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4.5.2 Where a member sues the Commonwealth or a potentially liable member in respect to non-economic loss related to an injury or disease

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.  Similarly, if PI compensation has already been paid, no common law action can be undertaken.

This common law action for non-economic loss does not affect any compensation other than PI compensation.

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.