Gaius Whiffin providing Q&A on 2GB on personal injury law

Tuesday, 13 September 2016

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

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CS       Well just last week 5 people were seriously injured in a dog attack at Wentworthville in Sydney’s West. So today we are going to look at what you can do legally is you are a victim of an animal attack and making claims because of personal injury and thanks to Turner Freeman Lawyers and the Legal Matters Segment we run on Tuesdays, we’ve got a $100 Westfield Voucher to give away to the caller with the best question of the afternoon. It’s a fairly rough definition when we come to the best question but the most interesting I guess is the one we give the $100 Westfield voucher to. And don’t forget 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 estates and property law. Their NSW offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong and if you’ve got a question on the subject of personal injury go right ahead give us a call – jump in right now. It is free legal advice and it is not often you get a chance to have some of that – 131 873 is our telephone number and Gaius Whiffin is an accredited specialist in personal injury law, a partner at Turner Freeman Sydney office and he joins me in the studio right now. Gaius, thank you very much for coming in once again.

GW     Thanks Chris.

CS       Yes – getting back to the 5 people seriously injured following a dog attack in Wentworthville last week – what type of claim is available to victims of animal attacks?

 GW     Well Chris the law is governed by what you call is the Companion Animals Act, which used to be the Dog Act. It basically provides a strict liability for owners of dogs for their actions – you don’t have to prove negligence – basically if the dog attacks someone you are generally going to be liable as the owner of the dog for those actions and that applies whether the attack is actually on someone else’s property or in the street or even actually on your own property.

CS       So if you are on your own property in a public footpath area or on their own property – their property – the dog’s property, you can still claim for compensation?

GW     Yes – Unless you’re unlawfully on the dog’s property or the dog owner’s property that is – you are going to be entitled to compensation if you are injured. For example there was a case a while ago for a meter reader who was lawfully on the property reading the meter – got attacked by 2 Alsatians and not the fault of the owner at all in terms of negligence but being the owner of the dog you are responsible for the dog’s actions in attacking someone lawfully on your property.

CS       And how do you go about making a claim on an attack like that?

GW     Well the first thing – if you are injured – the first thing you really need to do is to make sure there is some insurance of the owner to cover that. If there is no insurance there –it’s going to be very difficult to succeed in a claim. If there is insurance, there are most home and contents policies do cover that and certainly I’d be advising anyone with a dog to get at least insurance cover for that dog’s actions even if the dog is pretty placid normally.

CS       So if the attack occurs on a footpath – how does the insurance policy play part?

GW     Generally your home and contents insurance policy will cover that situation.

CS       Right

GW     Because it’s the personal liability you owning the dog, you were personally liable for the dog’s actions.  It generally will – not all the time – but generally it will cover it.

CS       What about limits on claiming?

 GW     Well what you are entitled to claim is – it’s basically a claim – a public liability type claim where you are entitled to compensation for time off work – you are entitled to compensation for medical costs, you’re entitled in most cases for compensation pain and suffering – there is a three year limit on bringing those claims… but…

CS       Three years?

GW     But generally what you would try to do in most cases is to talk to the insurer because the cases do not involve issues of negligence and so forth, most insurers are generally happy to try and resolve those cases that are easily early stage.

CS       Okay before I get to callers – 131 873 – if you would like to speak with Gaius Whiffin about personal injury – A man is believed to have a firearm in a home in Gordonvale in Brisbane – he’s thought to be alone in the home on Hawkin Street. Nine News in Brisbane say it’s an emergency situation declared at Gordonvale and a firearm inside the home – that’s all we know at this stage. We’ll try and get further details for you. Let’s go to Paul on 95 – Hi Paul. Gaius is listening.

 Caller 1 – Paul

 Paul    Thanks very much for taking my call.

 GW     That’s okay.

Paul    About 45 years ago I was attacked whilst I was at work which was in the park and went through all the workers comp and 45 years later I am still suffering with no teeth in the upper jaw and of course I am in my early 70s now so the cost of discomfort I got now which is getting worse – I heard your program and thought I’d give you a call to see if there was any room – it did go through the workers comp – I got nothing except for my wages paid while I was in the hospital etc. How do I stand?

CS       40 odd years ago? Tough one.

GW     Yes.

Paul    I’m still living with it though

GW     Yes unfortunately…….

Paul    I got a fracture of face and half my upper jaw was caught – it did go through workers comp and you know I got paid and all that wages – that’s all.

GW     Yes unfortunately, 40 years ago that was probably the entitlements in those days – you are covered as you would have been 40 years ago so none of the changes in the law since then would specifically apply to you and at that time I must admit I wasn’t doing this work that long ago ………..  Almost was unfortunately but at that time you were covered for time off work – you were covered for medical costs and you may still be covered if you need some further medical treatment – that’s a bit of an issue.

Paul    Well the point I’m making now is the discomfort I’m still getting and I just haven’t got the money and naturally is there any room to go this way to get assistance from the insurance company?

GW     Well if you know the insurance company, liability is continued – As I said there may be some issues with ongoing payment costs because of some law changes that have been made since.

Paul    I’m only interested in getting my jaw fixed up, I’m not trying to go for money or anything like that.

