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Limitation of employee’s right of action

Work Injury Compensation Act

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—(1) Nothing in this Act shall be deemed to confer any right to compensation on an employee in respect of any injury if he has instituted an action for damages in respect of that injury in any court against his employer or if he has recovered damages in respect of that injury in any court from his employer. (2) Subject to subsections (2A) and (2B), no action for damages shall be maintainable in any court by an employee against his employer in respect of any injury by accident arising out of and in the course of employment —(a)if he has a claim for compensation for that injury under the provisions of this Act and does not withdraw his claim within a period of 28 days after the service of the notice of assessment of compensation in respect of that claim;(b)if he and his employer have agreed or are deemed to have agreed to the notice of assessment under section 24(2)(a) for that injury; or(c)if he has recovered damages in respect of the injury in any court from any other person. (2A) Where —(a)a claim for compensation under this Act is made for an employee’s injury by accident arising out of and in the course of the employment;(b)there is no objection by the employee to the notice of assessment of compensation in respect of that claim;(c)the compensation ordered by the Commissioner thereafter in respect of that claim is of a lesser amount than that stated in that notice of assessment of compensation in respect of that claim;(d)within a period of 28 days after the making of the order, the employee notifies the Commissioner and the employer in writing that he does not accept the compensation so ordered, and has not received or retained any part of such compensation earlier paid (if any) by the employer; and(e)no appeal under section 29 is made against the order,the employee may institute an action in any court against his employer for damages in respect of that injury and any order made by the Commissioner in respect of that injury shall be void. (2B) Where —(a)the Commissioner assesses or makes an order that no compensation shall be payable for a claim for compensation for an employee’s injury by accident arising out of and in the course of employment because —(i)the injury did not arise out of and in the course of the employee’s employment; or(ii)the injured person is not an employee within the meaning of this Act; or(b)an appeal to the High Court under section 29 from an order made by the Commissioner has failed because of any reason mentioned in paragraph (a)(i) or (ii),the employee may institute an action in any court to recover damages independently of this Act for injury caused by that accident. (3) If an action is brought within the time specified in section 11 in any court to recover damages independently of this Act for injury caused by any accident and it is determined in the action or on appeal that the injury is one for which the employer is not liable but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the court shall, if the employee so chooses, proceed to assess the compensation and may deduct therefrom all or any part of the costs which, in its judgment, have been caused by the employee instituting the action instead of proceeding under this Act. (4) In any proceedings under subsection (3) when the court assesses the compensation, it shall give a certificate of the compensation it has awarded and the direction it has given, if any, as to the deduction of costs and such certificate shall have the same effect as a judgment of the court.

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