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7.1.11 Discussion - When does S53(1) apply?
Given the very wide latitude available in relation to late notification of injury, Delegates may wonder whether S53(1) of the SRCA represents a barrier to any sort of claim. In fact, exclusions for late notification of injuries are very rare for the SRCA.
However, S53 does act to eliminate those claims made years after discharge and which rest only on the applicant's unsupported assertions about an injury, incident or exposure. Section 53 may be relied upon where there is no contemporary medical record of injury nor any ADF or unit report confirming the claimant's involvement in the alleged injurious circumstances. In such cases, non-compliance with S53 should be incorporated – as a secondary matter – into a Determination whose principle finding is that the Delegate is unable to be satisfied that the employee has suffered an injury within the meaning of S4.
The deeming provision should be applied having regard to all the circumstances of the case. However, as a matter of policy, it is recommended that the deeming provision should be applied to admit the claim in a borderline case as it is generally preferable to consider a claim on its merits rather than reject it on a technicality.