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9.3 Actions against the Commonwealth - Limitation by S48
While dependants of the deceased employee are permitted by the terms of S44(3) to bring an action for damages against the Commonwealth in respect of the employee's death, S48 acts to ensure there is no double dipping i.e. the dependant can not access both the court-awarded damages and the SRCA lump sum.
Section 48 says:
48(1) This section applies where:
b)damages are recovered by, or for the benefit of, a dependant of a deceased employee in respect of the death of the employee and compensation is payable under this Act in respect to the injury that resulted in that death.
This means that S48 operates to limit SRCA payments where dependents 'recover damages' for the death, i.e. by means of a legal action.
S48 also provides that:
48(4) Compensation is not payable under this Act to...or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered...for the benefit of the dependent, as the case may be.
This means that the SRCA entitlements under Sections 17, 16 and 18 are not payable to that dependent who initiated the action, after the date when the damages were paid.
Note that this cessation of entitlement is permanent.
This total cessation of entitlement also operates independently of the amount of money actually recovered i.e. even if the client recovered less money that he/she would have achieved under S17.
Furthermore S48 also provides that:
48(3) If, before the recovery of the damages by, or for the benefit of, the...dependant, any compensation under this Act was paid to...the dependant in respect of the injury that resulted in the death of the employee,...the...dependant is liable to pay Comcare an amount equal to:
a)the amount of that compensation
b)the amount of the damages,
whichever is less.
This means that whatever compensation was paid for the death to that dependant prior to the finalisation of the legal action, must afterwards be repaid. However where the dependant's action recovered less money than had been paid under the SRCA, only an amount equal to the amount recovered by the legal action is recoverable from the dependant.
With regard to that recovery of compensation already paid prior to settlement of damages (i.e. a recovery under S48(3)), S48(6) says:
48(6) A reference in Subsection (3) to compensation under this Act that was paid for the benefit of a dependant does not include a reference to compensation paid under Subsection 17(5).
This means that, where compensation is to be recovered, amounts paid under S17(5) – i.e. weekly payments in respect of a 'prescribed child' – are exempt, i.e. are to be excluded from that recovery. However S48(1) is framed in such a way that there is no further entitlement to S17(5) payments after settlement of the legal action. Thus, the guardian of the child gets to keep the weekly payments already made, but no more payments are to be made after that date.
Amounts paid by the Department under S16 and S18 in respect to a death, should only be recovered from a dependant if those amounts were paid to that dependant. In cases where the dependant, for example, incurred the costs of a funeral but the Department actually paid the undertaker directly (rather than paying the dependant by way of a reimbursement), that amount of compensation is not recoverable.