WORKERS REHABILITATION AND COMPENSATION ACT 1986 - SECT 54
This legislation has been repealed.
WORKERS REHABILITATION AND COMPENSATION ACT 1986 - SECT 54
54—Limitation of employer's liability
(1) Subject to subsection (2)
, no liability attaches to an employer in respect of a compensable injury
arising from employment by that employer except—
(a) a
liability under this Act.
(2) Subsection (1)
does not affect a liability arising out of the use of a motor vehicle, being a
liability against which the employer was or ought to have been insured under
the law of compulsory third-party motor vehicle insurance.
(3) A court before
which an action is brought against an employer for non-economic loss arising
from a compensable injury (being an injury that arises out of the use of a
motor vehicle and gives rise to a liability of a kind referred to in subsection (2)
) shall make due allowance for any lump sum paid or payable under Division 5
or 6
to the person by or on whose behalf the action is brought.
(4a) Where—
(a) a
worker suffers a compensable injury (not being an injury that arises out of
the use of a motor vehicle and gives rise to a liability of a kind referred to
in subsection (2)
); and
(b) the
injury is attributable to the negligence of another worker—
(i)
who was acting in the course of employment with the same
employer; and
(ii)
whose negligence did not arise from, or in the course of,
serious and wilful misconduct,
the worker has no right of action against the other worker.
(4b) Where—
(a) a
worker suffers a compensable injury (not being an injury that arises out of
the use of a motor vehicle and gives rise to a liability of a kind referred to
in subsection (2)
); and
(b)
action is taken against a person other than the employer for damages in
respect of the injury,
the other person has no right to recover contribution from the employer.
(a)
compensation is paid or payable under this Act in respect of a
compensable injury;
(b) a
right of action exists against a person other than the employer for damages in
respect of the injury,
the person by whom the compensation is paid or payable is entitled to recover
from that other person the amount of the compensation in accordance with subsection (7)
.
(a) a
compensable injury arises out of the use of a motor vehicle;
(b) the
employer was or ought to have been insured against liability for the injury
under the law of compulsory third-party motor vehicle insurance;
(c)
compensation is paid or payable by the Corporation or a self-insured employer
under this Act in respect of the injury,
the Corporation or a self-insured employer (as the case requires) is entitled
to recover the amount of the compensation in accordance with subsection (7)
.
(a)
compensation is paid or payable to a person (the "injured party ) under this
Act;
(b) the
injured party has received, or is entitled to, damages from another person
(the
"wrongdoer") in pursuance of rights arising from the same trauma as gave rise
to the rights to compensation under this Act;
(c) the
person by whom the compensation is paid or payable under this Act
(the "claimant") is entitled to recover the amount of the compensation by
virtue of subsection (5)
or (6)
,
then the following provisions apply:
(d) the
claimant is entitled to recover the amount of compensation paid or payable
under this Act from the wrongdoer or the injured party but subject to the
following qualifications:
(i)
no amount may be recovered from the wrongdoer in excess
of the wrongdoer's unsatisfied liability to the injured party; and
(ii)
the claimant must exhaust its rights against the
wrongdoer before recovering against the injured party; and
(iii)
no amount may be recovered from the injured party in
excess of the amount of the damages received by the injured party; and
(iv)
in a case involving contributory negligence on the part
of a worker, the amount to be recovered from the wrongdoer by the claimant
under this subsection must be adjusted to the extent that is just and
equitable having regard to the extent to which the wrongdoer establishes that
the contributory negligence contributed to the occurrence of the relevant
injury;
(e) the
claimant shall, on giving notice to a wrongdoer of an entitlement to recover
compensation under this section, have a first charge, to the extent of the
entitlement, on damages payable by the wrongdoer to the injured party;
(f) any
amount recovered by the claimant against a wrongdoer under this subsection
shall be deemed to be an amount paid in or towards satisfaction of the
wrongdoer's liability to the injured party;
(g) an
action for the recovery of compensation under this subsection—
(i)
may be heard and determined in proceedings brought in the
District Court of South Australia; and
(ii)
must be commenced within 3 years after the date of the
trauma referred to in paragraph (b)
.
(7a) This section is
intended to apply in relation to any action that arises out of the occurrence
of a compensable injury—
(a)
irrespective of where the injury occurred; and
(b)
—
(i)
irrespective of whether the action is brought before a
court of this State or before a court of some other state, territory or
country; and
(ii)
notwithstanding that the court before which the action is
brought would not (but for this subsection) apply, or take into account, South
Australian law.
(a) an
action is brought in respect of a compensable injury in a court that is not a
court of the State; and
(b)
notwithstanding subsection (7a)
, the court awards an amount against an employer that is in excess of the
amount (if any) that would have been awarded in a similar action before a
court of the State; and
(c) the
Corporation is liable to pay the amount awarded by virtue of insurance
provided under this Act,
the Corporation is entitled to recover the excess from the person to whom the
amount is awarded.
(7c) In the course of
proceedings under subsection (7b)
a court may—
(a)
receive in evidence any transcript of evidence in proceedings before the court
by which the amount was awarded and draw any conclusions of fact from the
evidence that it considers proper; or
(b)
adopt any of the court's findings of fact.
(8) In this
section—
"contributory negligence" means a failure by a worker to take reasonable care
for his or her own protection or the protection of his or her own interests;
"damages" includes any form of compensation payable apart from this Act in
respect of a compensable injury;
"employer" includes—
(a) any
person for whose torts an employer is vicariously liable;
(b) any
person who is vicariously liable for the torts of an employer;
"the law of compulsory third-party motor vehicle insurance" means—
(a) Part
4 of the Motor
Vehicles Act 1959
(including a policy of insurance under that Part); or
(b) the
law of another State or a Territory of the Commonwealth that corresponds to
Part 4 of the Motor
Vehicles Act 1959
(including a policy of insurance under such a law).