty by his failure to take reasonable steps to advance his understanding of any possible common law claim, so as to enable Ms Sutton to make an informed choice between common law and workers compensation avenues of recovery.

98 This criticism can be levelled at Mr Govan most particularly in the failure to enquire from Ms Sutton herself in a conference as to the surrounding facts of her employment. It was not necessary to employ an occupational health and safety expert to prepare the kind of detailed (and so, expensive) report that was presented at the hearing before the primary judge in order to give some useful advice on proof of negligence. The advice given on 1 September 1999 that he could not see negligence was based on no real investigation. One conference with Ms Sutton would have elicited that for four years a young girl, from the age of 13, had worked lifting weights and moving cartons without any training as to how to lift safely, or about what was a safe weight to lift or how to avoid back strain. No competent and prudent solicitor would have given the advice about a lack of apparent negligence without investigating the fact at least through such a conference. If one had been held, Mr Govan, or if he was in doubt, counsel, would have appreciated that there were at least reasonable prospects of success in holding Go-Lo negligent. Further investigation from a consultant would only have confirmed the likelihood of establishing Go-Lo’s negligence.

99 As to common law damages, Mr Govan did not investigate a number of aspects, either through information from Ms Sutton or evidence from doctors. First he did not assess economic wage loss. Secondly, he did not assess likely future medical costs and out of pocket expenses. Thirdly, he did not investigate present and likely future domestic assistance needs. Fourthly, and most importantly, Mr Govan did not fully brief the doctors or at least one of them, to have a medical opinion addressing the issue of the place of the work injury in rendering symptomatic the asymptomatic congenital condition. This was relevant to any question whether a deduction made under the WC Act, s 68A would or would not be reflected in any deduction at common law by reference to the consequences of the work injury causing the pain and disability. Mr Govan recognised this in his cross-examination.

100 As to investigation of future domestic assistance, Mr Clarke said that it was not necessary at this early stage. I tend to accept that, subject to Mr Govan having sufficient information before him to give a reasonable assessment of the worth or value of the common law claim compared to the assessment of the worth of the workers compensation claim.

101 The primary judge concluded that Mr Govan failed to make adequate inquiry about Ms Sutton’s potential common law claim and I agree with him.

102 Mr Govan did, however, form the view that Ms Sutton may not meet the thresholds in ss 151G and 151H. The file note of 1 September 1999 refers to “threshold” in the singular. Mr Govan gave evidence about his views as to both thresholds. Both were important in the respects that I have identified.

103 This evidence of Mr Govan was important, even assuming that he should have done more. This is so because Ms Sutton is not entitled to damages merely because of the loss of an opportunity to consider what she might have done had Mr Govan properly fulfilled his duties: Tabet v Gett [2010] HCA 12. Rather, to succeed, it was necessary for her to prove that on the balance of probabilities she would have given instructions to pursue a common law action and to elect not to proceed under the WC Act. Forensically, to satisfy the court of the likelihood of that choice, it was necessary to prove what advice would, or could reasonably, have been tendered by a reasonably prudent solicitor.

104 It is important to recognise what, if anything, has been lost here. It is not merely the loss of a valuable cause of action; after all, Ms Sutton had valuable rights under the WC Act. She chose to take them in preference to rights at common law modified by the WC Act. Her complaint is that by the negligence of Mr Govan she lost the opportunity to pursue a common law claim in preference to her WC Act entitlements. In these circumstances it was necessary for Ms Sutton to prove on the balance of probabilities that she has sustained some loss of this character: Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 at 355. Thus, it was necessary to show, on the balance of probabilities that, had Mr Govan exercised due care in his handling of her matter, she would have elected not to take entitlements under the WC Act, but would have elected to pursue an action at common law.

105 Here, Mr Govan’s view based on the four medical reports was that there was a real and significant risk that the higher s 151G threshold would not be met and there was some risk that even the lower threshold would not be met. If these views were reasonably open it would have been unlikely for a rational decision to be taken to elect not to proceed with the WC Act claim. That would be particularly so if there was any real risk of the lower threshold not being met.

106 Real risks existed on Mr Govan’s view; those risks were to be set against the certainty and speed of an immediate settlement of the ss 66 and 67 claims, locking in the employer and insurer to such liability under the WC Act. Further, under the WC Act medical expenses for life attributable to the work injury and modest, but real, future compensation payments were available. At the time, payments for domestic assistance were also available: s 151K.

