Subsections 53(1) and (2) on their own present a strict requirement for provision of timely notice of injury. However, S53(3) modifies this rigour and deems a notice, which is out of time because it was not presented 'as soon as practicable', to be properly given if:
- the failure in timeliness was due to death or absence from Australia of a person or to 'ignorance', 'mistake' or 'any other reasonable cause', or
- the 'relevant authority' (RCG in this case) would not be 'prejudiced' by the lateness of the notice.
In practice, the provisions of S53(3) mean that few SRCA claims are likely to be excluded for late lodgement of a notice of injury.
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.
Note that delegates must always deem notice of claims involving allegations of sexual and physical abuse to be properly given.