Firth v Sutton [2010] NSWCA 90

New South Wales Court of Appeal

CITATION: Firth v Sutton [2010] NSWCA 90

HEARING DATE(S): 20 November 2009

JUDGMENT DATE: 30 April 2010

JUDGMENT OF: Allsop P at 1; Macfarlan JA at 198; Young JA at 199

DECISION: 1. On or before Friday 7 May, the parties file written submissions on the question of interest (including any agreed or competing calculations) and costs. 2. Stand the proceedings over to a date to be fixed for the making of final orders.

CATCHWORDS: TORTS – Negligence – professional negligence – solicitor failed to properly advise on availability of common law damages in workplace injury claim - WORKERS' COMPENSATION – Entitlement to compensation for permanent impairment and pain and suffering – Workers Compensation Act 1987 (NSW) ss 66 and 67 – election to be made for damages under Workers Compensation Act or damages at common law – Workers Compensation Act 1987 (NSW) s 151A(2) - 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 should include interest

LEGISLATION CITED: Workers Compensation Act 1987 (NSW) ss 40, 40A, 42, 65, 66, 67, 68A, 151, 151A, 151B, 151E-T

CATEGORY: Principal judgment

Bwllfa and Merthyr Dare Steam Collieries (1891) v Pontypridd Waterworks Co [1903] AC 426 Chamberlain v Ormsby [2005] NSWCA 454 Johnson v Perez [1988] HCA 64; 166 CLR 351 CASES CITED: Nikolaou v Papasavas [1989] HCA 11; 166 CLR 394 Re-Car Consolidated Industries (Newcastle) Pty Ltd v Horner [1997] NSWSC 425; 42 NSWLR 574 Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 Tabet v Gett [2010] HCA 12 Willis v The Commonwealth [1946] HCA 22; 73 CLR 105