59Proceedings against third parties

#### 59 Proceedings against third parties (1) Subject to subsection (1A), this section applies if: (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; and (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. (1A) A reference in subsection (1) to compensation paid for the benefit of a dependant under this Act does not include a reference to compensation paid under subsection 29(5). (2) If: (a) this section applies; and (b) the employee or dependant consents, in writing, to the employer instituting proceedings, or taking over the conduct of proceedings against the person, for the purposes of recovering the damages in respect of the injury, loss, damage or death; the employer may institute proceedings or fresh proceedings 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 proceedings, as the case requires. (3) If: (a) this section applies; and (b) the employee or dependant does not consent to the employer instituting proceedings, or taking over the conduct of proceedings against the person, for the purposes of recovering the damages in respect of the injury, loss, damage or death; and (c) proceedings against the person for the purpose of recovering such damages: (i) have not been instituted by the employee or by or for the benefit of the dependant and the delay in instituting the proceedings is unreasonable; or (ii) have been so instituted but have not been properly prosecuted; the employer may institute proceedings or fresh proceedings 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 proceedings, as the case requires. (4) If the employer institutes proceedings or fresh proceedings or takes over the conduct of proceedings under subsection (2) or (3) the employer must conduct the proceedings in the interests of the person in whose name the proceedings were instituted. (5) The employer is liable to pay all costs of, or incidental to, any proceedings taken over by it, being costs payable by the plaintiff in those proceedings, other than those costs unreasonably incurred by the plaintiff. (6) If the employer institutes, or takes over the conduct of, proceedings under this section, the employer may: (a) subject to subsection (7), settle the proceedings, either with or without obtaining judgment; and (b) if a judgment is obtained in the proceedings in favour of the plaintiff—take such steps as are necessary to enforce the judgment. (7) The employer may only settle the proceedings: (a) with the written consent of the employee or dependant in whose name the proceedings were instituted; or (b) without the consent of the employee or dependant in whose name the proceedings were instituted if the employee or dependant withholds consent unreasonably. (8) Subject to subsection (7), if the employer requires the employee or dependant to sign any document relevant to proceedings instituted or taken over by the employer under this section (including the settlement of the proceedings), the employee or dependant must sign it and, if he or she fails to do so, the court or tribunal in which the proceedings are taken may direct that the document may be signed on his or her behalf by a person appointed by the employer for the purpose. (9) If the employer institutes, or takes over the conduct of, proceedings under this section, the employee or dependant must comply with any reasonable requirement of the employer for the purpose of the proceedings and, if the employee or dependant fails do so, the right of the employee or dependant to compensation under this Act in respect of the injury, loss, damage or death to which the proceedings relate is suspended until such time as the employee or dependant complies with that requirement. (10) If a right to compensation is suspended under subsection (9), compensation is not payable in respect of the period of the suspension. (11) Any damages awarded under a judgment obtained in proceedings referred to in this section, or payable as a result of the settlement of such proceedings, must be paid to the employer and the employer must deduct from the amount of those damages: (a) an amount equal to the total of all amounts of compensation paid to the employee or dependant under this Act in respect of the injury, loss, damage or death to which the proceedings relate; and (b) the amount of any costs of or incidental to those proceedings paid by the employer; and must pay the balance (if any) to the employee or dependant. (12) If the employer pays an amount to an employee or dependant under subsection (11), 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, apart from this subsection, have been payable to the employee or dependant in respect of the injury, loss, damage or death equals the amount paid by the employer to the employee or dependant under subsection (11). (13) In this section: > person does not include the employer or an employee.