TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Contract - General contractual principles - Construction and interpretation of contracts - Implied terms - Other cases - Business efficacy - Acceptance of offer of compromise in settlement of action by worker against employer for damages for personal injuries - Whether implied term of compromise that worker's right to workers' compensation extinguished.

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, applied.

Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410; Breen v Williams (1996) 186 CLR 71, considered.

Workers' Compensation - Alternative rights against employer and third parties - Alternative rights against employer for damages at common law or by statute - Effect of proceeding for damages on right to compensation - Acceptance of offer of compromise in settlement of action for damages - Whether implied term of compromise that worker's right to compensation is extinguished.

Workers Rehabilitation and Compensation Act 1988 (Tas), s133(3).

Judgment Number: [2001] TASSC 137

2 Orders of Underwood J on 9 November 2000 that the appeal from the Workers Rehabilitation and Compensation Tribunal be dismissed and that the appellants pay the respondent's taxed costs of that appeal, set aside.

4 Declaration that the respondent's right to claim compensation from the first appellant under the Workers Rehabilitation and Compensation Act 1988 in respect of any injury suffered by her on or about 5 July 1993 has been extinguished.

5 Respondent's claim for compensation to the Tribunal which she referred on 7 December 1999, dismissed.

1 The respondent ("Mrs Heather") was employed by the first appellant ("the employer"). The second appellant was its insurer ("the insurer"). On 5 July 1993, Mrs Heather suffered a cervical disc injury that arose out of and in the course of the employment. Liability under the Workers Rehabilitation and Compensation Act 1988 ("the Act") was not disputed. A number of payments were made to her or for her benefit under that Act, including weekly compensation and hospital, medical and travelling expenses.

2 In November 1994, Mrs Heather commenced an action against the employer claiming damages for her injury. The causes of action pleaded in the statement of claim were negligence and breach of statutory duty. The employer defended the action. The trial was due to commence before Zeeman J on 7 May 1996. On 1 May 1996, the employer lodged and served on Mrs Heather an offer of compromise addressed to her which included the following terms:

The Defendant offers to compromise all causes of action pleaded by the Plaintiff against the Defendant in the Plaintiff's Statement of Claim dated 24 November 1994 for:

(2) costs to be taxed as between party and party on Table A of Appendix M to the Rules of Court.

TAKE NOTICE that as a result of a settlement being made in response to this offer of compromise the Plaintiff may be liable to pay amounts under the Health and Other Services (Compensation) Act 1995 or the Health and Other Services (Compensation) Care Charges Act 1995."

3 The offer of compromise complied with the provisions of the Rules of the Supreme Court 1965, O24A, in all respects, save that it did not include a statement as required by O24A, r3(b)(iv), that the offer was served in accordance with that order. The day before the trial commenced, Mrs Heather served an offer of compromise on the employer, in which she offered to accept in full satisfaction a different sum of money and costs. The trial proceeded to a conclusion without either side accepting the other's offer.

4 On 15 May 1996, judgment was reserved. On the same day, Mrs Heather purported to accept the employer's offer of compromise made on 1 May 1996. If the offer had been made under O24A, she was allowed to do so before the sooner of 14 days after service of the offer or the delivering of a verdict or judgment. See O24A, r5(1). The trial judge was informed of what had taken place and at the request of the parties, the trial resumed on 20 May 1996. Upon the resumption, the question argued was whether Mrs Heather's causes of action had effectively been compromised. Zeeman J held that the employer's failure to comply with the provisions of O24A, r3(b)(iv), meant that its offer of compromise was not made in accordance with the Rules. See Heather v Vita Pacific Ltd (1996) 6 Tas R 52. Accordingly, his Honour held that the employer's offer of 1 May 1996 was not an offer of compromise that attracted the consequences of O24A, but was an offer governed by the ordinary rules of contract, and it was rejected by Mrs Heather when she made her counter offer of compromise on 6 May 1996. Thereafter she could no longer accept the original offer. Zeeman J therefore concluded that Mrs Heather's causes of action had not been compromised.

5 His Honour then gave reasons for finding that Mrs Heather had failed to establish any of the causes of action pleaded by her against the employer and ordered that there be judgment for the employer against her. See Heather v Vita Pacific Ltd A32/1996. In accordance with the not unusual practice of assessing damages, notwithstanding the result of the action, his Honour assessed them in the sum of $478,045.38. However, included in that sum were amounts which had been paid by the employer to or for the benefit of Mrs Heather under the Act, which amounts would have been deducted from the damages before arriving at the eventual judgment sum, if there had been judgment for the plaintiff.

6 Mrs Heather appealed. In Heather v Vita Pacific Ltd (1996) 6 Tas R 120, the Full Court held that Zeeman J had erred by failing to amend the employer's offer of compromise pursuant to the powers conferred by the Rules of the Supreme Court 1965, O83, r21, so that it did comply with the provisions of O24A. The Full Court ordered that the amendment be made so as to add to the offer of compromise a statement that it was served in accordance with O24A, and declared that Mrs Heather's action was settled by her acceptance of that offer of compromise on 15 May 1996.

7 The question which arises in this appeal is whether the settlement of Mrs Heather's claim for damages extinguished all further claims she may have had to compensation under the Act. The answer depends upon the terms of the compromise and s133(2) and (3), particularly subs(3), the provisions of which are:

"(2) The subsistence of a right of a worker or a dependant of a deceased worker to damages in respect of an injury, or the taking of proceedings to establish any such right or for the recovery of any such damages, does not prejudice or affect his right to compensation in respect of that injury, but where a worker or a dependant of a deceased worker has obtained judgment (whether against his employer or any other person) for damages in respect of an injury or has accepted any money paid into court in satisfaction of a claim for damages, his right to any payments by way of compensation that have not been determined before the date of the judgment, or the date of his acceptance of money paid into court, is extinguished.

(3) The settlement by a worker or a dependant of a deceased worker of a claim for damages in respect of an injury, if by that settlement he agrees that all his further claims to compensation in respect of that injury are extinguished, has, for the purposes of subsection (2), the like effect as a judgment obtained by that worker or that dependant for those damages."

