Gaius Whiffin on Legal Matters discussing Personal Injury Law

Tuesday, 4 September 2018 

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CS– Chris Smith /Gaius Whiffin–   C1,2,3, etc – Callers 

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CS       Well. Natasha Belling from Chanel 10 had a bit of a scare recently after she had a really nasty fall down the escalator at a supermarket. She suffered cuts down her leg and even thought she might have broken her back and while Natasha is just glad she hasn’t suffered anything more serious, a lot of the fans have suggested she take legal action against the supermarket for those injuries. Well it’s got us thinking about when an injury suffered in a public place like a supermarket is the fault of the operators and when is it the fault of the individual? And that is what we will be discussing in today’s Legal Matters and if you’ve ever had a similar experience to Natasha, maybe you went through a process that we can all learn from – tell us your story – on 131 873 – 131 873. And thanks to Turner Freeman Lawyers and their Legal Matters segment, I’ve got a $100 Westfield voucher to give away as well between now and the end of the segment  $100 Westfield voucher – Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, Wills and estate and property law. Gaius Whiffin is an accredited specialist in personal injury law with close to 30 years of experience in workers compensation claims, motor vehicle accident claims, skin cancer and public liability claims. He’s a Partner at Turner Freeman Sydney office – he joins me right here in the studio now. Gaius. Thank you very much for coming in again.

GW     Thanks Chris.

CS       A lot of fans were quick to suggest that Natasha take legal action and you can imagine on social media, it’s so aggressive “Go hard Natasha” and all that sort of stuff and they were suggesting legal action against the supermarket where she suffered the fall, but the issue isn’t exactly that black and white is it?

GW     No – not by any means. I mean, to bring a claim against a shopping centre or supermarket, most public places – you need to first to obviously prove negligence on the part of the supermarket at fault – basically that means that the shopping centre has failed to reasonably foresee a risk of injury and fail to deal with that risk of injury. In this case, I’m not 100% sure of the facts – it seems that the injury may have something to do with the high heels that she was wearing.

CS       Natasha was wearing heels at the time and says it was her own fault – so – she said that – but it doesn’t necessarily mean that just because you have high heels on, it’s your fault if you fall over.

GW     Not by any means – it’s still a case of showing that the supermarket – the shopping centre was negligent. That’s the basis and that always has been the basis. The Civil Liability Acthas changed things in the last 15 years or so but in terms of what you actually look at, the first thing to look at is – is the risk an obvious risk? So if for example you are walking in a supermarket and you see a spillage and the supermarket has a white floor – the spillage is Coke and its black – well it’s an obvious risk.

CS       Yes

GW     The supermarket doesn’t have a duty to warn of an obvious risk and you are taken to be aware of that obvious risk.

CS       Okay – interesting. You mentioned colour there – what if it was yoghurt – white on a white floor?

GW     Well that’s a different matter and in those circumstances………..

CS       It is?

GW     Yes. It can be – because at no circumstances it may not be an obvious risk and if it is not an obvious risk, we get back to the law of principles of negligence – which is – has the shopping centre or the supermarket in those circumstances had – do they have a system in place to remove spillages – that’s a reasonable system. Obviously if someone perhaps is having an ice-cream to give you an example – of yoghurt – and kids spill their ice-cream and you are 2 seconds behind that and you slip over it – the supermarket can’t be held responsible for that, they haven’t had time to fix it – but if they don’t have a regular system of inspection and generally that’s in a supermarket situation, it’s taken to be about 20 minutes of inspection, then what you get is a situation where they don’t have a proper system of inspection and they can be held liable.

CS       Yeah – interesting. Interesting – colour of product on ground……

GW     Can have a lot of relevance because it’s specifically the Civil Liability Act which refers to obvious risks.

CS       Yeah.

GW     So, yes if you’re – you’ve got a much greater obligation to look at something that clearly stands out is as being a danger to yourself – it’s like a small chipped tile – it depends on how chipped it is as to whether it’s an obvious risk or not.

CS       Okay – 131 873 is my telephone number. If you would like some free legal advice from Gaius Whiffin on personal injury – in this case we are talking about shopping centres but it doesn’t need to necessarily pertain to shopping centres only. Give him a call right now. I’ve got a $100 Westfield voucher to give away as well. Steve – go right ahead. Gaius is listening.

Caller 1 – Steve

Steve   Yeah – G’day Gaius.

GW     G’day Steve.

Steve   I’ve had an incident a little while ago where my wife was pregnant at the time, we ordered some lunch at a favourite take-away. Eating the meal, began to take something a bit funny and we consumed half of it and it ended up being a bandaid which had come off the finger of the chef.

CS       Yeey Yeey……..

Steve   Violently ill – they didn’t seem too worried about it – we went back to them – they didn’t kind of care – we contacted the Council which is a long process of following them up – they ended up prosecuting them and it was quite a large prosecution, but our concern was of course that my wife consumed the food whilst she was pregnant – we had to go through a lot of blood tests – a lot of things – fortunately costs were covered you know by Medicare – but what I am just wondering is – and I asked the question and then they said no because there was actually nothing came out of it in the end, we weren’t able to claim compensation but it’s like – I’m just thinking for the time and the stress of worrying about you know about  whether there was HIV or anything as well as waiting – you know for our baby to be born, surely there’d be some reason for to take them on over that wouldn’t there?

