Victorian Current Acts Victorian Current Acts(1) Where, within the time limited for the taking of proceedings under this Act, an action is brought to recover damages independently of this Act in respect of an injury giving rise to a claim for compensation under this Act and it is determined in that action that—
(a) damages are recoverable independently of this Act subject to such reduction as is mentioned in section 26(1) of the Wrongs Act 1958 ; and
(b) the employer would have been liable to pay compensation under this Act—
section 62 shall apply in all respects as if the action had been dismissed, and, if the claimant chooses to have compensation assessed and awarded in accordance with section 62, no damages shall be recoverable in the action.
(2) Where a worker has recovered compensation under this Act or any corresponding previous enactment in respect of an injury caused under circumstances which would give a right to recover reduced damages in respect thereof by virtue of section 26 of the Wrongs Act 1958 from some person other than the employer ( the third part ), any right conferred by this Division on the person by whom the compensation was paid, or on any person called on to pay an indemnity under section 60, to be indemnified by the third party shall be limited to a right to be indemnified in respect of such part only of the sum paid or payable by the person as bears to the total sum so paid or payable the same proportion as the reduced damages bear to the total damages which would have been recoverable if the worker had not been at fault.
S. 63(3) amended by Nos 10191 s. 270(14)(a), 67/1992 s. 64(11)(a), 29/2006 s. 3(Sch. 1 item 39.1).
(3) Where either before or in an action brought to recover damages independently of this Act for injury, a judgment in favour of the worker for damages against the employer or the third party has been satisfied wholly or a claim has been settled fully the County Court or Administrative Appeals Tribunal shall refuse to make any award in favour of the worker or his dependants (as the case may be) for any damages caused by that injury.
(4) In an action brought to recover damages independently of this Act for damages for an injury or death, or in the case of an appeal against the judgment in such an action, the worker may, before the expiration of a period of 28 days after judgment or the determination of the appeal (as the case requires), abandon the judgment.
(5) Where a worker abandons the judgment pursuant to subsection (4), section 62 shall apply in all respects as if the action had been dismissed and if the worker chooses to have compensation assessed and awarded in accordance with section 62, no damages shall be recoverable in the action.
(6) Judgment shall not be abandoned pursuant to subsection (4) except within 28 days of the judgment being entered or in the case of an appeal within 28 days of the determination of the appeal.
(7) The worker shall give notice of abandonment to the defendant or respondent in writing.
(8) For the purposes of this section "worker" includes personal representative or the person bringing the action under Part III of the Wrongs Act 1958 (as the case requires).
S. 63A inserted by No. 9683 s. 5.