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9.11.2 When and to whom S49 applies
Subsection 49(1) says, firstly:
a)compensation is payable under this Act in respect of an injury that resulted in the death of an employee, and
b)damages in respect of the death of the employee are recovered by or for the benefit of a prescribed dependant of the deceased employee
c)this section applies in respect to that prescribed dependant.
In other words, the Section only operates where compensation is payable under S17 to a person but that person, who is a 'prescribed dependant', has instituted a legal action to recover damages for the same death but has eithere not claimed the section 17 payment or has declined the compensation.
Note that 'prescribed dependant' is a term defined by Ss49(4) as follows:
'prescribed dependant', in relation to a deceased employee, means a dependant of that employee by whom, or on whose behalf, a claim for compensation under this Act in respect of the injury that resulted in the death of the employee has not been made or by whom, or on whose behalf, a request under Section 43 relating to compensation under this Act in respect to that injury has been made.
Thus, a 'prescribed dependant' is one who would otherwise be entitled to compensation but who has either:
- not made a claim for the death under the SRCA or
- who has formally invoked Section 43 in order to decline SRCA compensation for the employee's death.