An Update: Section 138 of the Accident Compensation ActAuthor : Andrew Seiter, Partner

Public and Products Liability

Very few sections of Victorian legislation are as well known (and are as despised by so many!) as s138 Accident Compensation Act 1985 (Vic) (ACA).

The section entitles the Victorian WorkCover Authority (VWA), Victoria’s statutory WorkCover insurer, to seek an indemnity from a non-employer third party (hereafter referred to as a third party in this paper) who has caused or contributed to an injury to a worker for which compensation has been paid under the ACA.

VWA vigorously pursues its entitlements under s138. It has hundreds of claims on foot at any time. It is a vital and growing income stream for its insurance operations. Indeed, in its 2007 financial statements, VWA reported recoveries revenue of $68 million. By 2011, that figure had risen to almost $152 million, around 8.5% of its total premium revenue.

Given its broad application, a working knowledge of s138 ACA is not only essential to lawyers practising in personal injury law, but also anybody providing legal or accounting advice to a party (corporate or natural) who has any contact with an employee of another.

This paper provides an overview of s138, changes to legislation and an analysis of the most recent judicial outcomes that impact on the assessment of a party’s liability under this section. It also considers some less direct causes for substantially increased liabilities under s.138 in recent years.

To read the full article, please click on the link: Article: ‘Section 138 of the ACA – an update’

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