Section 53(1) of the SRCA provides that:
53(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
a)as soon as practicable after the employee becomes aware of the injury, or
b)if the employee dies without having become so aware or before it is practicable to serve such a notice – as soon as practicable after the employee's death.
Section 53(2) makes a similar provision for damage to 'property used by the employee'.
The purpose and application of S53 was considered in Re Tierney and Reserve Bank of Australia (1988) where it was said:
...Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employees work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act. However where an appropriate officer of the Commonwealth or the relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal would we believe, be slow to hold that a claim for compensation for the incapacity resulting from that injury or disease must fail because S53 has not been complied with to the letter.
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:
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.
The SRCA does not positively require that both a notice of injury and a separate claim for compensation be submitted. It is open to a Delegate to decide that the compensation claim form should also be taken as a notice of injury if such a claim is made within the required time of injury or there is no prejudice to RCG because of the lateness of the claim/notice.
This interpretation is supported by the decision of the Federal Court in Comcare v Luck (1999). In that case, the claimant was successful, due in no small part to the fact that the claim form heading contained the words 'incorporating Accident and Disease Report' which is no longer the case with Form D2020. However, in arriving at his judgement French J also observed:
The question really then reduces to one of construction, namely whether the claim made under S54 of the Act can also be characterised as 'a notice purporting to be a notice referred to in S53' for the purposes of S53(3). In my opinion, no narrow or technical construction should be adopted.
A notice of injury must have been given in writing to comply with the SRCA. The Act does not specify any particular form for a 'notice' other than it should be in writing. Thus, an accident report or an incident report or some notation in the Unit records may suffice. More significantly, a medical report or a clinical note indicating the subject injury occasioned attendance at a Regimental Aid Post, ship's sick bay or other ADF Health Service facility could reasonably be interpreted to be a 'notice' compliant with the Act.
Where an ADF member attempts to rely upon an alleged oral notice of injury to a supervisor or superior officer, a written confirmation by that superior officer to the effect that an oral notice was given, may (at the discretion of the Delegate) be accepted as a written notice under the Act. Note, however, that a corroborating statement by a current or former colleague (i.e. of the same rank at that time) would not be acceptable, as the employee's 'notice' of injury must have been addressed to the 'relevant authority', i.e. a representative of the employer.
Note: This does not mean that a corroborating statement by a colleague is not a useful and acceptable means of confirming the circumstances of an injury, but only that a statement to/from such a person it is not also a 'notice' of injury to the employer.
Some employees suffer from diseases of long latency such that it is not obvious that an 'injury' has occurred until the symptoms manifest themselves some considerable time after discharge (e.g. mesothelioma from asbestos exposure). In such cases, receipt of the claim for compensation itself may be taken to be a 'notice' under the relevant Act, providing it is submitted 'as soon as practicable' after the claimant became aware of the diagnosis.
The Act does not give any guidelines to interpret the phrase 'as soon as practicable'. This aspect is a judgement of the Delegate and is to be made with regard to all of the circumstances of the case, including the claimant's state of mind, understanding of the disease or injury, ignorance or mistake with respect to rights and duties, etc.
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:
Prejudice to the Department is more likely to be established if:
Case Examples
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.'
The deeming provision in S53(3)(c) and S53(4(c) of the 1971 Act should be applied where the client's failure to give notice of injury resulted from:
It is not necessary for the death or absence from Australia to be the sole cause of the failure to give notice, but there must be more than a minimal causal connection.
The distinction between 'ignorance' and 'mistake' is not very important when considering late claims under the SRCA or the 1971 Act. It was however very significant under the 1930 Act as that Act made no mention of 'ignorance', ignorance of the law and of the workers compensation system was not included in 'mistake' and it did not provide an excuse for a late claim.
There are few guidelines as to what constitutes 'any other reasonable cause' for the purposes of S53(3)(c). Case law is not able to provide an unambiguous ruling on such a wide-ranging matter. It is the responsibility of the Delegate to form an appropriate judgment on the individual facts of the matter. Where the deeming provision is applied for 'any other reasonable cause', the Delegate 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.
Given the very wide latitude available in relation to late notification of injury, Delegates may wonder whether S53(1) of the SRCA represents a barrier to any sort of claim. In fact, exclusions for late notification of injuries are very rare for the SRCA.
However, S53 does act to eliminate those claims made years after discharge and which rest only on the applicant's unsupported assertions about an injury, incident or exposure. Section 53 may be relied upon where there is no contemporary medical record of injury nor any ADF or unit report confirming the claimant's involvement in the alleged injurious circumstances. In such cases, non-compliance with S53 should be incorporated – as a secondary matter – into a Determination whose principle finding is that the Delegate is unable to be satisfied that the employee has suffered an injury within the meaning of S4.
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 a borderline case as it is generally preferable to consider a claim on its merits rather than reject it on a technicality.
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