135AActions for damages[[28]](#endnote-29), [[29]](#endnote-30)

135A Actions for damages[[28]](#endnote-29), [[29]](#endnote-30) S. 135A(1) amended by Nos 50/1994 s. 64(5), 107/1997 s. 47(1). (1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment before 12 November 1997— S. 135A(1)(a) inserted by No. 50/1994 s. 64(5). (a) shall not, in proceedings in respect of the injury, recover any damages for non‑pecuniary loss except— (i) in accordance with the **Transport Accident Act 1986** and subsections (11)(b), (12) and (18)(b) of this section; or (ii) in proceedings of a kind referred to in section 135(1)(c) and in accordance with subsections (11)(b), (12) and (18)(b) of this section; or (iii) if subparagraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and S. 135A(1)(b) inserted by No. 50/1994 s. 64(5). (b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except— (i) in proceedings of a kind referred to in a paragraph of section 135(1) and in accordance with subsections (11)(a), (12) and (18)(a) of this section; or (ii) if subparagraph (i) does not apply, as permitted by and in accordance with this section. (2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment— (a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or (b) if the injury is a serious injury and arose before that date but the incapacity arising from the injury did not become known until that date or a later date. S. 135A(2A) inserted by No. 7/1996 s. 32(1). (2A) Subject to subsection (2D), a worker may not bring proceedings in accordance with this section unless a determination of the degree of impairment of the worker has been made under subsection (3)[[30]](#endnote-31). S. 135A(2AA) inserted by No. 84/2000 s. 37. (2AA) For the purposes of the procedures relating to an application for a determination from a worker made under subsection (2B) and received by the Authority or a self-insurer after 10 August 2000 but before 1 September 2000, subsections (2B), (2D) and (2DB) have effect as if the reference in each of those subsections to 120 days was a reference to 210 days. S. 135A(2B) inserted by No. 7/1996 s. 32(1), amended by s. 47(2), 81/1998 s. 25(9). (2B) Subject to subsection (2C), the Authority or self‑insurer must make a determination under subsection (3) within 120 days of receiving a written application for a determination from the worker[[31]](#endnote-32). S. 135A(2BA) inserted by No. 107/1997 s. 47(3). (2BA) An application under subsection (2B)— (a) must be in a form approved by the Authority; and (b) must be accompanied by— (i) a copy of all medical reports; and (ii) affidavits attesting to such other material— existing when the application is made and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section or in any related proceedings. S. 135A(2BB) inserted by No. 107/1997 s. 47(3), amended by No. 81/1998 s. 25(9). (2BB) If the worker unreasonably refuses to comply with a request by the Authority or self-insurer that the worker submit to a medical examination, to be paid for by the Authority or self-insurer, or in any way hinders such an examination, the period between the date on which the worker so refused to comply, or hindered the examination, and the date of the examination must be disregarded in calculating the period of 120 days referred to in subsections (2B) and (2D). S. 135A(2C) inserted by No. 7/1996 s. 32(1), amended by No. 81/1998 s. 25(9). (2C) Despite subsection (2B), if the application is received during the first 104 weeks after the injury, the Authority or self-insurer may refuse to make a determination if the Authority or self‑insurer is not satisfied that the worker's injury has stabilised[[32]](#endnote-33). S. 135A(2D) inserted by No. 7/1996 s. 32(1), substituted by s. 47(4), amended by No. 81/1998 s. 25(9). (2D) The Authority or self-insurer must, within 120 days of receiving the application, advise the worker in writing— (a) of the determination; or (b) of the refusal to make a determination under subsection (2C). S. 135A(2DA) inserted by No. 107/1997 (2DA) The advice referred to in subsection (2D) must be accompanied by— (a) a copy of all medical reports; and (b) affidavits attesting to such other material— existing when the advice is given and of which the employer, Authority or self-insurer or the legal representative of any of them is aware and on which they intend to rely or the substance of which they intend to adduce in evidence in proceedings brought by the worker in accordance with this section or in any related proceedings. S. 135A(2DB) inserted by No. 107/1997 (2DB) If the Authority or self-insurer fails to advise