The failure resulted from ignorance, from a mistake or from any other reasonable cause

The failure resulted from ignorance, from a mistake or from any other reasonable cause

The deeming provision in s 53(3)(c) should be applied where the client's failure to give notice of injury resulted from:

• ignorance or a mistake; or
• any other reasonable cause.

It is not necessary for the ignorance, mistake or other factor to be the sole cause of the failure to give notice, but there must be more than a minimal causal connection.

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 borderline cases as it is generally preferable to consider a claim on its merits rather than reject it.

Ignorance or mistake

The distinction between “ignorance” and “mistake” is not very important when considering late claims under the SRC Act.  It was however very significant under the 1930 Act as that Act made no mention of “ignorance”, ignorance was not included in “mistake” and it did not provide an excuse for a late claim.  The ambit of “mistake” was discussed by the Federal Court in Telstra Corporation Limited v Roycroft (1997):

The authorities establish the following propositions:

1.A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.

2.A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.

3.A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.

4.It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.

...

As these authorities show, there is a thin line between “mistake” and “ignorance”.  If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake.  If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.

"any other reasonable cause"

Where the deeming provision is applied for “any other reasonable cause”, the assessor should briefly document the basis upon which the discretion was exercised.

In Banks v Comcare (1996), the Federal Court discussed “other reasonable cause”:

The expression “reasonable cause” has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim:  see Black v City of South Melbourne [1963] VR 34, 38;  Quinlivan v Portland Harbour Trust [1963] VR 25, 28.