Gaius Whiffin on 2GB discussing motor vehicle accident claims

Tuesday, 28 June 2016 

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WM –Warren Moore /GW –Gaius Whiffin/C1,2,3, etc – Callers 

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WM    Well there are changes to the compensation if you are a victim of a motor vehicle accident and the NSW Government plans to overhaul compensation which is going to affect a lot of innocent people. So let’s find out what the changes are and what you can do if you are a victim of personal injury.

Joining us is Gaius Whiffin, an accredited specialist in personal injury law and our regular chat to Turner Freeman and he is in the studio right now. If you’ve got questions for Gaius about personal injury, get on the phone right now, 131 873 and up for grabs to our best caller, a $100 Westfield Voucher for the question of the day, thanks to Turner Freeman. How are you Gaius?

GW     I’m good. How are you Warren?

WM    Good. Now what are the changes?

GW     Well at the moment we don’t know is the short answer. But in about March the Government put out a discussion paper. The discussion paper has in effect four potential options and I won’t go through any of them in great detail. The discussion paper is based upon and I will just quote “changes to avoid difficulties in navigating the current claims process. The time limits and benefits and rise in green slip prices”. I think it’s mainly based around the rising green slip prices.

WM    Oh okay.

GW     And look they have been rising. The basic issue and this is also in the paper that the degree to which …. it says. The paper says this is a very important question about whether the community is happy to bear higher prices if that means higher benefits. Now the one issue with the current scheme is that the benefits aren’t that high as they are. It’s not a free for all. At the moment the current scheme gives certain benefits but again it’s not based upon you get what you want. You get paid for time off work if you are involved in a motor vehicle accident, you get paid for medical costs. To get an actual lump sum payment for pain and suffering, you need to be found to have a significant degree of injury to which only about 5%, if that of motor vehicle accident victims apply. The current scheme is based upon fault and that’s another issue which is looked at in the discussion paper. So at the moment if the accident is your fault and that’s another issue which is looked at in the discussion paper. So at the moment if the accident is your fault, you are covered by the scheme basically for about $5,000 worth of medical costs and lost wages otherwise you are not covered by the scheme. The scheme covers innocent victims and …. it is basically part of the common law tradition.. 

WM    Sure.

GW     of compensating people who have been injured as a result of the fault of someone else.

WM    Okay and if you have been in that situation and you need some advice you can get on the phone right now 131873. Our regular chat to Turner Freeman today. Gaius Whiffin is our  personal injury expert. I mean the green slip is something that obviously …… it’s been around for a while now but is it sufficient do you think to protect people?

GW     Look, the system…. the current system has been in operation since 1999.

WM    Yeah.

GW     So of all the sort of schemes to compensate injured people such as workers compensation and what they call the Civil Liability Act it’s the system that’s lasted the longest and it compensates those people that are quite severely injured and if you are not severely injured it gives you basic coverage and to actually interfere with that which is what one of the options in the paper is, would have a travesty upon people that are injured but not of their own fault. And of course that just doesn’t cover people in the car. I mean it covers pedestrians, it covers cyclists who were just going about their normal day and are involved in an accident that’s not their fault.

WM    Yes it’s important isn’t it. What about other forms of compensation to do with personal injury for example, obviously you don’t have the protection of the green slip if it is something to do with somebody’s negligence with a footpath or a tree branch falls on you or something like that.

GW     Well those sort of cases come under the Civil Liability Act. That took away a lot of those sort of rights in relation to footpath accidents and so forth back in 2002. Basically you can only claim against a Council or a Roads Authority, if the Road Authority had actual knowledge of the particular risk..

WM    Right.

GW     So if they’ve just done nothing about it for 50 years, it doesn’t matter someone’s fallen over it beforehand and told the Council you’ve got to fix this and they haven’t done it within a reasonable time, that’s the only way you’ll become liable in that sort of case.

WM    Yes it’s interesting about liability isn’t it? I remember doing a little [colour piece] a few months ago with a journalist who’s just done a walk around Bondi around the coastline and was just noticing how many warning signs there were which I guess is all part of this isn’t it?

GW     Well yeah. I mean if there is…. if there is an impediment and the warning can. Warning signs, exclusion clauses can get otherwise negligent parties away from liability.

WM     Sure. I’ll just get you to put your headphones on there Gaius if you don’t mind. Apologies for not wiring up beforehand but we are ready to go now. 131 873 and Gaius we’ve got Wayne on the line. Hello Wayne. What’s your question.

Caller 1 – Wayne

Wayne                        Hi my question is if I’ve been involved in an accident on a skateboard and I get pretty ….. and the time is at dusk and the driver hasn’t got his lights on and I get pretty banged up, what are my rights?

GW     Well at the moment, there’s the law stands at the moment – it depends upon the – depends upon who was negligent in the accident or if indeed both parties were negligent then there’s a division up of damages so that if you’re to some degree at fault for the accident, say 30% then whatever damages your compensation you are entitled to will be reduced by 30%, but if you are not at fault at all, say if you are…. even if you are at dusk skateboarding along legally, along the road, close to the footpath….. and a car comes up from behind you and simply mows you down, then I think you would probably be found to be not at fault at all and the driver would be found to be at fault. You’ve got to remember that as a pedestrian, even if you are on a skateboard or a cyclist, you are in a much more dangerous position on the roads and as a driver, you are under a pretty strong onus to take care while you’re driving.

