Territory Stories

Debates Day 2 - Wednesday 27 November 2002



Debates Day 2 - Wednesday 27 November 2002

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Parliamentary Record 9


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




Made available by the Legislative Assembly of the Northern Territory





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Legislative Assembly of the Northern Territory

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Attribution International 4.0 (CC BY 4.0)

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Legislative Assembly of the Northern Territory



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DEBATES - Wednesday 27 November 2002 order. Some British social critics might be of the view that not a great deal has changed. The pre-MACA era legal solutions to the problem of addressing financial hardships caused by severe motor vehicle injuries was for the players involved, and their respective insurers, to engage in a legal battle to try and maximise a damages payout. The damages payout would be based on a claimed dollar loss across a range of factors, one of them being earning capacity. In other words, rich people on big salaries would usually get more than poor, unskilled people. The introduction of MACA heralded a refreshingly egalitarian approach to assisting the victims of devastating motor vehicle accident trauma. The focus shifted from quantifying the projected life earning expectancy of the rich and highly qualified to working at a fair standard compensation figure based on the nature and extent of the injury. Wealth or social status would not play a role in the calculation provided that, at least as far as section 13 was concerned, a basic level of earning capacity could be established. It would be retrogressive and unfortunate if after all these years we were to turn the clock back and start favouring individual accident victims by reference not to the nature of their residual disabilities, but by reference to factors such as the persons educational and vocational achievements. What I would hope to spell out in the following case is the difficulties still faced, in particular, by Aboriginal women in establishing a lack of earning capacity. In the 1988 case of McMillan v Territory Insurance Office, Justice Gallop, sitting as the Motor Accident Compensation Appeals Tribunal, found that a 56 year old Aboriginal woman from Santa Teresa was not entitled to compensation for loss of earning capacity in respect of personal injuries suffered by her in a motor vehicle accident. He described her personal work history in the following terms: Before the accident she worked for a little while in the laundry at the Santa Teresa Mission washing clothes, kids, ironing clothes, sewing, kitchen work, cooking and work in the presbytery. It seems clear from her evidence that she never earned income from that work or from any other job, even though she had been offered a job with the Tangentyere Council before the accident. Both her parents were Aboriginal. Her father died when she was a little baby. From when she was a very little baby she lived on Missions run by the Roman Catholic Church. She never went back to the Mission after the accident. She stayed in Alice Springs looking after her children and grandchildren. She is in receipt o f a supporting mother's pension. I pause there to note that perhaps putting to one side links with the Roman Catholic Church, the life story described by Justice Gallop could apply to many Aboriginal women who worked hard all their lives but were never paid a cent for it. Justice Gallops conclusion on the issue on the loss of earning capacity was as follows: In my view, the applicant has not demonstrated any capacity to earn income from personal exertion, either physical or mental. She does not have a work history in the sense o f a history o f earning income at all. She has simply worked in a domestic sense as an inmate o f a Mission. Since the accident she has done domestic work as a mother figure to her children and grandchildren. She has never demonstrated a capacity to earn income from personal exertion. In my opinion, it is not the intention o f the legislature that persons who have suffered an injury as a result o f an accident in the Territory in a Territory motor vehicle should be compensated for loss o f a capacity to earn income from personal exertion, either physical or mental, as a result o f the injury, which capacity has never been demonstrated. In the peculiar circumstances o f the Northern Territory, there may be large numbers o f persons, e.g. nomadic Aborigines, who have never earned income during their lifetime and have no intention or inclination to do so. Such persons may well have a capacity to do certain physical things, e.g. ride a horse and tend cattle. But if they had never done it for money because they had never been motivated to do so, it would seem to me to be a misuse o f language to say that they have a capacity to earn income from personal exertion, either physical or mental. I f because o f injury, such persons have a reduced capacity to do physical things, they have still not suffered loss o f their earning capacity. Therefore, Mr Acting Deputy Speaker, I believe that people like Mrs McMillan deserve to be compensated at the same level as people with the same degree of injury who were in highly specialised paid jobs prior to their accident. I appreciate that the amendments in this bill do not quite achieve that result. However, they do assist in underscoring the principle of equality and fairness 3079