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8.4 Advice to Clients re: Right to Sue Commonwealth in Lieu of Compensation
Note: This section is only about the advice to be provided to persons inquiring about the possibility of taking legal action against the Commonwealth for the death. The actual interaction of S17 and S44 is dealt with in more detail at 9.1 to 9.12.
Section 44 of the SRCA prevents persons taking legal action against the Commonwealth in respect to any circumstance for which the SRCA provides compensation, EXCEPT that an employee's dependent does retain a residual right to sue the Commonwealth in the case of death only. The relevant court would determine the matter on the basis of the dependant's demonstrated financial losses due to the death. The court would also take the Commonwealth's negligence and the employee's contributory negligence into account.
Persons who claim to have been financially dependent upon the deceased but who are not entitled to S17 SRCA compensation may be advised to seek legal advice with respect to S44. Delegates should also advise persons who themselves initiate the matter, i.e. ask about alternatives to an SRCA claim. Delegates should state clearly that a common law case is possible under law but must refrain from expressing an opinion about the wisdom of such action or any perceived likely outcome. Clients should be advised to seek professional legal advice on such matters.
Delegates should always inform such an inquirer that, were such a legal action against the Commonwealth (or against a third party) to be successful, this would, with but for those exceptions outlined in 9.4.1 end the litigant's SRCA entitlements (if any). Any lump sum already paid would have to be repaid. These consequences are discussed at 9.3 and 9.4. Furthermore, under all circumstances inquirers should always be told to seek professional legal advice with respect to any legal action they may be contemplating.