8 At the time the Act came into operation on 26 May 1988, the Rules of the Supreme Court 1965 made no provision for formal offers of compromise. The only way in which an action against an employer for damages for personal injuries could be settled was by judgment in the action, by the plaintiff's acceptance of money paid into court by the defendant in the action, or by settlement by deed or agreement. The first two of those routes to settlement also led to extinguishment of the plaintiff's right to compensation under the Act, because of s133(2). The third did not do so, unless by the settlement the plaintiff agreed that all further claims to compensation in respect of the injuries were extinguished, in which case, by virtue of s133(3), the settlement had the same effect as a judgment.

9 The provisions of O24A allowing for formal offers of compromise, were inserted into the Rules by the Rules of the Supreme Court (Offer of Compromise) 1995 and came into force on 29 November 1995. (They have been repeated in the Supreme Court Rules 2000, Pt9.) The purpose of the provisions was to allow a party to make a without prejudice offer to settle an action upon the basis that if the offer was not accepted and the party to whom it was made achieved no greater success at the trial than what was offered, the offeror would be protected with regard to the costs of the action from the time of making the offer. Previously, the only way in which that could be achieved was by paying into court the amount offered, or by making a prejudicial open offer.

10 In a damages action, the usual effect of acceptance of an offer of compromise under the rules was that the cause or causes of action specified in the offer were compromised in the amount offered, but that would not always occur. If, in a case such as the present, after 14 days of acceptance, the offeror did not comply with the terms of the offer, the offeree had an election to make. He or she was entitled, at his or her election, to judgment in terms of the offer, together with costs as provided in the Rules. Order 24A, r10(1)(a). Such a judgment was a judgment in the action for damages for personal injuries and being in the terms of the offer it would in this case have been for $163,000 damages and costs. In the alternative, the offeree was entitled to obtain an order that the defence be struck out and that the defendant pay the plaintiff's costs. Order 24A, r10(1)(b). In a case such as this, that would have given the plaintiff the opportunity of obtaining an interlocutory judgment (in default of a defence) for damages to be assessed and, following assessment, a final judgment for a greater amount than the sum offered. The only issue would have been one of damages and the amount at which the compromise was concluded would have been irrelevant. In the context of similar rules applying in Victoria (Supreme Court (General Civil Procedure) Rules 1996 (Vic), O26, r7), Williams' Civil Procedure Victoria, vol1 at 3605 states:

"Thus, for example, if in a proceeding for damages the defendant fails to pay $100,000 to the plaintiff in accordance with an accepted offer of compromise, the plaintiff may either apply for judgment in that amount or for an order striking out the defence. Under the second course the court will assess the damages, and the amount could be more or it could be less than $100,000."

11 Subsequent to the compromise of Mrs Heather's action for damages, she made a further claim for compensation under the Act. On 7 December 1999, she referred her claim to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"), for determination of "my entitlement to compensation by way of weekly payments and medical and like expenses resulting from my injury on 5 July 1993". Before the Tribunal a preliminary point was raised, whether it was a result of the compromise of Mrs Heather's action for damages that her right to any payments by way of compensation, that had not been determined before the date of the compromise, had been extinguished. The Tribunal determined that it had not. The Commissioner first had regard to the express terms of the accepted offer of compromise and concluded that s133(3) could not operate, because the express terms did not include a statement that by the compromise Mrs Heather agreed that all her further claims to compensation in respect of the injury would be extinguished. The Commissioner next had regard to the appellant's submission that such a term could be implied and he determined that it could not for two alternative reasons. The first was that the compromise was not a contract at common law with respect to which terms could be implied or inferred. The second was that if he was wrong about that, on the facts of the case the implication of such a term was not open. In the course of his reasons, the Commissioner stated as a fact that by reason of the compromise, Mrs Heather had received the compromised amount of $163,000, together with costs. I assume that to be correct.

12 The employer and the insurer appealed to a judge, who dismissed the appeal. He disagreed with the Tribunal on the issue whether there was a contract between the parties, holding that the offer of compromise was an offer at common law which, upon acceptance, became a contract at common law. However, the learned judge agreed with the Tribunal that the term sought by the appellant should not be implied. His Honour held that implication of the term was not necessary to give business efficacy to the contract.

13 The employer and the insurer appealed to this Court. Mrs Heather has not sought to argue in support of the Commissioner's view that there was not a contract at common law, with respect to which terms could be implied, accepting instead that the contrary view of the learned judge is correct. As a result, the only issue of substance before this Court is whether there ought to have been implied into the compromise the term sought by the appellants.

14 There was almost no disagreement between counsel concerning the legal principles which should be applied by this Court. The law is clear. The appellants seek to have a term implied in fact, rather than by law, to give business efficacy to the compromise. Leaving aside terms that are presumed to apply because of the custom of a trade or business, the courts will only imply a term in fact when it is necessary to give efficacy to the contract. A term implied in fact purports to give effect to the presumed intention of the parties to the contract in respect of a matter that they have not mentioned but on which presumably they would have agreed should be part of the contract. Breen v Williams (1996) 186 CLR 71 at 102. The criteria for determining whether a term should be implied to give business efficacy to a contract, particularly one which is in writing, in summary require that the following conditions, which may overlap, must be satisfied:

2 it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

3 it must be so obvious that "it goes without saying";

5 it must not contradict any express term of the contract.

See BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 at 605, 606; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 347; Australian National Hotels Pty Ltd v Jager [2000] TASSC 43; (2000) 9 Tas R 153 at 160, 161.

15 When considering whether a term is to be implied, a court is not concerned with the subjective intent of either party to the contract. If it is to be argued that the parties agreed to the term but omitted to include it in their written contract, then the remedy is by an action for rectification of the contract. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (supra) at 346 and 357. The implication of a term reflects the presumed intention of the parties. It involves implication by the court based on the court's view of the actual intention of the parties drawn from the surrounding circumstances of the particular contract, its language and its purposes, as they appear from the language and in the circumstances. Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 255, 256. The court imputes the intention of the parties from those matters, but it does not endeavour to discern their actual intention.

16 It is not enough that it is reasonable to imply a term; it must be necessary to do so to give business efficacy to the contract. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (supra) at 346. And it must be so obvious that it goes without saying, op cit 346, 347.