107 No other witness gave evidence as to what was a reasonable view (or range of views) for a solicitor of Mr Govan’s position to hold, acting reasonably. As I have said, Mr Clarke did not venture an opinion on what could be reasonably concluded on the medical evidence in 1999. Mr Clarke was supplied with all the medical reports which Mr Govan had in 1999. One of the assumptions that Mr Clarke was asked to make was that:

108 The primary judge did not direct himself to the question of what a reasonable solicitor would, or could reasonably, have advised on the basis of the existing medical evidence. Rather, his Honour directed himself to causation in [83] in the following terms:

“[83] Finally on this aspect as to causation, I am satisfied on the plaintiff’s evidence overall that had she been advised there was a viable common law action against Go-Lo and that it would probably result in the thresholds in ss 151G and 151H being exceeded then she would have pursued the modified common law entitlements to obtain a lump sum. It is true the plaintiff said it was important to her to have available a future resource to pay any medical expenses needed, but she added that it was of little difference to her whether that could be by way of lump sum damages or an ongoing workers compensation right. In any event, as she said, had she received a lump sum as damages she would have invested the money to use as required in the future.”

109 This paragraph carried the implicit conclusion that a solicitor properly discharging his or her duty would have advised Ms Sutton that:

(a) there was a viable common law action against Go-Lo; and

110 The conclusion in (a) was directed to the likelihood of making out a case of negligence against Go-Lo. The primary judge had examined the evidence against Go-Lo at [58]-[71] of his reasons and concluded that Go-Lo was negligent. While it was a necessary enquiry to assess the outcome of the posited lost cause of action and so to assess its value, his Honour’s analysis at [58]-[71] was not the relevant inquiry for assessing causation. What had to be assessed for that purpose was what a reasonably prudent solicitor would, or could, have said about negligence. It is certainly open to doubt that a solicitor in the position of Mr Govan would have been required to get a detailed report of the kind prepared and put in evidence. The solicitor would, however, have been expected to make enquiries of the client at a conference, which enquiries, in this case, would have revealed a likely case of negligence. If anything further had been required, a short report from an expert could have been obtained. Thus, I do not disagree with the primary judge’s conclusion in [109 (a)] above.

111 The proposition in [109 (b)] above that the thresholds would probably have been exceeded can be seen to be based on the analysis by the primary judge of the medical evidence discussed at [22]-[36] of his reasons under the heading “Personal injury to and resultant medical condition of the plaintiff”.

112 The primary judge set out aspects of Ms Sutton’s evidence, discussed the notes and treatment of Dr Jayadev, set out of parts of Dr Rosenberg’s report of 23 April 1999, and discussed Dr Blake’s, Dr Limber’s and Dr Wolfenden’s respective reports.

113 The primary judge then went on at [29]-[33] of his reasons to discuss the later medical reports obtained after the incident on 9 April 2002: the reports of Dr Searle, consultant orthopaedic surgeon, of 3 April 2004; Dr Stuckey, an orthopaedic surgeon, of August 2007, Dr Bleasel, a neurosurgeon of October 2007; Dr Bodel, an orthopaedic surgeon, of October 2007; Dr Parmegiani, a consultant psychiatrist of November 2007; and Dr Dan, a neurosurgeon, of May 2008. These reports were, of course, after both the date of the impugned advice and the loss of the common law rights (September 1999) and of the posited trial (July 2000). The primary judge explained the relevance of these later reports at [34] of his reasons, saying:

Johnson v Perez

Willis v The Commonwealth

‘Where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second best.’

Nikolaou v Papasavas

Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co

114 Johnson v Perez, Willis v The Commonwealth, Nikolaou

and Bwllfa and Merthyr Dare to which the learned primary judge referred were cases concerned with the assessment of damages. It is undoubted that in assessing the value of the lost claim (here, by the election on 1 September 1999 and valued through a posited hearing on 1 July 2000), later evidence relating to the injury and its effects on the plaintiff may be received subject to questions of foreseeability. The task at that point was set out in Johnson v Perez at 368-369 by Wilson, Toohey and Gaudron JJ and Nikolaou at 403-404 by Wilson, Dawson, Toohey and Gaudron JJ.

115 There was, if I may say so respectfully, a degree of confusion in the primary judge’s reasons as to the use of the later medical reports, which was also reflected in some of the submissions in this Court. The discussion of the principles by the plurality in Johnson v Perez adopted by the majority in Nikolaou makes clear the circumstances in which later evidence is relevant. First, (see Johnson v Perez at 368-369) evidence can be brought of events between the date of the loss of the right and thus the crystallisation of the cause of action (here 1 September 1999, in Johnson v Perez the time of the dismissal of the action for want of prosecution) and the date of the assessment of the value of the lost right, being the date of the notional trial (here 1 July 2000). It was to that period that the well-known dictum of Latham CJ in Willis v The Commonwealth at 109 was directed. None of the later doctors’ reports falls into this category.

116 Secondly, (see Johnson v Perez at 369) where there is paucity of evidence about relevant matters, such as the plaintiff’s condition, at the date of the notional trial, evidence of later events, including later medical reports, is admissible to “piece together” the case that could, but for the negligence of the solicitor, have been made out at the trial. Johnson v Perez was concerned with damages. This expression of this second category can be adapted to include evidence that allows one to “piece together” what could have been before the solicitor at the time of advising, if he or she had not been negligent. As the plurality said in Johnson v Perez at 369, difficult questions may arise as to whether the later evidence reflects matters that were known or could have been known or were foreseeable at the earlier time.

