The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

3.1.9.20 Requirements to pursue & obtain compensation

Introduction

This topic provides information on the following provisions:

  • requirement to pursue compensation,
  • reasonable action to obtain compensation, and
  • power to obtain information.

Requirement to pursue compensation

Payment of a CAP (1.1.C.250) can be withheld if a person or their partner fails to take action to either claim or obtain compensation, whether the event occurred inside Australia, or in another country.

Reasonable action to claim compensation

A person or their partner could be considered to have taken reasonable action to claim compensation if they have:

  • lodged a claim and medical evidence with their employer or insurer,
  • engaged a solicitor to commence legal proceedings, or
  • sought legal advice as to whether a claim for compensation can be successfully pursued.

Acceptable reasons for not claiming compensation

The following are circumstances where it may be acceptable for a person, or their partner, not to claim compensation:

  • there is no enforceable claim for compensation, or
  • the accident occurred many years ago and it is now outside the time limits to lodge a compensation claim, or
  • legal proceedings are required but the person or partner is unable to obtain the services of a solicitor, including being rejected for legal aid assistance, or
  • the injuries sustained will not result in the person or partner suffering loss of wages, salary or loss of earnings capacity, or
  • a person has elected, under Safety, Rehabilitation and Compensation Act 1988 section 43, to forgo their right to a Military Compensation, Rehabilitation Scheme payment, in favour of a payment under Veterans' Entitlements Act 1986 Part II or Part IV, or
  • there is the possibility of significant contributory negligence. In this case, the delegate needs to consider that compensation payments are generally REDUCED to take account of the contributory negligence, and it will only be in rare cases that a person should be exempted from the requirement to pursue compensation.

    • Example: If the person caused his or her own injury when intoxicated while on duty.

Note: In any of these situations, the person's claims must be verified before the delegate determines that they do not need to pursue compensation.

Act reference: SSAct section 1166 Secretary may require person to take action to obtain compensation, section 1167 Failure to comply with a requirement to take action to obtain compensation

Policy reference: SS Guide 3.1.9.10 Compensation & payability, 4.13 Compensation, 6.4 Compensation Recovery

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