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 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:
Subsection 49(1) says, firstly:
49(1) Where:
a)compensation is payable under this Act in respect of an injury that resulted in the death of an employee, and
b)damages in respect of the death of the employee are recovered by or for the benefit of a prescribed dependant of the deceased employee
c)this section applies in respect to that prescribed dependant.
In other words, the Section only operates where compensation is payable under S17 to a person but that person, who is a 'prescribed dependant', has instituted a legal action to recover damages for the same death but has eithere not claimed the section 17 payment or has declined the compensation.
Note that 'prescribed dependant' is a term defined by Ss49(4) as follows:
'prescribed dependant', in relation to a deceased employee, means a dependant of that employee by whom, or on whose behalf, a claim for compensation under this Act in respect of the injury that resulted in the death of the employee has not been made or by whom, or on whose behalf, a request under Section 43 relating to compensation under this Act in respect to that injury has been made.
Thus, a 'prescribed dependant' is one who would otherwise be entitled to compensation but who has either:
Subsection 49(2) then provides as follows:
49(2) If the prescribed dependant is the only prescribed dependant, he or she is liable to pay to Comcare:
a)the amount of the compensation referred to in paragraph (1)(a), or
b)the amount of the damages recovered by the prescribed dependant,
whichever is the less.
Essentially, this imposes the same scheme of limitation of 'damages' as does Ss48(3).
Thus, the amount of SRCA compensation which the 'prescribed dependent' would have received (i.e. had he/she applied for it or not cancelled it via S43) is still taken into account even though this compensation entitlement was not actually received.
Section 49 also provides a different scheme of limitation to deal with the situation where there is more than one 'prescribed dependant', i.e. where more than one of the deceased employee's dependants has chosen to forego an SRCA entitlement, and pursue a legal action for damages.
In these circumstances, it is Subsection 49(3) that determines how much is to be recovered from each of the 'prescribed dependants' and it does this by reference to a 'prescribed amount'. Subsection 49(4) defines 'prescribed amount' as follows:
Prescribed amount means an amount calculated under the formula:
AC x D1/D2
Where:
Thus a 'prescribed amount' is a proportion of the total SRCA compensation payable in respect of the death, based on the proportion of the prescribed person's share of the whole amount of damages awarded by the relevant court(s).
Subsection 49(3) then provides that:
49(3) If the prescribed dependant is not the only prescribed dependant, he or she is liable to pay to Comcare:
a)the prescribed amount, or
b)the amount of the damages recovered by the prescribed dependant,
whichever is less.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20645%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=node/20677%23comment-form
[3] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-9-legal-actions-respect-death/93-actions-against-commonwealth-limitation-s48
[4] https://clik.dva.gov.au/user/login?destination=node/20624%23comment-form
[5] https://clik.dva.gov.au/user/login?destination=node/20638%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=node/20698%23comment-form