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9.11.4 Where there is more than one 'prescribed dependant'
Section 49 also provides a different scheme of limitation to deal with the situation where there is more than one 'prescribed dependant', i.e. where more than one of the deceased employee's dependants has chosen to forego an SRCA entitlement, and pursue a legal action for damages.
In these circumstances, it is Subsection 49(3) that determines how much is to be recovered from each of the 'prescribed dependants' and it does this by reference to a 'prescribed amount'. Subsection 49(4) defines 'prescribed amount' as follows:
Prescribed amount means an amount calculated under the formula:
AC x D1/D2
- AC is the amount of the compensation referred to in paragraph (1)(a)
- D1 is the amount of the damages recovered by the prescribed dependant in respect of the death of the employee, and
- D2 is the total amount of the damages recovered by all prescribed dependants in respect of the death of the employee.
Thus a 'prescribed amount' is a proportion of the total SRCA compensation payable in respect of the death, based on the proportion of the prescribed person's share of the whole amount of damages awarded by the relevant court(s).
Subsection 49(3) then provides that:
49(3) If the prescribed dependant is not the only prescribed dependant, he or she is liable to pay to Comcare:
a)the prescribed amount, or
b)the amount of the damages recovered by the prescribed dependant,
whichever is less.