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7.3.1 Notice Requirements - S16, 1930 Act
The notice provisions of the 1930 Act are found in S16 of that Act and are significantly different to those in the SRCA and the 1971 Act. Section 16 of the 1930 Act states:
- there is no claim for compensation in the absence of a notice of the 'accident'
- the notice of injury has a defined minimum content (but can be an accident report or a claim)
- the employee has to submit the notice 'as soon as practicable'
- notices must pre-date discharge (providing it was a voluntary discharge), and
- claims for compensation must be made within 6 months of injury.
Non-compliance with any of the above did not disqualify a claim if:
- the failure to give proper notice of injury does not 'prejudice' the Commonwealth, or
- the non-compliance with the claim requirements was due to 'mistake, absence from Australia or other reasonable cause'.
Despite the discretion concerning prejudice and mistake, absence from Australia or other reasonable cause, it can be seen that the notice and claim requirements of the 1930 Act are very much more restrictive than those under the SRCA.
Note also that, the question of whether ignorance of the 1930 Act and its provisions represents a 'reasonable cause' for a late claim, is governed by a provision quite different from either the SRCA or the 1971 Act.
- Section 16 of the 1930 Act lists a 'mistake' of law as a 'reasonable cause', however repeated legal precedents establish that 'ignorance' of the law is not a 'mistake'.
- On the other hand, S53 of the SRCA and S53 of the 1971 Act both include the word 'ignorance' to the list of circumstances which would qualify as a 'reasonable cause'.
As a result, late claims from clients claiming 'ignorance' of the relevant compensation Act are acceptable under both the SRCA and the 1971 Act, but generally should not be accepted under the 1930 Act.
Note: This does not prevent Delegates exercising their discretion to decide on the facts that a 1930 Act claim whose lateness is attributable to 'ignorance' does indeed have 'reasonable cause'. However, given the evident intent of Parliament in framing the 1930 legislation, this should be a rare event.
Overall, 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 a claim in a borderline case as it is generally preferable to consider a claim on its merits rather than reject it on a technicality.
The practical effect of S16 is that notice of an accident (this includes notice of an injury, or of a disease or of the death of an employee) had to be served on the then Commissioner for Employees' Compensation (Comcare Australia is the current equivalent of the Commissioner) as soon as practicable:
- after an injury occurred, or
- after the date on which an employee became aware that he/she was suffering from a disease, or
- after the date on which a claimant became aware of the death of the employee.
The manner in which notice was to be served on the then Commissioner for Employees' Compensation is set out in S16(3) and (4). In the case of Re Muras and Department of Defence (1998), the claimant argued that notice of injury had been served because the claimant was treated in a Naval hospital within six months of the date of injury. The AAT found that an informal notice of that nature does not comply with the specific requirements of S16(2) of the 1930 Act.
In Re Muras, there were other reasons why there was greater 'insistence' on (correct) service of notice of accident as required by the 1930 Act than might be the situation in other cases considered by the RCG. In Re Muras, particular concerns were expressed regarding the lack of evidence many years after the accident allegedly occurred that the claimed injury was actually sustained. In other words, had there been evidence that an injury was actually sustained in compensable circumstances, RCG may well have placed less emphasis on the requirement to serve notice of accident/injury strictly as required by the 1930 Act.
In considering claims under the 1930 Act, RCG Delegates should note that strict compliance with the requirements of that Act regarding service of notice of injury is not necessary if the Delegate is satisfied that sufficient evidence exists to support the conclusion that an injury was probably sustained as claimed.
Although notice may not have been served strictly as required, the Delegate may be satisfied that an injury probably occurred as claimed if service medical documents contained reference to the claimed injury, in compensable circumstances, at around the time claimed by the injured employee. For example, medical documents may confirm 'injury to right knee yesterday while playing service football'. RCG would not wish to deny liability to pay compensation for the effects of such an injury simply on the basis that it was not reported strictly as required, assuming that current medical evidence establishes a probable connection between a condition suffered now and an injury during service
Section 16 of the 1930 Act refers primarily to 'accidents' rather than diseases. Taken literally, S16 would prevent a claim for any ailment having a long latency (e.g. cancer) if the onset of the disease was only noted after discharge. However, RCG policy is to treat the matter of 'injury notification' of late onset diseases (those alleged to relate to 1930 Act service) in the same manner as those relating to service covered by the SRCA and 1971 Act. This means that the claim for compensation is deemed to be a satisfactory notification of injury and the employee is merely required to submit a claim 'as soon as practicable' after emergence of symptoms and diagnosis.
Note, however, that the linkage between a current, late onset disease and the nature of military service under the 1930 Act is notoriously difficult to demonstrate satisfactorily (i.e. 'on the balance of probabilities' rather than a mere possibility) after thirty years of civilian life experiences. This is discussed further in Section 21 in relation to causation of diseases.
Compliance with notice and claim provisions deemed where date of injury is between 3 March 1950 and 9 January 1953
Where the date of injury falls between 3 March 1950 and 9 January 1953, the Delegate should accept, as a matter of policy, that the notice of injury and claim provisions in S16 of the 1930 Act have been satisfied. This deemed acceptance is implemented in the Defcare Liability Module.
This concession is made because, in the cases of Re Loft and Comcare (1996) and Secretary, Department of Veterans' Affairs v Studdert (2001) (both MCRS Department of Defence cases), it was found by the AAT (and supported by the Federal Court in Studdert's case) that a Military Board Instruction (MBI No 34/1950) was relevant when considering claims under S16 of the 1930 Act. The MBI basically made it clear that ADF medical staff and the member's Commanding Officer had the responsibility to ensure that accident reports and, where necessary, a claim for compensation under the 1930 Act, were completed. Those responsibilities were not placed on the member and therefore a member's failure to fulfil those requirements was a result of 'other reasonable cause' for the purposes of former S16. MBI No 34/195 — 0 was issued on 3 March 1950 and was cancelled on 9 January 1953.
In view of the Loft and Studdert decisions, it would be fruitless for RCG to argue that the requirements of S16 applied in relation to an injury to a member of the ADF sustained or allegedly sustained during the period from 3 March 1950 until 9 January 1953. If an injury is claimed to have been sustained during that period, the claim for compensation should be accepted for consideration as a valid claim and appropriate investigations should be carried out to try to confirm whether an injury was sustained as asserted by the claimant.
Claims for compensation under the 1930 Act for injuries sustained or allegedly sustained between 3 January 1949 and 2 March 1950 or between 10 January 1953 and 3 — 1 August 1971 should be considered in accordance with the late notice/late claim provisions (S16).