Territory Stories

Debates Day 2 - Wednesday 27 November 2002

Details:

Title

Debates Day 2 - Wednesday 27 November 2002

Other title

Parliamentary Record 9

Collection

Debates for 9th Assembly 2001 - 2005; ParliamentNT; Parliamentary Record; 9th Assembly 2001 - 2005

Date

2002-11-27

Notes

Made available by the Legislative Assembly of the Northern Territory

Language

English

Subject

Debates

Publisher name

Legislative Assembly of the Northern Territory

Place of publication

Darwin

File type

application/pdf

Use

Attribution International 4.0 (CC BY 4.0)

Copyright owner

Legislative Assembly of the Northern Territory

License

https://creativecommons.org/licenses/by/4.0/

Parent handle

https://hdl.handle.net/10070/278488

Citation address

https://hdl.handle.net/10070/421010

Page content

DEBATES - Wednesday 27 November 2002 Court and the decision of Collman v the Territory Insurance Office. The particular case that was reported this year in Northern Territory Supreme Court Volume 8, handed down on 18 January 2002, was that of a 25 year old man who suffered a fracture of the seventh cervical vertebrae and whiplash type injuries. The mans payments were eventually cancelled by the TIO Board, and after exhausting a few administrative type reviews, he sought a determination by the Tribunal. The Tribunal, as I said earlier, is a single judge of the Supreme Court and the man, through counsel, made representations and argued that the payments he was receiving should not have been cancelled. To cut a long story short, the applicant was not successful, with the court finding against him after hearing a great deal of evidence. Effectively, the application was dismissed, but the real relevance of this case is that it forms the basis upon which the proposed amendments to the Motor Accidents (Compensation) Act as contained in the amendment bill Serial 102 are required. There are a number of issues associated with the case. It is not an easy area of law to instantly understand, and certainly it is not my area of expertise, but from my reading of the case there does not seem to be any serious ambiguity that would require the introduction of this particular piece of legislation. In fact, if you look at the true effect of what is going to occur, and to do that you have to get a general understanding of the previous provision and the operation of sections 13(1) and (2), and so on. Under the Motor Accidents (Compensation) Act as it currently stands before the introduction of this particular piece of amending legislation, a person who suffers an injury as a result of a motor vehicle accident that occurred in the Territory, in or from a Territory motor vehicle, is entitled - there are a couple of prerequisites, two or three things have to be satisfied: it is a Territory vehicle, a Territory person, and the accident occurred in the Territory. In any event, assuming you satisfy section 13(1), you are then entitled to seek or receive compensation. Under section 13(1), as well as being involved in an accident with a Territory motor vehicle, it has a cumulative requirement; that is: ...that persons capacity to earn to income from personal exertion, either physical or mental, is in the opinion of the board, reduced as a result of the injury ... . Then the requirement is that: ... that person should be paid such compensation for that loss of earning capacity as is provided in this section .. ., and it goes on with section 13(2). The court constituted by His Honour Justice Riley went on to look at some of the previous authorities. During the course of this judgment, he succinctly quotes some portions of section 13(2), but with a view to showing that, under the current regime, the amount of weekly compensation a person receives can be reduced by the board, and the board determines what sort of employment would be reasonably available to the applicant, and the relevant amount the applicant is capable of earning from that employment. So you have this situation where once it has been determined that a person who has suffered a relevant injury, has also had a reduction in his or her earning capacity - that is to earn income from personal exertion - then it is necessary to refer the matter to section 13(2) to determine the quantity of compensation. In section 13(2), I suppose in summary, requires the determination of the most profitable employment, if any available, to the applicant for a given period. The onus, of course, rests on the board to establish that there was employment reasonably - and this is the important aspect to this, and this is the real difficulty which the opposition has with this amendment - the onus rests on the board to establish ... M r Stirling: They ran it for 23 years without one iota of difficulty, your government. M r MALEY: I will ignore that rude interjection. The onus rests upon the respondent to establish that there was employment reasonably available to the applicant and the relevant amount the applicant is capable of earning from that employment. That is as it currently stands. The court goes on to say there is really no ambiguity. It talks about the issue being governed by the concept of reasonableness, and that the work must be reasonably available to the particular applicant, rather than being reasonably available to anybody. If you look at the proposed amendment - and with all due respect, I suspect the minister is not really across this - but if you look at the proposed amendment... Mr Stirling: You said yourself, you are not familiar with it. Why didnt you get a briefing? You said: It is not easy law, and I am not familiar with it, but you did not seek a briefing. Mr MALEY: Well, luckily I did obtain a briefing from qualified people - a very informative briefing - and they confirmed my initial interpretation of this particular amending provision. If you look at the proposed section 13, it talks about omitting subsections (2) and (3), which are the two sections we spoke about, and inserting a new subsection (2), and a new subsection (3). 3073