WM    Okay Wayne. Hope that helps you out. We’ve got John on the line as well. What’s your question John?

Caller 2 – John

John                           Thank you very much.

WM    Okay John…. Hello John?

John                           Yeah hi.

WM    Hi. What’s your question?

John                            Oh look my wife was in an accident. We’ve gone through the process. She’s got as better as what she’s going to be through the medical practice and the insurance company has now made us an offer. Now there is a certain percentage of total body impairment which the offer is based on. Isn’t that set by Government regulation and if that’s the case what’s the point in going to a third party lawyer when it’s set anyway?

GW     John are you talking about a motor vehicle accident injury?

John   Yes that’s correct, motor vehicle – third party.

GW     Yes with a third party or with a motor vehicle injury, the…. to get compensated for pain and suffering, you need to get over a threshold of 10% whole person impairment. And it doesn’t really matter whether you are 11 or whether you are 50, if you get over that threshold you are entitled to what they call general damages and those general damages are not set. So it doesn’t mean if you….. if you are 15% you don’t get so much; if you are 20% you don’t get so much… so long as you are over 11%, you get general damages to be assessed in accordance with various principles.

WM    Okay does that make sense to you John?

John   12% – but when you go and try and find out what 12% is worth, you can’t find it anywhere … there’s no information about it other than having to go to a solicitor and check that out through them.

GW     Yes – you don’t actually get a specific amount for the 12%. It’s not like workers compensation for example, if you are injured at work and you are found to have 12% impairment, then you do get a specific amount. Now it’s a specific amount set by statute. Under the Motor Vehicle Motor Accident’s Compensation Act, there is no specific amount. As long as we are over 10%, in other words 11% plus, you get compensation but that compensation is developed in accordance with the legal principles, what they call general damages and that depends upon the extent of the injury. For example, if someone’s 11% and has a hand injury but used to be a concert pianist, then they might get more for general damages than someone that has the same hand injury that wasn’t a concert pianist and didn’t use the hands for work or anything like that so it has less effect on their lives.

WM    Okay. Good on you John. Thank you for your call. Hello Rod.

Caller 3 – Rod

Rod     Hi. How are you going?

WM    What’s your question for Gaius?

Rod     Well one of the things I’ve read recently and I’ve seen a couple of stories of it – there is – people – because we don’t have stickers on the cars any more, that you know – their regos lapsing without them knowing and obviously in the economy the way it is, a lot of people struggle to pay that one off registration when it’s due and so my understanding is then if you were hit by somebody who hasn’t got registration, they don’t have a green slip, so are you covered?

GW     Yes. But the short answer is “yes”. If you are hit by a car that is unregistered or uninsured, you have to claim against a body called the “Nominal Defendant”, which is in effect the Motor Accidents Authority – a Government body. They farm the case out to a particular insurer – one of the 4 or 5, I think it is only 4 now – insurers on the panel and you are still going to be covered. That applies if you are hit by a car that has been stolen or if you are hit by a car that then drives off without leaving details – if it is a hit and run – so in those circumstances there is a body called the “Nominal Defendant” that covers those sorts of claims and you are entitled to the same form of damages as long as the accident was not your fault.

WM    Okay. Good on you Rod. We are a little tight on time but we will fit Michael in. G’day Michael.

Caller 4 – Michael

Michael   G’day gentlemen. How are you?

WM    We are well. What’s your question?

Michael;   My question is particularly to the lawyer. Can you please explain to me and members that are listening that a “no win/no fee” part that most legal firms are advertising, how does it work?

GW     Well the “no win/no fee” part depends upon the….. depends upon a Costs Agreement. Now when you engage a lawyer – the lawyer is bound under the Legal Profession Rules to provide you with a Costs Agreement and if you not provided with that then the lawyer in most circumstances isn’t allowed to charge you any costs at all. The “no win/no fee” part has to be built into that Costs Agreement and in most cases and I say in most cases because there are different Costs Agreements for different firms and you have to read it carefully unfortunately and they are mostly long documents. That in most cases it’s a case that the lawyer will act for the injured person without charging costs initially. If the case is not successful, then no costs will be charged. If the case is successful, then costs will be charged at the end of the day. So if the case is successful and there’s an amount awarded then the lawyer will say, well the costs that need to come out is so much and that should all occur obviously before any settlement takes place

WM    Okay – thank you very much for your call Michael. Now Gaius, what do you think was the best caller was there – the topic?

GW     Whoa….. that’s a good one. I think the first one.

WM    Okay  the first one – makes it easy….. ah you have won and I’ll have to look back at the name, I think it was Peter. A $100 Westfield Voucher thanks to Turner Freeman Lawyers providing a range of specialised legal services including compensation and negligence law, asbestos litigation, family and employment law Wills and estate, commercial litigation, superannuation and disability claims, and Gaius, I suppose if people want more information about those changes when they are going to come into effect. Do we know?

GW     Well we don’t know. I think it’s certainly been delayed because of the Federal election. I mean these are State Laws.

WM    Yeah…

GW     I think there’s not been a lot done about it because of that. So we really don’t know. We would have expected something to come out a bit earlier but at the moment we wait and see

WM    Okay

GW     There are a number of options in those laws and we’ve just got to try and avoid…..

WM    Wonderful. Thanks for coming in. Much appreciated.

GW     Thank you

WM    Gaius Whiffin from Turner Freeman Lawyers. This is Warren Moore for Chris Smith. It’s 11 to 2.