(1) In this Part:damages includes:
(a) any form of monetary compensation, and(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),but does not include:(c) compensation under this Act, or(d) additional or alternative compensation to which Division 8 of Part 3 applies, or(e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or(f) a sum required or authorised to be paid under a State industrial instrument, or(g) any sum payable under a superannuation scheme or any life or other insurance policy, or(h) any amount paid in respect of costs incurred in connection with legal proceedings, or(i) damages of a class which is excluded by the regulations from this definition.(2) A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made.
150 Reference to worker’s employer includes fellow workers etc
A reference in this Part to a worker’s employer includes a reference to:(a) a person who is vicariously liable for the acts of the employer, and(b) a person for whose acts the employer is vicariously liable.
150A The applicable substantive law for work injury claims
(1) If compensation is payable (whether or not it has been paid) under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs:(a) whether or not a claim for damages in respect of the injury can be made, and(b) if it can be made, the determination of the claim.(2) This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.(3) For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it:(a) would have been payable but for a provision of the scheme that excludes the worker’s right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision, or(b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.(4) A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.(5) In this Division:State includes Territory.
150B Claims to which Division applies
(1) This Division applies only to a claim for damages against a worker’s employer in respect of an injury that was caused by:(a) the negligence or other tort (including breach of statutory duty) of the worker’s employer, or(b) a breach of contract by the worker’s employer.(2) Subsection (1) (a) applies even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.(3) A reference in this Division to a worker’s employer includes a reference to:(a) a person who is vicariously liable for the acts of the employer, and(b) a person for whose acts the employer is vicariously liable.
150C What constitutes injury and employment and who is employer
For the purposes of this Division:(a) injury and employer include anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State, and(b) the determination of what constitutes employment or whether or not a person is the worker’s employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State.
150D Claim in respect of death included
For the purposes of this Division, a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury.
150E Meaning of “substantive law”
In this Division:a State’s legislation about damages for a work related injury means:
(a) for this State—Part 5 of this Act and Chapter 7 of the 1998 Act, and any other provision of this Act or the 1998 Act providing for the interpretation of anything in that Part or Chapter, and(b) for any other State—any provisions of a law of the State that is declared by the regulations to be the State’s legislation about damages for a work related injury.substantive law includes:
(a) a law that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action, and(b) a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time), and(c) a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit, and(d) a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered, and(e) a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered, and(f) a law expressed as a presumption, or rule of evidence, that affects substantive rights, and(g) a provision of a State’s legislation about damages for a work related injury, whether or not it would be otherwise regarded as procedural in nature,but does not include a law prescribing rules for choice of law.
150F Availability of action in another State not relevant
(1) It makes no difference for the purposes of this Division that, under the substantive law of another State:(a) the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State, or(b) the circumstances on which the claim is based do not give rise to a cause of action.(2) In this section:another State means a State other than the State with which the injury is connected.
Division 2 Common law and other remedies generally
151 Common law and other liability preserved
This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.
151A Effect of recovery of damages on compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and(b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and(c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.(2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation:(a) the amount of any weekly payments of compensation already paid in respect of the injury concerned,(b) the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned.(3) If damages are recovered in an action under the Compensation to Relatives Act 1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death:(a) the amount of any compensation under Division 1 of Part 3 paid in respect of the death is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and(b) a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker.(4) If a person recovers motor accident damages in respect of an injury from the employer liable to pay compensation under this Act:(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and(b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation.
151C 6-months delay before commencement of court proceedings against employer for damages
(1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.(2) Despite subsection (1), the person is entitled to commence court proceedings against the employer if either of the following occurs:(a) the employer wholly denies liability in respect of the injury,(b) the employer admits partial liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted.(3) This section does not limit or otherwise affect the operation of Part 6 of Chapter 7 of the 1998 Act.Note. Part 6 of Chapter 7 of the 1998 Act imposes restrictions on the commencement of court proceedings for damages.
