138Indemnity by third party

138 Indemnity by third party S. 138(1) amended by Nos 107/1997 s. 50, 81/1998 s. 25(9)(10), 65/2008 s. 8(1). (1) Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section. S. 138(2) amended by Nos 82/2001 s. 25, 65/2008 s. 8(1). (2) In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Divisions 8A and 9 of Part IV must not be taken into account. (3) The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of— (a) the amount of compensation paid or payable under this Act in respect of the injury or death; and S. 138(3)(b) amended by Nos 60/1996 s. 22(a)(b), 81/1998 s. 25(11), 65/2008 s. 8(2). (b) the amount calculated, were it not for the provisions of this Act, the **Transport Accident Act 1986** and Parts VB, VBA and X of the **Wrongs Act 1958**, in accordance with the formula— X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death; A is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death; B is the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement); C is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party. (4) Judgment against or settlement by a third party in an action by a worker, or dependants of a worker, in respect of an injury or death referred to in subsection (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section. S. 138(4A) inserted by No. 9/2010 s. 121. (4A) A term of any contract that requires the employer or has the effect of requiring the employer to indemnify the third party in respect of any liability that the third party has or may have under this section is void. S. 138(5) inserted by No. 26/2000 s. 25(3). (5) If the Transport Accident Commission is liable to make payment to the Authority under section 137(5A) or to a self-insurer under section 137(5B) in respect of a death or injury and the Authority or self-insurer is entitled under this section to be indemnified by a third party in respect of the liability, the entitlement of the Authority or self-insurer is subrogated to the Transport Accident Commission by virtue of this subsection. S. 138(6) inserted by No. 9/2010 s. 122. (6) The Authority may, in its discretion, seek to recover any indemnity that the employer is entitled to under this section, including an amount that represents the employer's liability to pay compensation under section 125(1)(a) or 125A(3), on the employer's behalf, if— (a) the Authority advises the employer of the Authority's intention to seek the indemnity for the employer; and (b) the employer gives the Authority the employer's written consent to seek the indemnity under this section on the employer's behalf. S. 138(7) inserted by No. 9/2010 s. 122. (7) If the Authority recovers an amount from a third party on behalf of the employer that includes an amount that represents the employer's liability to pay compensation under section 125(1)(a) or 125A(3), the Authority may, in its absolute discretion, decide how that amount is to be dispersed. S. 138(8) inserted by No. 9/2010 s. 122. (8) Any proceedings to seek review of a decision made by the Authority under subsections (6) or (7) in respect of recovery action taken on behalf of an employer (including a decision to not take recovery action on behalf of an employer) must not be brought, whether against the Authority or otherwise. S. 138(9) inserted by No. 9/2010 s. 122. (9) In subsection (8), ***proceedings*** includes— (a) the inquiry into, hearing and determination of any question or matter under this Act; (b) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction; (c) seeking any order under the **Administrative Law Act 1978**; (d) any other action or proceeding. S. 138A inserted by No. 107/1997 s. 51, amended by No. 26/2000 s. 20(4).