Solicitor providing Q & A on the 2GB Afternoon Show discussing Personal Injury

Tuesday, 5 May 2020

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DK – Deborah Knight /D KIM – Dennis Kim /C1,2,3, etc – Callers

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DK        As we do this time every Tuesday, we are talking Legal Matters with Turner Freeman Lawyers and we are looking specifically at medical negligence and maybe you’ve been one of the people who’ve been retrained, you’ve lost your job and had to start a new job maybe at Coles or Woolies – they’ve been recruiting a lot of people to keep with demand – have you been trained effectively? Maybe you are a nurse or a tradie – are you struggling to find personal protective equipment for your work? Let us know – 131 873 – if you’ve got any legal questions. Dennis Kim is a personal injury lawyer with Turner Freeman Sydney office and he’s on the line for us now. Dennis. Thanks for joining us.

D KIM            Good afternoon Deb. How are you?

DK        Yeah – good. I know that there is always a link between inexperienced workers – people who aren’t trained effectively, maybe they’ve got time pressures and they suffer an injury. Are they then really in the running potentially for legal help if something goes wrong?

D KIM  Look – they are. Because of COVID-19, workers are being asked to work differently and in some cases, this is leading to unsafe practices. Some Awards and agreements have temporarily modifies – been temporarily modified to allow employers to place their employees into different roles within their organisation. It’s been done to avoid standing down employees for whom there would not otherwise be any work available but it’s meant that some workers are now performing duties that they are not familiar with and workers need to keep in mind that they have the right to stop or refuse unsafe – refuse unsafe work if there’s a reasonable health and safety concern. So, it could include exposure to hazards, not being provided personal protective equipment or not been given adequate training time or resources as you pointed out. If there’s any concerns about health and safety, we would recommend that you raise them with your employer first and if that doesn’t resolve the issue then you should turn to your union or a lawyer and if a worker decides to stop work, they should notify their employer as soon as possible and be available to carry out alternative work.

DK        It’s tough though – it’s a big haul for someone who – you know – you might have lost your job – you’ve just gotten work in another field – you’re worried about your future – you know raising questions in the workplace – I mean it’s easier said than done.

D KIM  Yes – I agree – it really is – I am in this current economic climate where you are worried about your position and your tenure – yes that’s right. That is a real practical concern. I mean I guess at the end of the day you’re weighing up your safety and your family might be relying on you to stay safe and well – so a job’s a job – but you have to stay safe and it’s your right to raise these concerns if you have – if there’s a safety or health concern.

DK        And at what stage does it stop becoming the responsibility of the employer and it’s up to you to have personal responsibility to make sure that you are safe?

D KIM  – Ah – look – employers have actually quite a heavy burden when it comes to duty of care – so, it’s a non-delegable duty of care even if your employee is reckless or doesn’t put their own hand up – it doesn’t excuse the employer. It’s almost like a parent child relationship – there’s quite a high duty placed on them. So if a worker is injured and even if they haven’t put their hand up, if the system of work provided by the employer was unsafe, then they will be liable. There’s also – I should mention – There’s a Work Health & Safety Act and the Fair Work Act protect employees against adverse action taken against them by employers. So if you put your hand up and your employer dismisses you for raising associate concern or discriminates against you – perhaps doesn’t give you shifts for instance and give’s other people shifts instead – then they can be issues you can raise under those Acts and there’s compensation available for lost earnings from that adverse action or discrimination. And also civil penalties which can go into the tens of thousands of dollars payable by the employer to the employee.  So, there are remedies available.

DK       Okay. You might have a question for Dennis Kim from Turner Freeman Lawyers. Give us a bell now – 131 873. We’ve got our $100 Westfield Voucher to give away to the best caller as well as answer any of your questions that you’ve got about work place injuries or medical negligence. Give us a bell. Chris is with us – with a question from Wagga. Hey Chris.

