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7.1.8 Interpretation - 'prejudice'
A claimant who is injured is required by S53 to give notice in writing of the injury as soon as practicable after they become aware of the injury. However, if the Department of Veterans' Affairs is not prejudiced by the failure to give proper and timely notice of injury, S53(3)(c) operates to deem proper notice to be given.
The relevance of 'prejudice' under the SRCA is that an employer is not to be ambushed by late allegations about a work-related injury where the means of testing those allegations have been erased by time. 'Prejudice', for the purposes of S53, has occurred when Defence has, for example, been deprived of a reasonable opportunity to confirm by a medical examination contemporary with the alleged events, that an injury has in fact occurred, or more generally, to investigate the alleged circumstances of the injury and the nexus with employment.
Where adequate medical treatment documents and other contemporary documents referring to the accident, incident or illness still exist, the Commonwealth can not usually claim to be 'prejudiced' by late lodgement of a formal notice of injury.
Whether there is prejudice to the Department is a matter for determination on the facts of each individual case, however it should be noted that it would be difficult to establish prejudice if:
- the delay in giving notice is very short (e.g. only one or two months)
- adequate records of the event are in existence, or
- witnesses to the injury are still contactable.
Prejudice to the Department is more likely to be established if:
- the delay in giving notice is very extensive (e.g. 5 or more years)
- there are no contemporaneous records of the event, or
- there are no witnesses other than the claimant.
1.Dowde and Comcare (1995): a delay of seven years in making a claim for asthma arising from passive smoking was held to be prejudicial to the employer and not attributable to any reasonable cause.
2.Adamo and Comcare (1995): the Tribunal held that there was no reasonable cause for a machinist's 6 month delay in making a claim for repetition injuries to the knee, back and neck. Comcare claimed prejudice because one of the applicant's supervisors could not be contacted and another refused to give evidence, and because of the lack of contemporaneous medical evidence. The Tribunal rejected these propositions, noting that the period involved was not so substantial that the available medical evidence would be inadequate and that:
'The endeavours of Comcare to secure the evidence of the two supervisors ... appear to have been of very recent origin and while one of the supervisors cannot be located, it is not clear how long this has been the case. Nor is it clear why other co-employees could not have been called to give evidence, particularly in respect of the operation of the sewing machine relevant to Mrs. Amado's claim, and the nature of the physical movements involved.'