New South Wales Consolidated Acts

WORKERS' COMPENSATION (DUST DISEASES) ACT 1942 - SECT 8E

8E Reimbursement of compensation from negligent third parties

(1) Purpose of section The purpose of this section is to provide the board with rights to be reimbursed for compensation paid or payable by it where damages are recovered or recoverable, being rights that correspond in certain respects to those available to an employer (or an employer’s insurer) under section 151Z of the Workers Compensation Act 1987 .

(2) Application of section This section applies where a worker suffers disablement or death from a dust disease.

(3) Reimbursement where damages recovered If:

(a) a person (the "first person") recovers damages from some other person (the "second person") in respect of the disablement or death pursuant to the final determination of the relevant proceedings, and

(b) there is deducted from the damages the amount of any compensation already paid to the first person under this Act, or the present value of future benefits payable to the first person under this Act, or both,

the following provisions have effect:

(c) the second person is liable to pay to the board an amount equal to the amount or amounts so deducted,

(d) the amount that the second person is liable to pay under this subsection is payable within 42 days after recovery of the damages or within such other period as is provided by Schedule 1A or prescribed by the regulations or as is (subject to the regulations) allowed by the board,

(e) the amount that the second person is liable to pay under this subsection, or any unpaid portion of it, together with interest as provided by Schedule 1A, is recoverable by the board in a court of competent jurisdiction as a debt owing to the board.

(4) Reimbursement where damages not sought to be recovered If:

(a) the dust disease for which compensation is payable under this Act to a person (the "first person") was caused under circumstances creating a liability in some other person (the "second person") to pay damages for loss in respect of the disablement or death, and

(b) the first person has not recovered any such damages, and proceedings are not pending for their recovery, and

(c) the first person has received compensation under this Act,

the following provisions have effect:

(d) the board may but is not required to take action to be indemnified, by the second person, for the amount of any compensation already paid to the first person under this Act, being an indemnity limited to the amount of those damages to the extent that they are damages for economic loss,

(e) a certificate executed by the board and certifying that a specified amount is the amount of compensation paid as referred to in paragraph (d) is (without proof of its execution) admissible in any proceedings and is evidence of the matters certified in the certificate,

(f) if two or more persons are so liable to pay those damages, they are jointly and severally liable under the indemnity,

(g) all questions relating to matters arising under this subsection are, in default of agreement, to be settled by proceedings in the Dust Diseases Tribunal or by arbitration if the Tribunal so orders.

(5) Persons affected by section For the purposes of this section:

(a) a “first person” can be the worker or another person, and

(b) a “second person” cannot be the worker’s employer.

(6) Joint liability-employer If:

(a) the first person takes or is entitled to take proceedings to recover damages from the worker’s employer as joint tortfeasor or otherwise, in addition to taking or being entitled to take proceedings to recover damages from the second person, and

(b) the second person is entitled to recover from the worker’s employer any contribution towards the damages recovered or would be entitled to do so if proceedings to recover those damages were taken,

the following provisions have effect:

(c) the amount that the second person is liable to pay to the board under subsection (3) or the amount for which the second person can be required to indemnify the board under subsection (4) is to be reduced by the same proportion as that contribution bears to the amount of those damages,

(d) the second person is not entitled to recover from the worker’s employer any contribution towards the amount paid or payable to the board by the second person.

(7) Joint liability-non-employer If:

(a) the first person takes or is entitled to take proceedings to recover damages from another person as joint tortfeasor or otherwise (not being the worker’s employer), in addition to taking proceedings to recover damages from the second person, and

(b) the second person is entitled to recover from that other person any contribution towards the damages recovered,

the following provisions have effect:

(c) the second person is entitled to recover from that other person a contribution towards the amount that the second person is liable to pay under subsection (3), being a contribution that bears the same proportion to that amount as the contribution towards the damages recovered bears to the amount of those damages,

(d) the second person is entitled to recover from that other person that contribution towards the amount paid or payable to the board by the second person,

(e) the second person is entitled to recover that contribution whether or not that other person is or was a party to the proceedings taken by the first person to recover the damages from the second person.

(8) In a case in which the deduction from damages referred to in subsection (3) (b) is not apparent or readily ascertainable from the terms of any judgment or award in respect of the damages, the amount of the deduction is as determined in accordance with Schedule 1A.

(9) The regulations may make provision for or with respect to:

(a) the determination of the amount of any deduction from damages referred to in subsection (3) (b), being provisions not inconsistent with the provisions of Schedule 1A, and

(b) requiring (in addition to the requirements of Schedule 1A) the provision to the board of information or documents by a person from whom or by whom damages in respect of disablement or death from a dust disease are recovered or recoverable, being information or documents relevant to the determination of any matter in connection with the operation of this section or Schedule 1A, and

(c) exempting classes of persons or cases from the operation of all or specified provisions of this section or Schedule 1A.

(9A) Schedule 1A has effect for the purposes of this section.

(10) Definitions In this section and Schedule 1A:
"damages" means damages whether or not payable under an award or judgment, and includes damages payable under a settlement, but does not include damages of a class excluded by the regulations from this definition.
"damages for economic loss" means damages other than damages for non-economic loss as defined in section 12D of the Dust Diseases Tribunal Act 1989 .
"employer", in relation to a worker, means a person who was the worker’s employer at any relevant time, and includes:

(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.

"final determination", in relation to proceedings, includes a final determination by judgment, verdict, award, settlement, agreement, dismissal, discontinuance or otherwise.