the worker in writing within 120 days of receiving the application— (a) of the determination; or (b) of the refusal to make a determination under subsection (2C)— the worker is deemed to have suffered a serious injury. S. 135A(2DC) inserted by No. 107/1997 (2DC) The worker, within 28 days after receiving the advice referred to in subsections (2D) and (2DA), may give to the Authority or self-insurer an affidavit attesting to such further material (whether or not existing before the worker made the application under subsection (2B)) in rebuttal of the material (other than medical reports) attested to in affidavits accompanying the advice. S. 135A(2DD) inserted by No. 107/1997 s. 47(5). (2DD) In proceedings in accordance with this section, a medical report or other material is inadmissible in evidence— S. 135A (2DD)(a) amended by No. 81/1998 s. 25(9). (a) on behalf of the Authority or self-insurer if— S. 135A (2DD)(a)(i) amended by No. 81/1998 s. 25(9). (i) it was in existence, and the employer, Authority or self-insurer, or the legal representative or any of them, was aware of it, before the date by which the advice of the Authority or self-insurer is required to be given under subsections (2D) and (2DA); and (ii) it had not been disclosed to the worker in accordance with subsections (2D) and (2DA); or (b) on behalf of the worker if— (i) it was in existence, and the worker or the worker's legal representative was aware of it, before the expiration of 28 days after receiving the advice under subsections (2D) and (2DA); and (ii) it had not been disclosed to the other party in accordance with subsection (2BA) or (2DC). S. 135A(2DE) inserted by No. 107/1997 s. 47(5), amended by No. 82/2001 s. 23(1)(a). (2DE) The worker must not commence proceedings in accordance with this section, other than an application under subsection (4)(b) or the commencement of proceedings with the consent of the Authority under subsection (6A) or (6B), unless— S. 135A (2DE)(a) amended by No. 81/1998 s. 25(9). (a) the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and S. 135A (2DE)(b) amended by No. 81/1998 s. 25(9). (b) the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and (c) if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and S. 135A (2DE)(d) amended by No. 81/1998 s. 25(9). (d) the Authority or self-insurer does not accept that counter offer within 21 days after it is made; and (e) the proceedings are commenced not earlier than 21 days, and not more than 51 days, after the counter offer is made or, if a counter offer is deemed to have been made under subsection (2DG), not more than 30 days after the day on which the counter offer is deemed to have been made. S. 135A(2DF) inserted by No. 107/1997 s. 47(5), amended by Nos 81/1998 s. 25(9), 74/2000 s. 3(Sch. 1 item 1.6). (2DF) If the Authority or self-insurer does not make a statutory offer under subsection (2DE), the Authority or self-insurer is deemed, for the purposes of that subsection, to have made, on the 60th day after the response date, a statutory offer of nothing. S. 135A(2DG) inserted by No. 107/1997 (2DG) If the Authority or self-insurer makes a statutory offer under subsection (2DE) and the worker does not make a statutory counter offer under that subsection, the worker is deemed, for the purposes of that subsection, to have made, on the 21st day after the statutory offer was made, a statutory counter offer of the maximum amount that may be awarded as damages under subsection (7)(a) and (b). S. 135A(3) amended by Nos 50/1994 s. 64(6)(a), 60/1996 s. 11(3), 81/1998 s. 25(9). (3) If the Authority or self-insurer determines that the degree of impairment of the worker as a result of the injury would, if assessed in accordance with section 91 be 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section. S. 135A(3A) inserted by No. 7/1996 s. 33(1), amended by No. 81/1998 s. 25(9). (3A) A decision by the Authority or self-insurer that a worker has a serious injury for the purposes of section 93B is not to be taken to be a determination for the purposes of subsection (3) unless the decision specifically states that it is to be taken to be a determination for the purposes of subsection (3)[[33]](#endnote-34). S. 135A(4) amended by Nos 50/1994 s. 64(6)(a), 81/1998 s. 25(9). (4) If the Authority or self-insurer has determined in accordance with subsection (3) that the degree of impairment of a worker is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless— S. 135A(4)(a) amended by No. 81/1998 s. 25(9). (a) the Authority or self-insurer— (i) is satisfied that the injury is a serious injury; and (ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings; or S. 135A(4)(b) amended by No. 107/1997 s. 47(6). (b) a court, on the application of the worker made within 30 days after the determination was made or, with the consent of the Authority under subsection (6A), after that period, gives leave to bring the proceedings. S. 135A(4A) inserted by No. 107/1997 s. 47(7), amended by No. 81/1998 s. 25(9). (4A) If a worker makes an application for a determination under subsection (3) of the degree of impairment of the worker, the worker must not make a further application for such a determination unless it is the first application made after the Authority or self-insurer has refused to make a determination in accordance with subsection (2C). (5) A copy of an application under subsection (4) must be served on the Authority or self-insurer and on each person against whom the applicant claims to have a cause of action. S. 135A(6) amended by No. 50/1994 s. 64(6)(b). (6) A court must not give leave under subsection (4)(b) unless it is satisfied that the injury is a serious injury. S. 135A(6A) inserted by No. 107/1997 s. 47(8), amended by No. 82/2001 s. 23(1)(b)(ii). (6A) If, on the application of a worker, the Authority is satisfied that— S. 135A(6A)(a) amended by No. 82/2001 s. 23(1)(b)(i). (a) the worker is unable to commence proceedings in accordance with this section because of the operation of subsection (4)(b); and S. 135A(6A)(b) amended by No. 82/2001 s. 23(1)(b)(i). (b) the failure to comply with subsection (4)(b) was not due to any fault or omission of the worker or the worker's legal representative— the Authority may consent to the bringing of an application under subsection (4)(b). S. 135A(6B) inserted by No. 82/2001 s. 23(2). (6B) If the Authority is satisfied that a worker is unable to commence proceedings in accordance with this section because of the operation of subsection (2DE), on the application of the worker the Authority may consent to the commencement of proceedings— (a) either— (i) earlier than 21 days after the date the counter offer is made; or (ii) later than 51 days, but no later than 81 days, after that date— if the Authority is satisfied that the defence of the proceedings will not be prejudiced; or (b) later than 81 days after the date the counter offer is made if the Authority is satisfied that the failure to comply with subsection (2DE) was not due to any fault or omission of the worker or the worker's legal representative. S. 135A(6C) inserted by No. 82/2001 s. 23(2). (6C) The Authority may consent to the commencement of proceedings under subsection (6B) even though the relevant time limit expired before the date of commencement of section 23 of the **Accident Compensation (Amendment) Act** **2001**. (7) A court must not, in proceedings in accordance with this section, award to a worker in respect of an injury— (a) pecuniary loss damages— S. 135A(7)(a)(i) amended by Nos 50/1994 s. 64(6)(c) (d)(i), 7/1996 s. 49(l), 102/2004 s. 40(i), 80/2010 ss 81(d), 83(h), 67/2013 s. 633(h). (i) if the total pecuniary loss damages assessed, before the reduction (if any) under section 26(1) of the **Wrongs Act 1958** and before the reduction (ifany) under subsection (11), is less than $59 670 or that amount as varied in accordance with Division 2D of PartIV as at the date of the award; or S. 135A(7) (a)(ii) amended by Nos 50/1994 s. 64(6)(d)(ii), 7/1996 s. 49(m), 102/2004 s. 40(k), 80/2010 ss 81(d), 83(i), 67/2013 s. 633(i). (ii) in excess of $1 343 540 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or (b) pain and suffering damages— S. 135A(7) (b)(i) amended by Nos 50/1994 s. 64(6)(c) (d)(i), 7/1996 s. 49(l), 102/2004 s. 40(j), 80/2010 ss 81(e), 83(j), 67/2013 s. 633(j). (i) if the total pain and suffering damages assessed, before the reduction (if any) under section 26(1) of the **Wrongs Act 1958** and before the reduction (ifany) under subsection (11), is less than $50 680 or that amount as varied in accordance with Division 2D of PartIV as at the date of the award; or S. 135A(7) (b)(ii) amended by Nos 50/1994 s. 64(6)(d)(iii), 7/1996 s. 49(n), 102/2004 s. 40(l), 80/2010 ss 81(e), 83(k), 67/2013 s. 633(k). (ii) in excess of $514 360 or that amount as varied in accordance with Division 2D of Part IV as at the date of the award; or (c) damages of any other kind, other than damages in the nature of interest. (8) A dependant of a worker may recover damages under Part III of the **Wrongs Act 1958** in respect of the death of a worker. (9) A court must not, in proceedings under Part III of the **Wrongs Act 1958** award damages in