4.2.3 Action for damages related to a service death

Dependants’ common law action for damages against the Commonwealth 

If a dependant of a deceased member wishes to pursue common law damages against the Commonwealth or a potentially liable member related to the service death, they are not restricted. 

However, if the dependant recovers damages against the Commonwealth for the same service death, the MRCA contains provisions requiring the dependant to repay the Commonwealth the lesser of either:  

Key 1 July 2026 considerations – dependants receiving compensation under the VEA or the DRCA 

Where a dependant institutes an action for damages against the Commonwealth after 1 July 2026 for the same service death, the MRCA recovers dependant compensation under those Acts. This ensures continuity under the MRCA of the same compensation offsetting/recovery arrangements that existed under the DRCA and the VEA, for dependants receiving entitlements under those Acts, who decide to sue the Commonwealth for damages post 1 July 2026.  

What compensation is recovered when a dependant institutes an action from 1 July 2026? 

The MRCA recovers MRCA dependant compensation for the same death, including Wholly Dependent Partner compensation, some Eligible Young Children compensation and compensation for Other Dependants. 

Exclusions 

The MRCA does not recover the following: 

When do the MRCA compensation recovery provisions apply for DRCA or VEA dependants? 

The MRCA recovers dependant compensation under the DRCA or the VEA, when a dependant institutes an action against the Commonwealth after 1 July 2026, for the same service death. This means the MRCA may recover: 

To whom does the compensation recovery apply? 

Delegates need to be mindful that compensation recover action only applies to the dependant who has recovered damages from the Commonwealth. For example, if it is the dependant partner who recovered damages, their compensation under the MRCA, DRCA or VEA is recovered, and the children dependant’s compensation is not. 

Is compensation barred following a successful damages award?All compensation under the MRCA for the dependant in respect of the same death is barred following the recovery of damages. The following payments are also barred following the recovery of damages: 

For VEA and DRCA dependants instituting actions for damages from 1 July 2026 (who subsequently receive damages), the MRCA bars the War Widow(er)s Pension and Orphan’s Pension under the VEA, as well as all dependant compensation under the DRCA is barred. 

If a VEA or DRCA dependant institutes an action for damages against the Commonwealth for the same death before 1 July 2026 (even if the damages are received after 1 July 2026), the respective VEA or DRCA compensation recovery provisions continue to apply. 

Does compensation include medical treatment? 

Compensation under the MRCA includes medical treatment. Where a dependant successfully recovers damages from the Commonwealth, the MRCA recovers and bars medical treatment provided under the MRCA. This has the effect of removing a person's eligibility for a DVA Health Card for all conditions (Gold Card) that may have been issued to the dependant following the service death.  If the dependant has a personal entitlement to medical treatment (arising because they are also a veteran) then this entitlement would remain. 

VEA section 93 

Where a VEA War Widow(er) institutes an action for damages against the Commonwealth from 1 July 2026, the MRCA recovers the War Widow(er)s Pension. However, section 93 of the VEA continues to apply to recover any medical treatment paid under the VEA in respect of the same death. This also applies to orphans receiving VEA Orphan’s Pension, but only if they are the dependant recovering damages. 

Note: where delegates require additional support about common law actions against the Commonwealth by dependants, they should seek assistance via the Delegate Support Framework.