Philip Ferraro featured on 2GB discussing personal injury claims - 28 September 2021
Philip Ferraro providing Q & A on the 2GB Joe Hildebrand Afternoon Show discussing Personal Injury 28 September 2021
JH – Joe Hildebrand/PF – Philip Ferraro/C1,2,3, etc – Callers
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JH Give us a bell if you’ve got any legal questions. We’re talking personal injury today 131873. Something that affects a huge number of us 131873. I know this was something I looked at extensively when I was a Workplace Reporter at the Daily Telegraph. Were you hurt while out and about and maybe you got hurt at work or while you were working away from the office or even at the supermarket or what if you get hurt working from home? Are you covered then? Whose responsible? Give us a bell 131873 and we will have a one hundred dollar Westfield Voucher for the caller who asks the best question no pressure 131873 and you could win a one hundred dollar Westfield Voucher during this segment and Philip Ferraro from Turner Freeman joins me on the line to answer your questions. G’day Philip how are you?
PF Good thanks Joe how are you?
JH Excellent. Very well thank you sir. Firstly we’re going to get our freedoms back in the next week or two. What duty of care do the occupiers of a licensed premises owe to patrons if someone is assaulted in a pub could the pub be liable?
PF They certainly could be Joe. It will depend on the assault that happened. The issue has been considered by the High Court in the case of Adeels Palace in 2002 this is still the leading case on the topic there was a New Year’s Eve party in which there was a melee and later on in the evening two men were shot by a gunman who had been involved in the earlier fight. The two injured men claimed damages against the venue. The case went through a few appeals and ultimately to the High Court. The venue was able to defend the claim because they were able to establish that had security guards been present that would not have deterred the gunman so it will really depend on whether the venue could have done something to prevent …..
C1 …. I slipped in a supermarket and they had one of those signs saying the floor was slippery and wet. I slipped in a supermarket on a wet floor …
JH Sorry we’ve just got a bit of an issue with your line there Philip, you haven’t been pulled over by the cops have ya?
PF No I’m not sure what’s happened there.
JH It seems better now. It sounded actually it actually sounded like you had a cross call like a cross how weird anyway let’s get some up callers of our own on the line. Neil from Belmore joins us. What would you like to ask Philip Neil?
C2 Well with COVID at the moment personal injury you know if I get COVID from an unvaccinated person in a workplace or a venue what happens then and whose responsible where no work health and safety requirement for the individual and who has to pay for it?
JH Very salient question Neil. Yeah what does happen Philp if a venue lets in vaccinated and unvaccinated people and someone catches COVID from say an unvaccinated person who is allowed in is that venue liable?
PF It’s a good question. I tend to think that if it’s not an employee/employer situation the venue it would be a very difficult case against the venue because one, it would be perhaps difficult to prove how the infection had been contracted and two, the venue would probably have to take pretty extreme measures to prevent any COVID infection happening. I can say that in a workplace setting if you contract COVID in the course of your employment that is certainly compensable and the issue was considered not long ago in a claim brought by the family of a worker who unfortunately passed away from COVID related complications.
JH There you go so workplace there is a clear case in a venue not so much. Sue from Sydney is on the line. What would you like to ask Philip Sue?
C3 Hi my question is whether or not we can get a comp payout. My son was a Venue Manager of a Club. He was escorting someone out that shouldn’t have been there. As he turned away from that patron who he was escorting out, he got punched in the cheek bone. He had four cracked bones where he had three plates one they couldn’t repair. They said they could but they had to take his face off and repair it that way and he decided not to do that. The work where he worked and all that stuff he did get you know his weekly pay as he was off during that 6 weeks but my question is, is he entitled to a payout or not?
JH Can I clarify Sue cause I suspect this will be salient. Was he a bouncer or a doorman at the venue or was he working behind the bar or in hospitality?
C3 No he was a Venue Manager.
JH Venue Manager ok. Philip is he entitled to compensation?
PF He certainly could have a claim under workers compensation over and above what he already received. Additionally he could have a claim against the assailant directly as well. So it’s certainly something that should be investigated further and if you’re able to hang on the line and pass on your details we’d be happy to take a look at it for you.
JH Good on you Philip. That sounds very promising Sue and sorry to hear that story. Plenty more calls coming through. We’ll take a quick break and get to as many as we can.
JH Welcome back to afternoons. I thought this one might go off in a frog in a sock and it certainly has. We’re talking to Philip from Turner Freeman who specialises in personal injury law. Peter from Georges Hall is on the line. Peter what would you like ask Philip?
C4 Hello Joe and Philip look I was a Tradie come School Teacher teaching the practical subjects, worked for 20 years in a school, changed to a new school, got injured at the new school and it’s damaged my hand so bad I don’t know if I’ll ever be able to teach practical again. The only option for me in the future is probably to go into casual teaching. I’m just wondering where do I stand legally and cause I had full time employment and to go to casual will obviously only pick up a day here a day there you know.
