On p. 2g of the Act in section 9A, in subsection ( l) delete the following words "received within this State. and, if so received on a journey", and substitute the following words "received by the worker under circumstances creating also. independently".
28 s. 9A WORKERS' COMPENSATION ACT 1916-1982
worker shall for the purposes of this subsection be deemed to have received that injury on the last day during or during any part of which he shall have worked.
( 5) Notwithstanding any other provision of this Act, compensation shall not be payable hereunder in respect of any injury-
( a) Received by a worker or by a person to whom subsection (2A) of this section applies during or after any substantial interruption of or substantial deviation from (but before the completion of) any journey specified in this section, unless that ·interruption or deviation shall have arisen from circumstances beyond the control of the worker or person in question; or
(b) In the case of an injury received on a journey specified in subsection ( 2A) of this seotion by a perso~ to whom that subsection applies, unless that injury shall have been received within this State, and, if so received on a journey from a place of pick-up to the place of abode of that person, unless that journey shall have been commenced without substantial delay after that person has not been selected for employment or, as the case may be, after that person has been so selected subject to his engagement for employment under that selection taking effect at a later date.
(6) In this section "place of abode" includes the place where the worker has spent the night preceding his journey and from which he is journeying and the place to which he is journeying with the intention of there spending the night following his journey.
As amended by Act of 1925, 16 Geo. 5 No. 18, s. 2 (2); Act of 1939, 3 Geo. 6 No. 36, s. 5; Act of 1944, 9 Geo. 6 No. 2, s. 3; Act of 1951, 15 Geo. 6 No. 14, s. 3; Act of 1952, 1 E1iz. 2 No. 16, s. 3; Act of 1960, 9 Eliz. 2 No. 3, s. 7; Act of 1961, 10 Eliz. 2 No. 30, s. 3; Act of 1973, No. 14,
s.
7; Act of 1978, No. 13, ss. 11, 22 Sch.; Act of 1980, No. 27, s. 2; Act of 1982, No. 9, s. 4.9A. Damages. (1) Where an injury in respect whereof a worker is entitled under subsection (1) or (2) of section nine of this Act to receive compensation from the Workers' Compensation Fund was received within this State, and, if so received on a journey of this Act, a legal liability in the employer to pay damages in respect of that injury (except an injury in respect whereof the employer is required by some other Act of Queensland or any other State of !he Commonwealth or the Commonwealth or any other country to provide against such liability as prescribed by such other Act)-
(a) the amount of such damages which the employer is legally liable to pay shall, notwithstanding any other Act or law, be reduced by the total amount of the compensation (which shall include medical, hospital, travelling and other expenses) prescribed by this Act to be made from the Fund in respect of the injury in question; and
WORKERS' COMPENSATION ACT 1916-1982 S. 9A 29
(b) subject to this section, the worker or his dependents shall receive from the Workers' Compensation Fund such reduced amount.
The Court by which damages are awarded in respect of an injury to which this section applies, or out of which moneys paid into Court in an action brought in respect of any such injury are ordered to be paid, shall upon the application of the Board, worker or employer determine the total amount of compensation prescribed by this Act that is to be paid from the fund in respect of such injury and that determination shall be binding upon the Board and the worker.
(2) Where in respect of an injury to which subsection (1) of this section applies, a worker claims, by or in any action or other pro- ceedings whatsoever in any Court, against his employer any sum for damages which the worker alleges the employer is legally liable to pay in respect of such injury, then the worker shall serve upon the Board not later than 28 days after service thereof by him on the employer or person referred to in section 8 ( 8), a copy of the writ of summons, summons, statement of claim, notice, order, counter-claim or other process by which that claim is made and shall before any other step is taken by him in such action or other proceedings file in the Court concerned an affidavit as to. such service.
The Board may at any time during the proceedings taken or had to enforce the claim elect to be joined with the employer by filing in the Court concerned a notice in writing to that effect.
This subsection does not apply-
( a) where the action or other proceedings is or are taken outside Queensland; or
(b) to any application for the leave of the Court concerned to issue any process a copy whereof is required by this subsection to be served upon the Board.
