Where a court reduces the amount of damages payable to the dependant due to the deceased employee's contributory negligence, Subsections 99(2) and 99(3) – i.e. the above provisions – do not apply. Subsections 99(4) and (5) have effect in their place. Subsection 99(5) says, in part:
...compensation under this Act that, but for this section, would be payable ... for the benefit of the dependant in respect of ...the death...shall be reduced by so much of that amount as bears to that amount the same proportion as the amount of the damages recovered by or for the benefit of ...the dependant bears to the amount of the damages that would have been recovered by or for the benefit of the employee or dependant if the employee had not been partly responsible for the injury, loss or damage.
This means that where a court reduced the amount of damages due to the deceased employee's negligence contributing to his/her death, compensation still remains payable but is to be reduced by an amount proportionate to the amount by which the award of damages was reduced.
The rationale for this provision is that the court and the 1971 Act use different standards of assessment. The court can and does determine damages on the basis of relative degrees of the employee's and employer's 'fault', i.e. it considers the deceased employee's contributory negligence in making an award. However the 1971 Act is a 'no-fault' Act and does not consider contributory negligence in setting the amount payable. On that basis S99(5) reflects the dependant's retention of an entitlement to compensation proportionate to that part of the loss for which the court did not pay damages. This is the same as the degree to which the deceased employee was found to be negligent.
- Thus, if the court set the loss at a certain figure, then decided to pay only (say) 88% of that loss on the basis that the employee contributed to that loss by 12%, the Commonwealth thereby retains the liability to pay 12% of the compensation which would otherwise apply. In other words, the dependent is entitled to that portion of the compensation which corresponds to that part of the loss on which damages were not awarded by the court.
Subsection 99(7) of the 1971 Act provides that where compensation was paid prior to the award of damages and those damages were reduced due to negligence – i.e. the situation described above – the entitlement to compensation is to be recalculated in accordance with Subsection 99(5). Subsequently, the compensation already paid in excess of the 99(5) amount must be recovered from the dependant.