117 Here, the later medical evidence does, for the reasons expressed later, fall into this second category.

118 It is unnecessary to deal with the third category dealt with in Johnson v Perez at 369: subsequent events revealing an aggravation of the injury or other loss attributable to the negligence of the solicitor. This was not said to arise here.

119 The reports of 2004 to 2008 paint a significantly more grave picture than the reports of 1998 and 1999 to which I have already referred. They do not, however, reveal any fundamental change in Ms Sutton’s condition on the occurrence of an event marking any significant change. The primary judge used these later reports to reach the conclusion implicit in his reasons that Mr Govan or any solicitor in his place, if acting reasonably, would in September 1999 have advised Ms Sutton that the thresholds in ss 151G and 151H would probably have been exceeded.

120 The primary judge did not explain how these reports were relevant other than by what he said at [34] of his reasons. They can only be relevant to the extent that they help to reveal what a prudent solicitor would have been told by a medical practitioner qualified to advise more broadly than merely upon the WC Act on or before 1 September 1999 in order to assist and inform in the advising of Ms Sutton and what medical evidence could reasonably have been available on or before 1 July 2000 as prospective evidence in the notional trial. The primary judge did not express himself as using the reports in this way. Rather, he simply used them to assess the condition of Ms Sutton implicitly to assess to what Mr Govan should have known in 1999 and explicitly to assess her damages. This was not the proper approach, but as explained below, it may not be an error which leads to a different result.

121 Mr Govan’s cross-examination to which I have earlier referred about the fuller briefing of medical practitioners, s 68A and the possible difference of approach in common law damages is important. Mr Govan recognised the importance of the perspective from which the medical reports were given. Although it was not put squarely to Mr Govan that he was not in a position to make an assessment of the thresholds from the reports that he had or that he was negligent in the assessment he made, it is important to examine the later reports. They were directed to the position of Ms Sutton in a common law claim (albeit through the prism of a professional negligence claim). They illuminate, with some necessary adjustments, what could reasonably be expected to have been put before Mr Govan both in 1999 and at the trial in 2000, if he had called for medical evidence directed to a common law claim. That said, it is important in examining these reports to bear in mind that they can only be viewed from the perspective of “piecing together” the contemporaneous case, in 1999 and 2000.

[92] The plaintiff, it is true, had the stated pre-existing condition in her spine. However, it was asymptomatic and she was able to engage in the usual teenage activities, attend school and participate in sport. At 13 years of age she started part-time work at Go-Lo for 12 hours a week after school and on Saturday to earn money. She long-held the career ambition to be an airline hostess. Due to the nature and conditions of the work over a period of a few years with the lifting of heavy boxes, stooping and bending she sustained disc protrusions in her spine at three levels which, in February 1998 at age 16 years, caused her to cease the work. Later that year as a consequence of the continuing back and left leg pain she left school and stopped participation in sport. The medical evidence demonstrated a future incapacity with the back condition to engage in such lifting work or to hold a job requiring prolonged standing or sitting as there was a need for her to be able to adjust position as required from time-to-time. A job in a sedentary type occupation was identified as suitable such as office work and the career ambition of becoming an airline hostess was lost. Understandably, she said that was a great disappointment to her and she has experienced feelings of anxiety and a depressed mood in adjusting to her condition. In the future, she faces continuing problems with her back and with the likelihood of surgery to excise the disc protrusions and to have a spinal fusion at two levels. As a single mother with three young children, the plaintiff needs domestic assistance on a regular weekly basis with the heavier tasks. At the notional trial in July 2000 she was aged 19 years with a life expectancy of 69 years.

[93] I would assess non-economic loss at 35 of a most extreme case, that is, $79,327.50. In doing so, I emphasise that the plaintiff’s school and teenage years, young adult life, career ambitions and prospects for the future have been most seriously affected by this injury.”

143 Subject to one matter, the above amply displays the legitimate debate that, in my view, was available in 1999 and 2000. Subject to one matter, it reflects what a solicitor could have legitimately said the range was. His Honour’s conclusion as to assessment of 35 per cent of a most extreme was open and is a conclusion from which I would not dissent.

144 The qualifications of the above is that in 1999 and 2000 Ms Sutton was not a mother. It was foreseeable, however, that she would have children and that if she did she would need regular weekly assistance with their care. I would conclude that a reasonably prudent solicitor would think it realistic in 1999 that non-economic loss would be in the order of $80,000. I would also conclude that this is the sum that would be reached in the notional trial, being approximately 35 per cent of a most extreme case.

