Today’s correspondent asks this hypothetical question;
Could a firefighter join a class action against an insurance company for emotional distress caused in fighting said fire at the centre of the class action?
The Carwoola Fire being the case in point.
The answer is yes, but with some limitations. I have previously discussed how there is no ‘fireman’s rule’ in Australia and that injured rescuers can sue those that negligently cause the event that leads to their injuries; see:
- Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010);
- “Cop sues offender’s family” (May 22, 2013);
- Police officer sues mental health patient for battery(December 18, 2018); and
- Deceased driver liable for police officer’s PTSD (February 1, 2019).
It follows that if someone negligently started a bushfire and a firefighter was injured by that fire then he or she could sue the defendant (or in the case of the Carwoola fire, the insurer – see Bushfire class action continues even though defendant is in liquidation (August 18, 2019)).
The limitations that I imagine depend on the nature of the class action. A class action is where a representative plaintiff brings the action on behalf of the class of people affected by the event. In a bushfire the class of people may be those that suffer loss of property, or physical or psychiatric injury, or economic losses or some combination of those. The idea is that if the court can determine for one plaintiff whether, say, the defendant was negligent then that resolves the issue for all the other plaintiffs.
The question that a firefighter would need to consider before joining a class action (as anyone does) is whether he or she is really a member of the class as defined. A firefighter may have trouble fro example putting their PTSD down to one event so the issues of liability may not be the same and that may mean they are better off bringing their own action rather than joining the class action. That is however true for anyone who is thinking of joining a class action.
A firefighter can sue a person that negligently causes the fire that in turn causes their injuries. There is nothing new in that. It follows that if they are a member of the class as defined in a class action, a firefighter could join that class action regardless of whether the defendant is the actual person or entity that caused the fire or as in the case of the Carwoola class action, an insurance company that has been substituted for a defendant in liquidation.
The Statement of Claim in the Carwoola class action includes as group members “all those persons who suffered personal injury (whether physical injury or psychiatric injury) as a result of the Carwoola bushfire”. The whole Statement of Claim can be found here: http://www.supremecourt.justice.nsw.gov.au/Documents/Class%20Actions/Carwoola%20Bush%20Fire%20-%20Ritchie/Carwoola_Statement_Claim_28.4.17.pdf
The person posing the question would thus automatically a group member unless he or she opted out. Of course, general negligence law applies and the only liability issues which look difficult for the claimant are causation and remoteness of damage.
A claimant would have to meet the Civil Liability Act 2002 (NSW) thresholds to obtain meaningful damages.
It would be a good idea for a group member in this position to contact the plaintiff’s solicitors and outline the nature of their particular claim. (All the details are on the Statement of Claim). Most of the assessments will be for residents who suffered property damage as well as personal injury, and the type of claim outlined here “stands on its own” and may need individual attention in resolving the claim. Most of these matters are resolved by settlement in the aggregate and an assessment process for group members is conducted to determine their individual claims.