This page describes the circumstances under which common law action against the Commonwealth (including against another Australian Defence Force (ADF) member), or against a third party, can be taken by dependants of deceased members or former members of the ADF.
Eligible dependants of a deceased member or former member who are entitled to receive compensation for the death of a member under either the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) or the Military Rehabilitation and Compensation Act 2004 (MRCA), may be able to sue the Commonwealth or a third party through the courts to obtain financial compensation for the member’s death. These claims are called common law claims.
Common law damages can only be awarded where it can be proven that the Commonwealth or third party were at fault in causing the death. This is different from workers’ compensation schemes like those of the DRCA and MRCA, which are essentially ‘no fault’ schemes.
Eligible dependants include wholly dependent partners, eligible young persons (known as a prescribed child for DRCA purposes) and other dependants of the deceased member or former member. Essentially, this would include those who were wholly or partly dependent on the member for financial support.
Partners and eligible young people living with the member are deemed to be wholly financially dependent regardless of whether they were in fact relying on the deceased for economic support.
If you decide that you are going to take common law action against the Commonwealth for the death, you must notify DVA within 7 days after you have lodged notification of your intent. Penalties apply if you do not comply with this requirement.
If you have already received benefits in relation to this death, then you will be required to pay DVA the lesser of the amount of compensation already received and the amount of damages received if the courts come to a decision in your favour. This will also apply if you settle out of Court.
Once you recover common law damages against the Commonwealth for the death, you will not be entitled to any further compensation from DVA in relation to this death. This includes your access to treatment under the MRCA/DRCA.
Third party claims can be made where liability for the death of a member or former member does not lie fully with the Commonwealth or another liable ADF member. For example, the partner of a member killed in a two car accident whilst driving home from duty may take third party common law action against the driver of the second car if that driver had contributed to the accident. It could also be the case that the member’s death would be accepted as being service related, since the member was driving home from duty. However, because there has been a third party contribution by the driver of the second car, dependants may choose to seek compensation through the Courts.
If you choose to take third party action, you must inform DVA within 7 days of your claim being lodged.
If your claim is successful and you are awarded damages, you must notify DVA within 28 days after these damages are recovered.
Penalties may apply if you do not notify DVA within this time period.
If you do not pursue a third party claim, or you have lodged your intention to sue with the courts but have not yet had a hearing, DVA can either commence a claim or take over the conduct of the existing claim. If this happens, you will be required to sign documents allowing DVA to take this course of action.
If DVA initiates a claim against a third party, all associated costs of that claim will be met by the Commonwealth.
If DVA takes over an existing claim, then the Commonwealth will meet all normal costs associated with the claim (e.g. reasonable investigation and lodgement fees), but not costs incurred by you which are considered to be unreasonable for the prosecution of the claim, such as excessive investigation costs or unreasonable travel costs.
All damages awarded are paid to the Commonwealth. DVA will then calculate the amount of compensation you have already received for the condition/s (with some exceptions), plus any costs incidental to the claim that were paid by the Commonwealth in the prosecution of the claim. The total amount will be deducted from the amount of damages received and you will receive any balance.
Because of the complexity of common law claims and the possible ramifications of each individual case, you should seek independent legal advice before deciding to take common law action. This advice will be at your own expense.