145 Past medical expenses were $2,350.80 and not in issue.

146 Likely future out of pocket expenses would be made up of expenses for medical practitioners, medication and physiotherapy. As the primary judge said at [96] the likely future medical expenses, given her age and the medical options referred to in the reports, are, and would have been in 1999 and 2000, difficult to assess. The primary judge assessed this at [97]-[98] as follows:

“[97] I would allow $5.00 per week for attendance on a general practitioner; specialist consultations at $5.00 per week; physiotherapy/hydrotherapy/gym attendance at $50.00 per week; and $10.00 per week for medication - a total of $70.00 per week, giving an amount of $72,275 (multiplier of 1032.5 on 5% tables). In addition, allowance for surgery of $20,000 should be made but deferred for 10 years, resulting in an amount of $12,280 (multiplier of 0.614 on 5% tables).

[98] The total amount for future out-of-pocket expenses is thus $84,555.”

147 These are amply maintainable estimates for a reasonable solicitor to have advised upon in 1999. They are also an appropriate value judgment for what would have been assessed in 2000. It may be that $50 per week for physiotherapy/hydrotherapy/gym attendance would be seen on the high side, but an appreciation of the long term discomfort and pain from this injury makes the overall assessment of $70 per week reasonable. It is true that there had been limited expenses in 2000, but a clear appreciation of the long term nature of the pain caused by this kind of injury would make something in the order of $70 per week for all these components entirely reasonable.

148 As to economic loss, if, as I think would have been the case, the upper threshold would have been exceeded, economic loss was recoverable and a reasonable solicitor in 1999 would have advised that in all likelihood it was recoverable.

149 Past economic loss was in the agreed amount of $2,445.62.

150 Likely future economic loss was a matter of contention at the trial. The claim put forward on behalf of Ms Sutton was the difference between her occupation as a flight steward and her impaired capacity. This was a case for a partial incapacity. His Honour dealt with the issue at [101]-[106]:

“[101] For the future, economic loss was seriously disputed between the parties. Mr Andrews based his reasoning on the plaintiff’s strong work ethic and her ambition to be an airline hostess (flight attendant) and submitted it was extremely likely she would have pursued that career path even to the extent of becoming a customer service supervisor or manager in the airline industry. Counsel then compared the earnings in such occupations with the average weekly ordinary time earnings for females which showed, in generally approximate terms, that the airline industry career path gave between $300 and $400 per week more. An amount of $300 was then used as the measure of the plaintiff’s loss to age 60 years giving, with a 20 per cent reduction for vicissitudes, a claim of $221,952.

[102] Senior counsel for the defendant, Mr Watson, identified a number of improbabilities to show the claim was, as he said, ‘miles too high’. Those matters were: that an average student with a serious congenital spinal problem would have progressed through unsuitable employment to a managerial position; that she was always and only best suited to a job as a receptionist; and an assessment of 20 per cent for contingencies was too low given the spinal problems and time out of the workforce to have a family.

[103] I accept the plaintiff’s evidence of her career ambition and that she would have pursued it. I accept too Ms Northey’s evidence that the plaintiff had a high work ethic - so much is clear from her desire to work part-time from when she was only 13 years of age. However, the medical evidence, particularly that of Dr Rosenberg, was to the effect that the congenital pars defects in the spine would eventually mean the plaintiff was in any event best suited to sedentary office type work. Indeed, that was her second career choice when she completed the TAFE administration course and obtained work as a receptionist with a number of employers.

[104] I consider the plaintiff, with her pre-existing spinal problems, would not have persisted with a career in the airline industry but rather would have engaged in clerical/administrative type work in an office. That reduces the loss as calculated by Mr Andrews. The plaintiff clearly has a reduced work capacity by reason of the subject injury but is, and will likely continue, partially incapacitated. She mentioned in evidence an intention to obtain employment part-time for 20 hours a week.

[105] Doing the best one can on the evidence, I would assess the plaintiff’s weekly loss at $200 per week to normal retirement at aged 65 years. Taking into account the pre-existing spinal problems and time out of the workforce to raise a family (not inconsiderably so as it in fact turned out), I think the reduction for vicissitudes should be 30 per cent.

151 The use of $200 per week by the primary judge was not explained. He did not derive it from a comparison with the airline industry. It can be seen in his reasons to be an estimate between what Ms Sutton has lost by not being able to do clerical or administrative work with only her congenital pars defects to hinder her.

152 At the date of the notional trial, Ms Sutton was working full-time and had been for 17 months. Nevertheless, an examination of her condition and the essential character of her injuries with the assistance of medical reports obtained for a common law action made it foreseeably likely that she would suffer back pain and restrictions that would impede her employment for her lifetime.

153 In my view, a solicitor in 1999 would reasonably advise that a sum based on a buffer would in all likelihood be awarded. I think that a court in 2000 would assess her future economic loss on that basis. Whilst she was working full-time, it could be expected that over time there would be interference with her capacity to work. The medical evidence taken to be available in 2000 would make her in all likelihood someone who had a permanent partial impairment of her working capacity. A court would, in all likelihood in the absence of work history give her a buffer of something in the order of $100,000. This is arbitrary and reflects a sum (intended to include vicissitudes) that would provide a modest buffer for the future, being the whole of her working life.