GW     Yeah – look if you need surgery you may still be entitled to it. It’s going to be difficult because we are going to have to identify insurers back then and so forth.

Paul    Oh well I have no problems with that because I kept all the paperwork and the solicitor that was handling it.

CS       Well you need to see the people at Turner Freeman by the sound it. But Paul, I’ll put you back to through to Carla and we’ll just try and get your details and I’ll leave those with Gaius and maybe he can make an approach to you about what can be done. Just going back to this drama near Cairns. Now this is Gordonvale just south of Cairns. I wanted to clarify that. This has just come through Brisbane News. A man has been taken into police custody now. I’ve just got an update. The man has been taken into police custody. No injuries. No threat to anyone other than himself. So, the situation – the emergency as Channel 9 in Brisbane have reported is now over at Gordonvale just south of Cairns. So there you go. Back to Gaius Whiffin from Turner Freeman. And Damien, you’ve got a question. Go right ahead. 

Caller 2 – Damien 

Damien          Yeah just a question. A few years ago I was ….. the kids were walking a dog and they were – the kids weren’t attacked luckily but the dog was attacked by a dog that got out of the yard. The dog wasn’t hurt or anything like that but we sort of chased it up with the local ranger and he basically came around the next day and said – okay tell us the story whatever and he said half way through – he said just by chance, how old are your kids? And we said at that time they were like 7 and 9 I think they were and he said well, technically and legally they are supposed to ……. under 18 years of age – they are not allowed to walk a dog without adult supervision. Have you ever heard of anything like that before?  Would that be true?

GW     Yeah – look there are – under the Companion Animals Act there are limits on taking the dog off the property. I’m not fully sure as to the age restriction but there is an age restriction so it could very well be 18 years. I actually thought it was a bit lower than that but I don’t know – I haven’t got the particular – the specific section here but yeah if you take your dog off your property, firstly obviously he has to be on a lead and with specific dogs they also have to  be muzzled and so forth but……

Damien           Yeah.

GW     There is no…….restriction

Damien          Yeah – we’ve got a double whammy out of it because then after that all of a sudden the kids – no no they are not allowed to walk the dog – not allowed to walk the dog. So we sort of – he sort of got me on that one. But yeah I’ve always wondered if that’s an actual rule or not – I have asked and people have never heard of it – and you always see kids walking dogs lead or no leads – whatever in the park whatever – they are encouraging people to get out and walk dogs and things like that but yeah – the kids just shy away from it.

GW     Yeah.

CS       Alright Damian – thank you very much for your call. Bill. Go right ahead.

Caller 3 – Bill

 Bill      Yeah. G’day. Look, I had an accident in the shopping centre on the North Shore the other – a couple of months ago and whilst I was walking through at the end of the day and I had thongs on and in the food hall and I slipped over in a big puddle of water in the shopping centre. The worst part was – no-one cared – I cut all my arm and I ended up having a week and a half/two weeks off work and……. Have I got a claim on this mob or anything?

GW     Very potentially yes. I mean it depends on the shopping and the supermarkets and so forth – it depends on their cleaning processes. So if they have a cleaning process where they are cleaning and maintaining it and inspecting the floors and so forth every 20 minutes or so.

Bill      Yep. Yep.

GW     And that is set in stone and a regular occurrence and they can prove and so forth – then generally the High Court has said is that generally that is good enough. If you fall then it’s generally because something’s been there in 20 minutes and it’s not negligent for them to – for them to not inspect every 5 minutes – I mean you don’t expect them to inspect every 5 minutes or so but every 20 minutes – yes. Most shopping centres – most supermarkets still don’t have those policies unfortunately and you still see accidents like yours happening a lot so I’d get some advice.

CS       Yes get some advice. Alright Bill. Stay there. Geoff. One last question – go right ahead.

Bill      Thank you.

Caller 4 – Geoff

Geoff             G’day Chris.

CS       Hi.

Geoff              I’m just wondering unlawful entry into a property – can you define that as opposed to the meter man that comes in that you are expecting to?

CS       Yeah – good question. Good question – I was going to ask that myself. Go ahead.

 GW     Well unlawful – just means you don’t have consent – there are certain people like the meter readers and so forth that have got implied consent because they have a statutory right to be on someone’s property to do a function such as read a meter and if you don’t ……. if not one of those persons – if you don’t give consent for the person to be in your property – then and the dog attacks, then you’re okay as long as the dog isn’t what they call a restricted breed or hasn’t been declared a dangerous dog. If it’s a dangerous dog, declared a danger or a menacing dog under the Act then you’re gone even to burglars .

Geoff              Okay – so as far as like the neighbour’s kids say jumped the fence and you are not home, then that sort of thing is unlawful if you know what I mean?

GW     Yeah.

CS       Yeah – Geoff I’ve got a $100 Westfield voucher for you.

Geoff  Thanks Chris

CS       That’s a really good question and the start question of the afternoon. Stay on the line and we’ll get that $100 Westfield voucher to you. Thank you very much Ah, Gaius Whiffin. Thank you for coming in and some really good questions this afternoon. Appreciate that. Accredited specialist in personal injury law at Turner Freeman.