48Compensation not payable where damages recovered

#### 48 Compensation not payable where damages recovered (1) This section applies where: (a) an employee recovers damages in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which compensation is payable under this Act; or (b) damages are recovered by, or for the benefit of, a dependant of a deceased employee in respect of the death of the employee and compensation is payable under this Act in respect of the injury that resulted in that death. (2) The employee or dependant shall, not later than 28 days after the day on which the damages were recovered, notify Comcare in writing of the recovery of the damages and the amount of the damages. Penalty: 10 penalty units. (2A) Subsection (2) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. (3) If, before the recovery of the damages by, or for the benefit of, the employee or dependant, any compensation under this Act was paid to, or for the benefit of, the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, as the case may be, the employee or dependant is liable to pay to Comcare an amount equal to: (a) the amount of that compensation; or (b) the amount of the damages; whichever is less. (4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be. (4A) Subsection (3) does not apply if the damages were recovered in an action for non‑economic loss or by way of a settlement of such an action. (5) Subsection (4) does not apply if the damages were recovered: (a) as a result of a claim, or fresh claim, made by Comcare under section 50 (whether or not that claim progressed to the formal institution of proceedings); or (b) as a result of Comcare’s taking over the conduct of a claim under that section; or (c) as a result of an action for non‑economic loss; or (d) by way of a settlement of such a claim or of such an action (whether or not that claim or that action progressed to the formal institution of proceedings). (6) A reference in subsection (3) to compensation under this Act that was paid for the benefit of a dependant does not include a reference to compensation paid under subsection 17(5). (7) Where an employee, or a dependant of an employee, establishes to the satisfaction of Comcare that a part of the damages referred to in subsection (1) did not relate to an injury, loss or damage in respect of which compensation is payable under this Act, subsection (3) applies in relation to that employee or dependant as if the amount of the damages were an amount equal to so much of the amount of the damages as did relate to an injury, loss or damage in respect of which compensation is payable under this Act. (8) Subsections (3) and (4) do not apply where the damages are recovered on or after the commencement of this section in respect of a claim for damages made before that day (whether or not legal proceedings were instituted) but section 99 (other than subsection 99(1)) of the 1971 Act, as in force immediately before that day, continues to apply as if: (a) references in that section to the Commonwealth were references to Comcare; (b) references in that section to the Commissioner were references to Comcare; (c) references in that section to compensation payable under the 1971 Act were references to compensation payable under this Act; and (d) the reference in subsection 99(9) to subsection 43(5) or (7) of the 1971 Act were a reference to subsection 17(5) of this Act. (9) In this section, damages does not include an amount of damages paid to the Commonwealth in accordance with section 76 of the Veterans’ Entitlements Act 1986.