17 Counsel for the appellants directed the Court's attention to the particulars of Mrs Heather's claim for damages which had been delivered to the employers at the time of the making of the offer of compromise, to the assessment of damages, including the details of it, which was made by Zeeman J following the trial, and to the fact that it took Mrs Heather three years thereafter to claim compensation. The Court may have regard to the facts as they existed at the time of the offer, but it cannot have regard to facts and events which arose after the contract was entered into. Prenn v Simmonds [1971] 1 WLR 1381 at 1385. So far as concerns the particulars of her claim that were provided by Mrs Heather, I note that they included items with respect to which she might have been entitled to recover compensation under the Act, such as past and future hospital, medical, travelling and other expenses and loss of earning capacity. That she was claiming such items and compromised her claim is a factor which tends to support the implication of the term sought by the appellants.

18 With respect to the Tribunal and the learned judge in the court below, it is, in my view, plainly reasonable and necessary so as to give business efficacy to the compromise, to imply a term that by the compromise all of Mrs Heather's claims to compensation under the Act in respect of her injury were extinguished. I find it impossible to believe that either party to the compromise would have intended that the compromise would not affect her right to compensation. There are two main reasons for my conclusion. One arises out of one of the essential purposes of making an offer of compromise from a defendant's point of view and the other out of the manner of its enforcement.

19 The essential purpose to which I refer is to provide the defendant, without prejudice to its case if the offer is not accepted, with some measure of protection against an order that it pay the costs of the action of both parties. The total of damages and costs commonly amounts to a considerable sum of money following a trial, particularly in the case of actions by workers against employers for damages for personal injury. When determining what amount to offer, a defendant will commonly weigh up its risk so far as liability is concerned and the likely assessment of damages, thereby arriving at the likely judgment sum, and the costs the parties may incur after the date of making the offer. The amount of the offer will frequently need to be sufficiently high, but not excessively so, to tempt the plaintiff to accept it, rather than incur the risk of being ordered to pay substantial costs in the event of the judgment sum following a trial not exceeding the offered amount. It is the relationship between the sum offered and the likely or eventual judgment sum which is important. If the plaintiff decides not to accept the amount offered and proceeds to trial, it is usually because he or she expects to obtain judgment for a greater sum of damages than was offered or, at the very least, is hopeful of doing so. If, for example, an offer of compromise is of $100,000 damages, a plaintiff who decides not to accept it hopes or expects to obtain, following the trial, judgment for an amount greater than that to obtain protection from an adverse order concerning the costs of the trial. A judgment sum as low as, say, $105,000 would justify the plaintiff's decision not to accept an offer of $100,000.

20 Because of s133(2), the effect of a judgment for $105,000 would be that the plaintiff's right to any payment by way of compensation that had not been determined before the date of judgment, would be extinguished. I find it virtually beyond belief that parties would rationalise that acceptance of an offer of compromise of $100,000 might be significantly more attractive than a judgment for a substantially greater sum because the former would not strip the plaintiff of his or her entitlement to compensation, but the latter would do so. The practice of awarding defendants their costs of the trial if the judgment sum was no greater than the amount offered, would need to be substantially reviewed, if that rationalisation was correct.

21 I turn to the aspect of enforcement of an accepted offer of compromise. The learned judge below observed that a failure to satisfy the terms of a compromise would be a breach of contract and actionable at law, notwithstanding the provision of remedies in the event of a breach by O24A, r10. That proposition is, I think, open to doubt. Arguably, the plaintiff's remedies would be restricted to those for which provision was made in r10. I will assume for a moment that to be correct. It is obvious that offerees would prefer to enforce a compromise by proceeding simply under O24, r10(1)(a) by obtaining judgment for the compromised amount plus costs, and immediately enforcing the judgment. To seek to recover the amount by commencing a fresh action is an unlikely course for a plaintiff to want to take and it is certainly not one contemplated by the rules.

22 In the event of the defendant not honouring the bargain, by failing to pay the compromised amount within 14 days, the plaintiff would be entitled, if he or she so wished, to proceed under r10(1)(a) and obtain a judgment in terms of the offer. It would therefore be a judgment in the action in this case for (inter alia) "$163,000 for damages". Under s133(2), a judgment in those terms would amount to a judgment "for damages in respect of an injury", notwithstanding that the judgment sum may have been the product of a compromise, and by force of the subsection, it would have the effect of extinguishing the plaintiff's right to compensation under the Act. To give business efficacy to the compromise, the same eventual conclusion should have been capable of being reached, whether or not the defendant voluntarily performed its obligations under the compromise and promptly paid the compromised amount. I find it to be a ridiculous proposition that the parties would have contemplated that if the defendant promptly paid the amount of the compromise, the plaintiff's right to workers compensation would not be extinguished, but if the defendant chose not to comply with the compromise, the same amount by way of damages would be recovered but the plaintiff's right to workers compensation would be extinguished. Defendants would be encouraged to make offers but not to perform them voluntarily upon acceptance. Plaintiffs would not be able to accept compromises with confidence as to the eventual outcome. On Mrs Heather's argument, if it is assumed that the amount of the compromise was a reasonable settlement in all the circumstances, she would not have known the eventual benefit of it to her until she knew whether the defendant would voluntarily pay following acceptance. The defendant would have been foolish to do so, it seems to me.

23 If on the other hand, the learned judge was right in thinking that the plaintiff in a case such as this could commence a fresh action and sue on the compromise, then it is arguable that a judgment in that action would not be a judgment for damages in respect of an injury, but a judgment for a sum due under a contract. If so, a worker's right to compensation would not be extinguished by it. In that light, I find it equally ridiculous to contemplate that the parties would have agreed that whether or not the plaintiff lost her right to claim workers compensation depended on her decision whether to enforce the contract by way of a fresh action or under r10(1)(a) by way of a judgment in the original action.

24 One way or the other, without the implication of the term sought by the appellants, there was too much uncertainty in the compromise. The implication of the term removes all of that uncertainty. The effect of the compromise would not depend on choices thereafter made by one or other party.

