9.5 Not all Categories of Damages Recovered, are Subject to Limitation

Subsection 48(7) of the SRCA says:

48(7) Where an employee, or a dependant of an employee, establishes to the satisfaction of Comcare that part of the damages referred to in Subsection (1) did not relate to an injury, loss or damage in respect of which compensation is payable under this Act, Subsection (3) applies in relation to that employee or dependant as if the amount of the damages were an amount equal to so much of the amount of the damages did relate to an injury, loss or damage in respect of which compensation is payable under this Act.

Courts of law, when deciding an action for damages due to death, are not constrained to award damages only under those headings (loss of income, support of children etc.) used by workers compensation legislation. Subsection 48(7) provides that if the damages awarded by the court lists as components of that award, compensation for matters that are not of a type which is provided for in the SRCA these parts of the damages award are not recoverable. As an example, an award of damages might include the cost of replacement of the vehicle in which the employee died, or the legal costs of bringing the action, or the costs of medical/psychological treatment of the dependant (rather than the employee). Those components should therefore be deducted from the total damages awarded prior to calculating how much of that award is recoverable by the Department.