accordance with subsection (8) in respect of the death of a person in excess of $500 000. (10) Damages awarded under this section in respect of pecuniary loss shall not include damages in respect of— S. 135A(10)(a) amended by No. 80/2010 s. 78(r). (a) any loss suffered or that may be suffered as a result of the incurring of costs or expenses of a kind referred to in Division 2B of Part IV; or (b) the value of services of a domestic nature or services relating to nursing and attendance— (i) which have been or are to be provided by another person to the person in whose favour the award is made; and (ii) for which the person in whose favour the award is made has not paid and is not and will not be liable to pay. S. 135A(11) amended by No. 50/1994 s. 64(6)(e). (11) If a judgment, order for damages, settlement or compromise is made or entered in favour of a worker or the dependants of a worker in respect of proceedings referred to in subsection (1), the amount of the judgment, order for damages, settlement or compromise must be reduced by— S. 135A(11)(a) amended by Nos 84/1994 s. 63, 74/2000 s. 3(Sch. 1 item 1.7), 80/2010 s. 78(s). (a) to the extent that it is in respect of pecuniary loss, the amount of compensation (if any) paid otherwise than under sections 98 and 98A and Division 2B of Part IV or to the extent that section 93(10)(a) of the **Transport Accident Act 1986** applies, except any such compensation paid in respect of the whole or any part of the period of 18 months after the relevant transport accident; S. 135A(11)(b) amended by No. 74/2000 s. 3(Sch. 1 item 1.8). (b) to the extent that it is in respect of non-pecuniary loss, the amount of compensation (if any) paid under sections 98 and 98A. (12) If the amount of a judgment is subject to a reduction under subsection (11), that reduction must be made before the reduction (if any) under section 26(1) of the **Wrongs Act 1958** is made. (13) Subject to the rules of the court— (a) in proceedings relating to an application for leave of the court under subsection (4)—costs are to be awarded against a party against whom a decision is made; and S. 135A(13)(b) amended by No. 107/1997 s. 47(9)(a). (b) unless subsection (13A) applies in proceedings for the recovery of damages in accordance with this section— (i) if no liability to pay damages is established, costs are to be awarded against the claimant; and (ii) if damages are assessed but cannot be awarded under this section, each party bears its own costs; and S. 135A(13) (b)(iii) amended by Nos 107/1997 s. 47(9)(b), 81/1998 s. 25(9). (iii) if damages are awarded, costs are to be awarded against the Authority or self-insurer. S. 135A(13A) inserted by No. 107/1997 (13A) In proceedings for the recovery of damages commenced in accordance with this section after a statutory offer was made, or deemed to have been made, under subsection (2DE)— S. 135A (13A)(a) amended by Nos 81/1998 s. 25(9), 10/2022 s. 13(a). (a) if no liability to pay damages is established, the worker must pay costs assessed on the standard basis of the employer, Authority or self-insurer and the worker's own costs; S. 135A (13A)(b) amended by Nos 81/1998 s. 25(9), 10/2022 s. 13(b). (b) if judgment is obtained or a settlement or compromise is made in an amount not less than 90 per cent of the worker's statutory counter offer under subsection (2DE) and more than the statutory offer of the Authority or self-insurer, the Authority or self-insurer must pay the worker's costs assessed on the standard basis and its own costs; S. 135A (13A)(c) amended by Nos 81/1998 s. 25(9), 10/2022 s. 13(c). (c) if judgment is obtained or a settlement or compromise is made in an amount not more than the statutory offer of the Authority or self-insurer under subsection (2DE), the worker must pay costs assessed on the standard basis of the Authority or self-insurer and the worker's own costs; S. 135A (13A)(d) amended by No. 81/1998 s. 25(9) (d) if judgment is obtained or a settlement or compromise is made in an amount that is more than the statutory offer of the Authority or self-insurer under subsection (2DE) but less than 90 per cent of the worker's statutory counter offer under that subsection, each party bears its own costs— and the court must not otherwise make an order as to costs. S. 135A(13B) inserted by No. 107/1997 (13B) For the purpose of the taxing of costs in proceedings to which this section applies, that are commenced on or after 12 November 1997 any applicable scale of costs has effect as if amounts in the scale were reduced by 10 per cent. S. 135A(13C) inserted by No. 107/1997 (13C) A person