45Actions for damages—election by employees

#### 45 Actions for damages—election by employees (1) Where: (a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and (b) the Commonwealth or another employee would, but for subsection 44(1), be liable for damages for any non‑economic loss suffered by the employee as a result of the injury; the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth or other employee for damages for that non‑economic loss. (2) Where an employee makes an election: (a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth or the other employee for damages for the non‑economic loss to which the election relates; and (b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury. (3) An election is irrevocable. (4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non‑economic loss suffered by the employee. (5) The election by an employee under this section to institute an action or proceeding against the Commonwealth or another employee does not prevent the employee, before, or instead of, formally instituting such action or proceeding, doing any other thing that constitutes an action for non‑economic loss.