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Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 (No. 29 of 2011)
|Requested: 11 Mar 2014|
|Consolidated as at: 21 Feb 2012|
115. Choice of law
(1) In this section
a State's legislation about damages for a work-related injury means
(a) for this State, this section and any other provision of this Act providing for the interpretation of anything in this section; and
(b) for any other State, any provisions of a law of that State that is declared by the regulations to be the State's legislation about damages for a work-related injury;
injury includes anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State and that consists of an asbestos-related disease;
substantive law includes but does not include a law prescribing rules for choice of law.
(a) a law that establishes, modifies or extinguishes a cause of action or a defence to a cause of action; and
(b) a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time); and
(c) a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit; and
(d) a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered; and
(e) a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered; and
(f) a law expressed as a presumption, or rule of evidence, that affects substantive rights; and
(g) a provision of a State's legislation about damages for a work-related injury, whether or not it would be otherwise regarded as procedural in nature
(2) If there is an entitlement to compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker (whether or not compensation has been paid) the substantive law of that State is the substantive law that governs
(a) whether or not a claim for damages in respect of the injury can be made; and
(b) if the claim can be made, the determination of the claim.
(3) This section does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.
(4) For the purposes of this section
(a) a reference to an employer includes anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State; and
(b) the determination of what constitutes employment or whether or not a person is the worker's employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State; and
(c) a reference to a worker's employer includes a reference to a person who is vicariously liable for the acts of the employer and a person for whose acts the employer is vicariously liable.
(5) For the purposes of this section, a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury.
(6) It makes no difference for the purpose of this section that, under the substantive law of a State other than the State with which the worker's employment is connected
(a) the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State; or
(b) the circumstances on which the claim is based do not give rise to a cause of action.
(7) This section only applies to a claim for damages or recovery of contribution brought against a worker's employer in respect of an injury if the injury was caused by
(a) the negligence or other tort (including breach of statutory duty) of the worker's employer; or
(b) a breach of contract by the worker's employer.
(8) This section also applies to a claim for damages or recovery of contribution brought against a person other than a worker's employer in respect of an injury if
(a) the worker's employment is connected with this State; and
(b) the negligence or other tort or the breach of contract on which the claim is founded occurred in this State.
(9) Subsection (7)(a) and subsection (8) apply even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.
(10) For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it
(a) would have been payable but for a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or
(b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.
(11) A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.