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Firth v Sutton (No 2) [2010] NSWCA 109. Allsop P, Macfarlan & Young JJA agreeing. 14.05.10.

The respondent submitted entitlement to interest from the date of the notional trial on the deducted award.

Allsop P disagreed, citing Haines v Bendall (1991) 172 CLR 60. In [6], the President said: “What, one asks, has the plaintiff lost? Here, the loss is the comparatively worse position Ms Sutton finds herself in having lost her common law claim and being relegated to her workers compensation rights. Compensation for that comparatively worse position should recognise not only when she would have received the fruit of that common law claim, but also it should give full credit for what she has received so that the comparative position can be analysed. To do so, account must be taken of the nominal sums received under the WC Act and of when they where received. Thus, at 1 July 2000, Ms Sutton did not have the value of the lost chose in action at common law, but she had a little time before received $27,500 and had that money for a period of time. Thereafter, she did not have the value of the lost chose, but she did receive sums under the WC Act that made her comparative position progressively less disadvantageous.

“The receipts of the amounts under the WC Act were in no way collateral or remote: cf Batchelor v Burke (1981) 148 CLR 448 at 453, and Haines v Bendall (above) at 65. Rather, they were the receipts against which Ms Sutton’s loss was calculated.” [7]

Lost chance at 1 July 2000 was $195,397 plus interest at the long term bond rate to 17.03.09 $61,000 grossing $256,397. Deductions were past wc $87,193.70, future wc $121,00 ($55,000 and $66,000), interest from 01.07.00  on received ss66/67 $10,429, interest on periodic payments assessed on notional receipt half way through period $9,300, yielding net award $28,474.30.

The appellant had offered compromise $85,000 plus costs on 03.02.09.

On appeal costs, “Although Ms Sutton has had her judgment reduced, she had considerable success on the issues litigated in this Court. Ms Sutton proposes that each party bear his and her own costs of the appeal and cross-appeal. I think that would be a fair outcome, conformable with the realities of the respective successes and failures of the parties in the appellate controversy,” the President said [11].

Appeal and cross appeal allowed, District Court orders substituted with judgment for the plaintiff $28,474.30 effectual from 17.03.09, defendant’s ordinary costs to 04.02.09, thereafter the plaintiff to pay the defendant’s indemnity costs; each to bear own costs of the appeal.

Appearances as above.

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