154 Superannuation was agreed on future economic loss by the method set out in [107] of the primary judge’s reasons which would give a total of $10,800 on this buffer.

155 As to domestic assistance, the primary judge used the evidence of her current needs of 4 hours per week. The appellant said that this was to misuse the evidence of later events. What was necessary to be done in 1999 and 2000 was to make an assessment of the likely future domestic assistance needs. There was evidence by 1999 and 2000 that Ms Sutton would have difficulty doing certain housework and domestic duties. Given the medical evidence of her back an estimate of 3 to 4 hours per week in 1999 and 2000 would have been reasonable and expected. The primary judge said the following at [110]-[112] of his reasons:

“[110] … The difficulty here, of course, in assessing this component is that at the time of the injury the plaintiff was a school student and at the time of the notional trial age 19 years she had been living with her grandmother for about 18 months.

[111] On the state of the evidence, I am unable to contemplate any award for past domestic assistance because there was no sufficient evidence what domestic services the plaintiff did before her injury. However, as to the future I think it reasonable to infer that in her own home as an adult, either alone or with a partner, she would perform household tasks of cleaning and washing. Those tasks, to the extent bending and lifting was required, on the medical evidence as a result of the injuries sustained would be contraindicated. Indeed, at present she receives four hours each week of assistance from her mother and there was no challenge to this evidence.

[112] I will allow future domestic assistance of four hours per week for the balance of the plaintiff’s life at the then statutory rate of $15.24 per hour. The resultant amount (multiplier of 1032.5) is $62,941.20.”

156 Thus in my view a solicitor acting reasonably in 1999 would have advised and the notional trial judge would have awarded the following:

(a) Non-economic loss $80,000

(c) Future out of pockets $85,000

(d) Past economic loss $ 2,445.62

(e) Future economic loss by way of buffer $100,000

(f) Superannuation $10,800

(g) Future domestic assistance $45,000

Total $330,596.42

WC Act entitlements

157 A reasonable solicitor in the position of Mr Govan in 1999 would have reasonably anticipated and advised that any future economic loss and future out of pocket expenditure would be matched in value by entitlements under the WC Act, though they would not be received as a lump sum. No evidence was led by the parties as to any basis for detailed evaluation of those rights as at 1999. As to the likely future domestic care, the WC Act, s 151K provided for domestic assistance in 1999. It could be anticipated that it would be available under the WC Act, though not as a lump sum. The only head of damage likely in 1999 to be received that would not be equivalent to recovery under the WC Act was non-economic loss. Under Part 3 Div 4 of the WC Act permanent loss compensation could be anticipated under ss 66 and 67. The reasonable anticipation of non-economic loss in the common law claim would see recovery of permanent loss compensation exceeded by a modest sum.

158 This broad brush approach is reflected by the following more detailed calculation of Ms Sutton’s damages. I will, as I said earlier, return to causation when I have completed this analysis of loss.

Further calculation of damages

159 Various deductions need to be made from the notional judgment sum of $330,596.42: solicitor client costs for obtaining it; past workers compensation payments; the value of future workers compensation payments; and a discount for the contingencies of obtaining the judgment.

160 As to the loss of chance, counsel for Ms Sutton accepted that a 30 per cent discount was appropriate to reflect the agreement at the trial of the 70 per cent chance of establishing breach of duty. Counsel for Mr Govan said that was only one aspect of the chance – that there were other contingencies in the success. I agree. I think a one third deduction should be made if the chance of showing breach of duty was 70 per cent. That is an arbitrary calculation, but it reflects an overall broad brush analysis of the attendant chances of pursuing the common law litigation.

161 A dispute arose whether this percentage should be deducted before or after the other deductions to which I have referred were made. In my view, the defendant is correct and this discount or deduction should be made before the other deductions. The aim of the assessment of the notional common law claim is not to provide Ms Sutton with the common law damages she would have received but to give her the value of the lost chance of such a claim. That assessment necessarily must take into account the contingencies and risks of obtaining that valuable judgment. Only when that has been assessed should the real value of what she has received be brought to account. In other words, what should be brought to account is the full value of what is possessed – the WC entitlements. To deduct these from the notional sum and only afterwards discount for the loss of the chance of obtaining the judgment at common law is to devalue, for no relevant reason, the value of what is possessed in the form of the WC Act entitlements: see F Green v Berry [2001] 1 Qd R 605 and Chamberlain v Ormsby.

162 A one third deduction of $330,596.42 leaves $220,397.61.

163 A deduction for solicitor client costs of $25,000 was made by the primary judge. Mr Govan said in evidence those costs would have been $40,000. There was no other evidence. The primary judge treated the issue in [117] and [118]:

“[117] I accept Mr Govan’s was the only evidence on this issue but, in my view, one may, indeed ought, reasonably have in mind, as Mr Andrews suggested, the use of compromise offers. I will do so. Also, Mr Govan could only be very approximate in his estimate of costs because in this particular case he managed it as a workers compensation claim.

