New South Wales Consolidated Acts

SPORTING INJURIES INSURANCE ACT 1978 - SECT 35A

35A Certain claims against the Authority and others

(1) In this section,
"damages" includes--

(a) a benefit payable pursuant to a system of compensation under the legislation of another State or a Territory of the Commonwealth or of any country other than Australia,

(b) an amount payable under a contract of insurance or assurance,

(c) an amount payable by way of damages under a law of New South Wales, of another State or a Territory of the Commonwealth or of any country other than Australia, and

(d) an amount payable in circumstances prescribed by the regulations.

(1A) A reference in this section to the Authority includes a reference to the Self Insurance Corporation to the extent that this section applies in relation to benefits paid from the Supplementary Fund.

(2) Where a death or an injury in relation to or for which a benefit is payable under this Act in respect of or to an enrolled student participant of a school or an enrolled participant of the Department was caused under circumstances creating a legal liability in some person (in this section referred to as the
"liable person" ) to pay damages in respect thereof, the person entitled to a benefit payable under this Act in relation to the death or injury (in this section referred to as the
"entitled person" ) may take proceedings both against the liable person to recover damages and against the Authority to recover the benefit but, subject to this section, shall not be entitled to retain both damages and the benefit.

(3) If the entitled person recovers firstly the benefit and secondly damages, the entitled person shall be liable to repay to the Authority out of the damages the amount of the benefit (or, where the amount of the damages is less than the amount of the benefit, the amount of the damages), and the entitled person shall not be entitled to the payment of any further benefit under this Act in respect of the incident as a consequence of which the death or injury occurred, except where (and to the extent, if any, that) the regulations otherwise provide.

(4) If the entitled person firstly recovers damages, the entitled person shall not be entitled to recover a benefit under this Act in respect of the incident, except where (and to the extent, if any, that) the regulations otherwise provide.

(5) If the entitled person has recovered a benefit under this Act, the Authority shall be entitled to be indemnified by the liable person to the extent of the amount of the benefit.

(6) Where any payment is made under the indemnity referred to in subsection (5) and, at the time of the payment, the entitled person has not obtained judgment for damages against the liable person, the payment shall, to the extent of its amount, be a defence to proceedings by the entitled person against the liable person for damages.

(7) All questions relating to matters arising under this section or regulations made for the purposes of this section shall, in default of agreement--

(a) be settled by proceedings brought in a court of competent jurisdiction, or

(b) with the consent of the parties, be settled by the Court.