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WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 93K

93K .         Constraints on awards

        (1)         If the liability for an incapacity resulting from the injury has been redeemed under section 67, damages are not to be awarded in respect of the injury.

        (2)         If a further additional sum has been allowed to the worker under clause 18A(1b) in relation to an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.

        (3)         If the worker is participating, or has at any time participated, in a specialised retraining program established in respect of an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.

        (4)         Damages in respect of an injury can only be awarded if —

            (a)         the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and

            (b)         the Director registers the election in accordance with the regulations; and

            (c)         court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and

            (d)         the court is satisfied that the worker’s degree of permanent whole of person impairment is at least 15%.

        (5)         Unless the court is satisfied that the worker’s degree of permanent whole of person impairment is at least 25% —

            (a)         the amount of damages to be awarded is to be a proportion, determined according to the severity of the injury or injuries, of the maximum amount that may be awarded; and

            (b)         the maximum amount of damages that may be awarded in respect of the injury or injuries is Amount A, but the maximum amount may be awarded only in a most extreme case in which the worker’s degree of permanent whole of person impairment is less than 25%.

        (6)         Subsection (5) has effect in respect of the amount of a judgment before the operation of section 92(b).

        (7)         No entitlement to damages is created by subsection (5) and that subsection is subject to any other law that prevents or limits the awarding of damages.

        (8)         If —

            (a)         subsection (4) does not allow damages to be awarded in respect of the injury; or

            (b)         damages in respect of the injury have been awarded in accordance with subsection (5),

                the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (the Contribution Act ) in respect of damages awarded against another person in relation to the injury.

        (9)         If subsection (5) limits the damages that could have been awarded in respect of the injury —

            (a)         the contributions that the employer may be liable to make under the Contribution Act in respect of damages awarded against other persons in relation to the injury are not to exceed the damages that could have been awarded in accordance with subsection (5); and

            (b)         if the employer has made or been directed to make a contribution under the Contribution Act in respect of damages awarded against another person in relation to the injury, the amount of damages that may be awarded in accordance with subsection (5) is reduced by the amount of that contribution.

        (10)         This section applies regardless of whether the damages are awarded against one or several employers.

        (11)         An issue as to the amount of damages that may be awarded, is to be determined by reference to Amount A as in effect on the date on which the determination is made.

        (12)         In this section —

        Amount A means, in relation to a financial year, the amount that section 93F(8) defines to be Amount A in relation to that financial year.

        (13)         The court is not bound by an agreement or assessment recorded by the Director under section 93L(2), but may admit it as evidence relevant to the worker’s degree of permanent whole of person impairment.

        [Section 93K inserted: No. 42 of 2004 s. 79; amended: No. 31 of 2011 s. 96.]



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