New South Wales
Court of Appeal
CITATION: Firth v Sutton [2010] NSWCA 90 HEARING DATE(S): 20 November 2009
JUDGMENT DATE:
30 April 2010JUDGMENT 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 105PARTIES: 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
Friday 30 April 2010ALLSOP P
MACFARLAN JA
YOUNG JA
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…
Continue reading Firth v Sutton
Sign in free to access the full text
Details
- AGLC
- Firth v Sutton [2010] NSWCA 90
- Case
- [2010] NSWCA 90
- Decision Date
CaseChat Overview and Summary
The New South Wales Court of Appeal considered a dispute between a former employee, Mr. Firth, and his former solicitor, Mr. Sutton. Mr. Firth alleged that his solicitor had negligently failed to advise him on the availability of common law damages for a workplace injury, leading him to elect for statutory workers' compensation entitlements under the *Workers Compensation Act 1987* (NSW) instead. The core of the dispute was whether Mr. Firth had lost the opportunity to pursue a more advantageous common law claim due to his solicitor's alleged negligence.
The Court was required to determine the legal principles governing a solicitor's duty of care in advising clients about their options under the *Workers Compensation Act 1987* (NSW), particularly concerning the election between statutory compensation for permanent impairment and pain and suffering under sections 66 and 67, and the pursuit of common law damages under section 151A(2). A key issue was how to assess the value of the lost opportunity to pursue a common law claim, including the calculation of interest on any lump sum payment that might have been awarded at common law.
The Court reasoned that the solicitor's duty extended to providing competent advice on the comparative worth of the available remedies. The assessment of damages for the loss of this opportunity required a comparison between the likely outcome under the Workers Compensation Act and the likely outcome at common law. The Court affirmed that the calculation of the value of such a lost opportunity should include an award of interest to compensate for the time value of money.
The Court made no final orders at that stage, instead directing the parties to file written submissions on the question of interest and costs, and standing the proceedings over to a future date for the making of final orders.
The Court was required to determine the legal principles governing a solicitor's duty of care in advising clients about their options under the *Workers Compensation Act 1987* (NSW), particularly concerning the election between statutory compensation for permanent impairment and pain and suffering under sections 66 and 67, and the pursuit of common law damages under section 151A(2). A key issue was how to assess the value of the lost opportunity to pursue a common law claim, including the calculation of interest on any lump sum payment that might have been awarded at common law.
The Court reasoned that the solicitor's duty extended to providing competent advice on the comparative worth of the available remedies. The assessment of damages for the loss of this opportunity required a comparison between the likely outcome under the Workers Compensation Act and the likely outcome at common law. The Court affirmed that the calculation of the value of such a lost opportunity should include an award of interest to compensate for the time value of money.
The Court made no final orders at that stage, instead directing the parties to file written submissions on the question of interest and costs, and standing the proceedings over to a future date for the making of final orders.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.