who represents or acts on behalf of a worker is not entitled— (a) to recover any costs from that worker in respect of any proceedings under this section commenced on or after 12 November 1997; or (b) to claim a lien in respect of those costs; or (c) to deduct those costs from any sum awarded as damages— unless an award of costs has been made by the court in respect of those costs or those costs are payable in accordance with this section by the worker. S. 135A(13D) inserted by No. 107/1997 (13D) The court, on the application of— (b) the person representing or acting on behalf of the worker— may determine the amount of costs to be awarded to the person representing or acting on behalf of the worker. S. 135A(14) amended by No. 50/1994 s. 64(6)(f). (14) Where an award of damages in accordance with this section is to include an amount, assessed as a lump sum, in respect of damages for future loss which is referable to— the present value of the future loss must be qualified by adopting a discount rate of 3 per centum in order to make appropriate allowance for inflation, the income from investment of the sum awarded and the effect of taxation on that income. (15) Except as provided by subsection (14), nothing in that subsection affects any other law relating to the discounting of sums awarded as damages. (16) A court must not, in relation to an award of damages in accordance with this section, order the payment of interest, and no interest shall be payable, on any amount of damages, other than damages referable to loss actually suffered before the date of the award, in respect of the period from the date of the death of or injury to the person in respect of whom the award is made to date of the award. (17) Except as provided by subsection (16), nothing in that subsection affects any other law relating to the payment of interest on any amount of damages, other than special damages. S. 135A(18) amended by Nos 50/1994 s. 64(6)(g)(h), 81/1998 s. 25(10). (18) If judgment is obtained, or a compromise or settlement made in proceedings referred to in subsection (1) in respect of an injury, the Authority, the employer or self-insurer is not liable— S. 135A(18)(a) amended by Nos 102/2004 s. 11(1), 41/2006 s. 15(4), 9/2010 s. 61(1). (a) where pecuniary loss damages are awarded, to pay weekly payments in respect of the injury; or (b) where pain and suffering damages are awarded, to make payments under section 98 or 98A in respect of the injury. S. 135A(18AA) inserted by No. 9/2010 s. 61(2). (18AA) If judgment is obtained, or a compromise or a settlement is made, in respect of proceedings referred to in subsection (1) and the worker was, at the date of the judgment, compromise or settlement, still in receipt of compensation in the form of weekly payments, where pecuniary loss damages are awarded against the Authority, employer or self-insurer, the Authority, employer or self-insurer must, until the date on which a cheque is drawn for the purpose of payment of the judgment, compromise or settlement, pay to the worker a weekly amount equal to the net weekly amount that, but for subsection (18), would have been payable to the worker as compensation in the form of weekly payments in respect of the injury. S. 135A(18AB) inserted by No. 9/2010 s. 61(2). (18AB) Subsection (18AA) applies only in respect of proceedings referred to in subsection (1) against a sole defendant where that sole defendant was the worker's employer at the date of the injury the subject of the proceedings. S. 135A(18AC) inserted by No. 9/2010 s. 61(2). (18AC) An amount paid in accordance with subsection (18AA) is, to the extent of the payment, part satisfaction of the liability in respect of the judgment, settlement or compromise. S. 135A(18A) inserted by No. 107/1997 s. 47(11), amended by No. 81/1998 s. 25(9). (18A) If— S. 135A (18A)(a) amended by No. 81/1998 s. 25(10). (a) a written application for a determination under subsection (3) was made before 12 November 1997 by a worker to the Authority or self-insurer; and S. 135A (18A)(b) amended by No. 81/1998 s. 25(9). (b) the advice of the Authority or self-insurer was not given before that date; and S. 135A (18A)(c) amended by No. 81/1998 s. 25(9). (c) the period of 60 days after the application was received by the Authority or self-insurer expires on or after that date— the Authority or self-insurer must advise the worker in accordance with subsections (2D) and (2DA) within 120 days after receiving from the worker— (d) a copy of all medical reports; and (e) affidavits attesting to such other material— existing when the worker gives copies of any