agree that it is clearly discernible and we think
that we should give effect to it. The relaxation
of which Bray C.J. spoke
can only be where there
is no undue prejudice or injustice to other
parties but there is also discernible, or so it
seems
to us, a tendency to minimize the injustice
caused to defendants by enlarging time limits,
particularly when the defendant
is an insurance
company or entitled to be indemnified by an
insurance company."
23. As no hard and fast rule has been stated
in the Act, the decision whether
to consider the claim is unconfined and must be approached in a broad fashion,
taking into account
all the relevant matters. Amongst the relevant matters in
this case, which are factually proved to my satisfaction, are that the
applicant at the time of the accident was a middle aged Aboriginal woman in
good health but with little or no formal education or
command of the English
language. She was brought up in a Roman Catholic Mission and lived on the
Mission for most of her life. More
recently she has lived in an Aboriginal
camp on the fringe of Alice Springs. She is now about 58 years of age. She
did not know
about her right to make a claim until she consulted the Central
Australian Aboriginal Legal Aid Service on or about 15 January 1986.
The
application was not made until 21 April 1986, but no particular prejudice to
the respondent has been alleged, either in relation
to that short delay or
generally in relation to the failure to make a claim before five and a half
years after the accident. It
was the applicant's ignorance of the law which
explains completely the delay in making a claim for a benefit under the Act.
24.
In cases of latent injury giving rise to claims for workers'
compensation, which is not the present case, the important question
has been
held to be: "At what time did the worker realise that he had suffered an
injury entitling him to compensation for injury
by accident?" (See e.g.
Aldison v Newroyd Mill Limited (1925) LT Vol 134-171).
25. Adapting that concept to the present case, one
may ask: "At what time did
the applicant realise that she had a compensable claim under the Act?" In
other words, "When did she
realise that she had a claim for loss of earning
capacity due to the injury to her left arm." Whether she made a claim as soon
as
practicable would depend upon the answer to such a question. The answer
would, in my opinion, be a relevant consideration, having
regard to the
subject matter, scope and purpose of the Act.
26. That an applicant's ignorance of the right to apply for an extension
of
time may be sufficient cause to grant the application has been laid down in
relation to the Nominal Defendant provisions of the
Motor Vehicles (Third
Party Insurance) Act 1942 in Sophron v Nominal Defendant (1957) SR (NSW) 59
per Herron J., as he then was at p 86. His Honour approved the dicta of
Bavin J. in Harris v Metropolitan Water, Sewerage and Drainage
Board (1940) 57
WN (NSW) 42, that the fact that an applicant was ignorant of his rights does
not in itself disqualify him from claiming that it is reasonable
that the
prescribed period should be extended. It seems clear that ignorance is not
conclusive one way or the other, but it may
amount to a sufficient cause for
an extension of time. That observation by Herron J. was not referred to by
the High Court when
the matter went on appeal (Sophron v The Nominal Defendant
[1957] HCA 27; (1957) 96 CLR 469).
27. In Braedon v Hynes (unreported decision delivered 24 July 1986) Maurice
J., in considering an application for an extension of
time under the
Limitation of Suits and Actions Act 1866 of South Australia (since repealed),
rejected a submission that ignorance
of the law ought not to be taken into
account in a plaintiff's favour. He said that in a community with the
Northern Territory's
cultural and ethnic diversity to apply any such dictum
would inevitably lead to significant injustice in a potentially large number
of cases. In my opinion, what his Honour said in relation to the legislation
then under consideration applies with equal force to
the exercise of the
discretion set out in s. 31(2) of the Act. The legislature has not said
otherwise and has therefore left the
decision-maker free to exercise the
discretion after consideration of all the circumstances.
28. A submission was made on behalf
of the applicant that before the
decision-maker could properly exercise the discretion against entertaining the
applicant's claim,
the respondent would have to demonstrate by appropriate
evidence that it had been so substantially prejudiced by the lateness of
the
claim that justice could not be done between the parties by entertaining the
claim.
29. It is not strictly necessary to consider
this submission further for the
purposes of the present case because it was common ground that the respondent
had not suffered any
prejudice by the lateness of the claim. But in my
opinion prejudice must be relevant to the exercise of any discretion to extend
time unless expressly deleted. The authorities quoted all embrace the concept
of prejudice as a factor.
30. It may be of some assistance,
however, if I make some comments about
where the onus of proof lies. In cases of claims within 6 months after the
date of accident,
plainly the time for making claims is intended to be as soon
as practicable, and in any event within 6 months of the date of the
accident.
Where a person makes a claim outside the 6 month period, the person is in
default. He must excuse that default and, in
my opinion, the burden of proof
in the first instance rests upon him. But if he gives evidence from which it
may be reasonably inferred
that the Board has not been prejudiced, I think
that the burden of proof, which is an evidentiary one, is shifted from his
shoulders
on to the shoulders of the Board, and if the Board is in a position
to prove prejudice in some particular matter it is bound to do
so. If the
Board does not choose to prove prejudice, the matter is not open to conjecture
(see generally Hayward v Westleigh Colliery
Co. Limited (1915) AC 540).
31. Having considered the relevant factors, including the absence of
prejudice or detriment, I think it would be wrong to refuse
to consider the
claim.
32. Although the matter was not argued, it seems to me that once the Board
decided to consider a claim made
later than 6 months after the date of
accident, it may reject the claim as not having been made as soon as
practicable and therefore
out of time. On the other hand, having decided to
consider the claim the Board, instead of rejecting the claim as being out of
time,
would proceed to determine the claim pursuant to s. 12(1) of the Act.
It was not argued on behalf of the respondent that once this
Tribunal had
decided to consider the present claim it should nevertheless reject it as not
having been made as soon as practicable.
I therefore proceed to consider the
claim on its merits, exercising the same power that the Board had to consider
the claim under
s. 12(1) of the Act.
33. The applicant's claim for compensation is confined to a claim for loss of
earning capacity as a result
of the injury to her left arm.
34. S. 13(1) reads:
"13. COMPENSATION FOR LOSS OF
EARNING CAPACITY
(1) A person who
suffers an injury in or
as a result of an accident that occurred in the
Territory or in or from a Territory motor vehicle -
(a) who was, at the
time of the accident, a resident of the
Territory; and
(b) whose capacity to earn income
from
personal exertion (either physical or
mental) is, in the opinion of the
Board, reduced as a result of the injury,
shall be paid such compensation
for that loss of earning capacity as is provided
in this section.
(2) ... ".
35. It
was submitted on behalf of the respondent that the applicant is not a
person whose capacity to earn income from personal exertion
is reduced as a
result of the injury, and she is thus not entitled to any benefits under s.
13(2). It was submitted that the applicant's
earning capacity since the date
of accident to the present time is no worse than her pre-accident earning
capacity. In the alternative,
it was submitted that to the extent that her
earning capacity is reduced, it is not as a result of the injury within the
meaning
of s. 13(1)(b) but as a result of other factors, including her failure
to follow medical advice.
36. In support of the submission
that the applicant is not a person whose
capacity to earn income from personal exertion is reduced as a result of the
injury, counsel
argued that, although the applicant may have been physically
capable of doing certain work which could have earned her income, there
are
other factors which go to the establishment of a capacity to earn income, for
instance, the mental ability, personality, motivation,
and ability to hold
down a job for a day or a week or longer. It was conceded that prior to the
accident the applicant could do
certain work of a menial nature, such as
washing, sweeping, cleaning and so on, i.e. that she was physically capable of
doing those
things, but it was submitted that she was not motivated to
embarking upon an occupation involving those tasks. She chose not to
work to
earn. Hence, although she had a capacity to work she did not have a capacity
to earn. That she did not have a capacity to
earn and that she has not lost
any such capacity is demonstrated by her own evidence that prior to the
accident she was not earning
income, although she was doing physical things
within the limits of her physical capacities, and since the accident she has
not endeavoured
to do those things in order to earn income. She said in
evidence that since the accident she has not tried to get any work because
she
does not "like to do a job". Before the accident she had no intention to earn
and, since the accident, likewise no intention
to earn income from personal
exertion.
37. The submission on behalf of the respondent squarely arises out of the
applicant's evidence.
