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:
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20677%23comment-form
[2] 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