49Dependants not claiming compensation

#### 49 Dependants not claiming compensation (1) Where: (a) compensation is payable under this Act in respect of an injury that resulted in the death of an employee; and (b) damages in respect of the death of the employee are recovered by or for the benefit of a prescribed dependant of the deceased employee; this section applies in relation to that prescribed dependant. (2) If the prescribed dependant is the only prescribed dependant, he or she is liable to pay to Comcare: (a) the amount of the compensation referred to in paragraph (1)(a); or (b) the amount of the damages recovered by the prescribed dependant; whichever is less. (3) If the prescribed dependant is not the only prescribed dependant, he or she is liable to pay to Comcare: (a) the prescribed amount; or (b) the amount of the damages recovered by the prescribed dependant; whichever is less. (4) In this section: > damages has the same meaning as in section 48. > prescribed amount means an amount calculated under the formula: >  where: > AC is the amount of the compensation referred to in paragraph (1)(a); > D1 is the amount of the damages recovered by the prescribed dependant in respect of the death of the employee; and > D2 is the total amount of the damages recovered by all prescribed dependants in respect of the death of the employee. > prescribed dependant, in relation to a deceased employee, means a dependant of that employee by whom, or on whose behalf, a claim for compensation under this Act in respect of the injury that resulted in the death of the employee has not been made. (5) For the purposes of this section, the amount of the compensation referred to in paragraph (1)(a): (a) shall be taken not to include: (i) any amount of compensation that Comcare is liable to pay for the benefit of a dependant of the deceased employee, being a dependant who is not entitled to recover damages in respect of the death of the employee, whether by reason of the operation of a statute of limitations or otherwise; and (ii) any amount of compensation payable under subsection 17(5); and (b) shall be taken to be reduced by any amount that a dependant of the deceased employee is liable to pay to Comcare under section 48.