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9.11.1 Background and purpose
This Part of the Handbook deals with the provisions of Section 49 of the SRCA.
The SRCA acts to recover money from the amount of damages awarded by a court to a dependant, when that dependent – or a group of dependents – is also entitled to compensation under S17.
- Section 48 recovers money in cases where the client(s) actually received the Section 17 entitlement prior to the court's award of damages. In any case, (i.e. whether the money was paid prior to the award of damages or not) S48 also annuls further entitlement from the date of the court's award. See 9.3 re: the action of S48.
- Section 49 also recovers money from common-law damages, but in cases where the client(s) have either failed to claim the clear entitlement (which is also covered under S48), or alternatively where that entitlement has been formally refused via Section 43.
Section 49 is therefore complementary to S48 in that it prevents dependants who are entitled to S17 SRCA compensation from foregoing that compensation to maximise the amount retained from a legal action. If Section 49 did not exist, dependants could then:
a)fail to claim SRCA compensation or
b)positively decline SRCA compensation by means of S43*,
to prevent this entitlement from being deducted via Ss48(3) from a 'damages' award
* Note that Subsection 43(1)(c) of the SRCA allows dependants of employees who were also 'veterans' – i.e. for the purposes of the VEA – to formally decline SRCA compensation for the death of that employee. The clear intent of S43 is to allow dependants with 'dual entitlement' under the VEA and the SRCA to choose between a VEA pension and a SRCA lump sum.
Section 49's intended result is achieved as follows: