"31. TIME FOR MAKING CLAIMS (1) A claim - (a) for a benefit; or (b) for the variation of a benefit, under this Act shall be made as soon as practicable after the accident in or as a result of which the death or injury giving rise to the claim for a benefit, or the change in circumstances giving rise to the claim for variation of the benefit, occurred. (2) The Board may refuse to consider - (a) a claim in respect of an accident; or (b) a claim for the variation of a benefit, made later than 6 months after the date of the accident or the occurrence giving rise to the claim for variation, as the case may be." 6. By telex dated 29 July 1986 the applicant requested that the General Manager refer the matter to the Board for its determination pursuant to s. 27(2) of the Act. By determination dated 3 September 1986 the Board upheld the General Manager's determination of 13 June 1986. 7. The first question for this Tribunal is whether to exercise the discretion which the Board had pursuant to s. 31(2) of the Act and consider the applicant's claim in respect of the accident. Clearly, the claim was not made within 6 months after the date of the accident and the Board had a discretion, which it exercised by refusing to consider the claim. This Tribunal is to review that exercise of discretion. As the hearing before this Tribunal is a hearing do novo, it is not a case of this Tribunal adjudicating upon the correctness or otherwise of the exercise of the discretion by the Board. Rather it is a case of the Tribunal, standing in the same position as the Board, deciding whether it will exercise its discretion so as to bar the applicant from making the claim. 8. Subject to his description of the reference to the Tribunal as an "appeal", which in my opinion is arguable, I agree with what O'Leary J., as he then was, said in Kathopoulis v The Board of Territory Insurance Office (1982) 17 NTR 41 that the reference is essentially administrative in nature. It is a reference from one administrative authority to another administrative authority. 9. The fact that the Tribunal is constituted by a Judge of the Supreme Court does not detract from the plainly administrative character of the Tribunal. Nor does the fact that the Judges of the Supreme Court may make rules regulating the practice and procedure of the Tribunal and other matters mean that in performing its administrative functions the Tribunal is exercising judicial power. Such procedural powers are commonly conferred on administrative tribunals although the appointment as a judge of the court may be thought to add to the Tribunal a superficial "trapping" of curial decision-making. The trappings of judicial decision-making are not, however, necessarily indicative of the existence of judicial, as distinct from administrative, power (R v Quinn; ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 16 ALR 569 at 574-576). Many tribunals whose functions are purely administrative are under a duty to act judicially, that is to say, with judicial detachment and fairness (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). 10. The role of the Tribunal cannot be better described than in the words of Bowen C.J. and Deane J. in Drake v Minister for Immigration and Ethnic Affairs, supra, when speaking of the Administrative Appeals Tribunal: " The question for the determination of

the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal." 11. My present task is to ascertain the meaning of the phrase "as soon as practicable" as used in s. 31(1) and to consider its relevance to the exercise of the discretion conferred by s. 31(2). The phrase "as soon as practicable" is designed to impose a reasonable practical time limit after the subject accident for making a claim under the Act. What is a reasonably practicable time must vary according to circumstances. No doubt all the surrounding circumstances relative to the claimant must be taken into consideration, as in every other case where it falls to a Tribunal to decide what is reasonable. Those circumstances would include the physical and mental capacity of the injured person at the time in question, his degree of business knowledge, the nature and time of his enquiries, the result of such enquiries, any difficulties encountered, the magnitude of any injuries, whether they had stabilised, and such similar matters. 12. Various situations are contemplated by s. 31. A claim may have been made as soon as practicable after the accident and within the period of six months. In such a case the Board would be obliged to consider the claim. A claim may have been made within six months but not as soon as practicable. The Board would be obliged to consider such a claim and, if it deemed that the claim was not made as soon as practicable, to reject it as being out of time. But such a claim must be considered. The Board would have no discretion to refuse to consider it. 13. A claim may be made later than six months after an accident. The Act does not provide any guidelines for the exercise of the discretion to refuse to consider such a claim. The exercise of the discretion may be quite draconian where the Board refuses to consider the claim. On the other hand, one could well understand a decision to consider such a claim, notwithstanding that it was made later than six months after the accident. How then is the discretion to be exercised? 14. It was submitted on behalf of the respondent that the discretion should only be exercised in favour of considering a claim where, notwithstanding the fact that the claim is made later than six months after the accident, the Board is satisfied on a consideration of all the factors prevailing that it was nevertheless made as soon as practicable after the accident. Otherwise, it was submitted, the Board should refuse to consider the claim. The factors relative to the person should be considered, but prejudice or detriment to the Board would be irrelevant. 15. This submission has some superficial attraction and some judicial support from the dicta of Jordan C.J. in Allsop v The Incorporated Law Institute (1944) 44 SR 132 at 136. In that case the Full Court of the Supreme Court of New South Wales had to consider s. 56(2)(b) of the Legal Practitioners Act 1898-1936 (NSW) which provided for notice of theft or fraudulent misapplication to be given in writing to the council of the Incorporated Law Institute of New South Wales as soon as reasonably practicable after a person had become aware of the theft or fraudulent misapplication, but in any event within three months of having become so aware unless the Supreme Court or a judge granted further time. 16. The Chief Justice agreed with a submission put on behalf of the Incorporated Law Institute that the discretion vested in the Court for a judge to grant further time notwithstanding the lapse of three months after knowledge, was conditioned by the imperative requirement that written notice must be given as soon as practicable after the claimant had become aware of the theft or fraudulent misapplication. 17. The Chief Justice was there construing legislation different in terms to that presently under scrutiny. In my opinion his construction is confined to the subject matter of that case and is of no assistance in construing s. 31 of the Act. The words "in an event" in the legislation being considered in that case, permit of the construction that it was a dominant purpose of the section to ensure that in every case in which there had been long delay a condition that notice had been given at a time which was as soon as reasonably practicable should be subjected to the scrutiny of a judge. The words "in any event" do not appear in s. 31(2). 18. In considering the instances in which the failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision entitles a party with sufficient standing to seek judicial review of ultra vires administrative action as provided by s. 5(2)(b) of the Administrative Decisions Judicial Review Act 1977, Mason J. as he then was, said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 60 ALJR 560 at 565: " If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 757-758, and Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505." 19. Applying those principles to the construction of s. 31 of the Act, one must have regard to the subject matter, scope and purpose of the Act. The preamble to the Act describes it as an Act to establish a no fault compensation scheme in respect of death or injury in or as a result of motor vehicle accidents, to prescribe the rates of benefits to be paid under the scheme, to abolish certain common law rights in relation to motor vehicle accidents, and for related purposes. 20. The Act provides entitlement to various types of benefits, including compensation for loss of earning capacity. By its very nature the Act is designed to provide benefits for persons suffering injuries in motor vehicle accidents. Its emphasis and policy is that personal injuries in motor vehicle accidents should not go without compensation. S. 31 is designed to encourage prompt lodgment of claims for benefits under the Act. But as Barwick C.J. said in Hall v The Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 435 in relation to the provisions of the Traffic Act 1925 (Tas), the ends which the Act seeks to serve require that the time limit shall not stand in the path of justice. 21. In Irving v Carbines [1982] VicRp 86; (1982) VR 861, the Full Court of the Supreme Court of Victoria had to consider Rules of Court which empowered the court to enlarge time for "good reason". In its joint judgment the court adopted the following quotation from Bowen L.J. in Gardner v Jay (1885) 29 Ch D 50 at p 58: "... when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the judge why should the Court do so?" See Evans v Bartlam (1937) AC 473 per Lord Wright, at p 488; (1937) 2 All ER 646. And as Kay L.J. said in Jenkins v Bushby (1891) 1 Ch 484 at p 495: "... the Court cannot be bound by a previous decision, to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion." See also statements to the like effect in the speech of Lord Simon in Blunt v Blunt (1943) AC 517, at p 525; (1943) 2 All ER 76. 22. The Full Court also referred to certain observations of Bray C.J. in Victa Ltd v Johnson (1975) 10 SAS R 496 at 502: " I think too that there is discernible in this, as in cognate branches of the procedural law, a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties." The Full Court went on to say: " Whether this tendency is ultimately for the benefit of society may be debated, but we

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.