25 For these reasons I have concluded that it is reasonable, equitable and necessary, for the purpose of giving business efficacy to the compromise, to imply a term that Mrs Heather and the employer agreed that all her further claims to compensation in respect of her injury were extinguished. I conclude that "it goes without saying" that the term should be implied. It is capable of clear expression and does not contradict any of the express terms of the contract. Without the implication, the compromise was not capable of sensible operation. Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 at 241.

26 Therefore, I would allow the appeal, set aside the order made by the learned judge on 9 November 2000 that the appeal from the Workers Rehabilitation and Compensation Tribunal be dismissed and that the appellants pay the respondent's taxed costs of that appeal, allow the appeal from the Tribunal, declare that Eileen Glynnis Heather's right to claim compensation from Vita Pacific Ltd under the Workers Rehabilitation and Compensation Act 1988 in respect of any injury suffered by her on or about 5 July 1993 has been extinguished and dismiss her claim for compensation to the Tribunal which she referred on 7 December 1999.

27 The respondent was involved in a work related accident on 5 July 1993 and, in November 1994, commenced common law proceedings against the appellant claiming damages by reason of negligence, breach of statutory duty and breach of contract of her employment. She pleaded:

"13 As a result of her injury the Plaintiff has suffered loss damage and expense.

28 The action proceeded through the ordinary interlocutory stages. The respondent's claim was particularised in a document dated 6 May 1996, in which she set out the history of her claim, treatment, hospitalisation and personal particulars in some detail. Under the heading of "Special damages" she claimed, inter alia:

"... the following special damages which have been paid by the Tasmanian Government Insurance Office to the 4th September 1995:-

Doctors and incidental medical expenses - $34,304.74

29 The document acknowledged that the insurer had paid the costs of home assistance up until 10 October 1994 and particularised other claims for travelling and medical expenses in the amount of $36,962, the majority of which had been paid by the insurer. The claim for past economic loss included the following particulars:

"The Plaintiff's average weekly wage from the Defendant at the time of the injury was $402.95. She worked thirty-eight hours per week five days per week.

The Plaintiff has been paid weekly payments of compensation by the Defendant at the rate of $402.95 per week from the 5th July 1993.

The Defendant is presently required to pay to an approved fund five percent of the Plaintiff's gross rate of pay by way of superannuation pursuant to the Superannuation Guarantee (Administration) Act 1992 i.e. $20.15 per week.

The tax payable by the Plaintiff on an income of $402.95 gross per week is $69.30 i.e. $330.05 net.

The Plaintiff claims the sum of $330.05 net from the 5th July 1993 to the date of trial."

"... of $69.30 per week from the 5th July 1993 to the date of trial being the tax payable on the weekly payments of workers compensation paid by the Defendant."

30 The claim for future economic loss was predicated on the assumption that the respondent would work until the age of 65, and the calculations "... based upon a loss of $330.05 net wages per week" including an interest component of seven per cent, produced a figure of $210,703.

Claims for future economic loss included assessments for superannuation, home assistance, future medical expenses and the costs of rehabilitation.

31 The claim followed the normal methodology, outlining workers compensation payments made and claiming the amounts not already paid or future uncompensated losses. Doubtless, had there been multiple defendants, the eventual calculations would have required apportionment.

32 On 1 May 1996, shortly before trial, the first appellant made an offer of compromise in the following terms:

"The Defendant offers to compromise all causes of action pleaded by the Plaintiff against the Defendant in the Plaintiff's Statement of Claim dated 24 November 1994 for:

(2) costs to be taxed as between party and party on Table A of Appendix M to the Rules of Court.

TAKE NOTICE that as a result of a settlement being made in response to this offer of compromise the Plaintiff may be liable to pay amounts under the Health and Other Services (Compensation) Act 1995 or the Health and Other Services (Compensation) Care Charges Act 1995."

33 Had the respondent accepted the offer at this time she would have received the sum of $163,000, and not been required to repay wages and medical expenses already paid by, or on behalf of, the first appellant. The respondent made a counter-offer which was rejected and the matter proceeded to trial on 7 May. At the conclusion of the trial on 15 May, but before judgment had been pronounced, the respondent purported to accept the offer of compromise. The learned trial judge determined that since the offer of compromise had not been expressed as one made pursuant to the Rules of Court, O24, the initial rejection by the respondent in making a counter-offer vitiated what was, in effect, an offer in contract. He then proceeded to deliver judgment, on the merits of the claim (A32/1996), in which he extensively reviewed the evidence and concluded that the respondent had not made out her case and, accordingly, entered judgment for the first appellant. His Honour proceeded to state his "tentative assessment as to the various items of general damages" in the following terms:

Rounding off that total, I assess the plaintiff's general damages at $335,000."

34 In addition, he made an assessment of special damages (including medical expenses of $36,886 and an agreed sum of $103,913), in an amount of $478,045. The first appellant and respondent had formally agreed for the purpose of trial that:

"2 The Defendant concedes that all calculations as to future economic loss are to be based on a gross current income of $402.95 or a net current income of $330.05.

3 The Defendant concedes the current Superannuation Guarantee Levy applicable to the Plaintiff's employment with the Defendant is $20.15 per week.

4 That to date the Plaintiff's economic loss and claim pursuant to Fox v Wood is equivalent to the gross weekly workers compensation which has been paid to and on behalf of the Plaintiff to date.

5 That all the workers compensation payments made under Division 2 Part VI Workers Compensation Act 1988 can be taken to represent the costs properly incurred by the Plaintiff by reason of her injury."

and further that the total claim for medical expenses was (taking into account a wrongly recorded claim of $76.50), $36,886.

35 It is clear that the offer of compromise made by the first appellant did not require the respondent to repay past medical expenses ($36,886), wages paid ($103,913), or home assistance. Had she been awarded the damages tentatively assessed by the learned trial judge, she would have received approximately $337,800, less the component of Fox v Wood of approximately $10,800, representing a notional refunding of tax already paid. The sum offered by way of compromise amounted to approximately one-half of what was ultimately assessed.

36 There can be little doubt that the decision to accept the offer of compromise at the conclusion of the evidence was an accurate reflection of the assessment by the respondent and her advisers. Acceptance showed a correct anticipation of a possible consequence. The percentage of the claim effectively awarded to the respondent could not be said to be a disparate return.

