Payments by way of compensation or damages
74 Payments by way of compensation or damages
In this section, compensation includes:
any payment in the nature of compensation; and
any damages recoverable at law (including any amount paid under a compromise or settlement of a claim for damages at law), whether from the Commonwealth, a State, a Territory or any other person (whether within or outside Australia), in respect of injury to, or the death of, a person;
but does not include any amount that represents expenses incurred in medical or hospital treatment.
This section applies in relation to a member of the Forces, or a member of a Peacekeeping Force, in respect of the death of the member, or the incapacity of the member if:
a person is entitled, or 2 or more persons are each entitled, to receive payments by way of compensation in respect of the death of the member or of the incapacity of the member from an injury or disease; and
subject to this section, pension under this Part is being paid or is payable to a person, or to each of 2 or more persons, in respect of the death of the member or to the member in respect of the same incapacity of the member from that or any other injury or disease.
For the purposes of this section, where:
a lump sum payment by way of compensation (other than a lump sum payment mentioned in paragraph (3A)(a) or (3B)(a)) is made:
to a person, being a member of the Forces or a member of a Peacekeeping Force, in respect of the incapacity of the member from injury or disease; or
to a person, being a dependant of a member of the Forces or of a member of a Peacekeeping Force, in respect of the death of the member; and
that person is in receipt of, or is subsequently granted, a pension under this Part in respect of the same incapacity of the member from that or any other injury or disease or in respect of the death of that member, as the case may be;
that person shall be deemed, by reason of that payment by way of compensation, to have been, or to be, in receipt of payments, by way of compensation, on and after:
the date of commencement of the period in respect of which his or her pension is, or becomes, payable; or
the date on which the lump sum payment is made;
whichever is the earlier date, for the life of the person, at such rate per fortnight as is determined by, or in accordance with the instructions of, the Commonwealth Actuary, to be the equivalent of a lump sum equal to that lump sum payment and paid to the person on that earlier date.
In this section, if:
a lump sum payment is made under section 137 of the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988 to a person who is:
a member of the Forces or a member of a Peacekeeping Force, in respect of the incapacity of the member from injury or disease; or
a dependant of a member of the Forces or of a member of a Peacekeeping Force, in respect of the death of the member; and
that person is in receipt of, or is subsequently granted, a pension under this Part in respect of the same incapacity of the member from that or any other injury or disease or in respect of the death of that member;
the person is taken to have been, or to be, in receipt of payments of compensation:
that is determined by, or under the instructions of, the Commonwealth Actuary to be equivalent to the amount of that lump sum payment; and
at the rate per fortnight for the person’s life determined by, or under the instructions of, the Commonwealth Actuary; and
beginning:
on the day that lump sum payment is made to that person; or
on the day the pension becomes payable to the person;
whichever is the later day.
In this section, if:
a lump sum payment is made under section 30 of the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988 to a person who is:
a member of the Forces or a member of a Peacekeeping Force, in respect of the incapacity of the member from injury or disease; or
a dependant of a member of the Forces or of a member of a Peacekeeping Force, in respect of the death of the member; and
that person is in receipt of, or is subsequently granted, a pension under this Part in respect of the same incapacity of the member from that or any other injury or disease or in respect of the death of that member;
the person is taken to have been, or to be, in receipt of payments of compensation:
that is determined by, or under the instructions of, the Commonwealth Actuary to be equivalent to the amount of that lump sum payment; and
at the rate per fortnight determined by, or under the instructions of, the Commonwealth Actuary for the period until the person reaches 65; and
beginning:
on the day that the lump sum payment is made to that person; or
on the day the pension becomes payable to the person;
whichever is the later day.
For the purposes of this section, a payment by way of compensation made on behalf of, or for the benefit of, a person shall be deemed to have been made to that person.
Where:
an amount of damages payable to a member of the Forces or a member of a Peacekeeping Force, or to a dependant of such a member, is paid to the Commonwealth in pursuance of a notice under section 76; or
the liability of the Commonwealth to pay damages to a member of the Forces or a member of a Peacekeeping Force or to a dependant of such a member, is, by virtue of section 77, to be deemed to have been discharged to the extent of a particular amount;
subsection (3) of this section applies to and in relation to the member or dependant as if pension commenced to be payable, or commences to be payable, only after the member or dependant has received payments by way of instalments of pension aggregating the amount referred to in paragraph (a) or (b), whichever is applicable, of this subsection.
In the application of subsections (8) and (9) in respect of the death of a member of the Forces or a member of a Peacekeeping Force:
if payments by way of compensation in respect of the death of the member are being made to 2 or more persons included in the relevant class of persons—a reference in those sections to the rate per fortnight at which compensation is payable in respect of the death of the member shall be read as a reference to the aggregate of the rates per fortnight at which those payments are being made; and
if pensions under this Part in respect of the death of the member are being paid, or are payable, to 2 or more persons included in the relevant class of persons—a reference in those sections to the rate at which pension under this Part is payable in respect of the death of the member shall be read as a reference to the aggregate of the rates per fortnight at which those pensions are being paid or are payable.
For the purposes of subsection (6), the dependants of a member of the Forces or a member of a Peacekeeping Force constitute the relevant class of persons.
If, in a case where this section applies in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, the rate per fortnight at which compensation is payable in respect of the death or incapacity equals or exceeds the rate per fortnight at which pension under this Part is payable in respect of the death or incapacity, then, pension is not payable under this Part to any person in respect of the death of the member, or the incapacity of the member, as the case may be.
If, in a case where this section applies in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, the rate per fortnight at which pension under this Part, or the aggregate of the rates per fortnight at which pensions under this Part would, but for this subsection, be payable in respect of the death or incapacity exceeds the rate per fortnight at which compensation is payable in respect of the death or incapacity, then:
if a pension under this Part is being paid, or is payable, to one person only in respect of the death or incapacity of the member—the rate per fortnight at which that pension is payable; or
if pensions under this Part are being paid, or are payable, to 2 or more persons in respect of the death of the member—the aggregate of the rates per fortnight at which those pensions are payable;
is an amount per fortnight equal to the amount of that excess.
In giving effect to subsection (9) as between 2 pensions in a case where one is required by subsection (12) to be preferred to the other, the rate per fortnight of the pension that is to be so preferred shall not be reduced until the pension that is not to be so preferred has ceased to be payable by reason that its rate per fortnight has been reduced to nil.
In giving effect to subsection (9) as between 2 or more pensions in a case where subsection (10) does not apply, the rate per fortnight of each of those pensions shall be reduced by an amount per fortnight that bears the same proportion to the amount per fortnight of the reduction required to be made to all those pensions as the rate per fortnight of that pension before the reduction bears to the aggregate rate per fortnight of all those pensions before the reduction.
For the purposes of this section:
a pension payable under this Part to the widow or widower of a member of the Forces or a member of a Peacekeeping Force who is deceased shall be preferred to such a pension payable to a child of the member; and
a pension payable under this Part to a child of a member of the Forces or a member of a Peacekeeping Force shall be preferred to such a pension payable to a younger child of the member.
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