Franklin v Grima [1999] NSWSC 682

Reported Decision : [1999] 29 MVR 567

New South Wales Supreme Court CITATION : Franklin v Grima [1999] NSWSC 682 CURRENT JURISDICTION : Equity FILE NUMBER(S) : ED 1459/99 HEARING DATE(S) : 18 June 1999 JUDGMENT DATE : 18 June 1999

PARTIES : Jasmin Franklin v Rita Grima JUDGMENT OF : Davies AJ at 1

COUNSEL : Plaintiff - K. Pierce Defendant - J.E. Robson SOLICITORS : Plaintiff - Abbott Tout Defendant - Napier Keen CATCHWORDS : Disputed agreement to settle; motor vehicle accident ACTS CITED : Health & Other Services (Compensation) Act 1995 Motor Accidents Act 1988 CASES CITED : Ballas v Theophilos (1957) 98 CLR 193 DECISION : Application dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION 1459/99 DAVIES AJ Friday, 18 June 1999 JASMIN FRANKLIN v RITA GRIMA JUDGMENT 1 HIS HONOUR: This matter arose out of a personal injuries claim which the defendant, Rita Grima, made against the plaintiff Jasmin Franklin. 2 On 29 May 1997, Napier Keen, solicitors for Grima, wrote to the claims officer of CIC Insurance Ltd, who was handling the matter on behalf of Jasmin Franklin offering to settle the claim for $41,000. In the letter, a number of heads of damage were set out including expenditure to Hornsby Physiotherapy and to the Health Insurance Commission. 3 Thereafter correspondence passed, questions were asked, and then, on 16 September 1997, CIC Insurance wrote a letter advising that it was prepared to offer $20,500 in full and final settlement. On 15 October 1997 Napier Keen wrote to say that it rejected the offer and did not have instructions to reduce its offer below $41,000. On 20 November 1997, CIC Insurance wrote making an offer of settlement of $34,500 in full settlement. On a subsequent date, in a letter which was headed "without prejudice", a sum of $4000 was offered in respect of costs. 4 On 25 November 1997 Napier Keen wrote to say, "We acknowledge your correspondence of 20 November 1997 and am instructed to reject your offer and maintain our offer to you which was contained in our correspondence to you dated 29 May 1997." 5 One can see then that there had been somewhat of a flurry of correspondence in September, October and November with respect to settlement. Nothing occurred thereafter until 4 February 1998 when the claims officer, who handled the matter at CIC Insurance, Ms Danica Kolicic, rang Napier Keen and asked to speak to the person handling the relevant file. It appears that she was put through to a Mr Napier. 6 Ms Kolicic has no independent recollection of the terms of the conversation but she made a note on the relevant file that, on 4 February 1998, she made a phone call to the solicitor and "Advised we accept this offer". Mr Napier has sworn an affidavit. Apparently he is not able to be here today and lives somewhere near Taree. His affidavit states in paragraph 3 that he has no recollection of the exact exchange of words with Ms Kolicic but that he recorded in a contemporaneous note that she had telephoned. The note is not in evidence. 7 The evidence therefore of the terms of the conversation is slight. Neither Mr Napier nor Ms Kolicic can recall the terms of the conversation and the only notes of the matter do not coincide, Ms Kolicic having a note that she advised that the matter was settled and Mr Napier merely noting that she had phoned. One would expect that, if Ms Kolicic had said in that conversation that the matter was settled, Mr Napier would have made a note of that point. 8 On the same day, 4 February 1998, Ms Kolicic wrote to Napier Keen a letter which stated: "We are prepared to offer your client $41,000.00 in full and final settlement of the claim pursuant to her rights under the Motor Accidents Act, 1988. This offer is exclusive of all NSW Public Hospital and Ambulance accounts and is subject to the following inclusions:"