4.5 Summary of the recovery and compensation provisions following a successful common law action

Chapter 10 of the MRCA outlines four different scenarios where common law action may be taken against the Commonwealth or a third party, and the resultant impacts:

Where a dependant successfully sues the Commonwealth in respect of a death (refer to 4.5.1);
Where a member sues the Commonwealth or a potentially liable member in respect to non-economic loss from a service injury or disease (refer to 4.5.2);
Where the MRCC takes over o — r institutes proceedings against a third party (refer to 4.5.3); and
Where a person or a dependant recovers damages from a third party (refer to 4.5.4).

The following table summarises these four scenarios:

	Common law damages	Compensation recoverable by the Commonwealth	Compensation ceased	Compensation continued and not recoverable by the Commonwealth
Dependant successfully sues the Commonwealth in respect of a death (s388)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the death.	All future benefits, including medical treatment (e.g. Gold Card) related to the death.	MRCA supplement, bereavement payment and eligible young person payments.
Member sues the Commonwealth for non-economic loss before PI is paid (s389)	Damages limited to $110,000.	N/A	No PI compensation paid in respect of the cause of action as soon as choice to undertake common law action is made.	Does not affect any compensation other than PI.
MRCC takes over or institutes proceedings against a third party (s392-398)	No limit.	The balance of compensation paid prior to the settlement, including costs to the claim.	All future benefits, including medical treatment UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement.	None UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement. But MRCA supplement, bereavement payment and eligible young person payments will continue.
Person or a dependant recovers damages from a third party (s401-402)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the cause of action.	All future benefits, including medical treatment.	MRCA supplement, bereavement payment and eligible young person payments.

Source URL: https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-4-liabilities-arising-apart-act/45-summary-recovery-and-compensation-provisions-following-successful-common-law-action

4.5.1 Where a dependant successfully sues the Commonwealth in respect of a death

Chapter 10 of the MRCA outlines four different scenarios where common law action may be taken against the Commonwealth or a third party, and the resultant impacts:

Where a dependant successfully sues the Commonwealth in respect of a death (refer to 4.5.1);
Where a member sues the Commonwealth or a potentially liable member in respect to non-economic loss from a service injury or disease (refer to 4.5.2);
Where the MRCC takes over o — r institutes proceedings against a third party (refer to 4.5.3); and
Where a person or a dependant recovers damages from a third party (refer to 4.5.4).

The following table summarises these four scenarios:

	Common law damages	Compensation recoverable by the Commonwealth	Compensation ceased	Compensation continued and not recoverable by the Commonwealth
Dependant successfully sues the Commonwealth in respect of a death (s388)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the death.	All future benefits, including medical treatment (e.g. Gold Card) related to the death.	MRCA supplement, bereavement payment and eligible young person payments.
Member sues the Commonwealth for non-economic loss before PI is paid (s389)	Damages limited to $110,000.	N/A	No PI compensation paid in respect of the cause of action as soon as choice to undertake common law action is made.	Does not affect any compensation other than PI.
MRCC takes over or institutes proceedings against a third party (s392-398)	No limit.	The balance of compensation paid prior to the settlement, including costs to the claim.	All future benefits, including medical treatment UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement.	None UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement. But MRCA supplement, bereavement payment and eligible young person payments will continue.
Person or a dependant recovers damages from a third party (s401-402)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the cause of action.	All future benefits, including medical treatment.	MRCA supplement, bereavement payment and eligible young person payments.

4.5.2 Where a member sues the Commonwealth or a potentially liable member in respect to non-economic loss related to an injury or disease

Chapter 10 of the MRCA outlines four different scenarios where common law action may be taken against the Commonwealth or a third party, and the resultant impacts:

Where a dependant successfully sues the Commonwealth in respect of a death (refer to 4.5.1);
Where a member sues the Commonwealth or a potentially liable member in respect to non-economic loss from a service injury or disease (refer to 4.5.2);
Where the MRCC takes over o — r institutes proceedings against a third party (refer to 4.5.3); and
Where a person or a dependant recovers damages from a third party (refer to 4.5.4).

