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4.3 Liability of third parties and access to common law actions against a third party

Part 3 of Chapter 10 of the MRCA deals with a situation where a member or former member was injured, contracted a disease, suffered damage to, or loss of, a medical aid or died as a result of their service (the 'cause of action'), and a third party appears to be liable to pay damages.  In this situation, the member or former member, their dependants, legal personal representative or the MRCC may instigate common law action against that third party.  Also, the MRCC can take over an existing claim against a third party once that claim has been instigated.

These provisions are designed to allow for a compensation outcome for an affected party to be sought where the liability for the injury, disease or death does not fully lie with the Commonwealth.  The conditions that led to the cause of action must still have the necessary causal connections to ADF service, however, through the actions or inaction of a third party, liability rests with that third party.

Unlike actions against the Commonwealth, that are restricted to actions for non-economic loss and actions by dependants, a third party common law action can pursue damages for all aspects of the cause of action.  This in turn has different impacts on the claimant's access to compensation or benefits under the MRCA.  If damages are recovered, access to certain forms of compensation (including treatment eligibility) cease or are restricted under the MRCA and compensation that has already been paid will be recovered.

For the above reasons, it is imperative that a delegate fully informs a claimant of the impacts of a third party claim on their entitlements and access to further compensation under the MRCA.