ARTICLE · 18 MARCH 2012

Offers of compromise – 'exclusive of costs'

Moray & Agnew

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An offer of compromise made to settle a claim on a 'plus costs' basis runs the risk of falling foul of the court rules.

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Elizabeth Herbert

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McGlen-McLeod v Galloway (No. 2) [2012] NSWDC 11

In May 2008, the plaintiff was injured when she fell through rotten floorboards on the veranda of rental premises in Valery (south west of Coffs Harbour). She brought proceedings for damages against the owner in the NSW District Court. The trial proceeded before Judge Gibson in October 2011. The plaintiff relied on medico-legal evidence, and her own testimony, to claim she suffered significantly disabling disabilities, despite there being a lack of support in contemporaneous medical material that she suffered anything other than fairly mild injuries. The defendant tendered surveillance film, showing the plaintiff performing vigorous and strenuous physical activities without apparent restriction or discomfort, contrary to her evidence and her reports to doctors. The defendant did not serve an assessment from an orthopaedic surgeon who examined the plaintiff for the proceedings.

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