(2A) Where a worker has suffered an injury on or after 1 November, 1978 under circumstances creating a legal liability in the employer to pay damages in respect of that injury, but the employer against whom it is sought to establish liability is dead or cannot be served with process or, being a company or statutory corporation, has ceased to exist or c;mnot be served, any worker who could otherwise have obtained a judgment in respect of such injury against the employer may recover by action against the Board the amount that would have been payable to him from The Workers' Compensation Fund under subsection (1) if judgment had been obtained against that employer:
Provided that he cannot so recover unless he proves that he gave to the Board notice of the claim and a short statement of the grounds thereof as soon as possible after he knew that the employer was dead, had ceased to exist or for some other reason could not be served, or that such notic,e was given within such time as would prevent the possibility of the Board being prejudiced by want of such notice.
30 S. 9A WORKERS' COMPENSATION ACT 1916-1982
(2B) The provisions of subsection (2A) shall not be construed to confer on any worker any right or advantage that he would not have had if action had been brought or pursued against the employer of the worker who has suffered injury.
( 3) If the Board IDes in the Court concerned the notice of election referred to in subsection (2) of this section in respect of a claim to which that subsection applies-
(a) the Board shall be entitled to the conduct on behalf of the employer of all proceedings had or taken to enforce the claim, and for the settlement of any question arising with respect thereto, unless the Board, by writing, permits the employer to conduct such proceedings;
(b) the employer shall immediately when required by the Board so to do sign and execute all such documents as the Board may from time to time consider necessary to enable the proceedings as aforesaid to be conducted by the Board:
Provided that if the employer is absent from Queensland, or cannot be found by the Board, or fails, by refusing or being unable so to do or by any reason otherwise soever, to sign or execute all or any documents so required to be signed or executed by him, all such documents as are required by the Board to be signed or executed and which are not signed or executed may be signed and executed on behalf of that employer by the Board.
( 4) Every claim to which subsection (2) of this section applies, made by or in an action or other proceedings in the Supreme Court of Queensland or a District Court in Queensland shall be heard and determined by a Judge without a jury.
( 4A) In respect of a claim to which subsection ( 2) of this section applies, the Court concerned may, upon the application of any party to the action or proceedings by which the claim is made and upon such terms as the Court deems just, order the worker to submit himself to a personal medical examination by the duly qualified medical practitioner or practitioners named in the order.
The Court concerned may discharge or vary any such order.
The Court concerned may adjourn the action or proceedings as it deems necessary or expedient to enable compliance with the order.
If, in the opinion of the Court concerned, the worker has persistently and wilfully refused to comply with the order without reasonable excuse, the Court may enter judgment against the plaintiff in the action or proceedings upon such terms as it deems fit.
( 5) The provisions, other than this section of this Act relating to the recovery by a worker from his employer of damages for which the employer is, independently of this Act, legally liable in respect of injury to such worker, shall apply subject to this section.
WORKERS' COMPENSATION ACT 19'16-1982 ss.lO, 11 31
( 6) Section sixteen and clause 24A of the Schedule to this Act do not apply to an injury in respect whereof the provisions of this section apply.
(7) In respect of an injury to which subsection (1) of this section applies received by a wages-man to whom subsection (2), (3) or (3B) of section three of this Act applies under circumstances creating a legal liability in the contractor, tributer or share-farmer by whom such wages-man is employed to pay damages in respect of that injury, the person who made the contract with such contractor, the person with whom the tribute agreement was made by the tributer, or the owner of the farm shall, notwithstanding any Act or law or rule of law (but subject in the case of the owner of a farm to his being deemed under the said subsection ( 3 B) to be the employer of the share-farmer) be deemed the employer of both such wages-man and contractor, tributer or, as the case may be, share-farmer.
Inserted by Act of 1962, No. 29, s. 5 (as from 1 July 1963); as amended by Act of 1966, No. 28, s. 5; Act of 1973, No. 14, s. 8; Act of 1978, No. 13, ss.
