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4.2.1 Restriction on action against the Commonwealth or a potentially liable member
The application of section 388 of the MRCA absolves the Commonwealth's or a potentially liable member's liability to common law claims for a service injury or disease or the damage to, or loss of, a medical aid. This restricts the common law compensatory avenues that the MRCA is intended to replace.
Delegates need to be mindful of the restricted application of this provision. The restrictions provided by this section do not apply to:
- Common law action relating to non-economic loss suffered by a person with a service injury or disease (see 4.2.2); or
- Common law damages pursued by a dependant of a deceased member or former member relating to a service death (see 4.2.3).
In these two situations there are less restrictions placed on the pursuit of common law damages. However, as with all common law damage outcomes, any damages received by the dependant of a deceased member are recoverable upon receipt of the damages and eligibility to further compensation (including treatment eligibility) under the MRCA can cease or be restricted upon the receipt of the damages.