185Dependants recovering damages and not claiming

185 Dependants recovering damages and not claiming (a) an employer pays compensation to a dependant of a deceased worker in relation to an injury that resulted in the death of a worker; and (b) damages in relation to the injury have been recovered from the employer or any other person by another dependant of the deceased worker (a non-claiming dependant); and (c) no claim for compensation in relation to the injury has been made by or on behalf of the non-claiming dependant. (2) If there is only 1 non-claiming dependant, the dependant is liable to pay to the employer— (a) if the amount of the damages recovered by the non-claiming dependant is less than the total amount of compensation paid to the dependants of the worker in relation to the worker’s injury— the amount of the damages; or (b) in any other case—the total amount of compensation paid to the dependants of the worker in relation to the worker’s injury. (3) If there is more than 1 non-claiming dependant, each non-claiming dependant is liable to pay to the employer— (a) an amount calculated in accordance with the formula— where: C means the total amount of compensation paid to the dependants of the worker in relation to the worker’s injury. D means the amount of damages recovered by the non-claiming dependant in relation to the injury to the worker. TD means the total of the amounts of damages recovered by all the non-claiming dependants; or (b) if the amount of the damages recovered by the non-claiming dependant is less than the amount calculated in accordance with the formula in paragraph (a)—the amount of the damages. (4) For subsections (2) and (3), the amount of the compensation paid by the employer in relation to the worker’s injury does not include— (a) any amount paid to a dependant of the worker who is not entitled to recover damages in relation to the worker’s injury; or (b) any amount paid under this Act, because of the worker’s death, for the benefit of a child who was a dependant of the worker. (5) If an amount of compensation was paid (or is payable) to the worker in relation to a lump sum claim, subsections (2) and (3) apply as if a reference to the total amount of compensation paid by the employer included a reference to any legal costs as between party and party that the employer is liable to pay in relation to the claim.TD D C 