138AAApplication of Division

### 138AA Application of Division > [*\[Section 138AA of Part X Inserted by No. 99 of 2000, s. 70, Applied:01 Jul 2001\]*](/view/html/inforce/2001-07-01/act-2000-099#GS70@EN) > > > (1)  This Division applies to the awarding of damages against an employer independently of this Act in respect of an injury suffered by a worker if – > > > > > > (a) [*\[Section 138AA Subsection (1) amended by No. 42 of 2007, s. 35, Applied:01 Jul 2001\]*](/view/html/inforce/2001-07-01/act-2007-042#GS35@Hpa@EN) [*\[Section 138AA Subsection (1) amended by No. 65 of 2004, s. 30, Applied:17 Dec 2004\]*](/view/html/inforce/2004-12-17/act-2004-065#GS30@Hpa@EN) the injury was caused by the negligence or other tort of, or a breach of contract or statutory duty by, an employer; and > > > > > > > (b) compensation has been paid or is payable in respect of the injury under this Act or would have been paid or be payable but for [section 25(2)](#GS25@Gs2@EN) . > > > (2)  [*\[Section 138AA Subsection (2) amended by No. 65 of 2004, s. 30, Applied:17 Dec 2004\]*](/view/html/inforce/2004-12-17/act-2004-065#GS30@Hpb@EN) [*\[Section 138AA Subsection (2) amended by No. 42 of 2007, s. 35, Applied:01 Jul 2001\]*](/view/html/inforce/2001-07-01/act-2007-042#GS35@Hpb@EN) This Division applies even if the damages resulting from the negligence or other tort of an employer are sought to be recovered in an action for breach of contract or statutory duty or other action. > > > (3)  [*\[Section 138AA Subsection (3) amended by No. 42 of 2007, s. 35, Applied:01 Jul 2001\]*](/view/html/inforce/2001-07-01/act-2007-042#GS35@Hpd@EN) [*\[Section 138AA Subsection (3) amended by No. 42 of 2007, s. 35, Applied:01 Jul 2001\]*](/view/html/inforce/2001-07-01/act-2007-042#GS35@Hpc@EN) A reference in this Division to an employer includes a reference to a person for whose acts an employer is vicariously liable. > > > (4)  [*\[Section 138AA Subsection (4) inserted by No. 65 of 2004, s. 30, Applied:17 Dec 2004\]*](/view/html/inforce/2004-12-17/act-2004-065#GS30@Hpc@EN) This Division extends to an employer's liability for a breach of statutory duty by a worker where the employer would have been liable for damages if the employer had committed the breach. > > > (5)  [*\[Section 138AA Subsection (5) inserted by No. 65 of 2004, s. 30, Applied:17 Dec 2004\]*](/view/html/inforce/2004-12-17/act-2004-065#GS30@Hpc@EN) This Division does not apply to an action by a worker for damages for trespass, or any other cause of action for which the employer is not vicariously liable, committed against the worker by a person – > > > > > > (a) employed by the employer under a contract of service at the time the injury was suffered; or > > > > > > > (b) otherwise deemed to be a worker employed by the employer at that time.