Firth v Sutton [2010] NSWCA 90

Firth v Sutton [2010] NSWCA 90

Mr Govan failed to discharge the duty of a reasonably prudent solicitor by not adequately investigating Go-Lo's potential negligence, not briefing medical practitioners for issues relevant to a common law claim, and not giving advice that enabled Ms Sutton to make an informed election between workers compensation...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
30 April 2010
Procedural Posture
Appeal in Professional Negligence Proceedings Arising From Handling of a Workplace Personal Injury Claim / Appeal From District Court Verdict and Judgment; Proceedings Stood Over for Submissions on Interest and Costs Before Final Orders
Outcome
No final orders made; parties directed to file submissions on interest and costs and proceedings stood over for final orders.
Legal Topics
["solicitor's Duty to Advise on Common Law Damages and Workers Compensation Options" 'election Between Permanent Loss Compensation and Common Law Damages' 'loss of Opportunity to Pursue a Common Law Workplace Injury Claim' 'assessment of Modified Common Law Damages' 'interest on Loss of a Lump Sum Payment' 'deduction of Workers Compensation Benefits']
['torts' 'professional Negligence' 'workers Compensation' 'damages' 'personal Injury'] ["solicitor's Duty to Advise on Common Law Damages and Workers Compensation Options" 'election Between Permanent Loss Compensation and Common Law Damages' 'loss of Opportunity to Pursue a Common Law Workplace Injury Claim' 'assessment of Modified Common Law Damages' 'interest on Loss of a Lump Sum Payment' 'deduction of Workers Compensation Benefits']

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Procedural Posture

Appeal in Professional Negligence Proceedings Arising From Handling of a Workplace Personal Injury Claim / Appeal From District Court Verdict and Judgment; Proceedings Stood Over for Submissions on Interest and Costs Before Final Orders

Legal Issues

  1. 1 ['Whether the employed solicitor failed to exercise reasonable care by treating the matter as a workers compensation claim and not adequately investigating and advising on a modified common law claim against Go-Lo.' 'Whether any negligence caused loss, including whether the respondent would have elected to pursue common law proceedings if properly advised.' 'How to assess the comparative value of the lost common law claim and the workers compensation entitlements received and retained.' 'Whether later medical evidence could be used to assess what could have been known at the time of advice and at the notional common law trial.' 'How interest should be calculated on the value of the lost opportunity to obtain a lump sum judgment.']

Ratio Decidendi

Mr Govan failed to discharge the duty of a reasonably prudent solicitor by not adequately investigating Go-Lo's potential negligence, not briefing medical practitioners for issues relevant to a common law claim, and not giving advice that enabled Ms Sutton to make an informed election between workers compensation and modified common law damages. On the evidence, proper advice would probably have led Ms Sutton to pursue a common law claim, although the benefit was marginal and had to be valued as a lost chance after allowing for litigation risk, solicitor-client costs, workers compensation benefits received and the value of future entitlements. Interest on the lost lump sum required...

Court Disposition

No final orders made; parties directed to file submissions on interest and costs and proceedings stood over for final orders.

Orders

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