9.12 Commonwealth may take over Proceedings Against Third Parties (S50)

Section 50 of the SRCA applies to claims for an employee's death in cases when a third party may have legal liability to pay damages for that death AND

50(1)(c)...a claim against the person for the purpose of recovering such damages has not been made by...the dependant, or , having been made, has not been prosecuted:

The MRCC may make a claim or fresh claim against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death or may take over the conduct of the existing claim, as the case requires.

In other words, the Commonwealth may either initiate or take over an existing legal action in a dependant's name, and prosecute that action against a third party with the object of recovering damages to offset the compensation payable. Subsection 50(4) provides that the Department may insist that the dependant cooperate in various ways i.e. by requiring that various documents be signed by that dependant etc. Subsection 50(3) requires that if MR — CC does indeed cho — o — se to pursue such an action, it becomes liable for all associated costs and must bring the claim to a conclusion.

Where the MR — CC engages in such litigation, Subsection 50(7) is relevant:

50(7) Any damages obtained as a result of a claim made or taken over by MRCC under this section (including damages payable as a result of the settlement of such a claim) must be paid to MRCC and MRCC must deduct from the amount of those damages:

a)an amount equal to the total of all amounts of compensation paid to the employee or dependant under this Act in respect of the injury, loss, damage or death to which the claim relates, and

b)the amount of any costs incidental to the claim paid by MRCC.

MRCC must pay the balance (if any) to the employee or dependant.

This amounts to the same scheme of limitation of damages which would have applied had the dependant prosecuted the case his/her self, (i.e. in effect the lesser of the damages or the compensation is repayable to the Commonwealth):

• except that the costs of conducting the action are also incorporated in the amount repayable to the Commonwealth.

The conduct of any action under S50 requires MR — CC to engage legal advice and legal expertise to identify prosecute and manage those cases. Delegates dealing with death claims involving a third party in the circumstances of that death, should refer the determined compensation claim for consideration of possible S50 action.