50Actions for damages—election by covered person

50  Actions for damages—election by covered person

 (a) compensation is payable under section 36, 37 or 39 in respect of an injury to a covered person (the injured covered person); and

 (b) the Commonwealth or another covered person would, but for subsection 49(1), be liable for damages for any non‑economic loss suffered by the injured covered person as a result of the injury;

the injured covered person may make an election in accordance with subsection (2) to institute an action or proceeding against the Commonwealth or the other covered person for damages for that non‑economic loss.

 (2) An election:

 (a) must be made before an amount of compensation is paid to the injured covered person under section 36, 37 or 39 in respect of the injury; and

 (b) must be given to Comcare; and

 (c) must be in writing.

 (3) If a covered person makes an election:

 (a) subsection 49(1) does not apply in relation to an action or other proceeding subsequently instituted by the covered person against the Commonwealth or another covered person for damages for the non‑economic loss to which the election relates; and

 (b) compensation is not payable after the date of the election under section 36, 37 or 39 in respect of the injury.

 (4) An election is irrevocable.

 (5) In any action or proceeding instituted as a result of an election made by a covered person, the court must not award the covered person damages of an amount exceeding $110,000 for any non‑economic loss suffered by the covered person.

 (6) The election by a covered person under this section to institute an action or proceeding against the Commonwealth or another covered person does not prevent the covered person, before, or instead of, formally instituting such action or proceeding, doing any other thing that constitutes an action for non‑economic loss.