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29.1 Actions against the Commonwealth
Employees are prevented by S4 — 4 of the SRCA from suing the Commonwealth in lieu of claiming workers compensation for post-1988 injuries. Note that other Commonwealth employees are also protected from legal actions by S4 — 4 unless acting illegally or not in accordance with their contract of employment.
The issue of instituting an action under S4 — 5 (i.e. a restricted action in lieu of acceptance of a permanent impairment lump sum) is discussed in full at Chapter 80 of the Permanent Impairment Handbook.
Under the 1971 and 1930 Acts, employees were free to sue the Commonwealth (usually the Department of Defence as their employer), but a successful common law action has implications for their entitlement to receive workers’ compensation. Liability can still be accepted under section 14 of the DRCA for the same injury or disease for which an employee recovered damages at common law. However, it then becomes a question of what compensation they may be entitled to, in light of the previous common law payment. Generally speaking, an employee would not be entitled to the same type of compensation for which they received common law damages, including incapacity, medical expenses and permanent impairment. There may be other types of compensation, such as household or attendant care services, which are not precluded by the previous common law settlement, because those things were not contemplated at the time the settlement was entered into. In addition, common law actions had to be complete or actually in progress on 1 December 1988 to be valid, i.e. after that date such an action, even though it is in relation to an injury under an earlier Act, would usually be caught and prevented by s44 of the DRCA.