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4.2 Common law action against the Commonwealth or a potentially liable member
Part 2 of Chapter 10 of the MRCA deals with a situation where a person wishes to instigate common law action against the Commonwealth or a potentially liable member in respect of a cause of action (i.e. an injury, disease, death or loss, or damage to, a medical aid that is the subject of the common law action).
In the majority of cases for common law claims under the MRCA the “Commonwealth” will refer to the Australian Defence Organisation (Department of Defence and the Australian Defence Force), but could potentially refer to any Australian Federal Government Department or statutory body.
References to a “potentially liable member” refer to another member of the ADF at the time of the cause of action. Section 387 also clarifies this definition to include a person who was acting in the capacity of a member at the time of the cause of action. This could include a declared member or another person that was acting in an ADF member's stead at the time. For example, a fitness contractor who was performing a duty alongside a uniformed member while undergoing fitness training on base.
The liability of the Commonwealth or a potentially liable member to common law action from a person is restricted by the MRCA. As mentioned in the overview, the MRCA is intended to create a no-fault replacement for the common law in relation to causes of action related to ADF service from 1 July 2004. This intention is reflected in the restrictions placed on the liability of the Commonwealth to common law actions. With two exceptions, section 388 of the MRCA removes the liability of the Commonwealth or a potentially liable member to common law action relating to a cause of action.
The two exceptions are:
- a dependant's right to claim against the Commonwealth or a potentially liable member for the service death of a member; and
- the right of a person to claim for non-economic loss related to a service injury or disease. These two situations can still be pursued at common law, however restrictions do apply.
More detail of these provisions is provided below.