58Compensation not payable if damages recovered

#### 58 Compensation not payable if damages recovered (1) This section applies if: (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 must, not later than 28 days after the day on which the damages were recovered, notify the employer 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 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 the employer 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. (5) Subsection (3) does not apply if the damages were recovered in proceedings instituted by the employee as a result of an election by the employee under section 55, or by way of a settlement of such proceedings. (6) Subsection (4) does not apply if the damages were recovered: (a) as a result of proceedings, or fresh proceedings, instituted by the employer under section 59; or (b) as a result of proceedings the conduct of which is taken over by the employer under that section; or (c) as a result of proceedings instituted by the employee as a result of an election by the employee under section 55; or (d) by way of settlement of those proceedings. (7) 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 29(5). (8) If an employee, or a dependant of an employee, establishes to the satisfaction of the employer 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.