151D Time limit for commencement of court proceedings against employer for damages
(1) (Repealed)(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.(4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999.
151DA Time not to run for commencement of proceedings in certain cases
(1) Time does not run for the purposes of section 151D:(a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, orNote. Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.(a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or(a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or(a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or(b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.(2) A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (the defendant) on whom it was served or it is withdrawn by the person who served it, whichever happens first.(3) The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act.(4) The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker.(5) A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable.(6) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.
Division 3 Modified common law damages
151E Application—modified common law damages
(1) This Division applies to an award of damages in respect of:(a) an injury to a worker, or(b) the death of a worker resulting from or caused by an injury,being an injury caused by the negligence or other tort of the worker’s employer.(2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies.Note. However, this Division will generally apply in the case of an injury to a coal miner if the injury is caused by an off-road motor accident and there is no motor accident insurer on risk (see section 3D of the Motor Accidents Act 1988 and section 3B of the Motor Accidents Compensation Act 1999).(3) This Division 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.(4) Subsection (3) is enacted for the avoidance of doubt and has effect in respect of actions brought before as well as after the commencement of that subsection.
151F General regulation of court awards
A court may not award damages to a person contrary to this Division.
151G Only damages for past and future loss of earnings may be awarded
(1) The only damages that may be awarded are:(a) damages for past economic loss due to loss of earnings, and(b) damages for future economic loss due to the deprivation or impairment of earning capacity.(2) This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897.
151H No damages unless permanent impairment of at least 15%
(1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.(2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%):(a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.(3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.(4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.(5) In this section:psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.
151I Calculation of past and future loss of earnings
(1) In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker’s net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount).(2) The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits).(3) This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35.
In awarding damages for future economic loss due to deprivation or impairment of earning capacity or (in the case of an award of damages under the Compensation to Relatives Act 1897) loss of expectation of financial support, the court is to disregard any earning capacity of the injured worker after age 65.
151J Damages for future economic loss—discount rate
(1) For the purposes of an award of damages, the present value of future economic loss is to be qualified by adopting the prescribed discount rate.(2) The prescribed discount rate is:(a) a discount rate of the percentage prescribed by the regulations, or(b) if no percentage is so prescribed, a discount rate of 5 per cent.(3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages.
(1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages.(2) In particular, the court must consider the following matters:(a) whether the injured worker has undergone appropriate medical treatment,(b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment,(c) whether the injured worker has duly complied with the worker’s obligations under Chapter 3 of the 1998 Act (Workplace injury management),(d) whether the injured worker has sought appropriate rehabilitation training.(3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)–(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps.(4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker.
(1) Limited statutory entitlement
A plaintiff has only such right to interest on damages as is conferred by this section.(2), (3) (Repealed)(4)(a) Interest is not payable (and a court cannot order the payment of interest) on damages unless:(i) information that would enable a proper assessment of the plaintiff’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or(ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or(iii) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.(b) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff’s full entitlement to all damages of any kind.(c) For the purposes of this subsection, an offer of settlement must be in writing.(5) Calculation of interest
If a court is satisfied that interest is payable under subsection (4) on damages:(a) the amount of interest is to be calculated for the period from the date of the death of or injury to the worker until the date on which the court determines the damages, and(b) the amount of interest is to be calculated in accordance with the principles ordinarily applied by the court for that purpose, subject to this section.(6) Rate of interest
The rate of interest to be used in any such calculation is three-quarters of the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 for the period concerned.(7) Judgment debts
Nothing in this section affects the payment of interest on a debt under a judgment or order of a court.
