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9.1 S44 Inapplicable re: Death Cases (i.e. Legal Action Vs Commonwealth is Possible)
Subsection 44(1) of the SRCA says:
44(1) Subject to Section 45, an action or other proceedings for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
a)an injury sustained by an employee in the course of his or her employment being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages, or
b)the loss of, or damage to, property used by an employee resulting from such an injury
c)whether that injury, loss or damage occurred before or after the commencement of this section.
Essentially this means that where the SRCA has coverage, an employee may not substitute a legal action against the Commonwealth for a claim under the SRCA.
However, Section 44 makes a single exception, i.e. where the injury results in death:
- an employee has suffered an injury in the course of his or her employment, and
- that injury results in that employee's death
Subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employer in respect of the death of the first-mentioned employee.
Thus, dependants of the deceased employee are not prevented from suing the Commonwealth for the death of that employee.
S48 and S119 of the SRCA ensure that the result of such an action for damages must impact on the SRCA entitlement. These sections of the SRCA serve to prevent double-dipping, i.e. a dependant can not both conclude an action for damages AND access full SRCA entitlements. This matter is dealt with in detail at 9.3 to 9.12.