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Gaius Whiffin discussing personal injury claims on 2GB

Gaius Whiffin providing Q & A on the 2GB Steve Price Afternoon Show discussing "personal injury" - 10 December 2019

Tuesday, 10 December 2019



DK – Deborah Knight / Gaius Whiffin–   C1,2,3, etc – Callers 



DK      How good is this session, it is a free legal service for you, 131873 is the open line number and in today’s legal matters we are going to look closely at personal injury, accidents, trips and falls and car crashes so if you have a question on any of those topics here is your free legal session.  131873 is the number to call. Don’t leave it to the last minute, it always does fill up very quickly so if you’ve got a question now is the time to call.  131873 and Turner Freeman Lawyers provide a range of specialised legal services including personal injury, compensation and negligence law as well as superannuation and disability claims and as always we have that $100 Westfield voucher to give away to the caller that asks the best question in our legal matter segment on this Tuesday. Gaius Whiffin is a partner at Turner Freeman Lawyers and he is with us in the studio now.  Hello to you.

GW     Hello.

DK      So we are going to talk National Skin Cancer week which is, it happened recently and I guess the question is what if you do develop cancer at work, does it mean that you can actually be covered?

GW     Yes you are generally covered. There are a number of tests that you have to get through, the most important one is as long as the exposure to whatever has caused the cancer is the main contributing factor, is work related then you are just going to be covered so for example with skin cancer, if you have worked outdoors your entire life, if that’s your main exposure to outdoors, even if you have also been a bit of a beach goer or played football or something like that in outdoors, but as long as the main exposure to the outside is at work, then you are going to be covered for compensation under the compensation Act.

DK      What sort of compensation would you be covered for?

GW     Well the workers compensation act allows for three types of compensation, if you need time off work you are covered for that time off work, if you need medical treatment which in cancer cases and specialist skin cancer is probably most important than you are covered for that for certain periods of time and you may also be entitled to lump sum compensation depending upon the extent of your condition and they are rights that are available under the workers compensation act. They are rights that are available to anyone injured at work. Doesn’t have to be negligence involved, if you are injured at work you are entitled to compensation under that act and if your employment is the main contributing factor to whatever cancer you suffer, it applies the same way.

DK      It is worth thinking about. 131873 on the open line number. Alex is in Tahmoor with a question for Gaius. Hi Alex.

C1       Hi how are you Deb?

DK      Good mate.

C1       I actually went through a compo claim right now, I was on a regime of narcotics, the biggest one being ketamine. I was really spaced out 99% of the time and I accepted a payout which I’ve been told is much less than what I should have gotten. Now I would like to know whether there is a recourse on that or not.

GW     Look it really does depend, generally the answer is no but it depends upon the circumstances of the settlement. We would need to go into a lot more detail. There would need to be specific advice from your doctors for example that you really weren’t able to make an informed decision when you went through that settlement. The other issue would be that how do you go about seeking some redress. Is there an option to reopen the claim or is it something that your solicitors should have foreseen when they advised you at the time you took that settlement. It is fairly complicated, it is very difficult but it is certainly something you should probably seek some advice about.

DK      Alright I hope that helps you out Alex. It’s never cut and dry this one but more advice would be beneficial for you in this case. Patrick is on the line in Kewpie in QLD. G’day Patrick.

C2       G’day how are you going?

DK      Good mate, what happened to you?

C2       I was just wondering about whether I can do anything, I had an accident, it was…I walked across to see a scaffolder that hires scaffold putting it up and while I was talking to him his offsider threw a heap of lose rope behind me which I didn’t realise and we were talking there and next minute there was a bus coming around the corner, to get through because it was congested I had to move my vehicle and the scaffold bloke said you are going to have to move your vehicle, I turned around and went to head off and got tangled up in all this rope that they threw down there and went down and landed and busted my right hand shoulder.

DK      So wondering if you are eligible for any compensation for the injury suffered? Well Gaius, what do you reckon?

C2       Well I’ve got to have it operated on and everything.

GW     Are you self-employed or was this in the course of your employment?

C2       No not in the course of my employment. I am self-employed.

GW     Well do you have any insurance cover for yourself?

C2       No.

GW     Well you are right really in terms of a potential negligence claim against the fellow that caused this accident or the company that he is actually employed by. Now those sorts of claims unfortunately generally don’t help you out with payment of ongoing medical expenses so in terms of operations that might be tricky to get that paid for. Generally you can claim the expenses as part of an overall lump sum at the end of the day when you settle your case but if you are not actually employed by someone, if you are not covered by workers compensation insurance, then you are probably going to have to wait to get payment of all of your expenses until you have an overall settlement at the end of the day.

DK      Alright I hope that helps Patrick. Thank you. 131873 the open line number, will take more of your calls and get the latest from the news room right after this.

DK      131873 is the open line number for a free legal session. Any question you have no matter how big or small, now is the time to give us a call.  131873 Gaius Whiffin is a partner at Turner Freeman Lawyers answering all your questions this Tuesday afternoon. Mark is with us in Brisbane.  G’day Mark.

C3       How are you?

DK      Good mate, what’s happened to you?

C3       I had an injury a very long time ago when I was working for the oil companies which was covered by compensation, they claimed for everything back then but later in life that same joint broke down and I had to have a fusion and I was just wondering what the time frame is between the original injury and when you can make a claim?

GW     Well there often is no time frame in relation, no specific time frame, you’ve already made the claim back many years ago and what you are saying now is that you’ve had further treatment. Did the insurer pay for that treatment or did you have to pay for that yourself?

C3       No well I got made redundant from the original company and then I started working for myself so when you work for yourself you can’t be covered by compensation so I had to pay for it myself.

