an agreement

an injury

a relationship

a purchase

Workers who are injured at work have two possible avenues for compensation. The first avenue is a "WorkCover Claim" which is a state government-based compensation scheme, and can be made regardless of fault by the worker or employer. The second avenue is a "Common Law Claim" that has to be taken through the court system, and only applies if the employer is at fault through their failure to protect their workers. Workers can take action through both avenues.

WorkCover Claim
+
Common Law Claim
= TOTAL POSSIBLE COMPENSATION

All employers pay compulsory insurance into a fund that compensates workers who are injured in the workplace regardless of who is at fault. Because employee safety and compensation is regulated by WorkCover authorities set up by individual state governments, there will be differences in entitlements depending on the state where the worker is injured. Federal government employees are separately covered by a federal government scheme. Claims are made directly to the WorkCover authority. Payouts under a WorkCover claim are limited or capped to a certain maximum.

Additionally, where the employer is at fault for causing the injury to the worker through theirs or another worker's negligence, workers may also be entitled to sue their employer in a "common law claim". These claims are made by action against the employer through the court system. Payouts from common law claims (known as "Damages") can be signifcantly higher than WorkCover claims, and take into account any WorkCover compensation that has already been paid.

Below is a run down of what is required to make a WorkCover claim.

WorkCover Claim: What needs to be proved

1

An offer


Watch out for

offer was rejected

offer was withdrawn

expiry of offer

there was a counter-offer

uncertain or incomplete terms

commercial offers over $40,000

2

Acceptance


Watch out for

acceptance must be communicated

acceptance of partly written and partly verbal terms

3

Consideration


Watch out for

adequacy of consideration

4
Intention to create legal relations


Watch out for

where no consideration provided

non-binding term

agreement is unsigned

commercial agreements

:{
What might a court do?


Consider the following

look at the terms of the agreement

make and order for breaching or terminating the agreement

And here's some more detail

1An offer

An offer by the party offering something in exchange for something such as a product or service. The written agreement will contain proposed terms. Typically, a quotation from a product or service supplier is an offer.

Circumstances to watch out for

offer was rejected

If an offer was rejected by the party it was directed to, then it ceases to be an offer.

offer was withdrawn

If the party who made the offer then withdraws is, then it ceases to be an offer provided that it was not already accepted by the party the offer was directed to.

expiry of offer

If the offer expires, then it ceases to be an offer. This usually will be a written term in the agreement.

there was a counter-offer

If an offer was not accepted, but the person who the offer was directed to made a counter-offer, then the orginal offer ceases to be an offer.

uncertain or incomplete of terms

If important or "essential" terms in an agreement are uncertain, incomplete, vague or meaningless; and if additional evidence cannot establish what the term was meant to mean, then there cannot be a valid offer.

commercial offers over $40,000

The Australian Consumer Law will imply terms (e.g. guarantees that products are fit for their intended purpose) into written agreements unless it is a business related transaction where the value of the product or service is over $40,000.

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2Acceptance

Acceptance by the party who the offer is directed to. An acceptance shows a willingness by that party to accept the offer without further negotiation, and be bound by the proposed terms in the offer.

Some written agreements, such as agreements for the purchase of a property or a mortgage, are more “formal” than others which means to be validly accepted they must be signed. With less formal agreements, such as insurance agreements or a mobile phone contract, it can be sufficient to accept over the phone, online (e.g. by ticking a check box) or by email.

Circumstances to watch out for

acceptance must be communicated

An offer cannot be considered accepted if it was not communicated to the party that made the offer. This must be some direct means of communication which may be required formally such as by signing the agreement, or informally such as an email acceptance.

acceptance of partly written and partly verbal terms

Be aware that unless one of the terms in a written agreement is an "entire contracts" or "complete agreement" term (this means that only the terms in the written agreement are enforceable), then an agreement may be partly verbal and partly written. The effect is that any pre-contractual promises discussed verbally and agreed to, or previous regular dealings parties may have had with each other that are not present in the written terms, may form part of the overall agreement. This is known as a "collateral" contract as it sits side by side to the main written contract. To be a collateral contract, the verbal promise must be such that it motivated the party that the offer was directed to to enter into the main written contract.

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3Consideration

Something of value exchanged for what was offered. It could be something of value given or promised such as money, a service or even a peppercorn.

Circumstances to watch out for

adequacy of consideration

Any consideration can be good consideration, therefore it need not be adequate consideration. This means that an agreement will be valid even if one party to the agreement does a bad deal and offers greater value than what is exchanged in return.

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4Intention to create legal relations

This is to ensure that both parties wanted to be legally bound by the agreement.

Circumstances to watch out for

where no consideration provided

If there was no consideration exchanged then it may stand to reason that the parties did not intend to be legally bound by the agreement.

non-binding term

If one of the terms of the agreement states that the agreement is "non-binding" then it stands that the parties did not intend to be bound by the agreement.

agreement is unsigned

Presence of signatures is a strong if not conclusive indication that parties intended to be bound by an agreement. If an agreement is unsigned, however the parties start "performing" or fulfilling their obligations under the terms of an agreement, then it may be inferred that the parties intended to be legally bound.

commercial agreements

In business to business or commercial agreements, it is usually presumed that the parties are intended to be legally bound.

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What might a court do?

:{look at the terms of the agreement

Disputes around written agreements will usually occur because one party will want to get out of performing their part of it. Because of this, courts will focus on the detail in the terms of the agreement to see what it was that the parties agreed to in making their decision. If the written terms are uncertain, incomplete or unfair (in the case of consumer contracts) in spite of all the 4 elements above being present on the face of it, a contract may be void, or a court may remove a term to keep a contract on-foot, or vary or imply a term to reflect the presumed intentions of the parties. Importantly to know, courts will be reluctant to void an agreement and will do what they can to keep a contract on-foot.

:{make and order for breaching or terminating the agreement

Courts will look to see if a written agreement contains a term that specifically caters for terminating agreements, if such a term exists then courts will look at the circumstances that termination is allowed. If no such term exists, there can be serious consequences if a party decides to not fulfil their part of an agreement (called "repudiation") or to terminate an agreement because the other party breached a term - these can include a monetary award (called "damages") or ordering that a party perform their part of the agreement. A party can only terminate an agreement for breach of an "essential" term, which is a term so fundamental to the agreement, that the terminating party would not have entered into an agreement unless they were assured that the obligation in the term would be strictly performed. The point here is that termination should not be taken lightly as courts may penalise a party for wrongfully terminating an agreement.

Consult a lawyer if you are unsure about your legal situation.

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