Gerard Morson featured on 2GB discussing personal injury claims – 9 March 2021

Tuesday, 9 March 2021

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DK – Deborah Knight / GM – Gerard Morson – C1,2,3, etc – Callers

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Read the transcript below:

DK      Now this week, personal injury is our focus for Tuesday legal matters, 131 873 if you’ve got a question. You might have been in the street, you might have slipped over in the rain, maybe you went on a tour in a museum and you tripped over a poorly hidden cable. You might have a question about whether you are entitled to compensation, you’re in the right place. 131 873. Gerard Morson is a personal injury specialist at Turner Freeman Lawyers and he’s here to take your questions, and we also have, as we do every week, a $100 Westfield voucher to give away to the caller with the best question in today’s segment. Gerard, thanks for joining us.

GM     Thanks for having me Deborah, good afternoon.

DK      I won’t ask you about my fall because it was entirely my fault when I landed on my shoulder before Christmas, so I know that for a fact, but we’ve been talking on the show about Sydney locals breaking into the set of the new Thor movie at Little Bay and we had the story last year, I think it was late last year, of the man who broke into the Australian museum and took selfies with some of the exhibits. If someone were to injure themselves, when we’re talking personal injury, while they were doing something like that, breaking in to somewhere that they shouldn’t have, would they have any recourse?

GM     Probably not, Deborah. The Civil Liability Act precludes people in the process of committing a criminal act from recovering compensation.  So, if they are trespassing at these places where they are not supposed to be, I think that would be the end of any potential claim or recourse that they could have against any occupier or their insurance company, unfortunately, but it is tempting to sneak into the set of Thor and other things, it’s a very exciting film that’s being filmed in Sydney at the moment, but if you’re in Little Bay I would suggest going to the beach or playing golf, don’t sneak onto the set and get yourself in trouble or break into museums.

DK      There you go. But with the museum case there, I mean, you would presume that after hours is when this fellow broke in there, so it would be set up as though it was ready to go for the public the next day.  Would there be more of a case, if you did break into a facility generally used by the public rather than a movie set that’s being used for a private film?

GM     Well it usually depends on the factual situation that an injury occurs in Deborah, so we really have to dig deeply into that in every case. In the immediate case of someone trespassing, even though it was the case that the museum was set up properly, I would say there is probably a voluntary assumption of risk there. But, you never say never until you can sit down and have a conversation with someone and understand in intimate detail what exactly has happened.

DK      Exactly. Now we’ll get to your calls in just a moment, 131 73 is the open line number. The other big thing that I know that you often see claims come across your desk regarding or queries regarding people who have had a fall when they’re out walking in their local neighbourhood, they trip on a footpath, the Council might be upgrading the area around it.  What happens if there are signs up warning you to perhaps not walk on that footpath, or you know, the Council has made steps to warn people, would you still have rights to compensation in that regard?

GM     Probably not. Again, if there are sufficient warnings there, people are taken to be aware of the risk and they are voluntarily assuming that risk, but in practice I wouldn’t say that Council’s are that diligent or benevolent in terms of warning people of these risks and unfortunately injuries do happen. So, again, it really depends upon the situation and if you have hurt yourself, tripped and fallen on a footpath you should contact a lawyer to get advice, and of course that’s what we do at Turner Freeman Lawyers.

DK      You do, and you do well. And the other thing too, just with people going where they shouldn’t, there have been cases where if someone has broken into your home for example, if you do something that injures them, I’m not talking criminal cases here, but would there be any compensation that they could perhaps follow up as well?

GM     The answer is perhaps. Again, it depends on the situation. There was actually a recent Court of Appeal case that had a similar situation whereby a security guard was working at the Lidcombe Power Centre, the case was Caper & SPG Investments, whereby a security guard’s labour was contracted out to a security guard company by a labour hire company to be a security guard at this power centre. Someone’s broken in, he’s investigated and he’s been threatened with an axe, and the poor gentleman, the security guard, lost his case at trial before the Court of Appeal in NSW overturned it. He lost the trial because the trial judge said that he was voluntarily assuming this risk by approaching this axe welding bandit which was a very tough decision, but thankfully that was overturned in the appeal.

DK      Yea, that is good to hear. Alright let’s get to your calls. Patrick is first up, 131873 if you’ve got a question for Gerard Morson from Turner Freeman Lawyers.  Patrick, what did you want to know today?

C1       Oh mine’s just a general question about public liability, you know, like third party insurance where a pushbike hits you or one of those scooters hits you on a track or anything, what sort of a public liability insurance do you have if you’ve got major injuries like a broken leg? It nearly happened to me on the weekend when a pushbike nearly knocked me over, he had one hand on the handlebars and the other hand on a mobile phone.  What comeback has the public got in a case like that where you’ve sustained multiple injuries, is there any comeback at all?

DK      That’s a good question Patrick, because we know there are a lot more people riding pushbikes and a lot more people riding electric bikes, which they pick up quite a bit of speed as well. So Gerard, what’s the response?

GM     Well, good afternoon Patrick, thanks for your call. My response is that there may be multiple claims, it might actually be a motor vehicle accident if you’ve been hit by a bike or electric bike which can be defined as a motor vehicle, so I would be more than happy after the show to talk to you about it.

DK      Well luckily he wasn’t hit, which is good news, but he was just wondering if there was a case if he had been?

