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4.2.2 Action for damages against the Commonwealth or a potentially liable member for non-economic loss
The restrictions on common law damages against the Commonwealth or a potentially liable member do not apply if a person wishes to pursue common law damages for the non-economic loss effects of a service injury or disease.
This avenue of common law damages is in replacement of Permanent Impairment (PI) compensation payable under sections 68, 71 or 75 of the MRCA (see Chapter 5 of this manual for more information on PI compensation).
Section 389 provides that a member or former member to whom PI compensation is payable, but who has not yet been paid any PI compensation, can institute an action for damages against the Commonwealth or a potentially liable member at common law.
Once the member has elected to commence common law action, the choice is irrevocable and no PI compensation is payable after the date that the choice to sue is made.
The amount of damages at common law is restricted to a maximum of $110,000. This restriction is intended to encourage the claimant to pursue the compensation outcomes available under the MRCA, rather than at common law.
Any amount awarded is for pain and suffering (non-economic loss) only and compensation payments other than PI compensation will remain payable only under the MRCA (e.g. incapacity payments).
The claimant should be advised that they are required to notify DVA in writing should they wish to pursue common law action rather than accept compensation under the MRCA.
Delegates must be mindful to inform the claimant that if no advice is received, they will be put into payment as though they have accepted the compensation, therefore losing the right to sue for non-economic loss.
Once PI compensation has been paid under the MRCA, the claimant loses their right to pursue common law action for non-economic loss.