GW     Yes. I think you’re right there. I mean at the end of the day when you are presented with something – a product and it’s a product that you reasonably consume and you can eat with safety and you can’t, well there is a clear act of negligence or indeed a breach of there is consumer laws there which any damage you are entitled to claim compensation for. Now that damage is certainly – relates to medical costs – so all medical costs should be paid for by this particular restaurant. Any time off work for tests, for sickness – that should be paid for by the restaurant – now the problem you have in terms of claiming compensation for stress and so forth is that there are limits in the Civil Liability Act – you need to get over a certain threshold in terms of your injury levels to be able to claim compensation for that stress. But it’s – unfortunately the sort of situation that your wife was placed in is a lot more common than people think.

CS       Alright Steve – thank you very much for your call. Just going back on injury – so injuries – the calibre of injury counts?

GW     Yes – the calibre injury counts – when there is an action, you’re entitled to claim for economic loss – time off work and medical costs – To actually get compensation for pain and suffering, which is now called non-economic loss……. you need to get over a certain threshold in these public liability type cases which is a finding that your injuries are 15% of a most extreme case injury. It doesn’t apply to motor vehicle accidents and workers compensation – they have different thresholds but these public liability type of injuries – it’s 15% of a most extreme case of injury.  

CS       Shane – go right ahead.

Caller 2 –         Shane

Shane             G’day there Chris.

CS       G’day

Shane              My question relates – yeah G’day Gaius.

GW     G’day.

Shane              My question relates to Sydney Trains. Now I was travelling from Riverwood to Padstow. Got on the train at Riverwood as I normally would – the doors were just starting to close, but as I got on the train – it’s one of the older sets – one of the old silver sets – no cameras and no sort of detection, now my – the lower half of my leg got caught in the doors as they closed – now the train left with my leg sort of protruding – you know – sort of above the ankle – all the way to the next stop which was Padstow. And the doors opened on that side of the train and people were just saying “Oh my goodness!!”…… you know and a lot of those older trains – they don’t have any emergency buttons or any bells or alarms or anything and I was just sort of freaking out and I thought – well look – when we got to Padstow – I had pins and needles in my foot obviously from the cut off of the – you know the supply of blood to my foot – in this particular instance the next morning I had bruising around my ankle – I contacted Sydney Trains Transport of NSW and they weren’t very helpful at all – they said “Well you shouldn’t run towards the closing doors of a train“. Well unfortunately it happens sort of everywhere and you know – I said – look you can go back through the CCTV footage and have a look. The guard should have made sure that I was fully inside the train – and in fact that everyone was fully inside the train……..

CS       So was there CCTV footage taken or not?

Shane             Yes – there was CCTV footage – yes – absolutely. Right up and down the platform so that can clearly be seen – but Sydney Trains didn’t seem – they said they didn’t a part from dealing with the matter except to say “Don’t run towards a closing doors”. Well they’d only just started to close as I descended from the stairs.

CS       Ah ha….Gaius.

GW     Yes – look I think

CS       It’s a tough one.

GW     It is a tough one. I think the real problem you might have there is the extent of your injuries again. Because in those sort of circumstances and taking on Sydney Trains – I mean there may be where Sydney Trains have been negligent in that situation – you’ve got to look at their maintenance of this particular train, as to why the doors closed in the manner that they did – you’ve got to look at the issue of the guard and so forth – there’s all sorts of issues that can be look at there – but you’re not really going to get a case off the ground unless your injuries are significant.

CS       Hmmm. Shane – I’ve got a $100 Westfield voucher for you as a consolation.

Shane              Oh – are you serious?

CS       I’m very serious mate – I give away money every day now…..

Shane              Gee – Well look – I wish I had have been there when you were calling Geraldine with the $5,000.

Laughing

CS       Nah nowhere near 5 grand, but it’s better than a poke in the eye with a blunt stick.

Shane Well it’s more than I get off Sydney Trains …………………..

Laughing

CS       It’s a lot more…. Shane – $100 Westfield voucher coming your way.

Shane              Good on you mate. Thank you very much Chris.

CS       That’s okay Shane – stay right there. Shane from Riverwood and we’ll sort that out. Just very quickly before we let you go Gaius, what sort of compensation are people entitled to? Is it purely dependent on the amount of suffering the calibre of injury?

GW     Yeah – when you’re looking at someone that is over than 15% threshold, you get a certain amount for what percent they are and it’s actually a reasonably complicated legal situation – very briefly – someone that’s 15% – I think it’s about 6 grand these days.

CS       Right – okay.

GW     And it goes up to over $500

CS       Okay – I appreciate all of that and thank you for taking all of those calls. Gaius Whiffin – much appreciate it.

GW     My pleasure Chris.

CS       Good on you – Partner at Turner Freeman Lawyers and our segment returns next Tuesday.