such reports and affidavits to the Authority and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section or in any related proceedings. S. 135A(18B) inserted by No. 107/1997 (18B) If subsection (18A) applies to an application, this section, as amended by section 47 of the **Accident Compensation (Miscellaneous Amendment) Act 1997**, applies, subject to subsection (18A), as if the application had been made under this section as so amended. (19) In this section— S. 135A(19) def. of *determination date* s. 47(12), amended by No. 102/2004 s. 11(2). ***determination date***, in relation to an injury, means the date on which— (a) the injury is determined, or deemed, in accordance with this section, or declared by a court, to be a serious injury; or (b) a certificate is issued under subsection (4)(a) in relation to the injury; or (c) any appeal by the Authority or a self-insurer against a decision of a court to give leave under subsection (4)(b) is determined— S. 135A(19) def. of *medical report* inserted by No. 107/1997 ***medical report*** means— (a) a statement in writing on medical matters concerning the worker, made by a medical practitioner; and (b) includes any document which the medical practitioner intends should be read with the statement, whether the document was in existence at the time the statement was made or was a document which he or she obtained or caused to be brought into existence subsequently; ***pain and suffering damages*** means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life; ***pecuniary loss damages*** means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage; S. 135A(19) def. of *response date* ***response date*** means the date on which the period of 28 days after the determination date expires; ***serious injury*** means— (a) serious long-term impairment or loss of a body function; or (b) permanent serious disfigurement; or (c) severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) loss of a foetus. S. 135AB inserted by No. 107/1997 s. 48. 135AB Directions (1) For the purposes of section 135A, the Minister may issue directions for or with respect to procedures under that section. S. 135AB(2) repealed by No. 80/2010 s. 122(6). (3) The directions may include directions about the provision of information by affidavit and the attending of conferences. (4) A person to whom a direction under this section applies, and the legal representatives and agents of such a person, must comply with the direction. (5) The directions may specify that a failure to comply with a particular provision of the directions has the effect of altering a period applicable under that section. S. 135AC inserted by No. 107/1997 s. 48, substituted by No. 26/2000 s. 22. 135AC Limitation of Actions Act 1958 Despite anything to the contrary in the **Limitation of Actions Act 1958**, proceedings in accordance with section 135 or 135A must not be commenced— (a) subject to the **Limitation of Actions Act 1958**, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or S. 135AC(b) substituted by No. 82/2001 s. 24. (b) if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known. S. 135AD inserted by No. 9/2010 s. 63. 135AD Limitation of Actions Act 1958 (1) For the avoidance of doubt, it is declared that, sections 135A and 135AC do not affect the date of accrual of a cause of action for the purposes of the **Limitation of Actions Act 1958**. (2) Subsection (1) is deemed to have commenced on the appointed day. S. 135B inserted by No. 67/1992 s. 46(3), amended by Nos 50/1994 s. 64(7)–(10), 81/1998 s. 25(9), 26/2000 s. 23, repealed by No. 67/2013 s. 638(6). Pt 4 Div. 9A (Heading and s. 135BA) inserted by No. 102/2004 s. 12. Division 9A—Actions by terminally ill workers S. 135BA inserted by No. 102/2004 s. 12. 135BA Actions by terminally ill workers (1) This section applies if a worker who may have an entitlement to recover damages in accordance with section 134AB or 135A in respect of an injury arising out of or in the course of, or due to the nature of, employment believes that that injury or an unrelated medical condition or injury gives rise to an imminent risk of death. (2) If this section applies, the worker may subject to compliance with the requirements of this section bring proceedings in accordance with— (a) section 134AB without complying with the requirements of subsections (1) to (21) and subsections (27), (28) and (38) of that section; or (b) section 135A without complying with subsections (1) to (6) and subsections (13), (13A), (18A) and (18B) of that section. S. 135BA(3) amended by No. 24/2008 s. 74(a). (3) If a worker commences