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4.1 Overview

This chapter is provided for delegates investigating and determining compensation claims under the Military Rehabilitation and Compensation Act 2004 (the MRCA) where a person is entitled to compensation and has, or may have, a right to recover damages in relation to the same compensable injury, disease, death or loss, or damage to, a medical aid.  This chapter also specifies the circumstances in which a person cannot take common law action.

The legislative provisions governing these situations are found in Chapter 10 of the MRCA, entitled “Liabilities arising apart from this Act etc”.

Certain circumstances can exist where a person entitled to compensation under the MRCA can bring a common law action against the Commonwealth, a potentially liable member or a third party for an injury, disease, death or loss, or damage to, a medical aid (the cause of action).

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For the sake of brevity, throughout this chapter, where a reference is made to an injury, disease, death or loss, or damage to, a medical aid the term 'cause of action' will be used.  This does not relate to all circumstances covered in this chapter and where not applicable the appropriate reference will be made.

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The Commonwealth (in the guise of the Military Rehabilitation and Compensation Commission (MRCC)) can also choose to instigate or take over a claim against a third party in relation to a cause of action that is compensable under the MRCA.

The MRCA creates a statutory, no fault compensation scheme which is intended to replace the common law as a means of obtaining compensation for injury, disease, death or loss, or damage to, a medical aid due to Australian Defence Force (ADF) service.  This consequently places limitations on the circumstances under which common law action can be pursued and also places restrictions on the types and amounts of compensation that can be paid where common law damages are sought by a person.

Common law action can be commenced, in certain circumstances, by a current or former member of the ADF in relation to a cause of action accepted under the MRCA.  This action can either be against the Commonwealth or a potentially liable member of the Commonwealth for the non-economic loss effects of an injury or disease or against a third-party for any effect of the cause of action.

Common law action can also be commenced by the dependant of a deceased member or former member where the death is related to service or their accepted condition/s.  This common law action is not restricted by any previous action by the deceased to recover non-economic loss compensation at common law.

All common law action against the Commonwealth, a potentially liable member or a third party affects compensation payable (including treatment eligibility) under the MRCA for that cause of action.  The cessation, recovery or repayment of all or certain types of compensation can result from the choice to pursue a claim at common law.  It is for this reason that all claimants and their dependants are required to be informed of the impacts of the choice to pursue a claim at common law on any applicable MRCA compensation.  The choice by the MRCC to commence or take over a third party claim will also impact on the types and levels of compensation available to a person.

Unlike compensation under the MRCA, which is provided regardless of whether or not any negligence on the part of the Commonwealth is involved, common law action in these circumstances can only succeed if the Court is satisfied that the Commonwealth, a potentially liable member or third party was negligent.