Part 5Common law

Part 5—Common law 70—Preliminary (1) A reference in this Part to a worker's employer includes a reference to— (a) a person who is vicariously liable for the acts of the employer; and (b) a person for whose acts the employer is vicariously liable. (2) A reference in this Part to a percentage (or degree) of permanent impairment is a reference to a percentage (or degree) of whole person impairment. (3) A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made. 71—Application of Part in relation to damages and scope and limitation of liability (1) This Part applies to an award of damages in respect of— being an injury caused by the negligence or other tort (including breach of statutory duty) of the worker's employer and arising from employment (and a reference to damages in this Part must be construed accordingly). (2) An employer is not liable to an award of damages in respect of a psychiatric injury under subsection (1) unless the psychiatric injury is primarily caused by the negligence or other tort (including breach of statutory duty) of the worker's employer referred to in that subsection and an employer is not liable to an award of damages in respect of consequential mental harm (and subsection (1) operates subject to this subsection). (3) A worker cannot commence proceedings in a court for damages within the scope of subsection (1) unless or until an assessment of the degree of permanent impairment of the worker has been undertaken under Part 2 Division 5. (4) This Part does not apply to an award of motor accident damages (subject to any express provision about motor accident damages). (5) This Part applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker's employer even though the damages are recovered in an action for breach of contract or in any other action based on the same act or omission of the employer that would have founded an action for negligence or on account of another tort. (6) Subsection (5) is enacted for the avoidance of doubt. (7) An employer is not liable to an award of damages in respect of— unless— (c) the damages fall within the scope of subsection (1), (2) or (5); or (d) the damages constitute motor vehicle damages. (8) A liability for damages referred to in subsection (1), (2) or (5) does not arise unless a successful claim for compensation in respect of the work injury has been made under Part 4. (9) An employer is not liable to an award of damages in respect of— if— (c) the employer is a body corporate; and (d) the worker is a director as well as an employee of the employer. (10) Subsections (7), (8) and (9) do not derogate from any other provision of this Act which restricts or rules out an award of damages. (11) In subsection (9)— director, in relation to an employer that is a body corporate, means a person who— (a) has a substantial interest in the body corporate; or (b) has a proprietary interest in any business or undertaking being carried on by the body corporate. (12) For the purposes of subsection (11), a person has a substantial interest in a body corporate if— (a) the person is a member of the governing body of the body corporate and is entitled to exercise 20% or more of the voting power at meetings of the governing body; or (b) a member of the governing body of the body corporate who is entitled to exercise 20% or more of the voting power at meetings of the governing body is under an obligation, whether formal or informal, to act in accordance with the direction, instructions or wishes of the person; or (c) in the case of a body corporate that has a share capital—the person can, directly or indirectly, exercise, control the exercise of, or substantially influence the exercise of, 20% or more of the voting power attached to voting shares, or any class of voting shares, issued by the body corporate; or (d) the person satisfies any other criteria prescribed by the regulations for the purposes of this subsection. 72—No damages unless relevant whole person impairment thresholds met (1) No damages may be awarded against an employer except in circumstances that are consistent with the operation of this Part and unless the injury results in— (a) in the case of physical injury—a degree of permanent impairment of the worker that is at least 35%; or (b) in the case of psychiatric injury—a degree of permanent impairment of the worker that is at least 30%; or (c) the death of the worker. (2) The degree of permanent impairment resulting from an injury is to be assessed— (a) under Part 2 Division 5; or (b) if relevant, under Part 8, and if there is a difference between an assessment under paragraph (a) and an assessment under paragraph (b), the assessment under paragraph (b) applies and if there is a difference between an earlier decision of the Tribunal under Part 8 and a later decision of a court under the same Part, the decision of the court prevails. (3) In assessing whether the relevant threshold referred to in subsection (1) has been met— (a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury; and (b) in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm; and (c) in assessing the degree of whole person impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm; and (d) the relevant threshold referred to in subsection (1) is not met unless— (i) in the case of physical injury—the degree of whole person impairment resulting from the injury is at least 35%; and (ii) in the case of psychiatric injury—the degree of whole person impairment resulting from psychiatric injury is at least 30%. 