7.3.2 Prejudice

The effect of prejudice – 1930 Act

All new claims for 1930 Act injuries or diseases are, by the terms of S16, 'out of time' by well over 30 years. Most of these cases therefore involve consideration o — f whether the Commonwealth has been prejudiced by that delay.

'Prejudice' means the same under the 1930 Act as it does under the SRCA, see 7.1.8. However, in brief, the Commonwealth has been prejudiced if the passag — e of time and failure to notify the employer of an injury has obliterated evidence vital for determining a claim arising from that injury.

It is a common misconception that 'prejudice' (against the Commonwealth) is a relevant matter in relation to a late claim under the 1930 Act (i.e. a claim not lodged within the six month period allowed). Delegates should note that prejudice applies only in relation to notice of an injury, disease or death of an employee, not in relation to a late claim.

It is not poss — ible to decide whether the Commonwealth has been prejudiced by a claimant's failure to give notice as required unless some attempt to investigate the claim is made. Prejudice could only be established if, for example, it proves after initial investigation to be impossible to locate or obtain some record(s), document(s) or other evidence (e.g. witness statements, injury report form(s), medical records, medical reports etc.) which a Delegate considers could have been reasonably available had notice of the ac — c — ident, injury, disease or death been given earlier and if the unavailability of such records or documents is considered crucial to the success of the claim.

No contemporary documentary evidence whatsoever to support the existence of the alleged injury

Where a document search has revealed no trace of any reference to the alleged

pre-1971 injury, a Delegate may be justified in rejecting the claim due to prejudice from the failure to notify the injury. Genera — lly, however, in those cases resting only on assertions by the claimant, it is more usual to determine that the evidence fails to demonstrate 'on the balance of probabilities' that the employee has suffered an injury arising out of or in the course of mil — i — tary service. It is recommended that the failure to notify the injury as required by S16 should also be included in the Determination as a subsidiary or secondary reason for denial of liability.

Available evidence supports the claim despite being out-of-time

Where the surviving documentary evidence is sufficient to demonstrate clearly to the Delegate that:

1.the employee suffered an injury, and

2.on the basis of probabilities, the injury arose out of or in the course of military service,

it would be undesirable to reject a claim simply on a technicality relating to late notice or a late claim. The claim clearly should be accepted.

Claims relating to sexual and physical abuse

The Commonwealth will make no claim for prejudice in claims related to sexual or physical abuse.