If a dependant of a deceased member wishes to pursue common law damages against the Commonwealth or a potentially liable member related to the service death they are not restricted.
However, if the dependant recovers damages related to the service death then subsections 388(5)&(6) apply. These provisions require the dependant to repay the Commonwealth the lesser of either the amount of compensation already paid to the person related to that service death or the amount of damages awarded.
The calculation of the amount of compensation awarded to the person under the MRCA for the purpose of determining the amount of the repayment, is not to include any compensation for:
- MRCA Supplement paid under section 221 or 245 (as per the rate payable in accordance with section 118D of the VEA); or
- Dependant compensation paid under sections 242, 253 or 255 (bereavement payments and Eligible Young Person periodic payments).
These payments are specifically excluded from the amount of compensation recovered due to the influence of case law establishing that an expense for some cost incurred, allowances to cover expenses and reimbursements for costs incurred are not to be quantified for the purposes of general damages recovery, (Freudhofer v Poledano [1972] VR 287, Byron v Australian Capital Territory [1999] ACTSC 44). Also, compensation payable to the dependants (not instituting the action) is not to be quantified in this sense either, hence the exclusion of dependant compensation.
Also once the person has been awarded any damages related to the service death, further compensation under the MRCA related to that death is no longer payable, including the excluded payments (listed above) from the recovered amount
Subsection 388(6) states that “Compensation under this Act in respect of a service death is not payable to the dependant after the recovery of the damages”. Section 5 of the MRCA defines “compensation” to include medical treatment provided under Chapter 6. Accordingly subsection 388(6) precludes the plaintiff from receiving any compensation, including compensation for treatment provided under Chapter 6. This has the effect of removing a person's eligibility for a Repatriation Health Card for all conditions (Gold Card) that may have been issued to the dependant following the service death. In the event that the dependant had a personal entitlement to compensation and health care (unrelated to the service death) and had been issued with a Repatriation Health Card for specific conditions (White Card) then this entitlement would remain.