12, 22 Sch.; Act of 1980, No. 27, s. 3; Act of 1982, No. 9, s. 5.
10. Application to workers in employment of Crown. S.A. 1911, No.l053, s. 5. Va. 1914, No. 2496, s. 4. This Act applies to workers employed by or under the Crown or any Government Department in all cases where this Act would apply if the employer were a private person.
Notwithstanding anything in this Act, any sum payable under this Act in respect of any claim against or premiums payable by the Crown or any Government Department may, with the authority of the Minister of the Crown administering the Department concerned, be paid out of any moneys available for the purpose or out of moneys specially appropriated by Parliament for the purpose.
11. Seamen. Notwithstanding anything contained in this Act- (1) (a) A seaman shall not be entitled to receive any compensation under this Act unless, at the time of the event which gives rise to the claim for compensation, he is employed on a Queensland ship.
(b) An employer shall not be required to make application . for or to maintain a policy in respect of any seaman employed by him unless that seaman is employed on a Queensland ship.
(2) This Act applies in respect of an injury happening to a seaman (which term includes a fisherman whose remuneration is not wholly or mainly a share in the profits or the gross earnings from the working of the ship) employed on a Queensland ship if the injury arises in the course of his employment and happens while that ship-
(a) is in a Queensland port;
(b) is operating in Queensland territorial waters;
(c) is temporarily outside Queensland territorial waters- (i) due to mishap or stress of weather; or
(ii) while on an excursion to offer assistance to a ship in distress; or
32 ss. 12, 13 WORKERS' COMPENSATION ACT 1916--1982
(d) if engaged in fishing operations, is operating outside Queens- land territorial waters but not within the territorial waters of a foreign country and discharges its cargo at a Queensland port or to a mother ship that discharges its cargo at a Queensland port.
(3) This Act also applies in respect of a seaman employed on a Queensland ship who has received an injury on his journey to or from the place of employment or (being in the course of his employment or while under his employer's instructions) away from the place of employment, or who is further injured on his direct journey to obtain a medical certificate, or to receive medical, surgical, or hospital treatment or compensation, or on his journey to his place of abode after receiving such certificate, treatment or compensation.
Substituted ·by Act of 1961, 10 Eliz. 2 No. 30, s. 4; as amended by Act of 1973, No. 14, s. 9.
12. Existing contracts. 5 Edw. 7 No. 26, s. 13. This Act applies, notwithstanding any contract to the contrary made after the commence- ment of this Act.
Any contract existing at the commencement of this Act whereby a worker relinquishes any right to ~ompensation for personal injury which under this Act would entitle him to compensation shall on the commencement of this Act be determined.
As amended by Act of 1944, 9 Geo. 6 No. 2, s. 5.
13. Settlement of claims. Washington, c. 74 of 1911, s. 12. 5 Edw.
7 No. 26, s. 5. ( 1) Applications for compensation shall be allowed or rejected in the first instance by the Board; but the Board, on receipt of any such application, may, or any person claiming compensation who objects to the ruling thereon of the Board may, by notice in writing require the matter to be heard and determined by an industrial magistrate, and the application shall in such case be heard and determined by such magistrate in accordance with the regulations.
The decision of such magistrate shall, subject to the next succeeding subsection, be final; subject to the regulations the costs of the proceedings shall be in his discretion.
(2) Either party to the proceedings before such magistrate may appeal from his decision.
Such appeal shall be made to the Full Bench of the Industrial Court constituted pursuant to the provisions of "The Industrial Con- dliation and Arbitration Acts, 1932 to 1938" (or any Act amending or in substitution therefor); the place for hearing and all proceedings on such appeal shall be as prescribed by Rules of Court under the said Iastmentioned Act:
Provided that unless ·the Court orders that additional evidence shall be taken, the appeal, which shall be by way of rehearing, shall be heard and determined upon the evidence and proceedings before the industrial magistrate concerned.
WORKERS' COMPENSATION Acr 19'16-1982 SS, lJA, 14 33 Subject to the regulations, the costs of appeal shall be in the discretion of the Court.
