Gaius Whiffin featured on 2GB discussing personal injury claims - 13 April 2021

 ***********************

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

 ***********************

Listen to the podcast

Read the transcript below:

DK      And as we do every Tuesday, Legal Matters with Turner Freeman Lawyers, today we’re talking personal injury, you might have been out and about over the Easter break, you might have injured yourself, maybe it was doing one of those scary holiday things, maybe there was a problem with your accommodation that meant that you hurt yourself, suffered an injury. If you’ve got any questions, legal questions, Gaius Whiffin is on the line for us now, 131 873, he’s our expert from Turner Freeman Lawyers and as always we’ve got our $100 Westfield voucher for the best call as part of the legal matters segment, so do get in touch, 131 873, free legal advice and $100 voucher, win-win. But Gaius is with us now, Gaius thanks for joining us. I wanted to talk first up before we do get to calls about this case out of Victoria, where a cafe has been ordered to pay over $140,000.00 in compensation for a woman who slipped on a hot chip, what sort of risk is there for businesses for this sort of injury?

GW     Well it all depends Deb, I mean at the end of the day a business has to have a suitable method of maintenance and cleanliness. Now as long as there’s a regular inspection then a business and that business can be your local fish and chip shop right up to sort of Woolworths and Coles and so forth and your supermarkets, they need to have a reasonable system of inspection. The High Court many years ago has said and believe it or not it was in a case where a person did slip on a chip, went all the way to the High Court.

DK      Goodness.

GW     And in that case, the High Court generally said well in something like a big supermarket a system of or a sort of food hall rather it was, a system of inspection should be around about twenty minutes. Now it depends upon the circumstances, and the sort of business that you’re running as to your method of inspection but you need to have a system, if you don’t have a regular system then the chances are that it will be assumed that you didn’t see the particular trip hazard, it was there for a long period of time and you should have seen it, should have avoided it. Now that case was also a Victorian case, in New South Wales we have a different Civil Liability Act, and a person isn’t entitled to compensation generally for an obvious risk, so again it depends upon the degree to which this person should have seen the chip also.

DK      Yeah, because in this case the woman claimed as you say, that the cafe was negligent in failing to remove the food scrap in a timely manner because that goes to the heart of what you’re saying. That you’ve got to have the systems in place and you’ve got to prove that you’re enforcing those systems.

GW     Yeah, look I mean it’s a case where you know, if someone slips on something in a shopping centre, if it’s say ice-cream that they slip on and the ice-cream has come from a little boy that’s just gone five minutes beforehand and you know generally a shopping centre won’t be expected to follow around everyone with bucket and mop to clean up everything, but as long as you have that system inspection, then you’re generally going to be fairly safe, but again when someone who is injured in those sorts of public places looks at whether they do have a claim, that’s a very important point to note, what was the system of inspection, how long had this trip hazard, whatever it might be, been there and do we know. I mean if there’s no system of inspection the chances are that it might have been there for a very long period of time and then the business can be found to be negligent.

DK      You might have a question, you might have suffered a fall yourself at a shopping centre or in another setting, you might think you’ve got rights to compensation but you’re just not quite sure, instead of forking out for legal bills, hey we’ve got the legal advice for free right here, right now, Gaius Whiffin from Turner Freeman Lawyers, 131 873 is the number to call, we’ve got a $100 Westfield voucher for the best call. I also wanted to ask Gaius about the food delivery riders, because Menulog has been in the news, they’re saying that they’re going to trial making their riders actual employees but Deliveroo, they recently stopped insuring their delivery riders, what does that mean if you’re trying to make a buck using the service, what does that mean with the insurance point of view?