37 The decision of the learned trial judge as to the status of the offer of compromise was overturned by the Full Court (A98/1996). It determined that the offer of compromise had been validly given pursuant to the Rules of Court and that its terms:

The offer remains open for the period of 14 days from the date of service ..."

permitted the respondent to accept the offer after the hearing and before judgment notwithstanding the fact that it had been supplanted by a counter-offer.

38 In July 1993, the respondent had made a claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), with respect to the accident on 5 July 1993. It was the acceptance of that claim by the employer which had led to the payments being made for lost wages, medical and other related expenses referred to in the common law claim.

39 Following the successful outcome of her appeal in December 1996, the respondent referred her original claim for compensation of 5 July 1993 to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") for the determination of:

"My entitlement to compensation by way of weekly payments and medical and like expenses resulting from my injury on 5 July 1993."

The Tribunal determined, as a preliminary point, that the claim had not been extinguished by reason of acceptance of the offer of compromise and ordered that:

"... the application shall be relisted for determination on its merits."

On the material placed before the Court, it is impossible to discern what the claim would be, but it is possible that the respondent would have claimed entitlements up to the statutory limit and contended that since it was impossible to ascertain the wages component of the settlement, she was entitled to payment of wages as and from the date of compromise.

The employer, joined by the insurer, unsuccessfully sought review. The learned primary judge held there was nothing in the Rules of Court, O24A, which ousted "the application of the common law of contract from an offer of compromise and its acceptance" and that since the documents made no reference to the settlement of the claim for workers compensation, no term to that effect could be implied and, accordingly, the appellants could not rely on the existence of the acceptance of an offer of compromise. He further held that no term could "be applied as a matter of custom".

40 Central to this appeal are the provisions of the Act, ss133(2) and (3) which relevantly provide:

"... where a worker or a dependant of a deceased worker has obtained judgment (whether against his employer or any other person) for damages in respect of an injury or has accepted any money paid into court in satisfaction of a claim for damages, his right to any payments by way of compensation that have not been determined before the date of the judgment, or the date of his acceptance of money paid into court, is extinguished.

(3) The settlement by a worker or a dependant of a deceased worker of a claim for damages in respect of an injury, if by that settlement he agrees that all his further claims to compensation in respect of that injury are extinguished, has, for the purposes of subsection (2), the like effect as a judgment obtained by that worker or that dependant for those damages."

The respondent contends that since there was no judgment or acceptance of money paid into Court (a step not required by O24A), there is no room for the application of subs(2), and that the terms of subs(3) require an express agreement "that all his further claims to compensation in respect of that injury are extinguished".

"As an addendum, I observe that had the Full Court been alert to the possibility of the respondent making a claim for workers compensation, it is unlikely it would have ordered the amendment of the offer of compromise. Wright J was no doubt unaware of the possibility of the respondent making a claim for workers compensation for he said at 130, that there would be no injustice in permitting the offer of compromise to be amended. Further, I observe that this case demonstrates a clear need to amend the Act, s133, to include acceptance of an offer of compromise within the scope of its terms. The procedure of offers of compromise was introduced into the Rules of Court by Statutory Rule 146/1995, without consequential amendment to the Act."

That observation was not one which was open to the learned primary judge on the basis of the material placed before him. It is equally likely that the remedy of an "amendment of the offer of compromise" was formulated in order to give effect to the fact that the "action had been settled" and to include references to O24A.

41 The status of the second appellant and whether it is entitled, in its own right, to the protection of any valid agreement reached by the first appellant, has not been argued in the course of this appeal. It will be assumed that the appellants represent the same entity and that either by subrogation or statutory status, the second appellant is a proper party to the appeal. In any event, it had been a party to the claim made under the Act.

42 The appellants concentrated their argument on the claimed existence of an implied term although grounds 3 and 4 are expressed in wider terms.

43 Grounds 3, 4 and 5 of the notice of appeal state:

"3 The learned Trial Judge erred in fact and in law in concluding that the contract made by acceptance of the formal offer of compromise was perfectly effective without the implication of such a term;

4 The learned Trial Judge erred in fact and in law in finding that the overriding purpose of the contract made by acceptance of the offer of compromise was not to bring to an end all claims that the Respondent had arising out of the circumstances that resulted in the Respondent suffering the compensable injury on the grounds that:

(a) such a purpose was not apparent from the terms of the contract;

(b) the purpose of the contract was clearly and unequivocally stated in the formal offer of compromise (and by implication was not the purpose contended for);

(c) the contract was quite a different one from the building contract which was before the Court in Renard Constructions, the purpose of which was clear from its terms.

5 The learned Trial Judge erred in fact and in law in failing to hold that it was clear from the surrounding circumstances that the overriding purpose of the contract was to bring to an end all claims that the Respondent had arising out of the circumstances that resulted in the Respondent suffering the compensable injury;"

44 A relevant matter which assists in determining the effect of acceptance of an offer of compromise is that stated in the Act, s133(2), which relevantly provides that in the event of judgment or acceptance of money paid into court, the worker's:

"... right to any payments by way of compensation that have not been determined before the date of the judgment, or the date of his acceptance of money paid into court, is extinguished."

45 There is no doubt that the claim by the respondent included rights to payment by way of compensation which were subsumed by the common law action. Had the first appellant paid into court the sum of $163,000, and such sum paid out, there is no doubt that any unresolved or further claims would have been extinguished. There is no doubt that, had the learned trial judge awarded the respondent the sum of $163,000 in the common law action, the judgment would have precluded further claims. The finding of the trial judge would have led to a motion for judgment in a specified amount.

46 The terms of O24A permit the conclusion that the order of the Full Court constituted a judgment. In circumstances where a party makes an offer of compromise which is accepted before trial, it might still be necessary to obtain a judgment in order to enforce the agreement. At common law it might require a separate action based in contract. In the case of an offer of compromise, the Rules of Court provide their own remedy. O24A, r10, relevantly provides:

"10 (1) If a party to an accepted offer of compromise fails to comply with the terms of the offer within 14 days of its acceptance, the other party, at his or her election, is entitled to -

(a) judgment in terms of the offer together with costs in accordance with rule 6 and costs of the judgment; or

(3) If a party to an accepted offer of compromise fails to comply with the terms of the offer, the Court or a judge may make any order or give any judgment that the Court or judge thinks fit concerning the continuation of any proceeding, claim or counterclaim that is not the subject of the accepted offer."

