Gaius Whiffin providing Q & A on 2GB discussing Personal Injury Law

Tuesday, 30 October 2018

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

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CS       Now earlier this month I mentioned a bizarre story about a community backyard cricket game that ended in a $700,000 payout – remember that? Newby Redding sued the Manly Lifesaving Club and batsman Scott White for negligence after his ball hit her in the eye. Now she claimed the injury left her unable to fulfil her dream of becoming an Olympian and she won the case. And I said at the time I found it quite unbelievable, does this mean we shouldn’t be playing backyard cricket anymore? Now, when I mentioned the story you raised questions about public liability, what sort of public liability insurance do community organisations need? What responsibilities do individuals have? You know, in their own backyards in most situations? I thought we’d get our personal injury expert in today to answer these questions for us. So if you’ve got any questions, maybe not necessarily on this particular topic, but based on personal injury questions or queries involving yourself or someone in your family, give us a call on the open line. I always say get in as early as you can. 131 873 is the telephone number and thanks to Turner Freeman Lawyers and the segment, I have a $100 Westfield voucher to give away once again. $100 voucher to one of our callers between now and the end of the segment. And for those that don’t know Turner Freeman Lawyers, they turn lives around with 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 experience in workers compensation claims, motor vehicle accident claims, skin cancer and public liability claims. So on those topics, here’s your man and you should call him right away. 131 873.  He’s also a partner at Turner Freeman’s Sydney office and he is in the studio with us right now. Gaius. Thank you very much for coming in.

GW     Thanks Chris.

CS       Now this incident was a clear cut case of an accident I would have thought and it didn’t sort of appear to me that this would have been deliberate, so why on earth did the Club and batsman through the batsman have to pay compensation? I don’t get it.

GW     Well, I don’t think – The Club – the case was taken against both the Club and the individual batsman. The Club settled the case – now we don’t know what the terms of that were – it may be that the Club got out of the case – the person find liable by the Court was the batsman himself and it seems – I mean we haven’t heard the evidence as to what happened – but it seems it was in a hall. It was in the function room of the Centre – some people set up a game of cricket – there was this girl – lady – was in the function room doing something else and she was obviously too close to the game. Now, to draw a parallel, it seems to me that it’s a bit like if you go to the beach, you set up a game of cricket on the beach but you set it up close to a family that’s maybe enjoying the beach at mid-on and someone drives it mid-on. So you’ve basically got to make sure that one you set up these sort of games, it is an informal set of process – that you don’t do it where someone is likely to be injured outside – I think that’s the point from it – Now I don’t know whether this case is being appealed or not, but at the end of the day, that seems to be what the Judge found and it’s the individual that he found to be at fault.

CS       So the individual? How does the individual pay an amount such as that?

GW     Good question. Good question. It’s highly highly unlikely that he would be covered by the insurance by the Surf Lifesaving Club so that’s a very interesting question. But that’s ……….

CS       But shouldn’t you- I don’t know how the system works – I’ll ask  you the question – shouldn’t the system evaluate whether someone can pay or not?

GW     Well whether it should or shouldn’t – it doesn’t – basically if the damages that this lady should receive because of the extent of her eye injuries – I mean it’s quite a large amount obviously, but we don’t know the circumstances surrounding what she was actually claiming, but yeah  the – it doesn’t take into account the person’s ability to pay.

CS       Okay – so does anyone involved in an accident, can they sue the organisers or the owners of the building or even the individual if they were injured in a backyard for instance? Or is this different?

GW     They’re all different on their circumstances, but it depends upon the negligence – as I said, you get back to that situation where if you are setting up a game of informal cricket, just a few mates, you’ve got to make sure that there is no-one around you that’s likely to get injured. I mean a cricket ball hit at speed can do damage and if you set up your game of cricket and then someone comes along and sits down in the middle pitch – then that’s their problem – their contributory negligence. But if you – when you set it up, you’ve got this person that’s in your sight that could be injured by a cricket ball and that’s what seems to have happened here. It’s not a backyard game – it’s in a function centre that – it seems that there were just messing around – then yeah – this person has learnt a very difficult lesson.

CS       Extraordinary. Could that person do a deal where they pay back $100 a week or do they go into bankruptcy? Do they declare bankruptcy?

GW     Well – all those sorts of issues. You may remember the QLD footballer – I can’t remember his name now, but that got a……

CS       Dale Kieran?

GW     No – damages awarded in America – just recently.

CS       Oh right…. okay….

GW     Just recently…….  and he had to do some sort of deal to pay that back…. The same thing can happen here –

CS       lodged……..

GW     yeah – lodged – that’s right. that’s right. Now the same thing can happen here but again we don’t really know enough circumstances about this individual. Unlikely to be covered by the Club’s insurance – I’m sure the Club had public liability insurance – the Surf Life Saving Club – but again – it’s the individual – that’s….. again  – they settled against the Club and not against the individual – it seems to me – say well the individual was acting outside the ambit of what the Club wanted him to do – so – we really don’t know enough about these circumstances but I think what you really have to glean from it is that you’ve got to be careful when you’re playing a sport that can cause injury.

CS       And this business about “Oh – you’ve taken away my right to become an Olympian”…..  I wonder whether the case and the amount could have been different if she didn’t say that…..

GW     Oh yes…

CS       Because at the end of the day, it’s only her dream to become an Olympian – it doesn’t prove that she’s going to become an Olympian one day…..

