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Contents (1987 - 70)
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Workers Compensation Act 1987 No 70
Current version for 25 March 2020 to date (accessed 10 April 2020 at 10:33)
Part 5 Division 2
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), (4) or (5) 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 (other than damages to which Part 4 of the Motor Accident Injuries Act 2017 applies) 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.
(5)  If a person recovers damages to which Part 4 of the Motor Accident Injuries Act 2017 applies 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 of the following 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—
(i)  weekly payments of compensation,
(ii)  permanent impairment compensation and pain and suffering compensation, but limited to the amount of any damages recovered for non-economic loss.
151B   (Repealed)
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, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017.
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, or
Note.
 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.