proceedings under section 134AB or 135A on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to an Associate Judge of the Supreme Court— (a) for an order allowing leave for the worker to proceed nunc pro tunc; and (b) for an order allowing an expedited hearing of the proceedings. S. 135BA(4) amended by No. 24/2008 s. 74(b). (4) The Associate Judge of the Supreme Court must not grant the orders referred to in subsection (3) unless the Associate Judge of the Supreme Court is satisfied on the balance of probabilities that the injury arising out of or in the course of, or due to the nature of, employment or an unrelated medical condition or injury gives rise to an imminent risk of death of the worker. S. 135BA(5) amended by No. 24/2008 s. 74(b). (5) If the Associate Judge of the Supreme Court does not grant the orders referred to in subsection (3), the Associate Judge of the Supreme Court must make an order that the proceedings be struck out on the grounds that this section does not apply and that the proceedings have not been brought in accordance with section 134AB or 135A. S. 135BA(6) amended by No. 24/2008 s. 74(b). (6) If the Associate Judge of the Supreme Court does grant the orders referred to in subsection (3), the worker can only recover damages in accordance with section 134AB, 135A or 135AC if the worker establishes that the worker has a serious injury within the meaning of section 134AB(38) or 135A(19). S. 135BBA inserted by No. 9/2010 s. 62. 135BBA Actions by terminally ill workers continued after death of worker (a) a worker dies after serving proceedings issued in reliance on section 135BA to commence proceedings, in accordance with section 134AB; and (b) the worker's death was not caused or materially contributed to by the injury to which the proceedings relate; and (c) at the time of the worker's death, the worker had a dependant or dependants within the meaning of section 134ABAA(8). (2) If this section applies— (a) the legal personal representative of the deceased worker may continue the proceedings referred to in subsection (1)(a); and S. 135BBA (2)(b) amended by Nos 80/2010 s. 97, 43/2012 s. 3(Sch. item 1.4). (b) proceedings referred to in subsection (1)(a) are taken to be, and are limited to, an application served under section 134AB(16) by the worker before the worker's death; and (c) subject to paragraph (d), section 134ABAA applies to the proceedings referred to in subsection (1)(a); and (d) despite section 134ABAA(3), (4) and (5), for the purposes of the assessment of serious injury, the assessment must be made as at the date the proceedings referred to in subsection (1)(a) were served. Pt 4 Div. 9B (Heading and s. 135BB) inserted by No. 69/2008 s. 9. Division 9B—Actions by workers with asbestos‑related conditions S. 135BB inserted by No. 69/2008 s. 9. 135BB Actions by workers with asbestos-related conditions (1) This section applies to a worker who may have an entitlement to recover damages in accordance with section 134AB or 135A in respect of an injury that is an asbestos-related condition arising out of, or in the course of, or due to the nature of, employment. (2) If this section applies, the worker may, subject to compliance with the requirements of this section, bring proceedings in accordance with— (a) section 134AB without complying with the requirements of subsections (1) to (21) and subsections (27), (28) and (38) of that section; or (b) section 135A without complying with subsections (1) to (6) and subsections (13), (13A), (18A) and (18B) of that section. (3) If a worker commences proceedings under section 134AB or 135A on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to an Associate Judge of the Supreme Court— (a) for an order allowing leave for the worker to proceed nunc pro tunc; and (b) for an order allowing an expedited hearing of the proceedings if the asbestos-related condition gives rise to an imminent risk of death. (4) The Associate Judge of the Supreme Court must not grant the orders referred to in subsection (3) unless the Associate Judge of the Supreme Court is satisfied on the balance of probabilities that the injury arising out of, or in the course of, or due to the nature of, employment is an asbestos-related condition. (5) If the Associate Judge of the Supreme Court does not grant the orders referred to in subsection (3), the Associate Judge of the Supreme Court must make an order that the proceedings be struck out on the grounds that this section does not apply and that the proceedings have not been brought in accordance with section 134AB or 135A. (6) If the Associate Judge of the