[118] I will allow an amount of $25,000 for the solicitor-client costs deduction.”

164 I see no error in the primary judge’s approach. It should not be reduced for the one third contingency referred to above without evidence as to how the case would have been funded. In any event any such contingency can be seen to be encompassed within the broad assessment of $25,000.

165 This reduces the worth of the lost cause of action to $195,397.61.

166 Subject to the consideration of interest, to which I will come, from this net value of the lost cause of action should be taken the value of what Ms Sutton has received. Given that the deduction for the chance of litigation has already been taken off, the sums received to the date of the trial before the primary judge can simply be added up and deducted. All past benefits totalled $87,193.70. This leave $108,203.91.

167 The final possible deduction is the value of future workers compensation benefits. This is essentially an imprecise and broad brush assessment. The evidence revealed that at the time of the hearing Ms Sutton was receiving $1100 per fortnight in Commonwealth benefits as a pension for herself and her three children and was not claiming her entitlements under the WC Act.

168 The parties’ submissions and the evidence before the primary judge were less than satisfactory about this head of deduction. It was left to this Court to do its best to assess the present value of future benefits.

169 One can begin by recognising that as at the notional trial, and now, Ms Sutton was, and is, partially incapacitated.

170 As to a further possible lump sum under ss 66 and 67 of the WC Act the primary judge at [124] refused to make a deduction for further lump sum payments. Ms Sutton had already had further lump sum compensation of $12,716.95 awarded to her in addition to the original sum of $27,500. The primary judge said that there was a lack of evidence to anticipate further significant deterioration due to the injury and not the pre-existing condition. I see no error in that approach, particularly in the light of the evidence of Drs Rosenberg and Blake.

171 As to entitlements for future domestic assistance, this is no longer available after amendments to the WC Act, s 60AA in 2004.

172 As to future medical benefits and entitlements, the primary judge used the assessment put forward on behalf of Ms Sutton to assess this at $55,936.62. No complaint was made by the appellant about that. His Honour reduced this sum by deducting it from the notional common law verdict before the deduction of the chance contingency. That was wrong. Thus a deduction of a sum in the order $55,000 would be appropriate. This leaves $53,203.91.

173 Finally, there is the disputed value of the future workers compensation weekly entitlements.

174 The defendant at the hearing asserted that future weekly entitlements should be valued at greater than $600,000 for payments which would include dependent children. This was rejected by the primary judge as flawed because it was calculated on life time total incapacity. The primary judge found that Ms Sutton was partially incapacitated. The primary judge gave a weekly sum in the common law damages. I have awarded a buffer.

175 Counsel on behalf of Ms Sutton stressed before the primary judge that the calculation of payments well into the future for partial incapacity under the WC Act, s 40 is difficult to predict and fraught with uncertainty. He also submitted, correctly, that the entitlements to payment for a dependent child arose in respect of total incapacity only: WC Act, s 37.

176 Counsel for Ms Sutton also submitted to the primary judge that her evidence was that she would return to work when the children were older and that she would not make a claim (since she was receiving Commonwealth benefits). If she were to make a claim counsel calculated this as based on weekly claims of $76.69 to the age of 60.

177 His Honour, however, approached the matter in a way contended for by neither party. At [128] of his reasons the primary judge said:

“[128] I propose to assess likely future entitlements to weekly benefits of compensation in a similar way as future medical expenses were treated. In doing so, I understand this is a compromise between the extremes put by counsel and it also uses the 5% tables instead of the 3% tables for such purposes. Even so, in my view it represents a fair and reasonable approach to an assessment of this element which otherwise has much uncertainty about it looking so far into the future and in very uncertain circumstances. Indeed, I did consider at one stage of my deliberations a buffer approach for this element of around $100,000 but, finally, I opted for the approach taken as more accurate and supportable. I accept the assessment of future economic loss in the notional trial of $133,854 as a reasonable measure based on $200 per week as compensation for partial incapacity less weekly benefits paid since 1 July 2000 of $12,929 giving an amount of $120,925 which should be deferred for five years until the children settle into school. I will therefore deduct the resultant amount of $94,805.20 (deferred multiplier of 0.784 on 5% tables) for future weekly compensation.”

178 What his Honour was plainly seeking to do was to bring some equivalence to the notional common law entitlement and the workers compensation entitlement.

179 Both sides complain about this on appeal. Both sides put complex calculations in submissions based on tables of benefits. It is unnecessary to descend into the morass of that material.

180 It is sufficient to say that any amounts payable under the WC Act, s 40 for partial incapacity will depend on a number of variables including Ms Sutton’s ability to earn and relevant award rates at the time in the future.

