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The SRCA and its predecessors all provide benefits in cases where the death of an employee results from Commonwealth employment. For the purposes of establishing a nexus with employment, death may be considered a special sub-set of injury, and the business rules outlined in the 'Liability' chapter of this Handbook should be applied to determine whether the death is compensable.
This Handbook provides guidance with respect to deaths occurring under the SRCA – and also to deaths under the 1971 and 1930 Acts, although claims for deaths under previous Acts are, in practice, rare.
The main SRCA provisions for compensating work-related deaths are contained in Section 17, with secondary entitlements at Sections 18 and 16.
- Section 18 provides for reimbursement of funeral costs, up to a maximum specified sum.
- Section 16 requires the Commonwealth to meet any medical costs for treatment that preceded the death, and also contains a provision for the Commonwealth to meet the costs of transport of the body.
Section 17 of the SRCA provides the principal death benefit. Section 17 'applies where an injury to an employee results in death' and provides for a single lump sum which is to be divided among 'dependants' of the deceased. 'Dependant' is a term defined by the Act. In brief, it means a family member who was, at the time of death, dependent for financial support on the deceased. If there is no such person reliant on the employee for economic support, no lump sum compensation is payable.
On occasion there may be several 'dependants' who were all financially 'dependent' upon the deceased to a greater or lesser degree. Where there is one or more person who was wholly dependent on the deceased, only those persons are entitled to compensation. Where there were no persons wholly dependent on the deceased, those who were partly dependent may be entitled. The Act also provides that a spouse living with the employee immediately before the death is deemed to be 'wholly' dependent regardless of independent income. This means that in practice, most SRCA lump sums are paid to the spouse and, where relevant, divided between the spouse and any wholly dependent children.
However other cases may be less clear cut and Subsection 17(8) gives delegates the discretion to divide and disburse the lump sum as appropriate in the circumstances. Accordingly, this Handbook contains guidelines for the equitable division of lump sums between those entitled to share in them. Under those guidelines for example, where the claimants include a wholly dependent spouse and children, the spouse receives no less than 75% of the lump sum and the share of the dependent children varies between 10% and 25% according to the number of those children. The current rates of compensation payable under the SRCA can be accessed via the following linkMore ?
Section 17 also provides for a small fortnightly payment to be paid for dependent children up to the age of 16 years (or to age 25 if a full-time tertiary student with some limitations). These amounts are indexed against inflation and advised each year via a Comcare Jurisdictional Policy Advice.
In 1997, following the 'Inquiry into Military Compensation arrangements for the Australian Defence Force', dependants of deceased ADF employees became entitled to an Additional Death Benefit (ADB) payable under the Defence Act 1903 (Defence Act). This ADB amount is a supplement to the SRCA lump sum and is only payable if the SRCA lump sum is also payable. SRCA delegates in DVA are therefore also delegates of the Defence Act for the purposes of administration of the ADB.
For deaths occurring since 10 June 1997, the Defence Act provides an additional lump sum to the compensation payable under the SRCA, giving a higher figure to the spouse. In addition, there is a lump sum component payable in respect of each financially dependent child.
Note that neither the SRCA (nor any of its predecessors) nor the Defence Act provide for a widow's pension. Only the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA) provide a widow's pension in respect to the death of an ADF member. Some individuals may be entitled to claim for the employee's death under both the SRCA and the VEA. However, the decision to accept the SRCA 'Death' lump sum has the potential to end any entitlement to the VEA widow's pension. In those dual entitlement circumstances, the claimant must be offered a clear choice of scheme and be made aware of the consequences of that choice.
A dependant of a deceased employee is permitted to institute a legal action against the Commonwealth for the death of that employee. A dependant is of course also free to conduct a 'third party' action i.e. a civil case against a person other than the Commonwealth. However, in most cases legal action and SRCA compensation are mutually exclusive options. That is, in most cases conclusion of a legal action for the death – whether against the Commonwealth or a third party – cancels all entitlements under the SRCA. There are exceptions to this rule which are set out in Chapter 9 of this handbook.
If the lump sum has already been paid, the whole amount (or the amount awarded by the Court, whichever is less) must be repaid. Section 49 of the SRCA also affects the amount of lump sum where there is more than one eligible dependant, and one or more of those dependants elect to pursue common law action – i.e. sue the Commonwealth – in lieu of claiming their lump sum portion. If the other dependants nevertheless choose to accept payment under S17, the amount payable to them is reduced by a formula. This formula takes into account the amount awarded to that dependant(s) who chose legal action. The purpose of this provision is to ensure that a group of dependants cannot collude to maximise their gains by 'case splitting' between court awards and compensation benefits.