PF Yeah certainly you would have entitlements to weekly compensation from the insurer depending on what your GP says about your capacity for work but over and above that depending on the extent of your hand injury which sounds quite severe you may be able to bring a damages claim against your employer and you could then claim the difference between what you would have earned had you not suffered the injury and what you’re now capable of earning, which sounds like it would be quite a significant loss so certainly I think you probably have some viable options there and we’d be happy to look into the matter further for you.
JH There you go Peter so stay on the line and we’ll take your details and Phil will get in touch. Mick from Wollongong is on the line. G’day Mick how are you?
C1 G’day mate listen I fell over in a supermarket right on a sign that said slippery wet floor but I didn’t see it. I wasn’t hurt badly but they were arguing with me that you should have you known we told you the floor was slippery and my argument is well I think that’s an admission of guilt on their part saying no they’ve got a slippery wet floor. I work in a factory. If I had a machine without there was no guard on it and there was oil spilled on the floor I’d have to actually shut all that down that area down cause it’s dangerous.
JH I’ve got to say before we go to Philip I think we’ve found the missing link here. Earlier on we got and this hardly ever happens we got our lines actually crossed. We got crossed lines on the phone line and I think that was you Mick who was coming in before.
C1 It was cause I heard it coming back through the radio when I hung up.
JH How weird.
JH That was cause we couldn’t figure out what was happening there was nothing happening at our end it was just something I don’t know there’s something happening in the atmosphere above Wollongong.
C1 Well don’t get the lawyers onto me mate alright. They scare me more than …… anyway what I’m saying is ….. admission of guilt really when they know their floor is slippery if I know something’s dangerous but their telling me no no you should have looked at the sign.
PF Well I think you’re right that putting up a wet floor sign doesn’t absolve the occupier of all liability I mean you know they may have an argument at least to say that you might have contributed to the fall but I mean there is a lot of factors that go into it. Where was the signed placed, etc. to where it’s not as black and white as a venue saying well we put a wet floor sign so we’ve done all we need to. So again something that would be worth further investigating I think.
JH There you go. Give us a call 131873 if you’d like to ask Philip Ferraro from Turner Freeman about any of your questions about whether you might be entitled to compensation for an injury you’ve sustained be it out and about, which we’re all going to be hopefully in the next couple of weeks or indeed in the workplace. Mark has written in with a bit of curly one. He said here’s one for your Joey. Find out if we can sue the government for deliberately bringing the virus in the country. We should be able to I reckon from Mark. This is a sort of interesting one isn’t it Philip because I mean could you could someone launch a case for example against the State Government for not having sufficient quarantine measures in place and allowing the no sort of infamous limo driver to be working unvaccinated without a mask. Is that possible if someone died from COVID-19 and could directly link it to a chain of transmission from that outbreak would they have a case against the government?
PF Look it would certainly be possible to bring that case but I think it would be extremely difficult to succeed in the case would be view because it would probably require holding the government to too high a standard to a standard of perfection really so certainly there could be standing to bring the claim but I suspect it would be a very difficult claim indeed.
JH And is that because there’s simply a lesser duty of care that the government has to its citizens to than an employer would have to their employees?
PF Look I think that part of it I mean an employer and employee relationship there’s a non-delegable duty of care there where as the standard and the ….. that the government has held against wouldn’t be as strict in an instance like this and again just generally looking at principles what should have been isn’t assessed with the benefit of hindsight so it would be quite a difficult case from that perspective as well.
JH There you go and Mike has written in and this is an interesting one as well. It said my hard ass boss didn’t want to put my claim in workers comp claim I assume. I just bypassed them and went straight to WorkSafe. Many workers don’t know about this. How common is it that workers do get injured and when they try to put in a workers compensation claim they actually get stone walled by their boss and think oh well I can’t do it now and they just give up.
PF Yeah its quite common sadly and some people are deterred by that but the insurer this gentleman sounds like he’s done the smart thing which is just to go about his employer’s head to the insurer and even if the employer is uninsured which is sometimes a reason they try to ……….. from being lodged then there’s a scheme called the Nominal Insurer which picks up claims where the employer should have insurance but didn’t so it’s quite common but there’s avenues around it.
JH There you go so if your boss is a bad guy and we know there are a lot of great bosses out there but if one does try to ……… your claim just go straight to the insurer cause you are entitled. Philip Ferraro from Turner Freeman thank you so much for joining us on afternoons and of course if you want to get in touch with any of the lawyers at Turner Freeman you can just go to www.turnerfreeman.com.au or call 134363. Philip Ferraro thanks very much for joining us on afternoons.
PF Thanks Joe.
JH And of course Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estates and property law and again their website is turnerfreeman.com.au or you can give them a call on 134363. Back with all your calls after this.