Contrary to what some believe, an oral agreement can be enforceable, as long as the elements of a contract have been met. However, there are major advantages in having an important agreement reduced to writing.
Written Agreements prevent disputes
Firstly, having a written agreement ensures that there is no doubt or disagreement as to what the agreement was. This significantly reduces the risk of disputes later on. And the chances of a dispute arising when an important agreement is not reduced to writing are numerous:
1) Misunderstanding. Verbal agreements can sometimes involve the parties misunderstanding each other and agreeing to different things. A written agreement usually follows a verbal discussion and the chance of a misunderstanding is almost eliminated if the agreement is drafted clearly.
2) Unreliability of memory. Our tendency to forget things or not recall them accurately is often underestimated. Human memory is often unreliable, and this can result in one or both parties forgetting some of the terms of the agreement. In such an event, the parties have their written agreement to refer to and prevent/resolve any confusion caused by forgetfulness.
3) Dishonesty/ bad faith.Whilst most people are generally honest, we all know that there are crooks out there who will exploit the fact that there is no written agreement by not complying with their end of the agreement. Furthermore, even a usually honest person can potentially act dishonestly if they are under financial pressure or have a gambling problem. Simply put, you are less likely to be ripped off if your agreement is put in writing.
Written Agreements make your dispute shorter and less expensive
Of course, having a written agreement does not guarantee that there is no dispute. However, it does mean that disputes are likely to be resolved sooner and in your favour than if you only had a verbal agreement.
If you have a written agreement, the only dispute can be whether the agreement itself has been breached, as you can easily prove what the agreement is. Any court that hears the matter needs to compare the written agreement to what happened, which is often a fairly simple and straightforward process. In other words, in practice all you would usually need to prove is:
1) that the agreement was breached
However, in the case of a verbal agreement, a court has to determine what the agreement was before it can be satisfied that the agreement has been breached. In other words, you will need to prove:
1) that there was an agreement
2) what the agreement was; and
3) that the agreement was breached
Needless to say, proving all three is often going to be much harder. Proving what the agreement was will usually be the hardest thing to prove. If your agreement is not in writing, it’s going to be your word against the other party’s. If you are lucky, there will be independent evidence which supports your account of the agreement and hopefully saves you. If not, any trial will come down to who is the more persuasive witness, and there’s no way to predict the outcome in those cases.
For these reasons, any dispute is more likely to be far shorter if your agreement is in writing. Once a dispute arises as a result of the other party’s breach, the other party is more likely to settle on terms favourable to you as they will normally be unwilling to take it to court. And for the same reason, any court proceedings are more likely to be resolved in your favour.
Written Agreements can preserve the relationship
Unless your agreement will be incredibly simple, it is a very good idea to see a solicitor to draft your agreement. The advantages of doing so are numerous:
1) Solicitors are good at drafting documents in a clear, concise and legally effective manner
2) Solicitors might be able to advise you which parts of the agreement may be void or unenforceable, and how the agreement can be amended to avoid such an outcome
3) Solicitors are able to think of issues that you may not have considered eg: how can the agreement be terminated? Should a provision be made for a renegotiation after a set period of time? Should timeframes be included to ensure the parties comply with their obligations in a timely manner? How will a key term of the agreement be defined? What happens if the agreement is breached? And so on.
4) Solicitors can insert ‘standard’ clauses in the agreement which strengthen and improve it.
If your agreement is important to you, getting a solicitor to draft it is the best decision you can make.
For a very long time in Commonwealth legal systems, the legal profession has been regulated for the benefit of clients of lawyers and the public at large. Among other things, there has been a recognised public interest in protecting those liable to pay legal fees from overcharging by lawyers. One of those protections is and has been the legal requirement for a bill to be provided so that the client can seek advice on the fees and charges.
As a result, one of the many modern obligations that lawyers in English legal systems have to comply with in the course of legal practice is to provide clients and any other persons liable for their fees with proper bills before such persons can be liable for or sued for such fees. Continue reading “The law of lawyers bills in Queensland”
Following a marathon mediation, former Wallabies star Israel Folau and Rugby Australia have settled their dispute over the termination of Folau’s employment with Rugby Australia after he made controversial comments on Twitter about homosexuality.
The case was notable and of political significance because it highlighted the tensions between the rights of employers to dismiss workers to preserve their own reputational interests, freedom of religion, and employees being able to publicly express their own opinions outside of work. Continue reading “Israel Folau settles claim with Rugby Australia”
With its latest big win, Sterling Law is establishing its place as an elite Queensland litigation firm, and a force to be reckoned with.