73—Seriously injured workers—special provisions (1) This section applies in relation to a seriously injured worker if the seriously injured worker has a right of action against an employer in the circumstances to which this Part applies. (2) A worker to whom this section applies— (a) is not entitled in an action against an employer to damages in respect of any treatment, care or support services; and (b) is not entitled to both— (i) a redemption of a liability to make weekly payments under Part 4 Division 5 or a lump sum under section 56 (pursuant to an election under section 56A); and (ii) damages for future economic loss due to the deprivation or impairment of earning capacity in an action against an employer; and (c) in any event, is not entitled in an action against an employer to any damages other than damages that are for economic loss. (3) For the purposes of subsection (2)(a), treatment, care or support services are— (a) recovery/return to work services provided under Part 3; and (b) services for which compensation is payable under Part 4 Division 2. (4) For the purposes of subsection (2)(b), a worker to whom this section applies must, in accordance with the regulations, elect to claim damages of the kind referred to in subsection (2)(b)(ii) or to proceed under Part 4 Division 5 or section 56A. (5) A worker to whom this section applies cannot commence an action for damages referred to in subsection (2)(b) or proceed under Part 4 Division 5 or section 56A unless or until an election has been made under subsection (4). (6) In addition to any requirement prescribed by the regulations, a worker cannot make an election under subsection (4) unless the worker has received advice about the consequences of the election from a legal practitioner who holds a current practising certificate. (7) A worker is entitled to an amount, prescribed by or under the regulations, to compensate a worker for the cost of obtaining advice for the purposes of subsection (6). 74—General regulation of court awards A court may not award damages to a person contrary to this Part or in a manner or to an extent that is inconsistent with this Part. Division 2—General principles 75—Effect of recovery of damages on compensation (1) If a person (being a worker or other person) recovers damages in respect of an injury from the employer and the relevant compensating authority is liable to pay compensation under this Act in respect of the same injury then (except to the extent that subsection (3) or (5) covers the case)— (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid); and (b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages; and (c) the person ceases to be entitled to receive recovery/return to work services under this Act. (2) Subsection (1)— (a) does not extend to an entitlement of a seriously injured worker— (i) to receive any services under Part 3; or (ii) to receive compensation (or any provision of services) under Part 4 Division 2; and (b) does not operate so as to require a deduction under subsection (1)(b) with respect to compensation already paid to a seriously injured worker for any services under Part 4 Division 2; and (c) does not operate with respect to compensation under Part 4 Division 7. (3) If damages in respect of an injury are recovered pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Survival of Causes of Action Act 1940, the amount of any weekly payments of compensation already paid in respect of the injury concerned are to be repaid out of the estate of the deceased worker to the relevant compensating authority. (4) If a person recovers damages as a dependant of a worker in respect of proceedings in respect of the death of the worker— (a) the relevant compensating authority is not liable to pay compensation, or further compensation, in respect of the death; and (b) the amount of any compensation already paid to the dependant under Part 4 Division 8 in respect of the death of the worker is to be deducted from the damages. (5) If a person (being a worker or other person) recovers motor accident damages in respect of an injury under this Act (whether from the employer or another party)— (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid); and (b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the relevant compensating authority. (6) If a person (being a worker or other person) recovers any other damages in respect of an injury under this Act from a person other than the employer— (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid); and (b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the relevant compensating authority. (7) Subsection (6)(a) does not extend to an entitlement of a seriously injured worker— (a) to receive any services under Part 3; or (b) to receive compensation (or any provision of services) under Part 4 Division 2. (8) Nothing in this section limits or restricts a right of recovery under section 66. (9) In this section— relevant compensating authority means the Corporation or a self‑insured employer, depending on which entity has paid compensation under this Act, or is liable to pay compensation under this Act, in the particular case. 76—Retirement age In awarding damages for future economic loss due to deprivation or impairment of earning capacity or loss of expectation of financial support in a case where this Part applies, the court is to disregard any earning capacity of the worker after pension age (as defined in the Social Security Act 1991 of the Commonwealth for persons other than veterans). 77—Mitigation of damages (1) In assessing damages in a case where this Part applies, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker, to mitigate those damages. (2) In particular, the court must consider the following matters: (a) whether the injured worker has undergone appropriate medical treatment; (b) whether the injured worker has duly complied with any other relevant obligation under Part 3 or Part 4. (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. (4) However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraph (b) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in that paragraph into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or the Corporation that the worker was required to take those steps. (5) In any proceedings for damages, a written report by a person who provided medical or recovery/return to work services to the injured worker is admissible as evidence of any such steps taken by that worker. 