Substituted by Act of 1941, 6 Geo. 6 No. 6, s. 4; as amended by Act of 1960, 9 Eliz. 2 No. 3, s. 8; Act of 1978, No. 13, s. 22 Sch.
13A. Reference to wife, widow, woman, how construed. For the purposes of the provisions of section 14 (1) (A), section 14 (1) (B) and section 14B any reference to a wife, widow or woman includes a reference to a husband, widower or man as the case may be.
Inserted by Act of 1982, No. 9, s. 6.
14. (1) Except in the case of compensation under section 14B hereof, the amount of compensation under this . Act shall be--
(A) Amount of compensation where death results from injury.
5 Edw. 7 No. 26, Sch. I. 9 Edw. 7 No. 16, s. 2. Va. 1914, No. 2496, Sch. I. 1. Where death results from the injury-
(i) If the worker leaves ·any dependants wholly dependent upon his earnings at the time of his death the sum of
$26 750.
19091-C
In addition, if the dependants of the worker consist of or include either of the following persons wholly dependent upon his earnings, namely a wido·w or a woman who has lived in a connubial relationship with him for a continuous period of three years at the least terminating on his death, there shall be payable .in respect of-
( a) each child or step-child of the worker or each child or step-child of the woman referred to in this paragraph;
(b) each brother or sister of the worker,
who in any case was at the time of death of the worker totally or mainly dependent upon the earnings of the worker and who is under sixteen years of age or, being of or over the age of sixteen years but under the age of twenty-one years is receiving full-time education at a school, college, university or similar institution the sum of $500 in respect of each year or part of a year comprising the period commencing on the date of death of the worker and terminating on the date on which that child, step-child, brother or sister attains the age of sixteen years or, as the case may be, twenty-one years but in no case shall the amount paid in respect of each dependant under this provision exceed $2 000:
Provided that the amount of any weekly payments made under this Act and any lump sum in redemption thereof and any lump sum paid as compensation under this Act shall be deducted from such sum but no such deduction shall be made so as to reduce the amount payable in respect of the dependants of the worker under this subsection below
$4 440;
34 s.14 WORKERS' COMPENSATION ACT 1916-1982
(ii) If the worker does not leave any such dependants, but leaves any dependants in part dependent upon his earnings at the time of his death, such sum, not exceeding in any case the amount payable under the foregoing provisions, as is reasonable and proportionate to the injury to the said dependants but not less than $3 910;
(iii) If the worker does or does not leave dependants, the reason- able expenses of his medical attendance and burial;
(iv) If the worker, being a person under the age of twenty-one years, leaves no dependants, but is survived by either or both parents resident within the State, such parent or parents shall be deemed to be dependants of such worker, and the amount of compensation payable under the provisions of this paragraph shall be the sum of $3 030.
Notwithstanding the foregoing provisions of this provision (A) where a dependant dies after the date of death of the worker but before the due payment under this Act of the amount of compensation which, but for this paragraph, would be payable under this provision (A) in respect of him (either alone or with another or others) he shall, for the purposes of this Act, be deemed to have predeceased the worker upon whose earnings he was dependent but, nevertheless, there shall be payable to the legal personal representative of the dependant for the benefit of the dependant's estate an amount of compensation based on prescribed payments for the period commencing on the date of death of the worker and terminating on the date of death of the dependant.
The prescribed payments are-
( a) a weekly payment of an amount equal to 17 per centum of the guaranteed minimum wage-
(i) cin respect of the widow of the worker, if she was at the time of death of the worker totally or mainly dependent upon his earnings; or
(ii) in respect of a woman (not being the widow of the worker) who has lived in a connubial relationship with the worker for a continuous period of three years at the least ter- minating on his death, if she was at the time of death of the worker totally or mainly dependent upon his earnings;
or
(iii) where there is no widow or such a woman, in- respect of any one woman who was at the time of death of the worker totally or mainly dependent upon his earnings and who is-
(A) caring for a child or step-child of the worker who is under the age of sixteen years or, being of or over that age but under the age of twenty-one years, is receiving full-time education at a school, college, university or similar institution; or