CITATION: Sutton v Firth (No 2) [2009] NSWDC 53 HEARING DATE(S): 9, 10, 11 and 12 February 2009 and 5 March 2009
JUDGMENT DATE:
12 March 2009JURISDICTION: Civil JUDGMENT OF: Hungerford ADCJ DECISION: Verdict for the plaintiff against the defendant in the amount of $81,896.38; parties to be heard on interest and costs before final orders are made. CATCHWORDS: TORTS-Professional negligence-Employee injured in the workplace-Receipt of workers compensation benefits-Failure of solicitor to advise to enable employee to make a rational and informed decision whether to seek damages at common law-Common law rights lost on acceptance of workers compensation permanent loss lump sum-Expiration of limitation period to bring common law action-Chances of success of common law claim-Nature of employer's duty of care-System of work-Nature and conditions of work-Whether employee guilty of contributory negligence in failing to seek revocation of lump sum settlement and extension of limitation period-Comparison of compensation with likely damages-Assessment of damages for professional negligence-Deductions to be made-Whether deduction for workers compensation to be made before deduction for loss of chance or vice versa-Availability of future workers compensation benefits - EVIDENCE-Expert evidence-Requirement for requisite training, study and experience-Specialised knowledge-Exclusionary rule-Professional standards laid down by a professional institute or regularly practised - WORKERS COMPENSATION-Workplace injury-System of work-Acceptance of permanent loss lump sum compensation-Option to relinquish common law rights-Ability to revoke election to do so-Common law action for professional negligence against solicitor-Failure to advise as to common law rights-Calculation of damages-Deductions to be made-Quantification of past benefits-Assessment of future benefits-Assessment of modified common law damages-Loss of chance to take common law proceedings-Whether deduction for workers compensation benefits to be made before deduction for loss of chance or vice versa-Continuation of workers compensation benefits LEGISLATION CITED: Civil Liability Act 2002, s 5O
Evidence Act 1995, ss 76 and 79
Law Reform (Miscellaneous Provisions) Act 1946, s 5
Workers Compensation Act 1987, ss 37, 40, 60AA, 66, 67, 68A, 151A, 151D(2), 151G, 151H, 151K and 151M, Div 3 of Pt 5 and Div 4 of Pt 3, and cl 3 Pt 18H of Sch 6
Workers Compensation Legislation Amendment Act 2004CASES CITED: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Boyded Industries Pty Ltd t/as Boyded Parramatta v Canuto [2004] NSWCA 256
Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426
Chamberlain v Ormsby t/as Ormsby Flower [2005] NSWCA 454
Chapman v Hearse (1961) 106 CLR 112
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Czatyrko v Edith Cowan University [2005] HCA 14
Dobler v Kenneth Halverson [2007] NSWCA 335
Green v Berry [2001] 1 Qd R 605
Johnson v Perez (1988) 166 CLR 351
Liftronic Pty Ltd v Unver (2001) 179 ALR 321
McHale v Watson (1966) 115 CLR 199
McLean v Tedman (1984) 155 CLR 306
Midland Trust Bank Co Ltd v Hett Stubbs & Kemp [1979] Ch 384
Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611
Nikolaou v Papasavas (1989) 166 CLR 394
O’Brien v Gillespie…
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- AGLC
- Sutton v Firth (No 2) [2009] NSWDC 53
- Case
- [2009] NSWDC 53
- Decision Date
CaseChat Overview and Summary
The case of Sutton v Firth (No 2) involved the plaintiff, Sutton, who had suffered an injury at work. Sutton sought damages from his former solicitor, Firth, alleging professional negligence. Firth had failed to advise Sutton of his common law rights, resulting in Sutton losing the opportunity to claim damages at common law when he accepted a workers compensation permanent loss lump sum. The court had to decide various legal issues, including whether Firth owed a duty of care to Sutton, the nature of Firth’s duty of care, and the assessment of damages for professional negligence.
The court considered whether Firth's failure to advise Sutton constituted a breach of duty, given that Sutton had accepted a workers compensation lump sum, thus forfeiting his common law rights. The court found that Firth owed a duty of care to Sutton, and that this duty required Firth to advise Sutton adequately to enable him to make an informed decision about pursuing common law damages. The court also examined the chances of success of a common law claim, the employer’s duty of care, and whether Sutton was guilty of contributory negligence. The court held that Sutton was not contributory negligent, as the onus was on Firth to provide proper advice. The court further deliberated on the deductions to be made from the damages awarded, considering both workers compensation benefits and the loss of chance to pursue common law damages.
After weighing all factors, the court found in favour of Sutton and awarded him damages of $81,896.38. The court directed that the parties be heard on interest and costs before final orders were made. The court determined that the deduction for workers compensation benefits should be made before the deduction for the loss of chance, and that future workers compensation benefits should be considered in assessing damages. This decision underscores the importance of proper legal advice in complex matters involving multiple sources of compensation.
The court considered whether Firth's failure to advise Sutton constituted a breach of duty, given that Sutton had accepted a workers compensation lump sum, thus forfeiting his common law rights. The court found that Firth owed a duty of care to Sutton, and that this duty required Firth to advise Sutton adequately to enable him to make an informed decision about pursuing common law damages. The court also examined the chances of success of a common law claim, the employer’s duty of care, and whether Sutton was guilty of contributory negligence. The court held that Sutton was not contributory negligent, as the onus was on Firth to provide proper advice. The court further deliberated on the deductions to be made from the damages awarded, considering both workers compensation benefits and the loss of chance to pursue common law damages.
After weighing all factors, the court found in favour of Sutton and awarded him damages of $81,896.38. The court directed that the parties be heard on interest and costs before final orders were made. The court determined that the deduction for workers compensation benefits should be made before the deduction for the loss of chance, and that future workers compensation benefits should be considered in assessing damages. This decision underscores the importance of proper legal advice in complex matters involving multiple sources of compensation.
Orders
Orders of the court
Verdict for the plaintiff against the defendant in the amount of $81,896.38; parties to be heard on interest and costs before final orders are made.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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