Caller 1 –  Chris

Chris     G’day Deborah – how are you? My son was in the army for 4 years. He has since been medically discharged. He’s actually rather massive young man – very well strongly build – he dislocated his knee cap – fractured his femur, dislocated his other knee cap – they operated on one knee and totally buggered it up – now they’ve put their hands in the air and medically discharged him. He’s obviously going to get a bit of a payout from DVA which won’t be a lot. He’s a 24 year old boy – at home medically discharged with 2 totally destroyed knees and the Army has put their hands up and said he’s at home now – medically discharged. So obviously we are going get his knees fixed – I’m presuming the Army will pay for that.  But legally where does  – we’ve been to see a solicitor – the solicitor said – well we’ve really got – we really won’t go with the Army – and I’m thinking – 24 year old boy – He probably won’t be able to work again – or who is going to employ a 24 year old man with 2 buggered knees until we get him fixed? But – like 4 years – he suffered for 2 ½ years in pain and I just – it doesn’t seem right to me for a soldier.

DK        Chris, that’s a terrible story that your son’s placed in and the fact that it is impacting him and you – the whole family. What are his options Dennis?

D KIM  Look – it does sound unjust – if he can’t work because of the injury and it was caused because of his service – he should be compensated for it.  I’m not sure – I can’t comment on the other legal advice that you’ve received but I do encourage you to get other opinions if it doesn’t feel right – usually there’s a reason why. So that’s the only advice I can really give without knowing more about the matter.

Chris     Yes.

DK        Yes – I think that’s a good point to make Dennis generally – if it doesn’t fee l right, it’s worth following up. I hope you have some joy with it Chris and get back in contact with us if you don’t because it’s one of those things.

Chris     Yes. Thank you very much.

DK        24 – he shouldn’t be facing that sort of a future. Good on you Chris. Judy’s with us too. Hi Judy.

Caller 2 – Judy

Judy    Hi. Yes. I’m concerned that you know the Woolworths and Coles people go on TV and talk about how they are looking after their staff and blah blah and yet in my vicinity, there’s a Coles that absolutely has nothing anymore – nobody checking – nobody counting how many people go in – the store was absolutely packed yesterday and there was one guy at the front wiping the handrails of the trolleys but with the same piece of paper over and over and over again. And the staff at Woolworths, most of the Woolworths now – don’t have the screens up anymore and the staff have been told “no”, they cannot wear masks or wear gloves.

DK        Hmmm, that’s an interesting point that……..

Judy      How are we looking after them because these guys in these stores are probably the most at risk because they have hundreds of people a day going passed them.

DK        Yes it’s a good point Judy. Dennis – what’s your view on that?

D KIM  Look. I agree – the infection control that’s in place – it’s all very new for everyone and it’s very hard to implement it properly and there are – I mean everyone’s observing there are mistakes being made and Woolworths and Coles are no exception. So, as employers for their duty to the employees – if they haven’t got a reasonable system in place and they are not enforcing it and their employees contract COVID or have an existing condition aggravated by COVID because of their exposure at work and the unreasonable steps taken at work to protect them, then they will be liable and there will be a claim for those workers.

DK        All right Dennis thank you for the answer to Judy there. You might have a question as well. Give us a call 131 873 is the open line number.  We’ll take a quick break and we’ve got a $100 Westfield voucher to give away as well to the best call, so if you have a legal question – anything to do with workplace injuries – give us a bell now. We’re speaking to Dennis Kim from Turner Freeman Lawyers.  10 minutes to 2 – it is Tuesday this time very week – we talk legal matters with Turner Freeman Lawyers – on the line is Dennis Kim and we’re looking specifically today at workplace injuries. If you’ve got a legal question, give us a bell now.  131 873. John  – hello – what’s your question for Dennis?

