55Actions for damages—election by employees

#### 55 Actions for damages—election by employees (1) If: (a) compensation is payable under section 39, 40 or 41 in respect of an injury to an employee; and (b) the employee’s employer or another employee would, apart from subsection 54(1), be liable for damages for any non‑economic loss suffered by the employee because of the injury; the employee may make an election in accordance with subsection (2) to institute an action or proceeding against the employer or other employee for damages for that non‑economic loss. (2) An election: (a) must be made before an amount of compensation is paid to an employee under section 39, 40 or 41 in respect of the injury; and (b) must be given to the employer in respect of the injury; and (c) must be in writing. (3) An election is irrevocable. (4) If an employee makes an election: (a) subsection 54(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the employer or another 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 39, 40 or 41 in respect of the injury. (5) In any action or proceeding instituted because of an election made by an employee, the court is not to award the employee damages of an amount exceeding $138,570.52 for any non‑economic loss suffered by the employee.