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ACCIDENT COMPENSATION AMENDMENT ACT 2010 (NO. 9 OF 2010) - SECT 58

New section 134ABAA inserted

After section 134AB of the Accident Compensation Act 1985 insert

    ' 134ABAA     Determination of serious injury application following death of worker

    (1)     This section applies if—

        (a)     a worker dies; and

        (b)     the worker made an application served under section 134AB(4) before his or her death; and

        (c)     at the time of the worker's death—

              (i)     the application of the worker was pending; or

              (ii)     the worker had issued proceedings seeking the leave of the Court to commence proceedings following the rejection of the application of the worker by the Authority or a self-insurer; or

              (iii)     the period specified in section 134AB(16)(b) within which a worker is required to institute proceedings had not expired; and

        (d)     the worker's death was not caused or materially contributed to by the injury which is the subject of the application under section 134AB; and

        (e)     the worker left a dependant or dependants.

    (2)     If this section applies—

        (a)     the legal personal representative of the deceased worker may take the same action as could have been taken by the worker had the worker not died—

              (i)     in respect of an application made by the worker under section 134AB(4) before his or her death; or

              (ii)     in respect of an application referred to in section 134AB(16)(b)—within the unexpired period of time that would have been available to the deceased, or after that period with the consent of the Authority under section 134AB(20);

        (b)     if an application under section 134AB(4) was pending at the time of the worker's death, the Authority or self-insurer, within the unexpired period of time in which it had to determine the application, must determine whether, as at the date the application was served, the worker had a serious injury assessed in accordance with this section;

        (c)     any right arising from a determination by a Court, the Authority or a self-insurer that a worker had a serious injury is deemed, for the purposes of section 29 of the Administration and Probate Act 1958 to have vested in the worker before the worker's death and survives for the benefit of the deceased worker's estate.

    (3)     For the purposes of the assessment of serious injury in respect of an application or proceedings commenced or continued under this section, the assessment must be made in accordance with section 134AB(38) except where this section otherwise provides.

    (4)     For the purposes of the assessment of serious injury under this section, the assessment must be made as at the date the application was served by the worker before his or her death under section 134AB(4).

    (5)         If it is determined that a worker referred to in subsection (1) had a serious injury as at the time he or she served the application under section 134AB(4), notwithstanding anything to the contrary in section 134AB, the legal personal representative of the deceased worker may bring proceedings for the recovery of—

        (a)     pain and suffering damages in respect of the injury; and

        (b)     if the deceased worker's application established the matters specified in section 134AB(38)(e), (f) and (g)—pecuniary loss damages in respect of the injury—

from the date the injury was sustained to the date of death of the worker.    

    (6)     For the purposes of subsection (5)(b)—

        (a)     section 134AB(38)(e) applies as if a reference to "the date of the hearing of an application" were a reference to the date on which the application under section 134AB(4) was served;

        (b)     section 134AB(38)(f) applies as if a reference to "that date" were a reference to the date on which the application under section 134AB(4) was served.

    (7)     The death of a worker does not affect the admissibility of—

        (a)     evidence obtained before or after the worker served an application under section 134AB(4); and

        (b)     evidence that would have otherwise been admissible under section 134AB.

    (8)     In this section—

"dependant" means a person who at the time of the death of the worker referred to in subsection (1)—

        (a)         was wholly, mainly or partly dependent on the earnings of the worker; or

        (b)     would have been wholly, mainly or partly dependent on the earnings of the worker but for the incapacity of the worker resulting from, or materially contributed to by, the serious injury the subject of the application, or any incapacity of the worker due to the injury or disease which caused or materially contributed to the worker's death.

    (9)     A reference to service of an application under section 134AB(4) in this section means the service of an application in accordance with directions made by the Minister under section 134AF.'.



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