174Recovery from employer responsible for contraction of asbestos-related disease

174 Recovery from employer responsible for contraction of asbestos-related disease

(1)  In this section, a culpable employer in relation to a person who has a compensable disease is a person who was the employer of the person during a relevant employment period, if the contraction by the person of the disease is reasonably attributable to exposure to asbestos in the course of his or her employment by the employer during that period.

(2)  This section applies to a culpable employer in relation to a person who has a compensable disease if –

(a) the Commissioner has paid compensation under this Act in relation to the person who has a compensable disease; and

(b) the culpable employer is not, at the time at which the compensation is paid, required under section 167 of the Act to pay the levy.

(3)  If this section applies to a culpable employer in relation to a person who has a compensable disease, the Commissioner is entitled to recover, in a court of competent jurisdiction, from the culpable employer –

(a) any amount paid to a person by the Commissioner as compensation in relation to the person who has a compensable disease; and

(b) any amount paid as expenses under Part 11 in relation to the person who has a compensable disease; and

(c) any legal or administrative costs incurred by the Commissioner in determining an application under this Act that relates to the person who has a compensable disease.

(4)  The Commissioner, before attempting to recover amounts referred to in subsection (3) from the culpable employer in relation to a person, is to consider whether –

(a) the action to recover the amount is likely to be successful and, if so, whether the amount that may be recovered justifies taking the action; and

(b) it is in the public interest to take the action by virtue of the conduct of the culpable employer during the relevant employment period in which the person who has a compensable disease was exposed to asbestos in the course of the person's employment by the employer; and

(c) taking the action is likely to have a detrimental effect on the health or well-being of the person who has a compensable disease.