When Joanne Murdock deliberately remained uncontactable to her solicitors for an extended period of time, she received a bill from them for all the work they had done for her.
The bill set out the charges item by item, particularising the date, the time spent and the person who performed the work, but for most items only provided very concise descriptions of the work performed. Examples later complained of included “attendance with you”, and “telephone attendance with you”. Continue reading “Sterling Law sets leading precedent on itemised bills”
Last year, Professor Peter Ridd was sacked by James Cook University after speaking out on issues relating to climate change research.
He took James Cook University to the Federal Circuit Court, arguing his termination of employment was unlawful.
Today, Ridd has won his case, with the Court awarding judgment in his favour:
“Handing down his decision today, judge Salvatore Vasta said that the 17 findings used by the university to justify the sacking were unlawful.
“The Court rules that the 17 findings made by the University, the two speech directions, the five confidentiality directions, the no satire direction, the censure and the final censure given by the University and the termination of employment of Professor Ridd by the University were all unlawful,” Judge Vasta said.
A penalty hearing will be set for a later date.
At a hearing last month, Professor Ridd’s barrister Stuart Wood argued his client was entitled to criticise his colleagues and the university’s perceived lack of quality assurance processes.”
This is a win for free speech and academic freedom.
Actor Geoffrey Rush has won his defamation case, with Justice Wigney that finding Nationwide News did not make out its truth defence:
“Geoffrey Rush has won his defamation case against a Sydney newspaper publisher and journalist over articles saying he’d been accused of inappropriate behaviour. The 67-year-old actor had sued The Daily Telegraph’s publisher and journalist Jonathon Moran over two stories and a poster published in late 2017.In Sydney’s Federal Court on Thursday, Justice Michael Wigney found Rush had been defamed.“Nationwide News and Mr Moran did not make out their truth defence,” the judge said.” Continue reading “Geoffrey Rush wins defamation case”
On 25 November 2014, the Plaintiff Glenn Garside was riding his motorcycle along the Gregory Highway travelling north from Emerald to Capella when an object fell from a truck (the truck) and struck him, causing personal injuries to him.
The District Court’s decision to dismiss a teacher’s claim for slipping during a fruit break shows that a lack of previous incidents can be decisive on the question of liability.
Debbie Deans was employed by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape during a ‘fruit break’ during the course of her employment, fracturing her left patella.
She sued her employer, claiming that it was negligent for failing to:
(a) take reasonable care for her safety;
(b) establish, maintain and enforce safe methods and systems for her to carry out her employment;
(c) supervise her so as to ensure she carried out her employment safely;
(d) warn her of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury;
(e) provide a safe work environment within which her was required to perform her duties;
(f) not require her to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to her;
(g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area;
(h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.”
305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
Deans’ lawyers argued the general notoriety of young children dropping things and leaving them on the floor meant that this risk was foreseeable as defined in section 305B(1)(a).
Farr SC DCJ rejected this argument, noting there was no evidence of any previous incidents of people slipping on things dropped by children at Riverside Christian College, or at any other school. Nor was there any evidence that Riverside Christian College knew of this particular risk of injury. Therefore, the risk was held not to be foreseeable.
The argument that Riverside Christian College had conceded foreseeability by also pleading a defence of contributory negligence was also rejected because it ignored the statutory definition of “obvious risk” contained in section 305I of the Workers’ Compensation and Rehabilitation Act, and was contrary to the High Court’s decision in Thompson v Woolworths (Queensland) Pty Ltd  HCA 19.
A further issue which Farr SC DCJ considered was whether the risk was not insignificant within the meaning of s305(1)(b) of the Workers’ Compensation and Rehabilitation Act. Farr SC DCJ noted that the fruit break had been taking place for five years without any previous incident, and the relevant area would have been traversed by thousands if not tens of thousands of people at and around the fruit breaks. For these reasons, Farr SC DCJ held that the risk of injury arising from items being dropped on fruit breaks was insignificant.
As a result of these findings, Riverside Christian College had not breached its duty of care, and therefore the claim for negligence had to fail.
This case demonstrates that where a defendant in Queensland has organised for a particular activity without any prior incident for some years, they will have a reasonable chance of defending the claim for personal injury on that basis alone, as the activity in question may not involve risks which are foreseeable or significant within the meaning of the law.
This decision is good news for schools, who can now have some comfort that activities which involve a small degree of risk of personal injury can still take place without the risk of being successfully sued as long as such activities are conducted as safely as practicable.