South Australian Numbered Acts South Australian Numbered Acts71—Application of Part in relation to damages and scope and limitation of liability
(1) This Part applies to an award of damages in respect of—
(a) a work injury to a worker; or
(b) the death of a worker resulting from a work injury,
being an injury caused by the negligence or other tort (including breach of statutory duty) of the worker's employer and arising from employment (and a reference to damages in this Part must be construed accordingly).
(2) An employer is not liable to an award of damages in respect of a psychiatric injury under subsection (1) unless the psychiatric injury is primarily caused by the negligence or other tort (including breach of statutory duty) of the worker's employer referred to in that subsection and an employer is not liable to an award of damages in respect of consequential mental harm (and subsection (1) operates subject to this subsection).
(3) A worker cannot commence proceedings in a court for damages within the scope of subsection (1) unless or until an assessment of the degree of permanent impairment of the worker has been undertaken under Part 2 Division 5.
(4) This Part does not apply to an award of motor accident damages (subject to any express provision about motor accident damages).
(5) This Part applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker's employer even though the damages are recovered in an action for breach of contract or in any other action based on the same act or omission of the employer that would have founded an action for negligence or on account of another tort.
(6) Subsection (5) is enacted for the avoidance of doubt.
(7) An employer is not liable to an award of damages in respect of—
(a) a work injury to a worker; or
(b) the death of a worker resulting from a work injury,
unless—
(c) the damages fall within the scope of subsection (1), (2) or (5); or
(d) the damages constitute motor vehicle damages.
(8) A liability for damages referred to in subsection (1), (2) or (5) does not arise unless a successful claim for compensation in respect of the work injury has been made under Part 4.
(9) An employer is not liable to an award of damages in respect of—
(a) a work injury to a worker; or
(b) the death of a worker resulting from a work injury,
if—
(c) the employer is a body corporate; and
(d) the worker is a director as well as an employee of the employer.
(10) Subsections (7), (8) and (9) do not derogate from any other provision of this Act which restricts or rules out an award of damages.
"director", in relation to an employer that is a body corporate, means a person who—
(a) has a substantial interest in the body corporate; or
(b) has a proprietary interest in any business or undertaking being carried on by the body corporate.
(12) For the purposes of subsection (11), a person has a substantial interest in a body corporate if—
(a) the person is a member of the governing body of the body corporate and is entitled to exercise 20% or more of the voting power at meetings of the governing body; or
(b) a member of the governing body of the body corporate who is entitled to exercise 20% or more of the voting power at meetings of the governing body is under an obligation, whether formal or informal, to act in accordance with the direction, instructions or wishes of the person; or
(c) in the case of a body corporate that has a share capital—the person can, directly or indirectly, exercise, control the exercise of, or substantially influence the exercise of, 20% or more of the voting power attached to voting shares, or any class of voting shares, issued by the body corporate; or
(d) the person satisfies any other criteria prescribed by the regulations for the purposes of this subsection.