Section 22: Remedies against employer

22. Remedies against employer (1) Where an injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible— (a) nothing in this Act shall affect any civil liability of the employer; (b) a claim for compensation may be made under this Act or proceedings under the Code Civil Mauricien may be taken against the employer; and [Issue 1] W9 – 14 Revised Laws of Mauritius (c) the employer shall not be liable to pay in respect of the same incapacity or death, both compensation under this Act and damages under the Code Civil Mauricien. (2) Where, within the time limited for taking proceedings under this Act, an action is brought to recover damages under the Code Civil Mauricien for injury caused by an accident, and it is determined in that action or on appeal that the injury is one for which the employer is not liable in that action, but that he would have been liable to pay compensation under this Act, the action shall be dismissed. (3) Where an action is dismissed under subsection (2) the Court in which the action is tried, or, if the determination is the determination on an appeal, the Supreme Court shall, notwithstanding the Industrial Court Act, where the plaintiff chooses, proceed to assess the compensation, but may deduct from it all or part of the costs which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Act. (4) In any proceedings under subsections (1) to (3), where the Court assesses the compensation, it shall give a certificate of the compensation it has awarded and the directions it has been given as to the deduction of costs, and that certificate shall have the force and effect of, and shall be registered as, an agreement under this Act. (5) The Supreme Court may, instead of itself assessing the compensation, remit the case to the Magistrate of the Industrial Court for the assessment of the compensation, and in such case may order the Magistrate to deduct from the amount of compensation assessed by him all or part of the costs which have been caused by the plaintiff bringing the action instead of proceeding under this Act. (6) (a) No private agreement as to the amount of compensation to be paid or any sum received out of Court by way of compensation under this Act shall prevent a workman from proceeding under the Code Civil Mauricien and any workman who has instituted proceedings under this Act may, at any time before judgment, withdraw his action and proceed under the Code Civil Mauricien. (b) Costs of the previous action, and any amount received as compensation, shall be deducted from any sum assessed by the Court either as damages under the Code Civil Mauricien or as compensation under this Act.