Firth v Sutton (No 2)

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.