We here at The Personal Injury Lawyers, along with many millions of others across the world have been horrified by the tragic loss of life and the many injured in recent terrorist attacks occurring in France.
And whilst our thoughts and sincere condolences go out to the people of France, these events can't but help make us all stop and consider whether such an atrocity could happen here in Queensland. Whether a madman could do the very same on the streets of Brisbane or on the Gold Coast - running down families walking home from Christmas caroling in King George Square or fireworks on the beach at Surfers Paradise. What was once the unthinkable is now thinkable.
I have had a friend on the weekend, a stay at home mum, ask me, as a personal injury lawyer, whether she would have a right to claim some compensation to help support herself and her children if her husband was rundown in the street in a similar attack in Australia.
Attack victims can claim compensation & damages
The answer to this question is, "yes". However, just like anyone who suffers injury or loss from such an event, what type of compensation she would be entitled to claim, would very much depend on the circumstances of the attack and those surrounding it.
Domestic terrorism and Victims of Crime claims
Victims of crime are entitled to compensation in Australia pursuant to legislation enacted to allow people injured or who suffer the loss of loved ones due to a criminal act, to receive some monetary payment for their injury or loss, and this includes acts of terrorism.
Acts of domestic terrorism fall within the State domain and hence any claim falls within the Victims of Crime legislation for the State where the attack occurs. In Queensland, that legislation is the Victims of Crime Assistance Act 2009. There is however lobbying underway at the present time to introduce funding from the Federal Government to assist victims of domestic terrorism in Australia, given the limited awards that apply under the State schemes.
Unfortunately, as indicated above, Victims of Crime compensation payments are usually not very substantial and will of course never provide proper compensation for the actual loss and damage suffered, but then no sum of money normally will.
Motor vehicle accident claims
Some involved in the conversation thought that there could possibly be motor vehicle accident claims or Compulsory Third Party (CTP) claims for victims of a truck rampaging through a crowd, as occurred in the more recent attack in France. Unfortunately however, in Queensland, this is not the case.
If my friend's husband was injured or killed by a truck that was out of control due to the negligence of its driver or repairer, and there was no terrorism involved, then yes her husband would be able to make a claim for his injuries. And if the accident resulted in fatality, then my friend and her children, would have motor accident claims for the loss of monetary support because of her husband's death. This is called a "Dependency Claim".
Any person depending on the monetary support or gratuitous services of another, has a right to claim for the monetary loss sustained by losing that support in the future, and for the loss of the services they were being provided with by their loved one, in the case of wrongful death.
And it would be very likely that my friend, and possibly her children, depending on whether they were of an age to understand what had occurred or if they had witnessed the traumatic event, would have a right to claim for "Nervous Shock".
Nervous shock is a psychological injury that can be sustained upon experiencing a traumatizing event involving a loved one, such as witnessing the serious injury or death of a loved one in an accident or where one is told of the sudden and untimely death or serious, life threatening injury of a close relative in an accident.
A personal injury claim can be made for suffering Nervous Shock because of the wrongful death or life threatending injuries of another - where the injury or fatality arises due to the negligent, wrongful act or omission of another party.
No motor vehicle accident claim where the injury or death arises from an act of terrorism
However, in Queensland, where the injury or death arises from an act of terrorism involving a motor vehicle as in the attack in France, then there is no motor vehicle accident claim under CTP insurance. Acts of terrorism are specifically excluded as a motor accident claim under the Motor Accident Insurance Act 1994.
There may be a personal injury claim for a negligent act or omission by police or event organisers etc.
In some circumstances there may be potential personal injury claims against those who have organised the event, had control over the premises where it was being held, or were responsible for security at the event, for eg. owners or managers of the venue where the attack occurred, police or security engaged to oversee and control the event, or organizers of the event. If it can be shown that any of these parties failed to take reasonable care that could have avoided or minimised the risk of a terrorist attack, when they were aware or ought to have been aware that such an attack was a real threat, then there may be claims for personal injury and wrongful death (including dependency and nervous shock claims), against those negligent parties.
In the case of the recent attack in France, there has already been media reporting that police may have removed vehicle barriers or restriction in the area too soon, or allowed the truck into the area without properly investigating whether it was a threat. It is understood the driver told police he was delivering ice creams for the crowd when they gave him access to the area. It is yet to be seen whether top personal injury lawyers in France will be pursuing class actions against the French Police, claiming compensation for attack victims, but if media reporting is correct, this is likely.
Injury in the course of employment - workers' compensation and Common Law claim for work injury
Further, if my friend's husband was working in the course of his employment at the time of his fatality, then she would most likely have a dependency claim and possibly a claim for Nervous Shock under workers' compensation legislation in Queensland.
And if it was the case that her husband's employer was or should have been aware of the real threat of attack and failed to take appropriate action to keep it's workers safe, then there would also be entitlement to pursue a Common Law damages claim against the husband's employer to recover compensation for the loss and damage sustained.
What about suing the terrorist?
There is no doubt that the actions of the terrorist who carries out these attacks are wrongful and therefore civil claims could lie against their estate for the injury and damage sustained. Howevever, in cases of such attacks, it is usual for the terrorists to be completely inpecuniary and therefore, having no funds to meet the claims that may lie against them, any claims made would be a futile exercise.