151N Contributory negligence—generally
(1) The common law and enacted law as to contributory negligence apply to awards of damages, except as provided by this section.(2) Damages for deprivation or impairment of earning capacity are not to be reduced because of contributory negligence below the amount that the court estimates would have been payable by way of a commutation of weekly payments of compensation under Division 9 of Part 3 if the person concerned were eligible to be paid a lump sum under that Division.(3) In an action for the award of damages founded on a breach of a statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but the damages recoverable are to be reduced by such percentage as the court thinks just and equitable having regard to the person’s share in the responsibility for the damages.(4) Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 applies to an action for damages referred to in subsection (3).(5) In an action for the award of damages under the Compensation to Relatives Act 1897, section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of the deceased person.
151O Defence of voluntary assumption of risk
The defence of volenti non fit injuria is not available in an action for the award of damages but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured or deceased person was negligent in failing to take sufficient care for his or her own safety.
151P Damages for psychological or psychiatric injury
No damages for psychological or psychiatric injury are to be awarded in respect of an injury except in favour of:(a) the injured worker, or(b) a parent, spouse, brother, sister or child of the injured or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction.
(1) This section applies to an award of damages if the plaintiff requests that it apply. In making an order under this section the court is to give preference to the views of the injured worker.(2) If this section applies to an award of damages, the court:(a) may separately determine the amount of damages for future economic loss and the amount of damages for past economic loss, and(b) may order that any damages determined by the court for future economic loss are to be paid in accordance with such arrangements as the court determines or approves.(3) In making an order under this section, the court is required to have regard to the following matters:(a) the ability of the plaintiff to manage and invest any lump sum award of damages,(b), (c) (Repealed)(d) the views of the defendant in relation to the proposed order,(e) such other matters as the court considers appropriate.(4) In making an order under this section relating to damages for impairment of earning capacity, the court may order the damages to be used to purchase an annuity for the plaintiff on such terms as the court considers appropriate.(5) (Repealed)(6) Arrangements determined or approved under this section may include provision that payments of damages for impairment of earning capacity are to be made at intervals of not more than 12 months.(7) A party to any arrangements determined or approved under this section may apply to the court at any time for an order varying or terminating the arrangements.(8) The court may, on an application under subsection (7), make such order as it considers appropriate, having regard to the provisions of this section.(9) The regulations may make provision for or with respect to any matter dealt with in this section and, in particular, may impose conditions or limitations on the orders that may be made under this section or otherwise regulate the making of those orders.
151R Exemplary or punitive damages
A court may not award exemplary or punitive damages to a person in an award of damages.
151S Court to apportion damages etc
(1) If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies.(2) In any such case the court is required to apportion any costs awarded.
(1) Subject to the rules of court, if a court awards costs to a plaintiff by reference to the amount recovered by the plaintiff, that amount is to be taken to be the amount recovered as qualified, or after making any deduction or reduction, in accordance with this Division.(2) (Repealed)
Division 4 Retrospective restoration of modified common law
151U Modified common law to apply from 30 June 1987
(1) This Part applies to a cause of action in respect of:(a) an injury received by a worker at or after 4 pm on 30 June 1987, or(b) the death of a worker resulting from or caused by such an injury.(2) This Part has effect as if sections 149 and 150, as originally enacted, had never been enacted.
151V Election provisions not to apply
(1) Section 151A (Election—damages or “Table of Disabilities” compensation) does not apply:(a) in respect of an injury received before 4 pm on 30 June 1989, or(b) in respect of an injury received at or after that time and before the commencement of section 151A (but that section does apply in respect of any such injury if the person concerned accepts payment of permanent loss compensation after the commencement of that section).(2) If a person commences proceedings to recover damages, or accepts payment of damages, in respect of an injury to which section 151A does not so apply:(a) the person is not entitled to any permanent loss compensation claimed but not yet received, and(b) the amount of any such compensation previously paid is to be deducted from those damages.(3) (Repealed)
151W Time limit for commencement of court proceedings extended
In the application of section 151D to an injury received before the date of assent to the Workers Compensation (Amendment) Act 1991, the injury is to be taken to have been received on that date.