47 In the original proceedings, had the respondent been successful in her common law proceedings, she was entitled, upon the pronouncement by the trial judge of his findings, to move that judgment be entered in her favour for the amount stated in those findings. However, in the action she moved that judgment be entered on her behalf in the sum mentioned in the offer of compromise on the basis of that offer. Her common law action was subsumed by acceptance or compromise. The learned trial judge rejected that motion for judgment on the basis of law. The Full Court set aside that rejection and its order became an order within the terms of O24A. It accepted the motion for judgment although it formulated its order in different terms.

48 Two consequences flow from this approach. Firstly, that the order of the Full Court is a judgment within the meaning of O24A and O43 (see R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 330). The term is not to be constrained by the procedure required to have a final judgment entered in accordance with O44. Neither the Rules of Court then in force, or the Supreme Court Civil Procedure Act 1932, s3, limit the term. Secondly, that even if the order of the Full Court is not a judgment within the meaning of O24A, its meaning is sufficiently wide to permit the application of the Act, s133. The order of the Full Court as a conclusive determination of the matters in controversy in the action (Re Riddell; ex parte Strathmore [1888] 20 QBD 512), affected the status of the parties, and as was said by Brett LJ in Standard Discount Co v La Grange (1877) 3 CPD 67 at 71:

"No order, judgment, or other proceeding can be final which does not at once affect the status of the parties, for whichever side the decision may be given; so that if it is given for the plaintiff it is conclusive against the defendant, and if it is given for the defendant it is conclusive against the plaintiff; whereas if the application for leave to enter final judgment had failed, the matter in dispute would not have been determined."

49 The term as used in the Act can have a wider meaning than that employed in the Rules of Court. The possibility of distinction was recognised by Barwick CJ in Moller v Roy [1975] HCA 31; (1975) 132 CLR 622, when in considering an issue of jurisdiction involving the Judiciary Act 1903 (Cth), s35, as to a right of appeal, he stated at 627:

"It has been suggested that the word 'judgment' in s46 does not refer to the formal order which the Court makes in an action or a suit, but that it refers only to the result which the termination of the proceedings produces for or against a party. It is fundamental to our jurisprudence that an appeal is brought against an order and not against the reasons which support the order. ... The jurisdiction given to the Court by the section is in respect of every judgment; that is to say, the formal order made by a court whether it be called a judgment, decree, order or sentence. There then follows descriptions of the judgments in respect to which the Court has jurisdiction to hear an appeal. Each of these descriptions is separate and it suffices to give jurisdiction if the judgment in question satisfies any one of these descriptions. One of these is that the judgment is given for a sum of money. Another, that it is given in relation to a matter in issue. Another, that it involves a claim etc to property or a civil right. It is not permissible, in my opinion, by any manner of construction to qualify any one of these descriptions by reference to another of the descriptions. Each is self-contained and independent of the other descriptions; eg, it is, in my opinion, quite impossible to construe par(a) as referring to a judgment for the requisite sum where the matter in issue was of the stated value. Yet that I apprehend is what is really suggested when it is said that you may not simply accept that there is jurisdiction to hear an appeal from a judgment for the requisite sum of money."

50 To interpret the Act, s133, otherwise would be to countenance inconsistency. In circumstances where a defendant paid in full the amount stated in a concluded compromise within 14 days (O24A, r10), the plaintiff could argue that it was not bound by a judgment. Yet where a defendant had not paid the money within 14 days, the plaintiff would be entitled to judgment and be bound by the compromise.

51 There exists a second basis on which it can be said that any further right to compensation has been extinguished. The Act, s133(1) and (2), preserves the right of a worker to obtain common law damages, but provides that:

"... where a liability has been incurred (whether by the employer or any other person) for the payment of damages to a worker in respect of an injury, the payment to or to the benefit of that worker of compensation in respect of that injury shall, so far as it extends, be regarded also as a payment in or towards the discharge of that liability, and the amount of the damages shall be reduced accordingly.

(2) The subsistence of a right of a worker or a dependant of a deceased worker to damages in respect of an injury, or the taking of proceedings to establish any such right or for the recovery of any such damages, does not prejudice or affect his right to compensation in respect of that injury ...".

(See generally Smith v Thorp B64/1993, Underwood J.)

52 The action required calculations of the amounts paid in accordance with the Act, which were to be taken into account in any final assessment, especially if there was to be a finding of contributory negligence (Fox v Wood [1981] HCA 41; (1981) 148 CLR 438). It was the action which was being compromised or settled. That action recognised and comprised a claim for moneys already paid. Had there been a separate insurer, as in cases involving a motor vehicle driven by a non-employee, sums of money paid by way of workers compensation might be calculated and payment ordered to be made to the employer. In such a case, the rights of all of the parties would be settled by judgment or compromise.

53 In this case, the action was defined by the pleadings. The pleadings included allowance for moneys paid by reason of statute. The offer of compromise took into account those payments. The offer to the respondent was for a sum over and above those payments. All of that information was known to the respondent. The import of the offer of compromise must be determined by reference to the pleadings and action brought by the respondent. The solicitors had authority to bind the respondent (Waugh v H B Clifford & Sons Limited [1982] Ch 374, Insbury Pty Ltd v Craig [1990] 1 Qd R 309, Von Schulz & Anor v Morriello & Ors [1998] QCA 236), and their knowledge and expertise form part of the surrounding circumstances. This was not a case such as that considered by Nettlefold J in Mt Lyell Mining and Railway Company Ltd v White B23/1988, where the acceptance by a worker of moneys paid into court was accompanied by a written notice reserving the right to make further claims pursuant to the Workers Compensation Act 1927.