78—Payment of interest—limited statutory entitlement (1) A plaintiff has only such right to interest on damages in a case where this Part applies as is conferred by this section. (2) Interest is not payable (and a court cannot order the payment of interest) on damages unless— (a) information that would enable a proper assessment of the plaintiff's claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff's full entitlement to all damages of any kind relevant to the operation of this Part but has not made such an offer; or (b) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff's full entitlement to all damages of any kind relevant to the operation of this Part but has not made such an offer; or (c) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made. (3) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff's full entitlement to all damages of any kind relevant to the operation of this Part. (4) For the purposes of subsection (2), an offer of settlement must be in writing. (5) If a court is satisfied that interest is payable under subsection (2) on damages— (a) the amount of interest is to be calculated for the period from the date of the injury to or death of the worker until the date on which the court determines the damages; and (b) the amount of interest is to be calculated in accordance with the principles ordinarily applied by the court for that purpose, subject to this section. (6) Nothing in this section affects the payment of interest on a debt under a judgment or order of a court. 79—Contributory negligence The common law and enacted law as to contributory negligence apply in relation to awards of damages under this Part. 80—Defence of voluntary assumption of risk The defence of voluntary assumption of risk (volenti non fit injuria) is not available in an action for the award of damages in a case where this Part applies but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured or deceased person was negligent in failing to take sufficient care for his or her own safety. 81—Exemplary or punitive damages A court may not award exemplary or punitive damages to a person in an award of damages to which this Part applies. 82—Court to apportion damages etc (1) If a judgment is obtained for payment of damages to which this Part applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Part applies. (2) In any such case the court is required to apportion any costs awarded. 83—Abolition of doctrine of common employment (1) It is not a defence to an employer who is sued in respect of any personal injury caused by the negligence of a person employed by the employer that the person so employed was, at the time the personal injury was caused, in common employment with the person injured. (2) This section applies to every case in which the relationship of employer and employee exists, whether the contract of employment is made before or after the commencement of this section. employer includes the Crown but does not include any person who, by any provision of this Act, is deemed to be an employer; personal injury includes— (a) death; and (b) any disease; and (c) any impairment of the physical or mental condition of a person. 84—No damages for nervous shock injury to non‑workers No damages for pure mental harm may be awarded against an employer in respect of the death of or injury to a worker in a case where this Part applies if the pure mental harm arises wholly or partly from mental or nervous shock in connection with that death or injury unless the pure mental harm is in itself a work injury under this Act. Division 3—Procedural matters and costs 85—Compulsory mediation (1) Subject to this section, a court before which an action for damages to which this Part applies is brought must not proceed to a trial in the matter unless or until a pre‑trial mediation has been conducted under this section. (2) The court is to appoint the person who will conduct the mediation (who may, but need not be, a member of the court). (3) Each party to the proceedings is to attend the mediation unless excused from attendance by the mediator. (4) The mediator is to use his or her best endeavours to bring the parties to agreement on the relevant claim. (5) Failing agreement, the mediator may issue a certificate certifying any final offers of settlement made by the parties in the mediation. (6) The amount of any offer of settlement made by a party in the course of mediation of a claim is not to be specified in any pleading, affidavit or other document filed in or in connection with court proceedings on the claim, and is not to be disclosed to or taken into account by the court, before the court's determination of the amount of damages in the proceedings. (7) However, an offer of settlement will be relevant to the question of costs in any proceedings that do not settle before judgment. (8) In addition to subsection (6), evidence of anything said or done in the course of mediation is inadmissible in proceedings before the court except by consent of all parties to the proceedings. (9) A matter or thing done or omitted to be done by a mediator in the exercise of the mediator's functions does not, if the matter or thing was done or omitted in good faith, subject the mediator personally to any action, liability, claim or demand. (10) The regulations may make provision for or with respect to the fees to be paid in connection with mediation under this section. (11) In particular, the regulations may specify any such fee or the method by which the fee is to be calculated, and may specify by whom and in what circumstances the fee is payable. (12) The rules of the court before which the relevant proceedings have been brought may make other provision in relation to mediations under this section. 86—Costs (1) When, in relation to an action for damages brought under this Part— (a) the proceedings are settled; or (b) a judgment is given; or (c) the proceedings are otherwise brought to an end, a legal practitioner acting on behalf of any party must, in accordance with the regulations, declare the legal costs that the legal practitioner has charged, or intends to charge, the party. (2) The regulations under subsection (1) may include a requirement that the declaration be furnished to any person specified by the regulations. (3) This section does not extend to proceedings before the Supreme Court on an appeal. legal costs includes disbursements. Division 4—Choice of law 87—The applicable substantive law for work injury claims (1) If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid), the substantive law of that State is the substantive law that governs— (a) whether or not a claim for damages in respect of the injury can be made; and (b) if it can be made, the determination of the claim. (2) This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than 1 State. (3) For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it— (a) would have been payable but for a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or (b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made. (4) A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability. (5) In this Division— State includes a Territory. 