(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.]