Date amended:
External

Key points

  • Where a veteran or dependant has a right to take common law action against a potentially liable third party for a cause of action, but has not done so (or did, but the common law action is not finalised), the Commission may do so on the veteran or dependant's behalf or take over an existing matter.
  • An example of this would be when a member is travelling home from duty and is run into by another person in their car, creating a liability on the driver of the other car.
  • Delegates who become aware of this, must raise the matter with Benefits and Payments Policy via the Delegate Support Framework. This is because the matter will also need to be referred to Legal and Audit Division.
  • Once the Commission commences, or takes over, such an action, Legal and Audit Division will closely oversee the matter.

Signing of Documents and Actions Required

  • In these situations, the veteran or dependant may be required to sign documents or undergo reasonable requests by the Commission to pursue the claim. These requirements carry sanctions if the veteran or dependant fails or refuses, including that compensation payments (except medical treatment) may be suspended:
    • For a suspension to be enforced, the Commission must inform the veteran or dependant of this course of action and provide adequate time to give evidence of a reasonable excuse for a failure to act. If this excuse is accepted, then a suspension of compensation cannot be enforced.

Suspensions of compensation

  • When a veteran or dependant's compensation is suspended, a determination must be made of an end date to the suspension. As noted above, delegates must liaise with Benefits and Payments Policy and Legal and Audit Division, who will assist in this matter.
  • There are also situations where entitlement to compensation is reinstated.

Legal Proceedings and Costs

  • Delegates should be broadly aware that if the Commission instigates a claim against a third party, then all associated costs are to be met by the Commonwealth. However, if the Commission takes over the conduct of an already existing claim, then the Commonwealth is liable to pay the costs of, or incidental to, the claim that would normally have been paid by the plaintiff, such as investigation or lodgement fees.
  • As noted earlier, delegates must refer these matters to Benefits and Payments Policy an Legal and Audit Division and are not required to understand the provisions in detail.

Damages Awarded

  • Any damages recovered in these situations for a cause of action, are payable to the Commonwealth (i.e. the Department).
  • Compensation under the MRCA (including medical treatment) will be deducted from the damages award, with the following exceptions:
    • MRCA Supplement paid under section 221 or 245, or
    • Dependant compensation under sections 242, 253, or 255 (bereavement payments and Eligible Young Person periodic payments), and
    • Any costs incidental to the claim that were paid by the Commonwealth in the prosecution of the claim.
  • Once these amounts have been calculated the total is to be deducted from the damages recovered. If a positive balance remains, the balance is to be paid to the veteran of dependant.
  • However, once this balance is paid to the plaintiff, the plaintiff is not entitled to any further compensation under the MRCA until the compensation related tot he cause of action pursued that would have been paid equals the balance that was paid to the veteran or dependant. This is to ensure compensation is not paid twice.

Note: Delegates must refer these matters to Benefits and Payments Policy and Legal and Audit Division so that tailored advice can be provided in each specific matter. This is to ensure the correct amounts of compensation are recovered and barring of future compensation only occurs in accordance with the legislative provisions.