Tuesday, 12 June 2018
CS– Chris Smith /Gaius Whiffin– C1,2,3, etc – Callers
CS Well a Central Coast woman has been awarded six figures in compensation after suffering severe back injuries while on a whale watching cruise – we spoke about this last week. The woman claims the driver of the boat put passengers in danger and at one point the boat was thrust into the air before landing suddenly causing her to come down on her seat hard, breaking two vertebrae and compressing her spine. Now it’s a very interesting case because you have to wonder to what extent a company can be held responsible over injuries like this and how much of it has got to come down to personal responsibility, because I’m sure you have slipped it – the supermarket around what can be a very slippery fruit and veggie section. Maybe you have hurt your ankle or maybe your son or daughter has been left injured while playing sport and that’s what we’ll be discussing in today’s Legal Matters segment. And thanks to Turner Freeman Lawyers and their Legal Matters segment, we’ve got a $100 Westfield Voucher to give away. Another $100 Westfield Voucher for one of our callers between now and 12 minutes time. 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. Now their NSW offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and the “Gong” (Wollongong) – Gaius Whiffin is an accredited specialist in personal injury law. He’s got close to 30 years experience in workers compensation claims, worker or motor vehicle accident claims, skin cancer and also public liability claims. By all means, join the conversation and have your queries answered on 131 873. Gaius is a partner at Turner Freeman’s Sydney office and he joins us in the studio once again. Gaius. Thank you very much for coming in.
GW Hi Chris.
CS How common is the case I mentioned on the Central Coast where a customer has successfully sued, well a retailer in this case, a service provider or company for an injury that has occurred. Well it’s not necessarily a retailer – or is it a retailer?
GW Well yes – effectively they are. They are a supplier of services, so they have obligations as a supplier of services to supply these services with reasonable care and skill.
GW And safety. And in this particular case that was the problem. It wasn’t an inevitable accident of you know a freak wave happening, it was the actual operation of the boat or the vessel that this lady was on was found to be – performed in a negligent manner to the extent that that’s the reason that she’s sustained her injuries. It’s not particularly common because there’s a lot of sections in the Civil Liability Act where a supplier can escape liability but in this case the plaintiff was successful.
CS So in this case you would have had to have with you to be successful you’d have to have witnesses……
CS To what the boat or how the boat was moving at the time – witnesses to her fall or injury – I would have thought was important?
GW Yeah – I mean there needs to be evidence given as to exactly what occurred to establish that the operation was a negligent operation.
CS And what kind of injury status would she have to prove? None?
GW Well no – to actually get compensation you need to either have economic loss – so loss of wages – medical costs but realistically to get – not compensation for pain and suffering – you’d have to be found to have injuries equivalent to at least 15% of a most extreme case of injury. I know that’s a convoluted test, but it does take away a number of the minor injuries that so that you might suffer – so it what had happened to this person is you know she’d been bumped up and down a few times and got a bit of pain in her back for you know a few days or so – there’s no claim there……
CS Right okay.
GW It’s …….
CS There’s a level of injury that she has to prove?
GW That’s right.
CS What also is amazing to me is the fact that she’s gone on a boat in the seas – you can’t always predict what nature will do and I’ve been on boats out in rocky weather where we’ve hit hard and you’ve fallen back into the seat –and you’ve gone “whoaooo”. That hurt my arm. How much is the risk – a personal responsibility and how much of it is on the captain of that ship?
GW Yeah well – there’s a fine line there and it really all does depend upon the evidence in a particular case – I mean the evidence in this case was that the operation of the craft had been basically negligent. The lady herself in getting onto that craft has to accept obvious risks that come with it. But these were more than obvious risks that cause her injuries.
CS Interesting case. Zack in Castle Hill. Go right ahead. Gaius is listening.
Caller 1 – Zack
Zack Hi. How are you going?
