Firth v Sutton (No 2) - [2010] NSWCA 109

New South Wales

Court of Appeal

CITATION: Firth v Sutton (No 2) [2010] NSWCA 109

HEARING DATE(S): 20 November 2009

JUDGMENT DATE:
14 May 2010

JUDGMENT OF: Allsop P at 1; Macfarlan JA at 13; Young JA at 14

DECISION: 1. Appeal and cross-appeal allowed.
2. Set aside orders 1 and 2 made by the District Court on 17 March 2009 and in lieu thereof order:
(a) judgment for the plaintiff in the sum of $28,474.30 to take effect as at 17 March 2009;
(b) the defendant pay the plaintiff’s costs on an ordinary party/ party basis up to 11 am on 4 February 2009 and thereafter the plaintiff pay the defendant’s costs on an indemnity basis.
3. Each party bear his and her own costs of the appeal.

CATCHWORDS: 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 includes interest accrued – judgment sum adjusted for the timing of receipt of Workers Compensation benefits

LEGISLATION CITED: Supreme Court Act 1970 (NSW) s 94
Workers Compensation Act 1987 (NSW)

CATEGORY: Consequential orders

CASES CITED: Batchelor v Burke [1981] HCA 30; 148 CLR 448
Haines v Bendall [1991] HCA 15; 172 CLR 60

PARTIES: Stephen 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 14 May 2010

FIRTH v SUTTON (No 2)

Headnote

[This headnote is not part of the reasons of the Court.]

An issue arose in the principal judgment, Firth v Sutton [2010] NSWCA 90, about which the parties had not been heard, namely, whether as part of the calculation of the loss of Ms Sutton, interest should accrue on the value of the lost common law claim.

The submissions of the parties agreed that the judgment sum should be calculated by adding interest to the value of the lost common law action as at 1 July 2000, the date of the posited judgment, being $195,397.61. The disagreement concerned whether, as Ms Sutton submitted, the sums received under the Workers Compensation scheme should be deducted without any adjustment for the timing of their receipt.

Held (per Allsop P, Macfarlan and Young JJA agreeing):

The calculation of compensation for the comparatively worse position of not having a lump sum payment under the lost common law action should not only take into account what benefit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Firth v Sutton (No 2)

Details

AGLC: Firth v Sutton (No 2) [2010] NSWCA 109
Case: [2010] NSWCA 109
Decision Date: 14 May 2010

CaseChat Overview and Summary

The appeal concerned the assessment of damages for a plaintiff who had lost the opportunity to pursue a common law claim for personal injury in favour of accepting entitlements under the *Workers Compensation Act 1987* (NSW). The dispute centred on the comparative worth of these two avenues of recovery and the correct method for calculating the value of the lost opportunity. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were: (1) how to assess the value of the loss of a common law claim when the plaintiff had already received workers compensation benefits; (2) whether the calculation of the value of a lost lump sum payment should include interest accrued on that sum; and (3) how to adjust the judgment sum to account for the timing of the receipt of workers compensation benefits compared to the potential receipt of a common law judgment.

The Court of Appeal reasoned that the value of the lost opportunity should be assessed by comparing the net benefit the plaintiff would have received from a successful common law claim against the benefits already received under the *Workers Compensation Act*. It held that the calculation of the value of the lost lump sum payment must include the interest that would have accrued on that sum from the date it would have been awarded until the date of judgment. Furthermore, the court determined that the judgment sum should be adjusted to reflect the time value of money, taking into account the earlier receipt of workers compensation benefits. The appeal and cross-appeal were allowed, and the District Court's orders were set aside and replaced with a judgment for the plaintiff in the sum of $28,474.30, with specific orders regarding the costs of the proceedings in the District Court and the appeal.

Orders

Orders of the court

1. Appeal and cross-appeal allowed.

2. Set aside orders 1 and 2 made by the District Court on 17 March 2009 and in lieu thereof order:

(a) judgment for the plaintiff in the sum of $28,474.30 to take effect as at 17 March 2009;

(b) the defendant pay the plaintiff’s costs on an ordinary party/ party basis up to 11 am on 4 February 2009 and thereafter the plaintiff pay the defendant’s costs on an indemnity basis.

3. Each party bear his and her own costs of the appeal.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Firth v Sutton (No 2) [2010] NSWCA 109
HEARING DATE(S):	20 November 2009
JUDGMENT DATE:	14 May 2010
JUDGMENT OF:	Allsop P at 1; Macfarlan JA at 13; Young JA at 14
DECISION:	1. Appeal and cross-appeal allowed. 2. Set aside orders 1 and 2 made by the District Court on 17 March 2009 and in lieu thereof order: (a) judgment for the plaintiff in the sum of $28,474.30 to take effect as at 17 March 2009; (b) the defendant pay the plaintiff’s costs on an ordinary party/ party basis up to 11 am on 4 February 2009 and thereafter the plaintiff pay the defendant’s costs on an indemnity basis. 3. Each party bear his and her own costs of the appeal.
CATCHWORDS:	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 includes interest accrued – judgment sum adjusted for the timing of receipt of Workers Compensation benefits
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) s 94 Workers Compensation Act 1987 (NSW)
CATEGORY:	Consequential orders
CASES CITED:	Batchelor v Burke [1981] HCA 30; 148 CLR 448 Haines v Bendall [1991] HCA 15; 172 CLR 60
PARTIES:	Stephen 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