GW     Yes but the reason for your surgery was the original injury back many years ago that you made the claim for, I guess which would have allowed you to claim the costs of that surgery and any time off work and lost wages in relation to that, you may also be entitled to a lump sum, still there is no specific timeframes but it’s always wise to get some advice as soon as you can and as soon as you are aware of the relationship between this need for the further surgery and that old injury.

DK      Alright I hope that helps you out Mark. Good on you thank you for the call. Barbara is on the line in Canberra as well with a question. Hi Barbara.

C4       Hi guys we love your show. Happy Christmas to both of you.

DK      And to you.

C4       I was in a hit and run, I was stopped at a roundabout waiting for a car to go and just behind my car was a speed hump and all of a sudden I had a bang in the back of my car. I thought it was a bus or truck, she took off in her car and never stopped to help me. I reported it to the police, she didn’t report it to the police and because it is not a lot of damage to my car, it is damage to me and the passenger. Do I have a case? I was fit until this happened.

GW     What you have to do when you are injured in a car accident where it is a hit and run, you have to show to the insurer that you eventually make the claim against, that you have made due search and enquiry to attempt to find the vehicle at fault. The fact that you reported it to the police is obviously important…

C4       I have the number plate as well.

GW     Oh you have the number plate as well.

C4       Yes I have the number plate, I got the number plate from her yes.

GW     Oh ok well then if you have the number plate then there will be an insurer that attaches to that number plate, that registration because the insurance goes with the registration not necessarily with the driver, so you just need to find out the insurer of that vehicle and then make a claim from there.

C4       Now I thought you had certain hours to report the accident which I did report and she did not report.

GW     Yeah look in NSW as long as you report in 28 days you are fine.

C4       This is in Canberra.

GW     Well in Canberra there is still a, there is no specific…

C4       It’s 24 hours.

GW     Well if you report it in 24 hours you’re fine and look at the end of the day the reporting of an accident isn’t the main part, the main part is that you’ve got to make the actual claim against the particular insurer, you’ve got the number plate details, there is an insurer behind it and you should be able to make a claim from there.

DK      Alright good luck with that Barbara. I hope you get some relief from that one. Thank you for the call. Michael is with us in Prospect. What has happened to you Michael?

C5       Two years ago I went into hospital for a bowel cancer operation, that was all successful but while I was recuperating I caught a virus in my eye and they had to remove my eye…

DK      Goodness me.

C5       There was no negligence on the medical staff, I just wonder if there was case against the hospital where I caught the virus.

GW     No, you do have to prove negligence against the hospital and a lot there would depend…..those cases can get quite complicated, it depends upon the actual treatment that you received, you need to look through the treatment notes in great detail and they can get difficult but to be able to claim against the hospital in the those circumstances you do have to prove they were negligent.

DK      What an awful experience for you there Michael, goodness me. Wow. Appreciate the call there Michael. Greg is with us in Stanwell Park.  Just in relation to the point we were making about skin cancers and on the job as well. Hi Greg.

C6       Hi guys and a merry Christmas to you.

DK      And to you.

C6       I was just, I did hear in the first conversation, I actually suffer from skin cancers regularly, I was in the air force back in the 70’s, they do cover you with specialist treatment every 6 months or so I go to the skin specialist to have basal cells cut out regularly. I have had a couple of melanomas. I was wondering if that results in a lump sum payment or do I just tie into it this 6 monthly regular treatment?

GW     Yeah look the air force and the army are generally quite good at covering service members who have got skin cancers and they will generally pay your ongoing expenses as they have with you regularly and whenever you need it which is really good. The degree to which you are entitled to a lump sum depends upon the nature of your treatment, but yes you can get a lump sum and continue with your medical treatment if you are entitled to that lump sum but it is not one or the other, you can get both.

C6       You can get both? I appreciate your help. Thank you very much for that.

DK      Good on you Greg, have a good one. James I’ll see if we can squeeze you in as well in Chatswood. What’s your scenario?

C7       Thank you so much for taking my call so quick. I was involved in a hit and run, I was riding my motorbike in the Blue Mountains and I got hit by an oncoming car that drifted wide while he was on the phone, my son was behind me. Broken hand, broken foot and I’ve been laid up getting paid CTP from an insurance company but now I have to have a toe removed. Am I entitled to a lump sum or do they just give you ongoing weekly payments because they are paying me a small amount of money but they are taxing me because they are saying it is in lieu of wages and not compensating for the injury?

DK      We can see if we can get an answer from Gaius for you.

GW     When was your accident?

C7       16 February this year.

GW     You are covered by the new motor accidents injuries act in NSW, you are entitled to a lump sum for economic loss and you are entitled to a lump sum for what they call non-economic loss, pain and suffering so long as your level of impairment is over 10%. So you will be entitled to a lump sum, you can’t make that claim generally for 20 months after the accident. The new act here is very very complicated, there’s two schemes and your circumstances, you should seek some advice but the short answer is yes but it depends how much.

C7       It’s not about the money but anyway but thank you very much indeed for taking my call. I appreciate it.

DK      That’s a very good point you make James, it’s often not about the money it’s about the principal of the matter. Good on you we hope that that actually helps you. I think we might give our caller of the day to Barbara in Canberra. We will send out, we have your details, that a $100 Westfield gift voucher which I think will be great help for you heading into the Christmas period if you haven’t already bought all the Christmas presents, hopefully that will help you out and Gaius thank you so much for coming in.

GW     Thanks Deb.

DK      Always good to get that information from the Turner Freeman experts. It’s free legal advice which you get every Tuesday on the Steve Price show with Turner Freeman Lawyers, get all the information at 134363 if you’ve got any questions about work related accidents, compensation, negligence, superannuation and disability claims as well as personal injury. They are the lawyers to go to for any information that you might need.