151X Insurance policies to cover retrospective claims
(1) A policy of insurance issued or renewed under this Act before the commencement of this section extends (and is to be taken to have always extended) to the employer’s liability independently of this Act for which the employer is required to obtain a policy of insurance under section 155.(2) Any liability to which a policy of insurance extends because of this section is also a liability to which any corresponding policy of re-insurance extends.
151Y Funding of self-insurers, government employers etc for retrospective claims
(1) This section applies to the following employers:(a) self-insurers,(b) employers who obtained a policy of insurance from a specialised insurer,(c) Government employers insured under a policy of insurance from the Government Insurance Office,(d) employers who obtained a policy of insurance under the former Act for a period that extended beyond 4 pm on 30 June 1987 (not being a policy assigned to a licensed insurer under clause 10 of Part 15 of Schedule 6).(2) The Authority may establish a special account within the Authority’s Fund for the purposes of this section.(3) The Authority may require licensed insurers and former licensed insurers to pay into the special account such amounts as the Authority may direct by notice served on the insurers concerned.(3A) Amounts paid into the special account may be refunded for the purposes of making necessary adjustments.(4) The Authority may recover as a debt in a court of competent jurisdiction any payment which an insurer does not pay in accordance with a direction under this section.(5) The Authority may from the special account pay such amounts as it considers appropriate to fund the liability of employers for the relevant part of retrospective claims (being employers who, at the time of the injury giving rise to the claim, were employers to whom this section applies).(6) For the purposes of this section:(a) retrospective claims are claims for damages to which those employers have become liable because of the enactment of the Workers Compensation (Benefits) Amendment Act 1989 in respect of injuries received by workers after 4 pm on 30 June 1987 and before 4 pm on 30 June 1989, and(b) the relevant part of a retrospective claim is that part that the Authority estimates represents the amount of damages (and associated expenses) in excess of the amount of workers compensation which was or would have been payable in respect of the injury concerned.(7) The Authority is not obliged to fund a liability of an employer under this section and may impose conditions on the making of payments under this section.(8) The Authority is not to fund an employer in respect of any liability for which the employer is already indemnified under a policy of insurance (or re-insurance) to which this Act does not apply.(9) This section does not limit the liability of a specialised insurer, the Self Insurance Corporation or any other insurer under a policy of insurance to which section 151X applies.
Division 5 Miscellaneous provisions
151Z Recovery against both employer and stranger
(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker’s injury under this Act, and the worker is not entitled to any further compensation,(c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),(e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages,(e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment,(f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission.(2) If, in respect of an injury to a worker for which compensation is payable under this Act:(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,the following provisions have effect:(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and(ii) if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.(3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury.(4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses.(5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement.
151AA Abolition of doctrine of common employment
(1) It is not a defence to an employer who is sued in respect of any personal injury caused by the negligence of a person employed by the employer that the person so employed was, at the time the personal injury was caused, in common employment with the person injured.(2) This section applies to every case in which the relation of employer and employee exists, whether the contract of employment is made before or after the commencement of this section, and whether or not the employment is one to which the other provisions of this Act apply.(3) In this section:employer includes the Crown but does not include any person who by any provision of this Act is deemed to be an employer.
personal injury includes:
(a) death, and(b) any disease, and(c) any impairment of the physical or mental condition of a person.
151AAA Special provision for common law liabilities under pre-1995 policies
(1) A policy of insurance issued before 1 September 1995 (including a policy issued under the former Act) operates in respect of a liability of the employer for an injury to a worker that arises independently of this Act or the former Act as if the liability arose at the time of injury.Note. 1 September 1995 was the commencement date of the Workers Compensation (General) Regulation 1995 which adopted a new form of workers compensation insurance policy that made it clear that the policy covered a common law liability of the employer for an injury to a worker received during the term of the policy even if liability in respect of the injury arose after the period for which the policy was in force.(2) This section does not apply to a liability in respect of an occupational disease within the meaning of section 151AB.
