Gaius Whiffin discussing Personal Injury on 2GB - 5 October 2021

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

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Read the transcript below:

DK      Yes another addition of legal matters. We are focusing this week on personal injury. Maybe you’ve suffered an injury while you’re out and about, had a fall, slipped while getting the groceries or you are having a lovely picnic at the local park and you took a tumble, maybe you have rights to compensation, maybe not. Let’s see if we can get some information and advice for you. If you’ve got a question 131873 is the number to call and as always we’ve got our one hundred dollar Westfield Voucher for the caller with the best question during our legal matters segment. Gaius Whiffin whose a Partner at Turner Freeman is on the line for us now. Gaius have you been enjoying picnics like many of us the fact that we can do that now in Sydney beautiful weather?

GW     Yeah it’s been beautiful especially the weekend it was a fabulous time not so much at the moment but can’t wait to get out there.

DK      Well absolutely. We know that people are spending more time in their local parks, we’ve got freedoms coming. October 11 if the date for the 70% and community sports will be coming back a bit later too when we hit that 80% mark. With injuries when it comes to community sports is there right to compensation if you do suffer a fall while playing community sport?

GW     Well look there’s a number of issues here Deb and there’s really probably four situations. The first one is if it’s an injury not anyone’s fault it’s just part of the game now generally when you register with your club you are going to be covered by some form of insurance with that registration often through iCare or through other insurers. Now that is fairly basic insurance but for example my son broke his hand just before lockdown and he needed a fair bit of medical treatment, hand therapy and so forth.

DK      Oh dear.

GW     Now between the private health insurer, Medicare and the sporting insurer his medical costs were paid and I think probably met almost in their entirety so you are going to be generally covered for your medical costs. It doesn’t go much further than that though. If you can get to the stage where the incident is actually someone’s fault again there are some tricky cases here for example there was a case in Victoria some years ago where a girl came to school, it was actually a school sport, she came to school with a certificate saying she should not be going to sport or shouldn’t be playing and I think it was hockey that day and the sporting mistress said too bad off you go out there and she got injured and sued the school and was successful in that case on those specific grounds. On the other hand, you might get injured for example if the ground you’re playing on has got some potholes or not particularly well maintained by the Council they are very very tricky cases because the Civil Liability Act in NSW contains a whole lot of provisions which protect Council.

DK      Well they’ve got waivers haven’t they to protect them.

GW     And waivers. Look the other situation is of course if and this probably doesn’t happen in school or childhood sports, but often in adult sports there can be an intentional injury. There can be someone that some player has actually hit someone and not playing within the rules. There was a case I don’t know if some of the listeners may remember many years ago I think in the early 2000’s Jarrod McCracken was subject to a spear tackle by I think it was the Melbourne Storm and he successfully sued for the injuries that he achieved in that spear tackle illegal instance in the sport and the same would apply to community sports so if there is something which is completely absent from the rules of the sport then yes the individual even the individual perpetrating that act can be sued.

DK      What about if you’re a spectator at a community sport event and you suffer a fall or an injury. Would you have coverage there?

GW     Again it’s being a spectator if you’re in the same sort of ground I mean you’re going to be and you go into a fall or a pothole probably not unless you can actually say the Council should have was on notice of the pothole or whatever it might be should have done something about it and get round all of those hoops in the Civil Liability Act. Probably even worse if for example you’re a spectator and you’re hit by a maybe a cricket ball or something I think you’ve probably got very little chance of being able to bring a claim at that stage.

DK      You might have a question for Gaius Whiffin from Turner Freeman Lawyers 131873 is the number to call which is what Melinda has done. Hello Melinda.

C1       Hello how are you?

DK      Well thank you. Go ahead what was your question for Gaius?

C1       Oh yeah I had a fall at Penrith Plaza 12 months ago. It was all on video footage. I had witnesses they all there was about 3 witnesses and I had my son with me that was with me when I had the fall. The security guards were there straight away. I went to the hospital and nothing come up broken but my doctor wasn’t happy. She sent me for ultrasounds and it come up I had torn ligaments in my ankle and I was on a boot for about a month and I was off work. I did ring for legal advice. They told me that one solicitor that I haven’t got a leg to stand on because that water they can’t have cleaners there all the time fixing every water spill in the Plaza so yeah I haven’t taken any action or anything so I was just wondering do I have a case.

DK      Yeah potential case yeah Gaius.