Zack My wife – the story goes we – a few years back – we went to a popular restaurant and while we were eating my wife had our two year old in her arms and she’s walking across through a – near the register and there was – like a sauce or something or a fair bit of it was on the ground. So she was in heels – she had a fall and I was still at the dinner table with the other child and as time went past I thought, where is the wife? So I looked up and there she is on the ground and I thought Oh God and quickly ran over there – expected what had happened and there was sauce on the ground and staff just walking passed it. I picked her up and then we caught the attention of the attendants there and I said “Hey look she’s fallen over – she turned around and “no – can you guys quickly clean it up so no-one else falls. They took their time cleaning it up and towards the end of night I mentioned that the ……………. the attendant said “oh look, we’ll just give you 50% off your restaurant bill”. And I said “oh ok. alright – fair enough”. Then as the days progressed on and you know it got worse – she sought medical advice – the doctors were saying “Oh look you know….just damaged her arm”……. to what degree of I wouldn’t say it totally stopped her from doing anything – but mainly looking after the little one- you know being the mother and all that and so we didn’t pursue it. We thought it’s kind of like ahh……
CS So your question is, is there still room to pursue it now and what would you need to prove?
Zack Yes – correct – that’s right.
GW Well the first question is how long ago was it? Because you only have three years to bring these types of claims, but assuming that that’s not an issue, again it’s a matter of evidence. When someone’s injured in a place such as a restaurant or a shopping centre of you know a supermarket or whatever, there’s a degree to which the occupier has to ensure that they have a cleaning system and the cleaning system depends upon where you are. So if you are in a supermarket, generally the High Court has said that you know – if they’ve got a cleaning system that’s every 20 minutes or so, that’s generally good enough. The restaurant might be a bit quicker than that and you might need to have a cleaning system that’s a bit better than that because you expect spillages. As long as they’ve got the system, they can’t be responsible for every single spillage because you know – taking the example of a supermarket, you might slip on ice-cream that basically is just being fallen off the kid that was licking an ice-cream two seconds before you – you have to have a reasonable system of cleaning and that’s going to be slightly difficult to establish with the passage of time – not impossible but you’d need to go through their records to see what sort of system they did have, which can be done in case.
CS Okay Zack, I’ve got to leave it there – thank you mate – 131 873 – Ross in Plumpton – go ahead.
Caller 2 – Ross
Ross Yeah – good afternoon – just as quick as I can – my son in law was working – he’s a financial planner for the organisation – there was a tree on a wire – so he got on the roof – he cut it down – he fell off the roof, fractured his skull – got an acquired brain injury – he’s now only allowed to work limited hours a day. He’s been on WorkCover for 5 years and he’s saying to me that he’s not eligible for any form of payout.
GW Yeah – well – if he’s been on – is he still on WorkCover payments?
GW Okay – well it depends upon the level of his impairment. Totally depends upon the level of his impairment. If he – it sounds to me that he has an impairment of over 21% and that sort of impairment would entitle him to – with the weekly compensation for as long as he needs it – may also entitle him to a claim for what they call work injury damages which is a negligence claim. And a negligence claim you do get a payout, but it is a limited payout. So you don’t get any compensation for potential future medical costs. So if you’ve got a lot of future medical costs, you’re probably better staying on statutory benefits – the weekly WorkCover benefits.
Ross Yep. He’s – my daughter – they’ve split since the accident because he’s not capable of performing his duties as a husband or a father and he is quite aggressive now etc etc – but he said something about they assessed him at 30%.
GW Yeah – it sounds with those sorts of injuries that he is over that threshold and he may have other rights because if you’re in that situation where your circumstances of injuries certainly sound as if it needs looking into – I mean Safe Work would have probably looked into that and then probably investigations in relation to the safety of the work practices there on the site.
CS Okay. Ross, I’ve got a $100 Westfield Voucher for you.
Ross You’re a wonderful person.
CS That’s okay – I know this Ross – I’d just thought I’d give you a $100 nonetheless. Fantastic. Stay there mate – we’ll get it out to Plumpton for you.
Ross Thank you so much.
CS Okay – just stay right there Ross – with a very good question. You mentioned before – I’ve only got about 15 seconds – but a 3 year period – People have to remember there is a 3 year statute of limitations.
GW Yes – that’s 3 years statutory limitations – except if it’s a motor vehicle accident and workers compensation – where there’s a bit of a lead way in those cases.
CS Okay – Gaius. Thank you very much for coming in once again. Gaius Whiffin from Turner Freeman Sydney office. Thank you to those callers that we got to – those I couldn’t, I’m – apologies – but next time we get in early.