Debates Day 2 - Wednesday 27 November 2002
Parliamentary Record 9
Debates for 9th Assembly 2001 - 2005; ParliamentNT; Parliamentary Record; 9th Assembly 2001 - 2005
2002-11-27
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Debates
Legislative Assembly of the Northern Territory
Darwin
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DEBATES - Wednesday 27 November 2002 that constitutes a first step along the way. For this government to sit on its hands, unlike the previous government, and continually allow an interpretation of section 13 of the Motor Accidents (Compensation) Act to take root, that allowed for differential compensation to different individuals - not by reference to their injuries, but by reference to their vocational background and employment history - would be to provide strong indirect endorsement and support for a state of affairs which condemns unpaid working women to second class status. The passage of these amendments will serve as a reminder of what we stand for. M r STIRLING (Treasurer): Mr Acting Deputy Speaker, I see the member for Goyder nodding. I am a softy and a bit naive, but I take that as a genuine interest that he is expecting me to supply, and I hope I do provide, all the answers that he is seeking here. He briefly talked about the original way these things operated, of course, with the common law right, and the common law right being surrendered, if you like, in view of the introduction of the Motor Accidents Compensation Scheme in 1979. I pay the government of that day the credit that is due because this was visionary legislation. It was the first no-fault scheme of its kind in Australia. More than half the jurisdictions in Australia now have this type of scheme. Why? Because they saw what it did for the Northern Territory; that it promoted fairness, it enabled people a way through to benefits where they were injured; a way through to that level of reparation and rehabilitation without having to go through the messy court situation, litigation, and trying to find someone at fault and win a court case. That is to be commended. It was the first of its type in Australia, and many other jurisdictions have followed that lead by bringing in a no-fault scheme. I want to be very clear at the outset - and the simpler I can keep this, the better it is. We are not seeking to change anything here in terms of how the act operated between 1979 when it was introduced, and January 2002, with the Collman case. We are not reducing the rights; we are not taking away anything that people have enjoyed for 23 years, up until January 2002. I want to go to Collman because that might help us. I make the point also at the outset, that these amendments are absolutely critical if we are going to have an ongoing, viable Motor Accidents Compensation Scheme. With all the pressures that are on any insurance scheme at the moment, and including MACA, it is the Collman decision of January this year that reinforced the need to put through this amendment, or we would face a financially unsustainable position with MACA overall. The decision of Riley J - I have a date, 16 January, I am not sure if that coincides, same case: Mr Collman suffered a slight fracture o f his spine in December 1996. His two day stay in hospital and his medical expenses were paid. He underwent rehabilitation and training. In February 1997, he way advised by his doctor to return to work gardening and lawnmowing, and in April 1997 he returned to full duties doing the same as he was before his car accident, except he was told to avoid heavy work and vibrating machinery. He then changed jobs and helped fit windscreens and reduced his work to two days per week and later quit because he could not cope and MACA benefits were resumed. While he way unemployed, but on MACA section 13 benefits, he went to the gym, he trained five nights per week with weights, he went jogging, he rode his bicycle, and he worked on his car. His pre-accident wage way never higher than $390 gross per week, and he was getting more money on MACA benefits. He told his rehabilitation officer that trying to find work with his lack of qualifications, lack o f experience and his injury way a waste o f time. Now, the judge considered the wording of section 13 of the Motor Accidents (Compensation) Act and how a decision was to be made of what is the most profitable employment available to an injured person, and the judge stated this: (a) the onus rests upon TIO to establish that there was employment reasonably available to the applicant and the relevant amount the applicant is capable o f earning in that employment; and (b) the amount that a person is capable o f earning in the most profitable employment available to him is not necessarily to be assessed by the employment, if any, actually undertaken by that person. The issue is one of capacity and that is assessed by reference to employment available to the person. In determining whether employment is available to the person, it is necessary to consider the whole o f the surrounding circumstances including factors personal to the applicant (for example, any physical infirmities from which he may suffer) along with the level o f availability o f particular forms o f employment within the relevant 3080