NSW Caselaw
New South Wales District Court
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 2009
JURISDICTION: 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
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