Caller 3 – John

John      I’m well – I’m an IT support person –I do remote and on site. Now normally my business is I go to a site and I will teach people how to use – in a particular – they are an essential service companies – how to use particular piece of software. Now, my dilemma is at the moment is that I have been asked to go to this particular company. They say they will manage all the compliance of you know – spaces and what have you. I’m just concerned that they’ll probably be about 15 people in the room – whether that’s dangerous – whether that’s legal? I mean they will have masks on and all of that sort of thing – but just wondering where I stand with this legally.

D KIM    My understanding of it is that if you are attending for work, then the social distancing rules don’t apply normally as they do in the general community. Also with being off site – I have to add that doesn’t excuse your employer from protecting you, they would have to check that the systems and the arrangements made are going to be reasonable and protect you. So……

John        I’m a self….. I’m a sole trader. I’m the guy that goes to …………. for other companies.

D KIM    Oh I understand. Right got you.

John        Just wondering where I stand in terms of doing this because I don’t want to be liable obviously.  I want to help them out and ………..

D KIM    Yes of course.

John        And it’s a pretty desperate situation. They need to get this up and running for all their staff. Yes….

D KIM    Do you have your own insurance to cover yourself?

John        Professional Indemnity – yeah –

D KIM    And also public liability?

John        Yeah, yeah sure.

D KIM    Right – well that’s the policy that would apply to yourself in that case but as for the measure that they’re proposing to take, they do sound reasonable – I mean that might be more of a health question though a legal question that you are asking about whether it’s safe and whether you could attend – the measures that you mentioned, they do sound reasonable.

DK          Yes and it’s worth asking those questions as you so, if you’re concerned about the health measures that they are taking within a workplace, then you are well within your rights aren’t you Dennis to raise those concerns and ask them to adhere to the restrictions.

D KIM    Most definitely.

DK          All right – good question John. Thank you. Hi Sarah – what’s your question for Dennis?

Caller 4 – Sarah

Sarah      Hi – yeah – I have a pre-existing mental health condition – but I didn’t disclose to my workplace – about 18 months into my job, due to sort of the pressure that work was giving me – and the exacerbation of symptoms and I ended up in hospital for 3 months and not able to work.  Yeah and I was just wondering if there’s like anything that I can do to gain back sort of the time that I haven’t been able to work? I did mention to the employer that I was sort of burnt out and you know unable to take more referrals but they did anyway.

D KIM            Look – Definitely yes and I mean this applies to any worker who has got pre-existing conditions but returns to work and gets back to capacity and then has their pre-existing condition re-activated or aggravated or deteriorated by their next employment. So if it can be shown that the next employment was the main contributing factor to that aggravation or deterioration then you are covered and if as you say you put your hand up and said – look the workload is too high – I’m struggling here and they didn’t respond to that – then that also adds to that as well.

DK      And are you obliged to Dennis – to let your employer know about a pre-existing mental condition or health condition? Do you have to let them know or is that not a requirement.

D KIM  Look, it…… if some employers may ask it explicitly and I wouldn’t you know advise to lie…..

DK      But if they don’t ask, are you obliged to be forthcoming?

D KIM            Look – I don’t think so. I don’t think so – It’s a private matter and as long as it’s not going to impinge on your ability to perform the duties and if it’s not a relevant factor for them to discriminate against you for – then yeah – if it’s not relevant, it’s not relevant.

DK      Yeah – I hope that helps Sarah. That’s a good point to raise because there are so many question marks aren’t there surrounding what we are in. This is unchartered territory in so many ways and particularly is in workplaces – a lot of people are still not in the workplace yet – they are still working from home – but yeah – lots of issues are raised as a result of it. Dennis – thank you so much for joining us.

D KIM            Thank you for having me.

DK      Dennis Kim there and if you’ve got a question from him or of any of the other lawyers at Turner Freeman – you can visit their website – turnerfreeman.com.au – you can give them a call on 13 43 63. And I think we might give our $100 Westfield voucher to Judy today – which she had the question about the Woolies staff and supermarket staff – whether or not there’s some obligation from the supermarkets to ensure they are protected. So we will send that out to you Judy in the mail – you’ve got yourself a $100 Westfield voucher.