Witness demeanour vs factual evidence when deciding whether or not an offer was made
An interesting personal injury case came before the Supreme Court in New South Wales where a Defendant in a proceeding claimed that a case had been settled on the eve of a trial following Friday afternoon discussions between solicitors, but the Plaintiff held that no settlement had been reached.
Was that an offer of settlement?
The Court had to decide whether an offer of settlement had actually been made by the Plaintiff's solicitors on the Friday afternoon before trial, which was subsequently accepted by the Defendant.
It was the ultimate decision of the Court that the words used by the Plaintiff's solicitors during the Friday afternoon discussions were not sufficient to constitute an offer by the Plaintiff, but was in fact an invitation for a higher offer to be made by the Defendant. Details of the case before the Court are set out below.
Claim for slip and fall injuries
Ms Power had brought a personal injury claim in the District Court for injuries she sustained in a slip and fall incident, which she claimed was caused by the negligence of Mr Mealey. On the Friday afternoon prior to the trial of the District Court case commencing on the Monday, the solicitors for Mr Mealey and the solicitors for Ms Power had telephone discussions over whether there was any potential for settling the claim before trial.
During those discussions, Ms Power’s solicitor stated that $50,000 would not resolve the matter and they would need something like another $20,000 to cover legal costs. On the Monday morning before trial, Mr Mealey’s solicitor sent a text to the solicitors for Ms Power, stating that the offer of $70,000 to resolve the matter was accepted.
Offer of settlement not an offer
In response to Mr Mealey’s text accepting the alleged offer of $70,000, the Plaintiff’s solicitors stated that no offer had in fact been made, but the Friday afternoon telephone discussions were merely an invitation for the Defendant to make a higher offer that may resolve the case. Mr Mealey’s solicitor in response brought an Application in the Supreme Court for a Declaration that Ms Power’s claim had been settled for the amount of $70,000 and the case was concluded.
Court to decide if settlement occurred
Justice Pembroke heard the matter. After hearing witness testimony from Ms Needham, the Junior Solicitor who spoke to Mr Williams, the Solicitor for Mr Mealey on the Friday afternoon, as well as the senior solicitor having control of Ms Power’s case, and Mr Williams, His Honour considered that the demeanour of Mr Williams in the stand was the more convincing.
However, His Honour noted in his reasons for decision that although the demeanour of witnesses and the way in which a witness gives their evidence in Court is to be considered in judicial determinations, it always needs to be taken into consideration that some witnesses find such task more stressful than others.
An ounce of evidence of known facts is worth pounds of demeanour
His Honour went on to quote His Honour Lord Atkin in the case of Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The Palitana), wherein he remarked:
“an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”.
In particular, he considered the file note of Ms Needham following the Friday afternoon discussion, which was,
“will Mealey make a higher offer? He will get instructions”.
Court determines there was no offer of settlement made
After considering the file notes of the conversation on that Friday afternoon before the Monday trial date, his Honour considered that Mr Mealey’s solicitor was clearly confused over the discussions and, in fact, Ms Power’s solicitors had not made an offer of settlement to him.
His Honour determined that the comments made were no more than an invitation for a higher offer to be made and did not amount to an offer of settlement. The Application by Mr Mealey for a Declaration that the matter had settled for $70,000 was dismissed and costs were awarded in favour of Ms Power. View this full case.
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