The applicant said in her evidence that she started
school at Charles Creek. She was at school until she was 18. She said that
she did not go to "proper" school, that she just learned "religion for God".
It was a school run by the Catholic Church. She did
not learn to read or
write English. She never went to school where those things were taught.
38. 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 of a supporting mother's pension.
39. As to the first submission, it was submitted that the Tribunal should
decline
to follow the decision of Nader J. in McMahon and Tapau v The Board of
the Territory Insurance Office (unreported decision, 2 February
1984). In
that case, his Honour held that loss of earning capacity within the meaning of
s. 13(1) means loss of capacity per se,
whether that capacity was being
exercised or not at the date of injury, and whether or not that diminution of
earning capacity is
or may be productive of financial loss, as explained by
the High Court in Redding v Lee [1983] HCA 16; (1983) 47 ALR 241. See also Graham v Baker
[1961] HCA 48; (1961) 106 CLR 340 and Bresatz v Prizibilla [1962] HCA 54; (1962) 108 CLR 541.
40. I reject that submission. In my opinion Nader J. was correct in his
construction of s. 13. It may well be that the legislature
did not intend to
provide compensation to a person who has suffered a loss of earning capacity,
which capacity would never have been
exercised. But that is not what the
legislation says. As Nader J. observed, it would have been a simple drafting
exercise to limit
the right to compensation to a person whose capacity to earn
income is reduced as a result of the injury, which capacity is or may
be
productive of financial loss.
41. As it is common ground that the applicant suffered an injury as a result
of an accident in
a Territory motor vehicle, and that she was a resident of
the Territory at the time, I proceed to consider the evidence about whether
she has suffered a loss of capacity to earn income as a result of the injury.
42. Even in the field of common law damages a person
cannot be compensated
for loss of earning capacity unless he establishes first an earning capacity
and, secondly, a loss of that
capacity. A member of a religious order, for
instance, may take a vow of poverty and work for the religious order for
nothing. The
work may be highly skilled medical or scientific work. At one
time such a person may be working in a college or hospital and receiving
a
salary; at another time he may be doing exactly the same work for nothing in
the order's own houses or on foreign missions (an
example quoted in Munkman on
Damages for Personal Injuries and Death). If, on the other hand, such a person
was paid a salary and
gave it to the order, an earning capacity would seem to
be more amply demonstrated.
43. In Keating v Elvan Reinforced Concrete Co.
Ltd and Another (1967) 3 All
ER 611, where an artist spent his time on unremunerative but satisfying
paintings, the opinion was expressed that compensation should be
assessed on
the basis of what he could have earned with commercially saleable work. In
Sinclair v Bonnefin 13 FLR 164, Blackburn J., as he then was, held that the
injured housewife who had a history of remunerative employment before her
first marriage,
after her divorce and during her second marriage, particularly
while her second husband was in prison, had demonstrated a capacity
to earn
either as a shop assistant, a nursing assistant or a waitress, and awarded her
compensation on the basis of that loss of
earning capacity.
44. In the case of infant plaintiffs, it is notoriously difficult to assess
their loss of earning capacity because
of disabilities which might affect
their potential for earning either in a chosen avocation or generally. The
younger the infant
the more difficult is the assessment of loss of earning
capacity. The difficulty is accentuated by reason of the uncertainty,
speculation
and conjecture which surrounds what the plaintiff would have
earned had he not been injured, and what he will now earn in some suitable
employment (see generally Luntz, Assessment of Damages, Chapter 5). What the
future will hold for an infant plaintiff in the way
of his ability and work
opportunities is a complex question involving many socio-economic factors. I
venture to refer to, but not
repeat, what I said on the subject in Van Lier v
McDonald (unreported decision of the ACT Supreme Court, 9 June 1982).
45. In such
cases, however, there is an underlying assumption that the infant
without injury would have progressed to some income earning position.
That
assumption, of course, would be liable to be displaced by other evidence in
the case.
46. It is after all a matter of fact
as to whether an earning capacity exists
or not. If an earning capacity has been demonstrated, as a matter or
principle the work
done should be valued at the market rate and capitalised.
The damages flowing from loss of that unrewarded earning capacity can then
be
assessed.
