Section 45
Section 45 of the Act provides that, where compensation is payable under section 24, 25 or 27 and the Commonwealth may be liable for damages at common law, an employee may elect to institute proceedings against the Commonwealth.
However, there is a statutory monetary limit on the amount able to be awarded. The statutory limit for payment under Common Law is $110,000.00 and once an election has been made to sue, it is irrevocable. This means the employee is not able to later change his or her mind.
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Example |
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An employee is advised that compensation payable under sections 24 and 27 is $34,500. |
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The letter of advice from Comcare indicates that the employee must elect to either institute proceedings under section 45 of the Act or to accept the payment as calculated under sections 24 and 27. |
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The employee decides that he may receive more money by electing to sue the Commonwealth. He advises Comcare accordingly. In the event, the Court awards payment of $28,750 only. |
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Prior to payment being made, the employee approaches Comcare to request further consideration of his permanent impairment claim be undertaken. |
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This is not possible, as he has already previously elected to take common law action, rather than receive his entitlements under this part of the Act. |
Source URL: https://clik.dva.gov.au/military-compensation-reference-library/historical-information/comcare-operations-manual/volume-thirteen-permanent-impairment/part-four-non-economic-loss/damages/section-45