181 The reality is that the future value to Ms Sutton of the entitlements for wage loss under the WC Act, especially ss 40A, 42 and 68A are as speculative as the assessment for future economic loss in the notional trial. The primary judge attempted (and the criticised use of 5 per cent tables rather than 3 per cent tables can perhaps be seen as part of his attempt) to draw an equivalence between the respective uncertainties in relation to future medical expenses and wage loss under the two mechanisms for recovery.

182 It was submitted on behalf of Ms Sutton, that the evidence revealed that she will return to the workforce when she is older. She has made no claim for on going compensation since June 2005.

183 The assessment of the present value to this person of entitlements under the WC Act should take into account the deferral of any benefits until she returns to the workforce.

184 The calculation of any partial incapacity payments to the extent that she claims in the future cannot be done with any precision. Though similar general considerations apply to the assessment of a future buffer for wage loss in a common law assessment and the calculation of the future value of present workers compensation entitlements, the two regimes operate in different legal frameworks. The workers compensation entitlements are affected by the assessment of deductions under s 68A. The range of views in relation to this can vary from doctor to doctor, as it did in 1999. Given that the payments are ongoing they are subject to the vicissitudes of re-evaluation from time to time and the risk of views being taken by insurance company employees over the years of circumstances affecting her entitlement. In other words, over the years, Ms Sutton faces the risk of the insurance company taking a view as to her entitlements contrary to her interests. She may need to engage in litigation in enforcing those rights, and expend money in that regard. These are practical risks inherent in a long term reliance upon a stream of income from the insurer dependent upon value judgments (which common experience reveals would be contestable) from time to time as to underlying condition and extent of wage loss. Further, there is the risk of further amendment to the WC Act, which might be unfavourable to the interests of Ms Sutton.

185 In the necessary absence of likely precise future calculations for partial incapacity entitlements, a relevant starting point can be seen to be a buffer of something in the order of $100,000, allowing for the reduction in the 9 years of income stream since the notional trial, the further delay in claiming while her children grow up and the present value of money compared to 2000. The discount for the chance involved in gaining that sum of one third that I have found does not apply to these future rights under the WC Act. That one third discount was for the risks involved in running and succeeding in the piece of litigation posited to take place in July 2000. I accept, however, the arguments put forward on the cross-appeal that there should be deductions for the risks involved in the future operation of the WC Act regime, which would include the expenditure of money on legal fees. I consider that a one third contingency is appropriate. It also, through a broad brush approach, makes roughly equivalent the worth of the further economic components of the notional trial verdict and the future benefits under the WC Act. Given Ms Sutton’s circumstances and likely average wage levels and the operation of the WC Act, especially provisions ss 40, 40A, 42 and 68A, that brings about a certain symmetry which has a rational and just basis. I would therefore deduct $66,000 for the worth of future economic entitlements.

186 If this sum is simply deducted from the running balance which I have identified this means that a small negative sum is arrived at.

187 However, interest needs to be dealt with. The value of the lost cause of action was based on recovery of $330,596.42. With a one third deduction for the contingencies of that lost chance the sum of $220,397.61 was reached less the costs of $25,000 producing $195,397.61.

188 This was the value of the chose in action on 1 September 1999 valued at the date of the notional trial. A component of interest should be added to that sum to reflect the deprivation that Ms Sutton suffered in not receiving it in 2000. That interest calculation should, however, take into account the timing of payments of workers compensation entitlements received to the date of the professional negligence trial. These totalled $87,193.70. They were received during the period 1998 to 2009. For present purposes, I will simply deduct that sum from the net value of the chose in action at 1 July 2000 ($195,397.61) giving a rounded down sum of $108,000. This backdating of the amounts received in WC Act benefits to 1 July 2000 is probably to the disadvantage of Ms Sutton. One of the benefits of the lump sum payment was its ability to earn interest. The lump sum could have earned interest, although it would have been drawn down upon for various expenses from time to time.

189 The primary judge dealt with interest in a separate judgment from which there was no appeal. His Honour, correctly in my view, characterised this as a loss of opportunity action and saw interest controlled by the Civil Liability Act 2002 (NSW), s 18. His Honour awarded interest therefore on the basis of the long term bond rate. However, his Honour awarded interest only after taking into account the benefit of future entitlements under the WC Act.

190 If his Honour’s approach were correct, Ms Sutton, on my assessments of loss, would have proved no damage. On the other hand, if Ms Sutton is entitled to interest on the value of the lost cause of action from 1 July 2000 until the professional negligence action in 2009, adjusted to take account of the timing of actual receipts under the WC Act, and only thereafter the deduction of future entitlements under the WC Act (both medical and wage loss), this will still produce a small judgment for Ms Sutton.

191 Approaching the matter this way, Ms Sutton would be entitled to a judgment calculated by adding interest under the long term bond rate to $195,397.61 from 1 July 2000 until March 2009 adjusting, however, for a temporal component fairly assessing the time of the receipt of the actual benefits for workers compensation entitlements. From that total sum there should be deducted the assessments for the worth of future entitlements under the workers compensation legislation being $55,000 for medical expenses and $66,000 for future wage loss entitlements.