151AB Special insurance provisions relating to occupational diseases
(1) If an employer is liable independently of this Act for damages for an occupational disease contracted by a worker, the following provisions have effect for the purposes of any policy of insurance obtained by the employer:(a) the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due, subject to paragraph (b),(b) if the worker was employed by the employer in employment to the nature of which the disease was due both before and after the relevant commencement, the liability is taken to have arisen both when the worker was last employed by the employer in employment to the nature of which the disease was due before the relevant commencement and when the worker was last employed by the employer in employment to the nature of which the disease was due after the relevant commencement.(2) In a case in which subsection (1) (b) applies, 2 insurers will be liable under policies of insurance to indemnify the employer (or pay damages to the worker) and the following provisions apply with respect to those insurers (referred to in this subsection as the responsible insurers):(a) Of the responsible insurers, the one that is the insurer in respect of the employer’s liability that arose after the relevant commencement is to be the insurer primarily responsible for the claim.(b) The responsible insurers can however agree as to which of them is to be primarily responsible for the claim or the court can order that one of them is to be the insurer primarily responsible, and any such agreement or order overrides paragraph (a).(c) The insurer who is primarily responsible for the claim is to act for both the responsible insurers in respect of any claim for the damages and has sole liability for the claim (that is, it is to indemnify the employer for the full amount of the damages or is to pay the full amount of damages to the worker, without any right to a contribution from any other insurer, except as provided by paragraph (d)).(d) The insurer who is primarily responsible is entitled to recover from the other responsible insurer half of the amount paid as damages to the worker, half of the amount paid in respect of the worker’s legal costs and half of such reasonable amount as the insurer primarily responsible may have incurred in respect of its own legal expenses in the matter.(3) If 2 or more employers are jointly or severally liable for damages referred to in this section, the provisions of this section apply separately to each employer.(4) This section does not affect the amount of damages recoverable by a worker.(5) This section applies to any liability arising before or after the commencement of this Act and to any policy of insurance issued before or after that commencement.(6) In sections 151AB and 151AC:occupational disease means a disease of such a nature as to be contracted by a gradual process, and includes:
(a) a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942, and(b) total or partial loss of sight which is of gradual onset, and(c) the condition known as “boilermaker’s deafness” or any deafness of similar origin.relevant commencement means:
(a) except as provided by paragraph (b)—4 pm on 30 June 1987, or(b) in the case of an employer who was insured under a policy of insurance that was assigned as referred to in clause 10 of Part 15 of Schedule 6 to this Act—the commencement of the period of insurance of the policy so assigned.
151AC Further special insurance provisions relating to dust diseases
(1) Application of this section
This section applies in relation to an employer who is liable independently of this Act for damages for a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942 contracted by a worker, where there is a dispute as to which of 2 or more insurers in a category of insurers is liable to indemnify the employer under any of the provisions of section 151AB.(2) Designated insurer to be responsible pending resolution of dispute
For the purposes of section 151AB, and pending resolution of the dispute, the insurer who is the designated insurer in the relevant category under this section is to be treated as being the insurer who is so liable to indemnify the employer. Section 151AB has effect, and is to be construed, accordingly.(3) Identification of designated insurer
The following provisions have effect for the purpose of determining which insurer among the following categories of insurers is the designated insurer for the purposes of this section:(a) If, in the case of a liability that arose before the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed before that commencement by that employer is the designated insurer.(b) If, in the case of a liability that arose after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed after that commencement by that employer is the designated insurer.(c) If, in the case of a liability that arose partly before and partly after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB in respect of any liability that arose before that commencement, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed before that commencement by that employer is the designated insurer.(d) If, in the case of a liability that arose partly before and partly after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB in respect of any liability that arose after that commencement, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed after that commencement by that employer is the designated insurer.(4) However, the insurers in a category may agree as to which of them is to be the designated insurer or the Dust Diseases Tribunal can order that any one of them is to be the designated insurer, and any such agreement or order overrides subsection (3).(5) Designated insurer to act for other insurers