GW     No doubt about that – I mean they would have had to call a significant amount of evidence to show what her potential was and certainly if she couldn’t prove that – she would have got substantially less damages – I mean – it all comes in to loss of a chance – she’s used loss of a chance apparently of becoming an Olympian and she can get some damages for that.

CS       Yeah – Jason has phoned through on a similar topic. Go ahead Jason

Caller 1 – Jason

Jason              Hit my brother in the head last weekend……

CS       Oh did you? Playing what….. backyard cricket?

Jason  Yeah.

CS       Did he deserve it though?

Jason  No – he had to have 4 days off because I hit him – the ball hit him a beauty on the side of the head. So could he sue me?

GW     No – he’s probably consented to that

Laughing

GW     No look – he’s playing – he’s part of the game… this girl apparently wasn’t part of the game – she was in a position of danger and I think that’s what the Judge found – so he’s put himself in a position of danger because he’s fielding close to where you obviously are about to play shot.

CS       Yeah – good to get your call though. 131 873 is the telephone number – as I say – I’ve got a $100 Westfield voucher to give away to a caller this afternoon. So anything related to what we’re talking about or workers compensation claims, motor vehicle accident claims, skin cancer, public liability – Gaius Whiffin is here to take your calls. This is an open ending question – it all depends on circumstances – I think that is what you are going to say. But let me ask it anyway. How does the law distinguish between accidents that should involve compensation and those who don’t? Is it all about the damage to someone’s person?

GW     No. It’s about the degree of negligence. I mean at the end of the day, you – and whether you can foresee that your actions might lead to a risk of injury – that’s what it really comes down to and you know – accidents can be just accidents – accidents can be – if you want to use the word “fault” , if you’ve got a degree of fault and a degree of negligence – if you haven’t considered the risk that might be involved in your actions, then yes you can be liable.

CS       What if the Surf Club didn’t have public liability insurance? Or the public liability insurance policy had run out?

GW     Well then, they can be personally liable – the members of the Surf Club or however the const…….

CS       So the Board may be liable – the director of the Club?

GW     Yeah.  Yep – I would think in this case because I don’t know what happened in that informal settlement, but I think that in this case the Surf Club – been difficult to find the Surf Club guilty of negligence in circumstances where this fellow seems to have set up a game without their knowledge in circumstances close to someone who is likely to get injured.

CS       Ok.  Scott – go right ahead. Gaius is listening.

Caller 2 –         Scott

Scott                Yes – G’day. I’m just enquiring about a retaining wall that is built on the outside of my fence from the original sub-division and children walk across it every afternoon – it’s about a metre and a half off the ground – if kids fall of, am I liable?

GW     This fence is on your property is it?

Scott   The fence is in the retaining wall – I can’t see the retaining wall because mine’s got a timber fence – it is inside my boundary yes.

GW     Yeah – well look – there certainly is a possibility – I mean you know about what’s happening – I mean you obviously can’t – you’ve got to take reasonable measures to try and prevent a risk of injury – now you can’t stop kids coming across it when you’re not home or when you’re – it’s all a matter of fact as to what you can do to try to prevent that – so it might just be that you put up a sign saying “Please don’t walk across this wall”  – but if the wall is tall enough and some kid falls off it and you haven’t taken reasonable steps to prevent that and you’ve got the knowledge that they crawl across it – yes you could be liable.

CS       Are you there Scott?

GW     But it won’t be too difficult to take those reasonable steps as I say – you can’t stop people doing it if you are not home – but just a warning might be sufficient.

CS       Yeah – Scott’s just come off the line there – Jimmy – Go ahead.

Caller 3 – Jimmy

Jimmy             Yeah – thanks for taking the call. Wondering to what extent personal injury law is attenuated or affected by criminal law – so you know – a criminal breaks in and say Chris to your home, and you’ve got some toys or Lego the children have left out and in the course of trying to commit a crime on your property he steps, slips over and bangs his head – does he have a case?

CS       Ah – good question – we’ve heard of those cases before – go ahead Gaius.

GW     Yes – look – in the past yes – these days –very very very rarely in those sort of circumstances. Yeah – You really have to do something intentional to a……

CS       It’s got to be beyond what you would be considered a reasonable act to defend yourself and your family.

GW     That’s about right.

CS       Yeah – hey Jimmy. I’ve got a $100 voucher for you courtesy of Westfield and Turner Freeman.

Jimmy             Oh – thank you Chris – thank you very much.

CS       You’re a champion – good stuff. Thank you Jimmy – stay right there. Keith – Very quickly – I’ve only got 30 seconds – go ahead.

Caller 4 – Keith

Keith  G’day mate. I’ve got a sign on the gate that says “Beware of the Dog” and I’ve been told by somebody that if someone breaks into my place and they get bitten by the dog, I am liable because I’ve warned them that I’ve got a vicious dogs.

CS       Oh – good question.

GW     Yeah – that’s a bit different – you come under what they call the Companion Animals Act. Now the Companion Animals Act deals with dogs and in most circumstances if a dog attacks someone – even on your own property – as long as that person is there legally – then you’re liable.

CS       All right. Keith that’s a good question – thank you very much for your call. Gaius Whiffin – thank you very much for being in here this afternoon – very interesting field. Good on you.

GW     Thanks Chris.

CS       Gaius Whiffin from Turner Freeman Lawyers.