The following table summarises these four scenarios:

	Common law damages	Compensation recoverable by the Commonwealth	Compensation ceased	Compensation continued and not recoverable by the Commonwealth
Dependant successfully sues the Commonwealth in respect of a death (s388)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the death.	All future benefits, including medical treatment (e.g. Gold Card) related to the death.	MRCA supplement, bereavement payment and eligible young person payments.
Member sues the Commonwealth for non-economic loss before PI is paid (s389)	Damages limited to $110,000.	N/A	No PI compensation paid in respect of the cause of action as soon as choice to undertake common law action is made.	Does not affect any compensation other than PI.
MRCC takes over or institutes proceedings against a third party (s392-398)	No limit.	The balance of compensation paid prior to the settlement, including costs to the claim.	All future benefits, including medical treatment UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement.	None UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement. But MRCA supplement, bereavement payment and eligible young person payments will continue.
Person or a dependant recovers damages from a third party (s401-402)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the cause of action.	All future benefits, including medical treatment.	MRCA supplement, bereavement payment and eligible young person payments.

4.5.3 Where the MRCC takes over or institutes proceedings against a third party

Chapter 10 of the MRCA outlines four different scenarios where common law action may be taken against the Commonwealth or a third party, and the resultant impacts:

Where a dependant successfully sues the Commonwealth in respect of a death (refer to 4.5.1);
Where a member sues the Commonwealth or a potentially liable member in respect to non-economic loss from a service injury or disease (refer to 4.5.2);
Where the MRCC takes over o — r institutes proceedings against a third party (refer to 4.5.3); and
Where a person or a dependant recovers damages from a third party (refer to 4.5.4).

The following table summarises these four scenarios:

	Common law damages	Compensation recoverable by the Commonwealth	Compensation ceased	Compensation continued and not recoverable by the Commonwealth
Dependant successfully sues the Commonwealth in respect of a death (s388)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the death.	All future benefits, including medical treatment (e.g. Gold Card) related to the death.	MRCA supplement, bereavement payment and eligible young person payments.
Member sues the Commonwealth for non-economic loss before PI is paid (s389)	Damages limited to $110,000.	N/A	No PI compensation paid in respect of the cause of action as soon as choice to undertake common law action is made.	Does not affect any compensation other than PI.
MRCC takes over or institutes proceedings against a third party (s392-398)	No limit.	The balance of compensation paid prior to the settlement, including costs to the claim.	All future benefits, including medical treatment UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement.	None UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement. But MRCA supplement, bereavement payment and eligible young person payments will continue.
Person or a dependant recovers damages from a third party (s401-402)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the cause of action.	All future benefits, including medical treatment.	MRCA supplement, bereavement payment and eligible young person payments.

4.5.4 Where a person or a dependant recovers damages from a third party

Chapter 10 of the MRCA outlines four different scenarios where common law action may be taken against the Commonwealth or a third party, and the resultant impacts:

Where a dependant successfully sues the Commonwealth in respect of a death (refer to 4.5.1);
Where a member sues the Commonwealth or a potentially liable member in respect to non-economic loss from a service injury or disease (refer to 4.5.2);
Where the MRCC takes over o — r institutes proceedings against a third party (refer to 4.5.3); and
Where a person or a dependant recovers damages from a third party (refer to 4.5.4).

The following table summarises these four scenarios:

	Common law damages	Compensation recoverable by the Commonwealth	Compensation ceased	Compensation continued and not recoverable by the Commonwealth
Dependant successfully sues the Commonwealth in respect of a death (s388)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the death.	All future benefits, including medical treatment (e.g. Gold Card) related to the death.	MRCA supplement, bereavement payment and eligible young person payments.
Member sues the Commonwealth for non-economic loss before PI is paid (s389)	Damages limited to $110,000.	N/A	No PI compensation paid in respect of the cause of action as soon as choice to undertake common law action is made.	Does not affect any compensation other than PI.
MRCC takes over or institutes proceedings against a third party (s392-398)	No limit.	The balance of compensation paid prior to the settlement, including costs to the claim.	All future benefits, including medical treatment UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement.	None UNTIL amount of compensation that would have been payable under the Act exceeds the amount of the settlement. But MRCA supplement, bereavement payment and eligible young person payments will continue.
Person or a dependant recovers damages from a third party (s401-402)	No limit.	The lesser of: amount of damages awarded or total amount of compensation paid under the Act relating to the cause of action.	All future benefits, including medical treatment.	MRCA supplement, bereavement payment and eligible young person payments.