192 We have not heard the parties on the question of interest on the value of the chose in action and I would permit submissions to be put in relation to it.

Causation revisited

193 The above result reflects the reality of the marginal benefit in Ms Sutton choosing to proceed at common law. In large part, she would have been proceeding for the likely benefit of a lump sum and higher relative damages for non-economic loss than she was likely to achieve under the WC Act. The marginal benefit on the calculation referred to above reflects the reality of the risks she faced.

194 Looking at the question of causation in the broad and taking the likely reasonable advice of a solicitor into account including the range of common law damages together with Ms Sutton’s evidence, in particular her desire for a lump sum, and the primary judge’s acceptance of her evidence, I am satisfied that she would have taken the option of a common law claim with a view to obtaining a lump sum. The decision would have been a fine one; but in the light of her evidence as to a desire for a lump sum, I am prepared to accept that she would have proceeded to sue at common law if she had been given the advice she should have been that she had good prospects of proving negligence, that there was some risk of the thresholds not being met but, on balance, she would, in all likelihood, exceed both thresholds.

195 It can be accepted that the decision would have been a marginal one. That is reflected by the calculations I have made about loss. That Ms Sutton could be in a worse position (before the assessment of interest in the way I have suggested) is a reflection of the proper accounting for risk of the gaining of the common law claim and the necessity to bring to account the full value of benefits received under the WC Act. The importance of the calculation of interest from the date of the notional trial reflects, in itself, the value of the lump sum which Ms Sutton saw as important.

196 At present I would make no orders but would hear the parties on the question of interest and costs. If my present view as to the proper assessment of interest on the discounted notional trial verdict remains, the orders that I would make could be anticipated to be:

(a) Allow the appeal and cross-appeal.

(b) Set aside orders 1 and 2 of the District Court made on 17 March 2009.

(c) Judgment in a sum calculated by reference to a proper calculation of interest at the long term bond rate upon the discounted notional judgment at 1 July 2000.

197 The only order that I would make would be to direct the parties to file within 7 days written submissions on the question of interest (including any agreed or competing calculations) and costs. I would stand the proceedings over to a date to be fixed for the making of final orders.

198 MACFARLAN JA: I agree with Allsop P.

I agree with Allsop P.

**********

Citations

Firth v Sutton [2010] NSWCA 90

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CITATION:	Firth v Sutton [2010] NSWCA 90
HEARING DATE(S):	20 November 2009
JUDGMENT DATE:	30 April 2010
JUDGMENT OF:	Allsop P at 1; Macfarlan JA at 198; Young JA at 199
DECISION:	1. On or before Friday 7 May, the parties file written submissions on the question of interest (including any agreed or competing calculations) and costs. 2. Stand the proceedings over to a date to be fixed for the making of final orders.
CATCHWORDS:	TORTS – Negligence – professional negligence – solicitor failed to properly advise on availability of common law damages in workplace injury claim - WORKERS’ COMPENSATION – Entitlement to compensation for permanent impairment and pain and suffering – Workers Compensation Act 1987 (NSW) ss 66 and 67 – election to be made for damages under Workers Compensation Act or damages at common law – Workers Compensation Act 1987 (NSW) s 151A(2) - DAMAGES – Personal injury – measure and assessment of damages – loss of opportunity to pursue common law claim in preference to Workers Compensation Act entitlements – assessment of comparative worth of proceedings under Workers Compensation Act and common law – calculation of the value of the loss of a lump sum payment should include interest
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW) ss 40, 40A, 42, 65, 66, 67, 68A, 151, 151A, 151B, 151E-T
CATEGORY:	Principal judgment
CASES CITED:	Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426 Chamberlain v Ormsby [2005] NSWCA 454 Johnson v Perez [1988] HCA 64; 166 CLR 351 Nikolaou v Papasavas [1989] HCA 11; 166 CLR 394 Re-Car Consolidated Industries (Newcastle) Pty Ltd v Horner [1997] NSWSC 425; 42 NSWLR 574 Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 Tabet v Gett [2010] HCA 12 Willis v The Commonwealth [1946] HCA 22; 73 CLR 105
PARTIES:	Stephen Paul Firth (Appellant) Renee Sutton (Respondent)
FILE NUMBER(S):	CA 2009/298149
COUNSEL:	G M Watson SC, I R Goodridge (Appellant) K W Andrews (Respondent)
SOLICITORS:	Firths - The Compensation Lawyers (Appellant) Brennan Legal (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3309/05
LOWER COURT JUDICIAL OFFICER:	Hungerford ADCJ
LOWER COURT DATE OF DECISION:	12 March, 17 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Sutton v Firth (No 2) [2009] NSWDC 53, Sutton v Firth (No 3) [2009] NSWDC 68