GW     Yeah look Melinda the advice you’ve been given may or may not be correct depending upon when the water was deposited now if the CCTV footage and there invariably is in these cases you need to look at when the spill that you slipped on was actually deposited because they’re right that they can’t have cleaners there all the time, but they still have to have a plan and they still have to have a system of inspection and cleaning in place so I mean the example that’s often given is a child’s walking along with an ice cream, it falls off, creates a spillage and two minutes later someone spills in it. Well that will not be generally held to be the fault of the Plaza whoever it might be because they haven’t been given enough time to clean it up but generally if the spillage has been there for around fifteen twenty minutes then it shows that the system of inspection and cleaning is inadequate, should have been better and if had been better would have probably cleaned up the spillage before spilt in it so there’s a fair bit of work to do in these cases and some investigating to be done, but they’re the general principles that you need to look at. Did you ever see the CCTV footage by any chance or …

DK      Melinda? 

C1       No they just told me that they had the footage of it when I spoke to the Plaza cause I was trying to they were actually going to pay for my annual leave but they actually told me they accepted liability the Plaza because they said we’ve got it on video footage we’ve seen your fall and stuff like that but I just didn’t go through I just went back to work when I was ready to back.  I didn’t follow anything up.

DK      Well you know what Melinda stay on the line because we’ll get your details to Gaius you may have something to follow up there and we’ll also send you out this hundred dollar Westfield Voucher because I think the case that you’ve put really encapsulates the personal injury segment that we do here on our Tuesday legal matters so Melinda stay on the line we’ll get your details I’ll send you out that one hundred dollar Westfield Voucher and we’ll take some more of your calls 131873 if you’ve got a question for Gaius Whiffin from Turner Freeman Lawyers right after this.

DK      Nine to two here on afternoons with Deborah Knight Tuesday legal matters Gaius Whiffin is with us from Turner Freeman Lawyers talking personal injury. Helen has got a question for your Gaius.  Hello Helen.

C2       Hi how are you going?

DK      Well thank you.  What happened with you?

C2       So I was at home and I was up my ladder and I fell off and I was fully insured with NRMA but because I’m the owner of the house it didn’t cover me.  I work part-time and so therefore didn’t have holiday pay or anything like that so I had 3 months in a wheelchair, I’ve had 5 months off work altogether. After going back to work my knee has been playing up a lot like I’ve got pins and plates in my knee and it’s throwing my hip out.  I’ve had another opinion and it’s been set crooked the knee so it requires more surgery but more time in a wheelchair to recover non-weight bearing.

DK      Oh Helen. I’m so sorry you’re going through this it’s terrible.

C2       Yeah I just wondered do you just eat that horrible sandwich you were given or is there something for me.

DK      Ok we’ll see if Gaius has got some information. You don’t want a dodgy sandwich that’s for sure Gaius.

GW     Definitely no Helen it sounds like you’ve been through the ringer a bit. Look I mean the problem with the initial accident is that your own insurance your own household and so forth insurance would generally only cover you for injuries that are someone else’s fault now if you’re the owner of the house obviously you’re going to be the one that’s generally going to be at fault if anyone’s going to be at fault in a particular accident so if you have an accident, fall off a ladder which is just an accident then you’re generally not going to be covered by your own private insurance.  The issue that you might have is of course that if there’s been any sort of negligence in the treatment that you received since because if you knee was set in such a way that it’s now affected your hip then maybe some arguments there that’s probably the area that you’d need to sort of perhaps at look at and the fact that the knee was caused through some other incident won’t prevent you from actually making a claim if the treatment that you’ve received has made the situation worse.

DK      Ok Helen again I’ll get you to stay on the line we’ll pass your details onto Gaius. There could well be some follow up for you there and Robbie we’ll squeeze your question in. What was your query for Gaius today?

C3       Yeah good afternoon Gaius, Deb about four and a half weeks ago I was out riding my pushbike was knocked off my bike by a car that didn’t hang around, didn’t stop. Subsequently had surgery and now I’m sort of left to pay the medical bills and the repair of the pushbike. Just wondering if there was anything legally I could do just to assist to pay for you know just the incoming bills and so forth.

DK      Yeah Gaius.

GW     Yeah Robbie you need to get some advice and you need to get it fairly soon because there is a body in New South Wales called the Nominal Defendant. It’s basically set up to deal with cases where a particular vehicle doesn’t have CTP insurance or you can’t identify the vehicle which is the situation in your case. There are a number of time constraints involved. You may have breached one of them already but that’s possibly able to get around.

DK      You know what I reckon we’ll do Gaius I might put Robbie in contact with you because it sounds like he’s definitely got some avenues to pursue so time’s against us, but I’ll get you to stay on the line Robbie and we’ll put you in contact with Gaius. Gaius thank you again.

GW     That’s ok. All the best Deb.

DK      Always a lot of interest in this segment from Gaius Whiffin from Turner Freeman Lawyers. They give you a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estates and property law. Give them a call today 134363 or their website turnerfreeman.com.au.