104Indemnity by third party

104 Indemnity by third party S. 104(1) amended by Nos 84/1994 s. 42(1)(a)–(c), 34/1998 s. 15(1)(a)(b), 94/2004 s. 31(a). (1) If an injury or death arising out of a transport accident in respect of which the Commission has made payments under this Act arose under circumstances which, regardless of section 93, would have created a legal liability in Victoria or elsewhere in a person (other than a person who is entitled to be indemnified under section 94) to pay damages in respect of any loss suffered by reason of the injury or death, the Commission is entitled to be indemnified by the first-mentioned person for such proportion of the amount of the liability of the Commission to make payments under this Act in respect of the injury or death as is appropriate to the degree to which the injury or death was attributable to the act, default or negligence of the first-mentioned person. S. 104(2) substituted by No. 34/1998 s. 15(2), amended by Nos 84/2000 s. 33, 65/2008 s. 6. (2) The liability of a person under subsection (1) shall not exceed the amount (including the payment of interest) which, but for this Act and Parts VB, VBA and X of the **Wrongs Act 1958**, the person would be liable to pay— (a) to the injured person in respect of the injury: or (b) in the case of the death of the person, to his or her dependents. S. 104(3) inserted by No. 84/1994 s. 42(2), amended by No. 94/2004 s. 31(b). (3) Judgment against or settlement by a third party in an action in respect of an injury or death referred to in subsection (1), whether by consent or otherwise and irrespective of whether the Commission has taken over proceedings in accordance with section 107, does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section.