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29.2 Actions against Third Parties
Under the DRCA member or former members are free to institute actions against persons or organisations other than the Commonwealth, i.e. where that person may have a common law liability for the injury. This is most commonly the case where the injury arose out of a vehicle accident during the person's home/work travel. However, where the person does institute such a legal action:
- are obliged to inform the Commonwealth of the commencement of such an action and subsequently of the result, and
- if succe — ssful in any degree (i.e. 'recovers damages' regardless of the amount received), liability to compensation under the DRCA is permanently removed.
Where damages for an injury are recovered by a person prior to the DRCA claim being made, liability under section 14 would be determined, however there is no liability under most other sections which provide compensation payments, including permanent impairment compensation and incapacity payments, due to the cessation provisions of subsection 48(4). The only exception lies under section 17, where a damages payment to a person does not preclude death benefits to their dependants, see Withenshaw and Department of Defence.
If a liability claim is made while a damages action continues, the claim should be managed in the same manner as any other claim. It should be noted, however, that any compensation paid to/for the benefit of the person would be recovered from the damages payment in accordance with section 48(3) to determine and finalise the claim.
The liability claim should be fully considered and determined, because there are additional benefits under the DRCA including rehabilitation that will not be precluded by the third party action and any damages recovered by the person.
More information about the recovery of damages and a person’s entitlement to compensation under the DRCA where actions against a third party are made can be found at Chapter 48 of the General Handbook.