389Choice to institute action for damages against the Commonwealth etc. for non‑economic loss

389  Choice to institute action for damages against the Commonwealth etc. for non‑economic loss  (1) A person may choose to institute an action or proceeding against the Commonwealth or a potentially liable member for damages for non‑economic loss suffered by the person if:  (a) compensation is payable under section 68, 71 or 75 in respect of a service injury or disease of the person but the compensation has not yet been paid; and  (b) the Commonwealth or the potentially liable member would, apart from subsection 388(1), be liable for damages for that loss.  (2) A choice must be in writing and must be given to the Commission.  (3) A choice is irrevocable.  (4) If the person chooses to institute the action or proceeding:  (a) subsection 388(1) does not apply to the action or proceeding; and  (b) compensation under section 68, 71 or 75 in respect of the injury or disease is not payable after the date of the choice.  (5) In any action or proceeding instituted as a result of the person’s choice, the court must not award the person damages of more than $110,000 for non‑economic loss suffered by the person.  (6) The person’s choice to institute an action or proceeding against the Commonwealth or the potentially liable member does not prevent the person from doing any other thing that constitutes an action for non‑economic loss before, or instead of, formally instituting such an action or proceeding.