Western Australian Numbered Acts

WORKERS COMPENSATION AND INJURY MANAGEMENT ACT 2023 (NO. 21 OF 2023) - SECT 421

421 .         Threshold requirements for commencement of proceedings and award of damages

        (1)         Except as provided in section 422(2), court proceedings for an award of damages in respect of an injury must not be commenced against the worker’s employer unless the following requirements have been complied with —

            (a)         the worker’s degree of permanent whole of person impairment resulting from the injury has been assessed to be at least 15% and that assessment has been recorded by the Director as the supporting assessment for the worker’s election referred to in paragraph (b);

            (b)         the worker has elected in accordance with the regulations to retain the right to seek the damages and the Director has —

                  (i)         registered the election in accordance with the regulations; and

                  (ii)         notified the worker in writing that the election has been registered.

                Note for this subsection:

                For the purposes of paragraph (a), an assessment of the worker’s degree of permanent whole of person impairment must be made as required by Part 4 Division 3.

        (2)         The worker is not required to identify in an election all employers who are potentially liable to contribute to damages.

        (3)         The Director may refuse to register an election if not satisfied that the worker has been properly advised as to the consequences of the election.

        (4)         A court must not award damages against a worker’s employer in respect of an injury unless —

            (a)         proceedings in the court —

                  (i)         have been commenced in compliance with subsection (1); or

                  (ii)         if the proceedings were commenced under section 422(2), the requirements referred to in subsection (1)(a) and (b) of this section have been complied with after the commencement of the proceedings;

                and

            (b)         the court is satisfied that the worker’s degree of permanent whole of person impairment resulting from the injury is at least 15%.

        (5)         In determining the worker’s degree of permanent whole of person impairment, the court is not bound by the supporting assessment recorded for the worker’s election but may admit the assessment as evidence relevant to the worker’s degree of permanent whole of person impairment.

        (6)         An election that the Director has registered under this section cannot be withdrawn and, after the election has been registered, another election in respect of the same injury cannot be registered.

        (7)         Subsection (6) does not prevent another assessment as to the worker’s degree of permanent whole of person impairment from being made (before or after the commencement of court proceedings) after the Director has registered the election and does not prevent another assessment from being used in court proceedings.

        (8)         The Director may at any time rectify an error that was made in registering an election.

        (9)         This section extends to an award of damages by way of consent judgment or settlement of an action.

        (10)         An election lodged for registration by the Director and evidence of a supporting assessment to be recorded by the Director must be in the approved form.