Supreme Court does grant the orders referred to in subsection (3), the worker can only recover damages in accordance with section 134AB, 135A or 135AC if the worker establishes that the worker has a serious injury within the meaning of section 134AB(38) or 135A(19). (7) If the worker dies from the asbestos-related condition before the hearing of the proceeding, it is established for the purposes of subsection (6) that the worker had a serious injury within the meaning of section 134AB(38) or 135A(19). (8) In this section, asbestos-related condition has the same meaning as it has in the **Asbestos Diseases Compensation Act 2008**. Pt 4 Div. 9C (Heading and ss 135BC–135BH) inserted by No. 10/2022 s. 9. Division 9C—Subsequent actions by workers with silica-related conditions S. 135BC inserted by No. 10/2022 s. 9. 135BC Definitions ***initial award*** has the meaning set out in section 135BD(a); ***serious silica-related condition*** means a condition that is— (a) specified in an Order made under section 51A of the **Workplace Injury Rehabilitation and Compensation Act 2013** as being an eligible progressive disease that is attributable to exposure to silica dust; and (b) a serious injury within the meaning of section 134AB(37); ***subsequent action*** means an action for a subsequent award of damages for a serious silica-related condition; ***subsequent award*** has the meaning set out in section 135BD(b). S. 135BD inserted by No. 10/2022 s. 9. 135BD Initial and subsequent award of damages for serious silica-related conditions If it is proved or admitted in an action for damages in respect of a serious silica-related condition that the worker may at some time in the future develop another serious silica‑related condition wholly or partly as a result of the act or omission giving rise to the cause of action, the court may— (a) award, in the first instance, damages for the serious silica-related condition assessed on the assumption that the worker will not develop another serious silica-related condition (the ***initial award***); and (b) award damages at a future date if the worker does develop another serious silica-related condition (the ***subsequent award***). S. 135BE inserted by No. 10/2022 s. 9. 135BE Only one subsequent award of damages permitted If an initial award of damages has been made to a worker in respect of a serious silica-related condition only one subsequent award of damages for another serious silica‑related condition can be made to that worker. S. 135BF inserted by No. 10/2022 s. 9. 135BF Regard must be had to initial award of damages If an initial award of damages has been made to a worker for a serious silica-related condition, a court must have regard to those damages when assessing damages to be awarded in a subsequent action for damages for another serious silica-related condition suffered by that worker. S. 135BG inserted by No. 10/2022 s. 9. 135BG Regard must be had to legal costs incurred in initial action (1) If an initial award of damages has been made to a worker for a serious silica-related condition, a court must have regard to the legal costs incurred in respect of the action for those damages (the ***initial action***) when assessing the amount to be awarded as legal costs in a subsequent action for damages by that worker for another serious silica-related condition. (2) The purpose of subsection (1) is to ensure that legal costs awarded in a subsequent action are not in respect of work undertaken for the purposes of the initial action. (3) In considering any possible duplication of legal costs, the court must have regard to the following factors— (a) any work undertaken in the initial action— (i) to identify the party or parties to be named as defendants; and (ii) to identify the circumstances of the worker's exposure to silica; and (iii) in relation to the negligence or breach of duty of the party or parties to be named as defendants; and (iv) as to the relationship and causal nexus between the worker's condition and the exposure to silica; (b) any other factors that the court considers appropriate. S. 135BH inserted by No. 10/2022 s. 9. 135BH Total award of damages not to exceed relevant statutory maximum Despite anything to the contrary in this Part, a worker is not entitled to an amount of damages under this Division to the extent that the total amount of damages from the initial award of damages and the subsequent award of damages exceeds any maximum amount payable under section 134AB(22), as in force at the time the subsequent award of damages is made. Pt 4 Div. 10 (Heading) inserted by No. 26/2000 s. 20(3).