MCRI No. 21

Military Compensation and Rehabilitation Service

Safety Rehabilitation and Compensation Act 1988

Subject:

Amendment to the Safety, Rehabilitation and Compensation Act 1988

Common law remedies for dependants of deceased employees

Background

  1. On 1 October 2001 the Safety, Rehabilitation and Compensation Act 1988 (the Act) was amended in several areas, including the provisions relating to common law remedies for dependants of deceased employees.

Previous provisions

  1. Section 44 of the act provides that, subject to section 45, an action for damages does not lie against the Commonwealth in respect of an injury suffered by an employee in the course of employment.

  1. The intention of the previous form of section 44 was to allow dependants of deceased employees to take common law action against the Commonwealth.  However, the drafting of the section addressed the position on common law actions by employees themselves but failed to address the implications for dependants of deceased employees.  As a result the section can be read as excluding a common law remedy for dependants of deceased employees.

Reason for amendment

  1. Although as a matter of policy dependants of deceased employees have been given the option to take action for damages, a technical amendment is required to make clear the original intention of the section and ensure that dependants of deceased employees are not barred from taking action at common law.

New provisions

  1. Section 44 has been amended by inserting new sub-sections as follows:

(3) If:

  1. an employee has suffered an injury in the course of his or her employment; and

  1.          that injury results in that employee's death;

subsection (1) does not prevent a dependant of that employee

bringing an action against the Commonwealth, a Commonwealth

authority, a licensed corporation or another employee in respect of

the death of the first-mentioned employee.

(4) Subsection (3) applies whether or not the deceased employee,

      before his or her death, had made an election under subsection

      45(1).

Date of effect

  1. This amendment has effect from the date of royal assent given to the act  (ie 1 October 2001).

  1. Any inquiries concerning the information contained in this MCRI should be directed to Craig Boyd on (08) 9366 8571.

(signed)

Mark Travers

Director, Policy and Procedures

MCRS – National Office, Canberra

25 October 2001

MILITARY COMPENSATION & REHABILITATION SERVICE

Source URL: https://clik.dva.gov.au/military-compensation-reference-library/historical-information/mcris-military-compensation-rehabilitation-instructions/current/mcri-no-21