Firth v Sutton

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.