369Indemnity by third party

369 Indemnity by third party (1) Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages in respect of the injury or death or that would have created such a liability if the injury or death had been caused in Victoria, the Authority, self‑insurer or employer is entitled to be indemnified by the third party in accordance with this section. (2) In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Division 2 must not be taken into account. (3) The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of— (a) the amount of compensation paid or payable under this Act in respect of the injury or death; and (b) the amount calculated, were it not for the provisions of this Act, the **Transport Accident Act 1986** and Parts VB, VBA and X of the **Wrongs Act 1958**, in accordance with the formula— **A** is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death; **B** is the amount recovered or recoverable by the Authority or self-insurer under section 367 from the Transport Accident Commission otherwise than under a settlement; **C** is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party; **X** is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death. (4) Judgment against or settlement by a third party in an action by a worker, or dependants of a worker, in respect of an injury or death referred to in subsection (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section. (5) A term of any contract that requires the employer or has the effect of requiring the employer to indemnify the third party in respect of any liability that the third party has or may have under this section is void. (a) the Transport Accident Commission is liable to make a payment to the Authority under section 367(1) or to a self-insurer under section 367(2) in respect of a death or injury; and (b) the Authority or self-insurer is entitled under this section to be indemnified by a third party in respect of the liability— the entitlement of the Authority or self-insurer is subrogated to the Transport Accident Commission by virtue of this subsection. (7) The Authority may, in its discretion, seek to recover any indemnity that the employer is entitled to under this section, including an amount that represents the employer's liability to pay compensation under section 72(1), on the employer's behalf, if— (a) the Authority advises the employer of the Authority's intention to seek the indemnity for the employer; and (b) the employer gives the Authority the employer's written consent to seek the indemnity under this section on the employer's behalf. (8) If the Authority recovers an amount from a third party on behalf of the employer that includes an amount that represents the employer's liability to pay compensation under section 72, the Authority may, in its absolute discretion, decide how that amount is to be disbursed. (9) Any proceedings to seek review of a decision made by the Authority under subsection (7) or (8) in respect of recovery action taken on behalf of an employer (including a decision to not take recovery action on behalf of an employer) must not be brought, whether against the Authority or otherwise.