50Common law claims against third parties

#### 50 Common law claims against third parties (1) Where: (a) an amount of compensation under this Act: (i) is paid to an employee in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee; or (ii) is paid for the benefit of a dependant of a deceased employee in respect of an injury that resulted in the death of the employee; (b) the injury, loss, damage or death occurred in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury, loss, damage or death; and (c) a claim against the person for the purpose of recovering such damages has not been made by the employee or by or for the benefit of the dependant, or, having been made, has not been prosecuted; Comcare may make a claim or a fresh claim against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death or may take over the conduct of the existing claim, as the case requires. (2) If Comcare takes over the conduct of a claim, it becomes liable to pay all costs of and incidental to that claim that would otherwise be payable by the person who originally made the claim other than costs unreasonably incurred by that person. (3) If Comcare makes, or takes over the conduct of, a claim under this section, Comcare may: (a) take whatever steps are appropriate to bring the claim to a conclusion; and (b) if the claim is before a court—settle the proceedings either with or without obtaining judgment; and (c) if the claim is before a court and judgment has been obtained in favour of the plaintiff—take such steps as are necessary to enforce the judgment. (4) The employee or dependant must sign any document relevant to a claim made or taken over by Comcare under this section (including the settlement of the claim or of any proceedings arising out of the claim), being a document that Comcare requires the employee or dependant to sign. (4A) If the employee or dependant fails to sign a document in accordance with a requirement under subsection (4): (a) if the claim is not before a court or tribunal at the time of the failure—the Federal Court of Australia, on the application of Comcare, may direct that the document be signed on the employee or dependant’s behalf by a person appointed by Comcare; and (b) otherwise—the court or tribunal in which proceedings relating to the claim are being heard, on the application of Comcare, may so direct. (4B) If Comcare proposes to make an application under subsection (4A): (a) Comcare must notify the employee or dependant concerned of the fact that it is proposing to so apply; and (b) the employee or dependant concerned has a right of representation in the hearing of that application. (5) If Comcare makes or takes over the conduct of a claim under this section: (a) the employee or dependant must comply with any reasonable requirement of Comcare for the purposes of the claim; and (b) if the employee or dependant fails to comply with such a requirement, the right of the employee or dependant to compensation under this Act in respect of the injury, loss, damage or death to which the claim relates is suspended until such time as the employee or dependant complies with the requirement. (5A) However, paragraph (5)(b) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16. (6) Where a right to compensation is suspended under subsection (5), compensation is not payable in respect of the period of the suspension. (7) Any damages obtained as a result of a claim made or taken over by Comcare under this section (including damages payable as a result of the settlement of such a claim) must be paid to Comcare and Comcare must deduct from the amount of those damages: (a) an amount equal to the total of all amounts of compensation paid to, or for the benefit of, the employee or dependant under this Act in respect of the injury, loss, damage or death to which the claim relates; and (b) the amount of any costs incidental to the claim paid by Comcare. Comcare must pay the balance (if any) to the employee or dependant. (8) Where Comcare pays an amount to an employee or dependant under subsection (7), the employee or dependant is not entitled to receive any further amounts of compensation under this Act in respect of the injury, loss, damage or death to which the proceedings related until the amount of compensation that would, but for this subsection, have been payable to the employee or dependant in respect of that injury, loss, damage or death equals the amount paid by Comcare to the employee or dependant under subsection (7). (9) In this section: > person does not include the Commonwealth, a Commonwealth authority, a licensed corporation or an employee.