47. It has often been said that in seeking to quantify his damages, a
plaintiff could be well advised to offer evidence
of the plaintiff's fitness
for particular kinds of work and the sort of remuneration that he is able to
earn from that sort of work.
Likewise, a defendant in seeking to cut down the
damages might similarly be well advised to tender evidence about what the
plaintiff
could earn with his residual disabilities. But often such evidence
is not available and where a plaintiff has suffered a significant
disabling
injury which obviously affects the range and nature of the work he can
therefore perform, a tribunal of fact can, without
specific evidence as to
what other persons with that kind of disability can earn, make a judgment and
assessment on a percentage
basis or otherwise of the value of the lost
capacity (Yammine v Kalwy (1979) 2 NSWLR 151 per Reynolds J.A. at p 155,
referred to in Thiess Properties Pty Ltd v Page [1980] FCA 101; (1980) 31 ALR 430).
48. In my opinion, it is implicit in s. 13(1) of the Act that a capacity to
earn income from personal exertion (either physical
or mental) must be
established. It must be a real and demonstrated capacity to earn. That that
is the intention of the legislature
is supported by s. 13(3), which provides
that, for the purpose of calculating the amount of compensation payable to a
person whose
capacity to earn income has been reduced, there is to be taken
into account any amount of benefit payable to the person under any
other law
in force in the Territory in respect of his inability to find employment.
49. 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 of a
history of earning income at all. She has
simply worked in a domestic sense as an inmate of 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.
50. In my opinion, it is not the intention of the legislature that persons
who have suffered an injury as a result
of an accident in the Territory in a
Territory motor vehicle should be compensated for loss of a capacity to earn
income from personal
exertion, either physical or mental, as a result of the
injury, which capacity has never been demonstrated. In the peculiar
circumstances
of the Northern Territory, there may be large numbers of
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 of language to say that
they have a capacity to earn income from personal exertion, either physical or
mental.
If, because of injury, such persons have a reduced capacity to do
physical things, they have still not suffered loss of their earning
capacity.
51. It is well established by the decision of Lawrence v Mathison and Another
(1981) 11 NTR 1 that if there is evidence that by virtue of his injuries and
their consequences a plaintiff is precluded from continuing to enjoy
some
specific pursuits or hobbies, that fact may be recognised in an assessment of
damages for loss of amenities against the background
of the Act. This loss of
amenities only relates to amenities previously enjoyed or proved as future
probabilities. Damages for
loss of amenities should be designed to compensate
for interference with the plaintiff's pre-accident enjoyments or reasonable
expectations
of enjoyment in so far as they are proved and capable of
assessment at trial. It is also proper to take into account in the assessment
of damages the loss that may be suffered by reason of the inability to
exercise the pre-existing capacities e.g. painting a house,
making furniture,
attending to a garden. Those are matters which are compensable by way of
damages and not by the operation of s.
13 of the Act. There is nothing in
Lawrence v Mathison, supra, to the contrary.
52. The operation of s. 13 may be tested in the
following way. If the
injured person was capable of doing certain physical acts which could have
earned him income if he had chosen
to exploit his physical capacity, but he
did not do so, and he was injured in a motor vehicle accident as a result of
which he could
no longer do the physical acts of which he was capable before
the accident, the amount of compensation to which he would be entitled
for the
reduction of his capacity to do those physical acts would be 85 percent of the
average earnings of wage earners in the Norther
Territory. In other words,
for his unexploited physical capacity he would be paid at the 85 percent rate
simply because he received
an injury in a car accident. Such a result could
not have been intended and, in my view, is beyond the scope and purpose of the
legislation.
53. The next submission on behalf of the respondent, which was put in the
alternative, is that if the applicant ever had an earning
capacity, there is
no evidence that her present earning capacity is any less than her
pre-accident earning capacity.
54. I think
on the evidence there is much force in this submission, but
because of my factual finding that the applicant has never demonstrated
a
capacity to earn income, it is unnecessary to consider this argument further.
55. Having considered the claim, the Tribunal determines
that the applicant
is not entitled to compensation for loss of earning capacity in respect of
personal injuries suffered by her in
the motor vehicle accident on 8 February
1981.
56. I shall hear counsel on the question of costs.