Div 10Related matters

Division 10—Related matters 66—Rights of action and recovery against third parties (1) Subject to this section, nothing in this Part affects a liability arising out of the use of a motor vehicle that gives rise to a liability for motor accident damages. (2) A court before which an action is brought against an employer for loss arising from a work injury (being an injury arising out of the use of a motor vehicle and gives rise to liability of a kind referred to in subsection (1)) must make due allowance for any compensation paid under this Part to the person by or on whose behalf the action is brought. (a) a worker suffers a work 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 (1)); 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. (4) If— (a) a worker suffers a work 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 (1)); 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 a contribution from the employer. (a) compensation is paid or payable under this Act in respect of a work 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 work injury arises out of the use of a motor vehicle; and (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; and (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). (7) If— (a) compensation is paid or payable to a person (the injured party) under this Act; and (b) the injured party has received, or is entitled to, damages from another person (the wrongdoer) pursuant to rights arising from the same trauma as gave rise to the rights to compensation under this Act; and (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; (e) the claimant must, 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 will be taken 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); (h) the injured party and the claimant may enter into an agreement (a deed of release) under which the parties agree that after the claimant has recovered from the injured party or the wrongdoer the full amount of compensation paid by the claimant to the injured party— (i) the injured party is then entitled to retain the balance of any damages paid or payable to him or her by the wrongdoer; and (ii) any liability by the claimant to the injured party under this Act in respect of the work injury (including a liability to provide recovery/return to work services or to provide compensation under Division 4) is discharged; and (iii) the employer from whose employment the injury arose has no further obligation under this Act to provide suitable employment to the injured party; (i) a deed of release cannot be entered into unless the injured party has received— (i) competent professional advice; and (ii) competent financial advice, about the consequences of entering into the deed of release; (j) if the claimant notifies the injured party that it is willing to enter into a deed of release, the claimant is liable to indemnify the injured party for reasonable costs of obtaining the advice required under paragraph (i) up to a limit prescribed by regulation. (8) This section is intended to apply in relation to any action that arises out of the occurrence of a work 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. (9) If— (a) an action is brought in respect of a work injury in a court that is not a court of the State; and (b) despite subsection (8), 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. (10) In the course of proceedings under subsection (9), 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. (11) In this section— damages includes any form of compensation payable apart from this Act in respect of a work injury; employer includes— (a) any person who is vicariously liable for the acts of an employer; (b) any person for whose acts an employer is vicariously liable; 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). 67—Prohibition of double recovery (1) Compensation under this Act is not payable in respect of an injury to the extent that compensation has been received in respect of the same injury under the laws of a place other than this State (whether within or outside Australia). (2) If a person receives compensation under this Act in respect of an injury and, in respect of the same injury, subsequently receives compensation under the laws of a place other than this State (whether within or outside Australia), the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover (as a debt) from the person the amount described in subsection (3). (3) The amount that is recoverable under subsection (2) is— (a) the amount of compensation paid under this Act; or (b) the amount of compensation received under the laws of the place other than this State, (4) The fact that compensation or damages in respect of an injury have been recovered under a foreign law is a bar to the recovery of compensation in respect of the same injury under this Act. 68—Injuries arising from employment on ships If a work injury arises from employment on a ship the amount of the compensation is not subject to any limitation imposed by the Merchant Shipping Act 1894 of the United Kingdom. 69—Sporting injuries (1) Despite any other provision of this Act, but subject to subsection (2), if— (a) a worker is employed by an employer solely— (i) to participate as a contestant in a sporting or athletic activity (and to engage in training or preparation with a view to such participation); or (ii) to act as a referee or umpire in relation to a sporting or athletic contest (and to engage in training or preparation with a view to so acting); and (b) remuneration is not payable under the contract of employment except in respect of such employment, an injury arising out of or in the course of that employment is not compensable under this Act. (2) This section does not apply to— (a) a person authorised or permitted by a racing controlling authority within the meaning of the Authorised Betting Operations Act 2000 to ride or drive in a race within the meaning of that Act; or (b) a boxer, wrestler or referee employed or engaged for a fee to take part in a boxing or wrestling match; or (c) a person who derives an entire livelihood, or an annual income in excess of the prescribed amount, from employment of a kind referred to in subsection (1)(a). prescribed amount means $65 600 (indexed).