GM     If he had been, there could certainly be a case against the owner of the pushbike, and depending on the circumstances of how the collision occurred, perhaps a case against the local council where the road was in a situation that caused that almost unfortunate incident.

DK      Lucky it was a case avoided, that is for sure.  131 873, we’ll take a quick break and then more of your calls, we’re talking legal matters with Turner Freeman Lawyers, personal injury issues, give us a bell now, 131 873.

DK      11 minutes to the top of the hour, we’re taking your calls. 131 873 is the number. Gerard Morson is with us from Turner Freeman Lawyers looking at personal injury, and Chris has got a question for us, g’day Chris.

C2       G’day guys, how are you?

DK      Yea well thanks. What’s happened to you?

C2       Nah nah, nothing’s happened to me, I’m a qualified tradie and fully insured, but I do have a mate, and it’s a proper mate, not me, who injured himself on a client’s job, he’s just a handyman type person, and I know that he takes a fair bit of cash and sometimes issues receipts. Now he injured himself in a client’s yard and hurt his knee and now he’s sort of chasing them for compensation. Now, I mean, it kind of makes a mockery out of the public liability system, paying your premiums and doing the right thing if he can chase someone up just for injuring himself on his property if he’s taking cash for jobs…

DK      That is true.

C2       He said he’s chasing it through their home insurance. Yea, I dunno about that…

DK      Alright, let’s see what Gerard has to say about that. Any insight Gerard?

GM     Good afternoon Chris, thanks for your call. The issue that you raise about the cash jobs is probably a question between Mr Tax Man and your mate, but in terms of suffering injury on a client’s property that is attended to do some work, if he stepped on a hole that he wasn’t sure was there and has come to a serious injury of his knee or ankle I think you said, then there is a duty of care to people that come onto your property to take reasonable steps to have a safe premises where they are not injured.

DK      So would he be right in that he’s claiming it through the insurance of the property owner or would he be getting it through public liability?

GM     Absolutely. Most home and contents insurance policies cover that public liability issue, just in case something like this unfortunately happens. So tax questions aside, I think it would be fair enough and unfortunate in that if I attended on someone’s house whether I was doing a cash job or just going for a Sunday BBQ, if I stepped on something that was a bit dangerous that wasn’t completely obvious to me and twisted my ankle and hurt myself, I’d like to be able to make a claim for medical expenses and time off work.

DK      Mmm. You wouldn’t get an invite back to that BBQ though that’s for sure! But it’s a good point to make. Thank you Gerard. Thank you Chris for the call. John, what’s your query today?

C3       Good afternoon. I had an injury at work some 12 months prior to me being made redundant last year, and up to that time I was getting physio from the local nurse at my work, however, after that finished I’ve still got a sore shoulder, it’s damaged and I had to get cortisone into it. I was just wondering, I heard there was a form you could fill out, a 123 or a 132 form that you can put a small claim in and call it quits. Is that right?

DK      Mmm. Gerard is that right?

GM     John, it’s a little more complicated than that, but injured workers in NSW are entitled to make a workers compensation claim and be covered for reasonable and necessary medical and treatment expenses as well as loss of wages. Now, the lawyers can talk to you and assist you with that because the government through the Independent Review Office, newly formed, assists injured workers by paying the legal fees and disbursements for any advice therein, so I encourage you to contact a lawyer John and stay on the line and we’ll get your details and we can have a chat about what you should be doing.

DK      Alright, stay on the line John, and we’ll pass your details on to Gerard to follow that up. Michael, what was your query.

C4       How are you?

DK      Yea well thanks.

C4       This is a bit of a tricky one. When I was younger, my brothers and sisters were younger and I was about 13 and they were 7 and 8 type thing, we went to a playground together. I took them to the playground and some idiots had bent up the wires on the slippery slide and my brother and sister went down the slide and were slashed. They were cut down the legs, I’m hyperventilating, I feel sick just talking about it, but the council admitted negligence and they were compensated and claimed their compensation when they got to 18. Those scars had healed when they were young, but I’ve gone through post-traumatic stress over it for years and, as I said, I’m still now….

DK      I can hear the emotion in your voice Michael, it’s terrible, let’s see if Gerard’s got any ideas if you might be entitled to compensation. Would Michael have any entitlements there Gerard?

GM     Good afternoon Michael. Terrible situation that you went through, I’m sorry to hear about that. In terms of whether you would have a claim or not, I think firstly there is a limitation issue, it sounds like many years ago, claims have to be brought in a timely manner, commenced within three years, so if we’re long past that date that might be a bridge too far. Secondly, there’s rules about what’s called a nervous shock case like this one would be, in terms of whether you would qualify or not.

DK      Michael, stay on the line, I’ll get your details to Gerard, it sounds like it needs a bit more investigation, so stay on the line Michael, we’ll see if we can have some follow up for you and yea, we’re very sorry that you experienced that, it sounds just awful. Gerard, thanks so much for joining us.

GM     Thanks for having me Deborah, it’s been a pleasure.

DK      And if you want any information, you can get in touch with any of the lawyers at Turner Freeman, visit turnerfreeman.com.au, give them a call, 13 43 63, they look at all sorts of legal matters, compensation, negligence law, asbestos litigation, wills and estates and property law. We’ll give our $100 Westfield voucher today to Chris, who’s friend injured himself at a worksite.