A self-insured employer cannot recover compensation payments from a negligent third-party driver under s 138(1) of the Accident Compensation Act 1985 (Vic) where the injured worker has not accessed any of the gateways prescribed by s 93 of the Transport Accident Act 1986 (Vic). Section 138(2) does not exclude s 93 from consideration in determining whether circumstances create a liability in a third party. Self-insurers in transport accident cases may need to rely on s 137(5A) and (5B) mechanisms (through the Transport Accident Commission) rather than s 138.
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