54 In Grant v John Grant & Sons Proprietary Limited [1954] HCA 23; (1954) 91 CLR 112, the High Court considered the scope of a release upon a future right to seek equitable relief. The Court accepted the approach taken by Malins VC in Hall v Turner (1880) 14 Ch D 829 when he said at 833:

"In a case of this kind it is the duty of the court to construe the instrument according to the knowledge of the parties at the time, and according to what they intended, and not to extend it to property which was not intended to be comprised within it . . . it has always been the rule of this court to construe releases and documents of that kind with regard to the intention of the parties and to refer in such cases to the state of the property which was known at the time."

"... it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor."

In their joint judgment, Dixon CJ, Fullagar, Kitto and Taylor JJ approached the question of proper interpretation in the following terms at 131 - 132:

"The question is whether upon a proper interpretation of the deed the general release clause should be restrained to matters in dispute within the meaning of these recitals. The question depends primarily on the application of the prima facie canon of construction qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument. But it is also affected by the general tenor of the deed. It is unnecessary to say more about the canon of construction or to discuss further the contents of the deed. As to the first all that remains is to apply the principle that prima facie the release should be read as confined to the matters forming the subject of the disputes which the deed recites. As to the second, such indications as can be found in the provisions of the deed point rather in the same direction. The detailed character of the terms of settlement, the careful readjustment of rights, the specific reference to the debt of H C Grant and his wife and its discharge and the particularity of the allocation of things and contracts between the companies do not favour the view that a general release was intended going outside the actual area of dispute."

55 A similar approach has been taken by the House of Lords in Bank of Credit and Commerce International SA (in liquidation) v Ali and Ors [2001] UKHL 8; [2001] 1 All ER 961, and Grant (supra), was applied in Torrens Aloha Pty Ltd v Citibank NA [1997] FCA 77; (1997) 144 ALR 89.

56 The condition "if by that settlement he agrees that all his further claims to compensation in respect of that injury are extinguished" stated in the Act, s133(3), remains a question of fact. It is not necessary for the agreement to be evidenced in writing and a court or tribunal is entitled to examine the surrounding circumstances in determining any application of that subsection. Those circumstances include the terms of the offer of compromise, the stage of proceedings at the time of acceptance, the pleadings in the action, the fact that the offer of $163,000 did not involve the refunding or discounting of moneys already paid, and the fact that the respondent acted in accordance with appropriate and considered legal advice.

57 In my opinion, if the right to compensation was not extinguished by judgment, it was extinguished by settlement.

58 The same reasoning permits the conclusion that a term was to be implied in the offer of compromise and its acceptance that the agreement was intended to bring all claims in respect of the injury on 5 July 1993 to a conclusion.

"1 The learned Trial Judge erred in fact and in law in holding that there was no room for the implication into the contract of a term that the worker's future entitlements to compensation were extinguished;

2 The learned Trial Judge erred in fact and in law in concluding that it could not be said that such a term was necessary to give business efficacy to the contract;"

The surrounding circumstances include those already identified and, in addition, comprise the intention of the appellants, the amount offered, and the proportion of that amount to the particulars of future loss and general damages as pleaded by the respondent.

59 The principles relevant to the issue of an implied term have been stated by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, and those relevant to this appeal include:

(1) Whether it is reasonable and equitable given the surrounding circumstances, including the status of the respective parties?

(2) Whether it provides business efficacy to the contract?

(3) Whether it is capable of clear expression and application?

(4) Whether it contradicts an express term contained in the contract?

(5) Whether it is obvious or its omission runs contrary to reason or commonsense? The test is whether an inference ought follow from known facts as being certainly or probably true (Gurnett v Macquarie Stevedoring Co Pty Ltd [1955] HCA 63; (1955) 95 CLR 99).

Those principles were restated with approval by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337. While there might be complexities caused in cases where there is no formal written agreement (Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410), and the use of extrinsic evidence Codelfa (supra), the position remains the same.

The terms of the offer of compromise included the term:

"The offer relates to all causes of action pleaded by the Plaintiff in her Statement of Claim dated 24 November 1994."

The term can be implied by reference to the terms of the written offer and the terms of the pleadings of the respondent. It is difficult to conclude other than that the appellants offered to pay money in settlement of all outstanding claims, which included any potential entitlements to statutory compensation. The action and its resolution exhausted the remedies available to the respondent with respect to the injury suffered on 5 July 1993 (State of South Australia v Mountford [2001] SASC 85; (2001) 79 SASR 389).

60 There remains the question of whether the Tribunal was correct in ordering that the matter referred be set down for hearing. It made a ruling in the absence of evidence from the parties as to whether, as a matter of fact, the respondent had accepted the offer in settlement of any potential claim or whether she had agreed:

"... that all [her] further claims to compensation in respect of [her] injury [were] extinguished ...".

It did not afford the appellants an opportunity to explore whether the failure of the respondent to refer her claim to the Tribunal for some three years following acceptance was a reflection of her belief or understanding at the time of acceptance. It might have been prudent to have determined the matter on the basis of such evidence. Nevertheless, it was appraised of the material referred to in those reasons for judgment and had adopted the procedure agreed on by the parties.

In relation to the question of whether the right to claim compensation was extinguished by judgment as provided for by the Act, s133(2), the Tribunal was, in my opinion, wrong in law, and no evidence was required other than that stated in the Court records. In relation to the issue of agreement as provided for by the Act, s133(3), the Tribunal had before it sufficient evidentiary material to enable it to conclude settlement by agreement. The parties had chosen to resolve the issue in the form of a preliminary ruling and this Court should not intervene and order that the Tribunal reconsider the factual question of "agreement".

61 In my opinion the respondent's claim was extinguished by the operation of the Act, s133(2), and ground 1 ought succeed.

In addition, her claim was extinguished by the operation of the Act, s133(3), in that there had been a settlement defining both the terms of the agreement itself and the existence of an implied term. Grounds 3 and 5 ought succeed.

The remaining ground 6 requires no separate consideration.

62 I have had the advantage of reading the reasons for judgment prepared by Slicer J and agree with his conclusion that the appeal should be allowed as the effect of the compromise of the action was that the respondent's future claims for compensation were extinguished by the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s133(3).

