This very recent decision of Justice Wilson of the Supreme
Court dispels the long held belief that an oral compromise is
as good as a written one, at least in the context of matters
involving pre-proceeding settlements regulated by the
Workcover Queensland Act 1996 (and by analogy, the
Workers Compensation and Rehabilitation Act 2003). It
also serves as a reminder of the importance of keeping accurate
attendance records of one's settlement discussions.
The claimant sought damages against the defendant for
personal injuries sustained by her during the course of her
employment with the defendant. The claim was regulated by the
Workcover Queensland Act 1996. The claimant was self
represented at all relevant times.
A compulsory settlement conference failed to resolve the
claimant's claim and the parties, as legally required,
exchanged written final offers, each with a 14 day acceptance
period. On day 14 a telephone discussion took place between the
claimant and the defendant's solicitor. The
defendant's solicitor asserted that during that
discussion the claimant accepted the defendant's
written final offer. The claimant later disputed this. The
matter subsequently proceeded to trial to determine whether a
binding compromise had been reached or not.
As a matter of law, it was for the defendant to prove the
existence of a binding settlement. The difficulty for the
defendant was twofold: firstly, the defendant's
solicitor had kept no written file note of the telephone
conversation in which the settlement was allegedly reached.
Secondly, despite sending a discharge to the claimant following
that conversation, the defendant's solicitor then
embarked upon a course of conduct which was inconsistent with
an agreement having been reached. The claimant did not sign the
Ultimately the Court determined that no compromise (oral or
otherwise) had been reached. The Court found that even if there
had been an oral acceptance of the defendant's offer
the parties did not intend the agreement to be binding until a
discharge was signed (due to the defendant not spelling out all
of the terms of its proposed discharge at the time of
acceptance) and furthermore, section 300 Workcover
Queensland Act 1996 operated to make that agreement
unenforceable in the absence of a signed discharge.
The Workcover Queensland Act 1996 was repealed in
2003 but remains operative for injuries sustained prior to 1
July 2003. It was replaced by the Workers Compensation and
Rehabilitation Act 2003. Section 293 of the current Act is
in identical terms to s300 of the former Act and, by analogy,
is likely to be interpreted by the Court in the same way.
It is important to note that section 300 (s293) expressly
refers to a "settlement before a proceeding". There
is no equivalent provision for settlements reached following
the commencement of court proceedings which means that in most
cases an oral compromise will bind the parties in the absence
of a written discharge being signed. However, if a defendant
wishes to "introduce" specific terms into the
discharge (for example a confidentiality clause), the defendant
is best advised to make those specific terms known at the time
any offer of compromise is made, preferably by accompanying
such offer with a copy of the defendant's proposed
discharge, if they seek to hold the claimant to those specific
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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