Subsection 49(1) says, firstly:
49(1) Where:
- compensation is payable under this Act in respect of an injury that resulted in the death of an employee, and
- damages in respect of the death of the employee are recovered by or for the benefit of a prescribed dependant of the deceased employee
- 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.