63 In considering the effect of the compromise reached between the first appellant, who was the defendant in the common law action, and the respondent who was the plaintiff in the action, it is important to keep in mind, as the learned primary judge did, that the Court is construing a contract; Way v Swan Television and Radio Broadcasters Ltd (1991) 5 WAR 323, Anderson J at 324 - 325 and Heather v Vita Pacific Limited 7/1997, Zeeman J at 4.

64 The relevant portions of the offer and acceptance which constitute the contract in this instance are:

"The Defendant offers to compromise all causes of action pleaded by the Plaintiff against the Defendant in the Plaintiff's Statement of Claim dated 24 November 1994 for:

(2) costs to be taxed as between party and party on Table A of Appendix M to the Rules of Court."; and

"TAKE NOTICE that the Plaintiff accepts the Defendant's Offer of Compromise dated the 1st day of May 1996."

65 The offer is abridged. It does not detail what is involved in the causes of action to which it refers. In order for the Court to establish what is encompassed by those causes of action and thereby determine the full scope of the parties' agreement, it is necessary to go to the statement of claim referred to in the offer and the particulars of the statement of claim. It is also necessary to have regard to the statutory provisions which bear on the matter. Where, as here, parties fail to fully spell out the terms of their agreement, it is for the Court to determine the same, always keeping in mind that the first stage of this process involves inferring what was actually intended and agreed, as distinct from implying any terms on the basis of the implied intention of the parties; Hawkins v Clayton & Ors (1988) 164 CLR 539, Deane J at 570 - 571; Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410, Brennan CJ, Dawson and Toohey JJ at 442 and Breen v Williams (1996) 186 CLR 71, Dawson and Toohey JJ at 90 - 91.

66 In Hawkins v Clayton & Ors (supra), Deane J at 570, observed as to an agreement which was largely unarticulated by the parties, that it was necessary to identify two distinct stages in the ascertainment of the relevant terms. He said:

"The first stage is essentially one of inference of actual intention: what, if any, are the terms which can properly be inferred from all the circumstances as having been included in the contract as a matter of actual intention of the parties? The second stage is one of imputation: what, if any, are the terms which are, in all the circumstances, implied in the contract as a matter of presumed or imputed intention?"

67 I turn to the respondent's statement of claim dated 29 November 1994, and the particulars of the claim in order to ascertain what the parties knew the respondent was seeking from the first appellant ("the appellant"), by way of the causes of action she was pursuing. The statement of claim alleges that the respondent suffered personal injuries in the course of her employment with the appellant on 5 July 1993, and that her injuries were caused by the appellant's negligence or breaches of statutory duty. Damages are claimed for her injuries. The particulars of the statement of claim disclose that by way of separate proceedings pursuant to the Act, the respondent had sought and recovered workers compensation from the appellant in respect of her injuries. The particulars include a claim for past and future medical and related expenses, that is, a claim for damages for expenses recovered or recoverable by way of the respondent's separate proceedings for workers compensation. The particulars detail a claim to special damages which had been "paid as workers compensation". The particulars include a claim for past and future loss of earning capacity. The respondent's claim in relation to past loss records and includes payments of weekly compensation that had been made as well as a Fox v Wood claim for the income tax component of those weekly payments.

68 As the respondent had initiated proceedings against the appellant in respect of her injuries under the Act, as well as at common law, in establishing what was actually intended by the parties when they compromised her common law claim in respect of the causes of action detailed in her statement of claim, it is pertinent to have regard to the Act, s133, which provides:

"Effect of compensation on worker's right to damages

133 (1) Except as otherwise provided in this Part, the payment or an entitlement to the payment of compensation in respect of an injury does not affect the right to obtain damages in respect of that injury, but, where a liability has been incurred (whether by the employer or any other person) for the payment of damages to a worker in respect of an injury, the payment to or to the benefit of that worker of compensation in respect of that injury shall, so far as it extends, be regarded also as a payment in or towards the discharge of that liability, and the amount of the damages shall be reduced accordingly.

(2) The subsistence of a right of a worker or a dependant of a deceased worker to damages in respect of an injury, or the taking of proceedings to establish any such right or for the recovery of any such damages, does not prejudice or affect his right to compensation in respect of that injury, but where a worker or a dependant of a deceased worker has obtained judgment (whether against his employer or any other person) for damages in respect of an injury or has accepted any money paid into court in satisfaction of a claim for damages, his right to any payments by way of compensation that have not been determined before the date of the judgment, or the date of his acceptance of money paid into court, is extinguished.

(3) The settlement by a worker or a dependant of a deceased worker of a claim for damages in respect of an injury, if by that settlement he agrees that all his further claims to compensation in respect of that injury are extinguished, has, for the purposes of subsection (2), the like effect as a judgment obtained by that worker or that dependant for those damages."

69 The ultimate objective of the respondent's pursuit of her causes of action against the appellant was a judgment against the appellant for damages for her injuries. As can be seen from the Act, s133(2), the achievement of that objective carried with it the consequence that the respondent's right to recover any further payments by way of workers compensation from the appellant would be extinguished. As the extinguishment of the respondent's entitlement to workers compensation was a consequence of her successful pursuit of her causes of action, the logical inference is that the same consequence was an intended outcome of the settlement of her causes of action. When the offer was accepted, the respondent's causes of action had been heard and the parties were awaiting Zeeman J's reserved decision. Upon that decision being handed down, if the respondent had succeeded, her entitlement to weekly compensation would have been extinguished upon the entry of judgment in her favour. In the absence of any matter or circumstance to suggest other than that the same outcome was an intended consequence of the respondent's acceptance of the appellant's offer to compromise her causes of action, I have no hesitation in finding that it was. I infer that it was the actual intention of the parties that it be a term of the compromise agreement that the respondent's right to any further payments by way of compensation be extinguished. That being a term of the agreement, the Act, s133(3), is satisfied and the respondent's entitlement to claim workers compensation in respect of her injuries is extinguished. It is of no consequence that the relevant term of the agreement is inferred. The Act, s133(3), applies to settlement agreements regardless of the form in which they are reached. It is not confined, for example, to deeds, express written agreements or the like. All that is necessary in order to invoke that provision is that it be a term of the worker's settlement of his or her common law claim for damages in respect of an injury that any further claims for compensation in respect of the injury be extinguished.