GW     Well look the system is these delivery couriers and so forth, if they’re actually employed then the employer pays their worker’s compensation premiums and they’re insured for worker’s compensation purposes, so if they have an injury during the, while they’re delivering food they’re covered for worker’s compensation, they may also have other rights if they’re injured on the roads, they may have rights under the Motor Accident Injuries Act, but leaving that aside for the moment, their worker’s compensation applies to employees, it also applies to people that can be deemed to be an employee under the Act and what Deliveroo had found or what iCare have found is that they’re paying for people that are not officially employed by Deliveroo but actually come under the Workers Compensation Act, so to some degree the premiums aren’t being paid but the insurance, the person that’s injured is still going to be covered. Now with Menulog, they’re talking about making people employees, now that gives you all sorts of other rights too, you know for annual leave and superannuation and so forth, but it may not, the individual person may still be covered by worker’s compensation even if they’re not a formal employee in that sense.

DK      Yeah it is a big shift by Menulog away from the independent contractor model which was popularised by Uber of course and now the Menulog boss, Morton Belling is saying he couldn’t see any reason why other delivery companies could not follow Menulog’s lead, so the ball on that front is in the other delivery rider companies Uber and Deliveroo’s court on this front, it is quite an interesting one. So just in general Gaius, what are the most common personal injury claims you deal with?

GW     Well the most common injuries occur either in the workplace or on the roads, generally obviously in the workplace, that’s where people spend a lot of their time and otherwise another very dangerous place obviously on the roads, the third type of claim that you can have is what we generally refer to in very vague terms is a public liability claim, so it’s an injury in a public place, whether it be a shopping centre or whether it be, you know necessarily in a council park, I mean some of those claims are very tricky because of various restrictions that have been put on in our Civil Liability Act in New South Wales, but there are still possibilities depending upon the circumstances of the injury, but the most common injuries are those that occur in the workplace.

DK      Alright, let’s get to some of your calls 131 873 is the open line number and Phil has a query for us, G’day Phil.

Caller No 1:    Phil 

C1       Yeah, hi Deb.

DK      Hi, what did you want to know from Gaius today?

C1       Look I was just listening to the comment about insurance payouts that a business has to cover for somebody that might slip in a restaurant or supermarket or whatever, if a business has security cameras in, and they can, you know they can identify the person that made the mess in the first place, why can’t insurance cover be put back to or insurance payout be put back to those people for being sloppy rather than putting it onto the business?

DK      Alright, let’s see if Gaius has got an answer to that.

GW     Look if there are security cameras there you should be able to identify precisely when the chip fell for example, so in those circumstances if the person who spilt the chip or whatever it may be, did that half an hour before the injured person comes along then that would generally be found to be an inadequate system of cleaning and inspection, now yes look, the business may have some right against the person who initially spilt the chip if they can identify them but whether that person is going to be able to be identified, number one, number two, whether that person has got any funds to reimburse, I mean generally businesses wouldn’t sort of look at that sort of avenue, the most main thing is that to have security cameras is to be able to say well you know this event, the depositing of the ice-cream or the chip of whatever it was, only occurred ten minutes ago or whatever or five minutes ago, we didn’t have time to clean it up and that’s generally reasonable if it’s that short a period.

DK      Yeah

GW     And I’ve seen a lot of those of those sorts of situations where the security camera, I see them not every day, but very regularly where someone has been able to show me the security camera to say well you know, we didn’t have time to do this, we’ve been reasonable and if that’s the case then the probably isn’t a claim.

DK      And there’s another example of why having that concrete proof is always a good way to go about it. Phil I’ll give you the $100 voucher from Westfield today, that is a very good question, so well done Phil, stay on the line and we’ll get your details and send that out to you for a good question for us today, good on you Phil, thank you. Well Gaius thank you so much it’s one of those topics that you know we are out of time unfortunately but it covers such a range, a diverse range but thank you so much and if you need help from Turner Freeman Lawyers, Gaius is your man when it comes to personal injury, Gaius Whiffin and they also provide a lot of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estates and property law, get in contact with them direct turnerfreeman.com.au or give them a bell, 13 43 63.