88—Claims to which Division applies (1) This Division applies to a claim for damages or recovery of contribution brought against a worker's employer in respect of an injury that was caused by— (a) the negligence or other tort (including breach of statutory duty) of the worker's employer; or (b) a breach of contract by the worker's employer. (2) This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker's employer in respect of an injury if— (a) the worker's employment is connected with this State; and (b) the negligence or other tort or the breach of contract on which the claim is founded occurred in this State. (3) Subsections (1)(a) and (2) apply even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action. (4) A reference in this Division to a worker's employer includes a reference to— (a) a person who is vicariously liable for the acts of the employer; and (b) a person for whose acts the employer is vicariously liable. 89—What constitutes injury and employment For the purposes of this Division— (a) injury, employer and worker include anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State; and (b) the determination of what constitutes employment or whether or not a person is a worker or a worker's employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State. 90—Claim in respect of death included For the purposes of this Division, a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury. 91—Meaning of substantive law a State's legislation about damages for a work related injury means— (a) for this State—this Part and any other provision of this Act providing for the interpretation of anything in this Part; and (b) for another State—any provisions of a law of that State that is declared by the regulations to be the State's legislation about damages for a work related injury; substantive law includes— (a) a law that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action; (b) a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time); (c) a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit; (d) a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered; (e) a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered; (f) a law expressed as a presumption, or rule of evidence, that affects substantive rights; (g) a provision of a State's legislation about damages for a work related injury, whether or not it would be otherwise regarded as procedural in nature, but does not include a law prescribing rules for choice of law. 92—Availability of action in another State not relevant (1) It makes no difference for the purposes of this Division that, under the substantive law of another State— (a) the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State; or (b) the circumstances on which the claim is based do not give rise to a cause of action. (2) In subsection (1)— another State means a State other than the State with which the worker's employment is connected. Division 5—Related matters 93—Ability of Corporation to conduct and settle proceedings (1) If a proceeding is brought for damages in a case where this Part applies, the proceeding must be against the employer and not against the Corporation. (2) However, other than in the case of a self‑insured employer, the Corporation is entitled— (a) to conduct for the employer all proceedings to which the employer is a party (and to take any action in connection with the proceedings as if the Corporation were a party to the proceedings); and (b) to settle any matter that is the subject of proceedings under this Part (including by making offers and counter‑offers of settlement on behalf of the employer). (3) In connection with subsections (1) and (2) (other than in the case of a self-insured employer)— (a) a copy of any statement of claim and other documentation lodged with a court for the purposes of bringing an action for damages under this Part must be served on the Corporation as well as the employer; and (b) the employer against whom proceedings are brought under this Part must cooperate fully with the Corporation and give the Corporation all information and access to documents in relation to such proceedings or the relevant cause of action that the Corporation reasonably requires; and (c) the employer immediately on being required to do so by the Corporation must execute all documents and do everything that the Corporation considers reasonably necessary to allow any proceedings to be conducted by the Corporation; and (d) the Corporation will be subrogated to the rights of the employer to such extent as the Corporation may determine. (4) If an employer, other than a self‑insured employer— (a) is absent from the State or, after reasonable inquiry, cannot be found; or (b) refuses, fails or is unable to execute any documents required for the purposes of subsection (2) or mentioned under subsection (3), the Corporation may execute any document that the Corporation requires in connection with the operation of this section. (5) The Corporation may recover from an employer as a debt any additional costs reasonably incurred by the Corporation in connection with any proceedings under this Part as a direct result of the employer's non-compliance with this section. 94—Interaction with Civil Liability Act 1936 In the event of an inconsistency between this Act and the Civil Liability Act 1936, this Act will prevail to the extent of the inconsistency (but this Act will not otherwise limit the operation of any provision of that Act in respect of a cause of action for damages under this Part (as compared to workers compensation under the other parts of this Act)).