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

Any successful actions brought against the Commonwealth in respect of a service death bring the provisions of subsections 388(5) and 388(6) into effect.

Subsection 388(5) requires recovery of the lesser amount of either the amount of damages awarded or the total amounts of compensation paid under the Act relating to the death (excluding any payments for MRCA Supplement under section 245, bereavement payments under sections 242 and 255, and weekly compensation for eligible young persons under section 253).

Subsection 388(6) states that “Compensation under this Act in respect of a service death is not payable to the dependant after the recovery of the damages”.  Section 5 of the MRCA defines “compensation” to include medical treatment provided under Chapter 6.  Accordingly subsection 388(6) precludes the plaintiff from receiving any compensation, including compensation for treatment provided under Chapter 6.  This has the effect of removing a person's eligibility for a Repatriation Health Card for all conditions (Gold Card) that may have been issued following the service death.  In the event that the dependant had a personal entitlement to compensation and health care (unrelated to the service death) and had been issued with a Repatriation Health Card for specific conditions (White Card) then this entitlement would remain.