In addition to the provisions of section 151AB:(a) where subsection (3) (a) or (b) applies—the designated insurer who is the insurer liable under section 151AB (1) is to act for all the insurers in the relevant category in the carriage of the insurance aspects of the claim, and(b) where subsection (3) (c) or (d) applies—the designated insurer who is the insurer who is primarily responsible under section 151AB (2) is to act for all the insurers in the 2 relevant categories in the carriage of the insurance aspects of the claim.(6) Other insurers can make submissions as to damages
Despite subsection (5), if the damages payable to or in respect of the worker have not been assessed, any of the other insurers in dispute may, with the leave of the Dust Diseases Tribunal, make submissions to the Tribunal relating to the amount of damages payable.(7) Methods of resolving dispute
The dispute may be resolved by such processes as the parties to the dispute agree or as are otherwise available.(8) Arbitration under special provisions
However, if the dispute has not been resolved by the relevant time, it is to be resolved by arbitration under section 38 of the Dust Diseases Tribunal Act 1989, unless the Dust Diseases Tribunal otherwise orders (whether before or after the arbitration commences). The relevant time is:(a) subject to paragraph (b), the time when the total amount of damages is assessed and payable, or(b) if the designated insurer pays the total amount of damages assessed, together with all costs payable, to or in respect of the worker, such later time as one of the parties to the dispute notifies to the other party or parties to the dispute.(9) Nature of resolution of dispute
For the purposes of this section, the dispute is not resolved until it has been determined which of the insurers in dispute was the insurer when the worker was last employed at the relevant time by the employer in an employment to the nature of which the disease was due. That insurer is referred to in the following provisions of this section as an insurer who is liable.(10) Adjustment after resolution of dispute
If, on resolution of the dispute, it is determined that a designated insurer is not an insurer who is liable, then (in addition to any other liabilities) the insurer who is liable:(a) is liable to reimburse or indemnify the designated insurer for any amounts already paid by the designated insurer in that capacity (including any amounts paid on an interim basis), and(b) is liable to reimburse or indemnify the employer for any costs of the worker already ordered by the Dust Diseases Tribunal, and(c) is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in earlier proceedings before the Tribunal because the insurer who is liable disputed liability (thereby giving rise wholly or in part to the dispute), and(d) without affecting the generality of paragraph (c), is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute (other than the designated insurer) incurred in any such earlier proceedings in making submissions to the Tribunal relating to the amount of damages payable to or in respect of the worker.(11) If, on resolution of the dispute, it is determined that a designated insurer is an insurer who is liable, then (in addition to any other liabilities) the insurer who is liable:(a) is liable to reimburse or indemnify the employer for any costs of the worker already ordered by the Dust Diseases Tribunal, and(b) is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in earlier proceedings before the Tribunal because the insurer who is liable disputed liability (thereby giving rise wholly or in part to the dispute), and(c) without affecting the generality of paragraph (b), is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in any such earlier proceedings in making submissions to the Tribunal relating to the amount of damages payable to or in respect of the worker.(12) Parties to dispute
An insurer may be or become a party to the dispute even though the insurer was not a party to or represented in the original proceedings before the Dust Diseases Tribunal. Without limiting the foregoing, an insurer becomes a party to the dispute on being joined as a party to an arbitration under section 38 of the Dust Diseases Tribunal Act 1989.(13) Rules
This section has effect subject to orders of the Dust Diseases Tribunal under rules referred to in section 33 (4) (n) of the Dust Diseases Tribunal Act 1989.(14) Transitional
This section applies to causes of action arising before or after the commencement of this section, and extends to proceedings instituted before that commencement but only if no hearing in the proceedings has started before that commencement.(15) Definition
In this section:category of insurers means the category consisting of the insurers in dispute as referred to in a paragraph of subsection (3).