The intersection of common law rights to damages, damages or entitlements payable under other Acts and entitlements under Commonwealth workers compensation Acts are all the subject of a separate chapter of this Handbook. Delegates with detailed questions on these issues should refer to Chapter 80 of the Permanent Impairment Handbook and Chapter 48 [2] of the General Handbook.
However, for the purposes of a quick determination of liability the following summary should be useful.
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.
Under the DRCA member or former members are free to institute actions against persons or organisations other than the Commonwealth, i.e. where that person may have a common law liability for the injury. This is most commonly the case where the injury arose out of a vehicle accident during the person's home/work travel. However, where the person does institute such a legal action:
Where damages for an injury are recovered by a person prior to the DRCA claim being made, liability under section 14 would be determined, however there is no liability under most other sections which provide compensation payments, including permanent impairment compensation and incapacity payments, due to the cessation provisions of subsection 48(4). The only exception lies under section 17, where a damages payment to a person does not preclude death benefits to their dependants, see Withenshaw and Department of Defence.
If a liability claim is made while a damages action continues, the claim should be managed in the same manner as any other claim. It should be noted, however, that any compensation paid to/for the benefit of the person would be recovered from the damages payment in accordance with section 48(3) to determine and finalise the claim.
The liability claim should be fully considered and determined, because there are additional benefits under the DRCA including rehabilitation that will not be precluded by the third party action and any damages recovered by the person.
More information about the recovery of damages and a person’s entitlement to compensation under the DRCA where actions against a third party are made can be found at Chapter 48 of the General Handbook [5].
Under the 1971 and 1930 Acts, actions against third parties where successful, also affected compensation entitlements but to a different degree.
Last amended: 16 October 2013
Section 118 of the SRCA provides that where an employee recovers damages for an injury under a State Workers' Compensation Act, compensation is not also payable under the Commonwealth Act (i.e. the SRCA) for the same injury or illness to the employee. Similarly, where a dependant of a deceased employee recovers damages in respect of the employee's death under a State Worker's Compensation Act, compensation is also not payable under the Commonwealth Act for the death to the dependant.
However, s118 does not preclude a dependant from making a SRCA claim in respect of the death of an employee where the deceased employee had, while they were still alive, received State Worker's compensation for the injury which subsequently resulted in their death.
Section 118 requires that any SRCA compensation that has been paid to the employee in respect of the same injury, or, to the dependant in respect of the employee's death prior to the State award, is recoverable by the Commonwealth.
In the case of an ADF employee who has previously received an award for injury under a State worker's compensation Act and subsequently “aggravates” the condition after enlisting in the ADF, liability to pay compensation under the SRCA still exists but only in respect of the aggravation component. However, it is important to point out that liability may be excluded if the employee has concealed the former injury at the time of enlistment, (refer to 27 [8].1 for more information in this respect).
Section 119 of the Act refers to awards from other State legislation i.e. from other than workers compensation Acts. This section has reference to 'specified laws' which means a schedule of Acts mainly being criminal compensation and road accident victim compensation Acts. That schedule is available at the Annotation to S119 in the Annotated SRCA (Ballard/Sutherland).
Similarly to the provisions of S118, receipt of damages under a S119 'specified law' permanently removes the Commonwealth's liability to pay compensation under the SRCA. Furthermore, if liability had been accepted and benefits paid under the SRCA prior to the award under the specified law, all of that money is recoverable by the Commonwealth.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20196%23comment-form
[2] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/chapter-48-summary-compensation-recovery-provisions-following-successful-common-law-action
[3] https://clik.dva.gov.au/user/login?destination=node/20171%23comment-form
[4] https://clik.dva.gov.au/user/login?destination=node/20277%23comment-form
[5] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/general-handbook/ch-48-recovery-damages
[6] https://clik.dva.gov.au/user/login?destination=node/20152%23comment-form
[7] https://clik.dva.gov.au/user/login?destination=node/20511%23comment-form
[8] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-27-pre-existing-conditions/271-failure-declare-existing-condition-recruitment