Work Injury Compensation Act 2019 · 2020 Revised Edition · Part 4 · Compensation Process
63. Limitation of right of action for damages
Feedback & supportLast amended by an amending law of 2019.
This Act does not confer any right to compensation on an employee in respect of the employee’s injury if —
employee
“employee” means an individual who has entered into or works under a contract of service with an employer and —(a)includes every employee of the Government in a class or description declared by the President to be employees for the purposes of this Act; but(b)does not include any class of individuals specified in the Third Schedule;
an action in any court has been instituted by or on behalf of the employee for damages in respect of that injury against his or her employer; or (b)damages have been recovered in any court in respect of the employee’s injury from his or her employer.
Subject to subsections (3) and (5), no action for damages may be maintained in any court by or on behalf of an employee against the employer in respect of any injury caused by an accident arising out of and in the course of the employee’s employment if —
employer
“employer” means any person (A) who employs an individual (B) under a contract of service and includes —(a)the Government, if B belongs to a class or description of employees of the Government declared to be employees for the purposes of this Act under paragraph (a) of the definition of “employee”;(b)the legal personal representative of A, if A is deceased;(c)a duly authorised agent or manager of A;(d)the person who owns or is carrying on, or for the time being is responsible for the management of, the profession, business, trade or work in which B is engaged; and(e)where B is employed for the purpose of any game or recreation and engaged or paid through a club, the manager or members of the managing committee of that club.
the employee has recovered damages in respect of the employee’s injury in any court from any other person;
an order is made under section 51(2)(a) to give effect to a settlement agreement in respect of compensation under this Act for that injury; (c)a notice of computation, or a notice of assessment, for that injury has, under section 44(5) or 48(3), the effect of an order of compensation; (d)the employee does not withdraw his or her claim in respect of compensation under this Act for that injury within 28 days after the date of service of the notice of computation or notice of assessment (as the case may be) or the claim, if so withdrawn, does not remain withdrawn; or
an order for the payment of compensation for that injury is made under section 54(1)(c).
An employee may institute an action in any court against his or her employer for damages in respect of an injury where —
injury
“injury” or “personal injury” includes an occupational disease or a disease mentioned in section 10(1)(c);
a notice of computation or notice of assessment (as the case may be) for compensation in respect of that injury is served on the employee, and the employee makes no objection to the notice;
on review of the notice of computation or notice of assessment, the Commissioner makes an order under section 54(1)(c) for compensation in respect of that injury that is of a lesser amount than the amount stated in the notice;
within a period of 28 days after the date of service of the order mentioned in paragraph (b) on the employee, the employee —
notifies the Commissioner, the employer and the employer’s insurer (if any), in writing that the employee does not accept the compensation so ordered; and (ii)has not received or retained any part of such compensation earlier paid (if any) by, or on behalf of, the employer; and
no appeal under section 58 is made against the order mentioned in paragraph (b).
The order mentioned in subsection (3)(b) becomes void when the employee institutes the action mentioned in subsection (3).
Nothing in this Act prevents an injured individual from instituting an action in any court to recover damages independently of this Act for an injury in respect of which —
an order of refusal of compensation has been made or has taken effect; or
an appeal to the General Division of the High Court under section 58 has failed because —
the injury did not arise out of and in the course of the injured individual’s employment; or
the injured individual is not an employee within the meaning of this Act.
If —
an action is instituted by or for an employee within one year after the date of the accident in any court to recover damages independently of this Act for injury caused by any accident; and (b)it is determined in the action or on appeal that the injury is one for which the employer is not liable, but that the employer would have been liable to pay compensation under this Act, the court must —
dismiss the action; and
if the employee so chooses, proceed to assess the compensation payable under this Act (despite subsection (1)) and may deduct from the compensation all or any part of the costs which, in the judgment of the court, are caused by the employee instituting the action instead of proceeding under this Act.
Where the court assesses the compensation under subsection (6)(d), the court must give a certificate of —
the compensation awarded; and (b)the direction given (if any) as to the deduction of costs.
A certificate mentioned in subsection (7) has the same effect as a judgment of the court.