Last reviewed 11 June 2014
Recent developments in the aftermath of the Hillsborough disaster have highlighted the state of the law in relation to psychiatric injury caused by disastrous events. Robert Spicer reports.
In the FA Cup semi-final between Liverpool and Nottingham Forest at the Hillsborough Stadium in Sheffield, 96 people died and 766 were injured during a crush at the ground. The families and friends of those involved have long sought answers from various public bodies as to what happened on that day, 15 April 1989. As a result, inquest hearings are currently being conducted.
For personal injury and health and safety lawyers, however, the Hillsborough disaster has its importance not just due to the tragic circumstances, but for creating legal precedents in relation to the circumstances in which witnesses of tragic events can claim compensation for psychiatric injury.
The Alcock case
The law as it currently stands stems from litigation around the disaster, most notably through the case of Alcock v Chief Constable of South Yorkshire Police (1992). The case was brought by numerous witnesses of the disaster. The House of Lords ruled that certain control mechanisms were needed when establishing whether a duty of care was owed towards these various groups of witnesses.
The current law, as stated in the Alcock case, allows parents, children, spouses or fiancés of a deceased or injured person to have the necessary standing to make an application for compensation for psychiatric injury caused by witnessing a disaster. All others, however, must prove that they had a “close tie of love and affection” with the person. Thus, unmarried cohabiting couples, same-sex partners, siblings and foster parents must establish the validity of the relationship at a deeply traumatic time. In contrast, some parental or marital relationships are presumed to have the required connection even if, in reality, the two are not closely tied, such as separated couples.
The law also requires that the event witnessed was “shocking” and that the witnesses were “close in time or space” to the event, perceiving it through their own senses. While those who saw the events’ “immediate aftermath” were included, those witnesses who saw their relatives injured on television were excluded. The shock suffered by the witness must also be immediate, thus excluding those who suffered gradual depression brought on at a later date.
In contrast, following the decision in Frost v Chief Constable of South Yorkshire Police (1997), police officers and rescuers who attended the scene were able to claim compensation for post-traumatic stress disorder (PTSD).
New statute needed?
The Association of Personal Injury Lawyers (APIL) is now calling for changes to these principles. APIL argues that a new statute is needed to ensure that those who suffer genuine psychiatric harm from the death or serious injury of a loved one, as a result of another’s negligence, can be compensated. Much has changed since the initial litigation; for example scientific and medical understanding of the impact of psychiatric illnesses, and the recognition of different types of relationship.
APIL seeks three main changes. First, it wishes to remove the requirement of groups to prove a “close tie of love and affection”. Instead, it proposes a statutory list of relationships where a close tie will be presumed, for example siblings. It will still be open for a defendant to challenge this presumption. This would mean that the burden of proof will be on the defendant rather than on the claimant.
Second, APIL argues that the term “shocking event” should be altered to “distressing event” or a series of events. It suggests that this would include events that may take place over a long period of time, or those that are deeply traumatic, which are currently excluded. The example offered by APIL is where parents watch their child die slowly as a result of medical negligence, which it seems morally right to include within the compensation remit, although is currently excluded by the law.
Thirdly, APIL wishes the requirement for witnesses to be close to the event, and to perceive it through their own senses, to be removed, as it fails to see a justification for this principle.
Psychiatric injury law
The law surrounding psychiatric injury has remained static, despite huge leaps forward in the understanding of psychiatric harm. As the law of damages of personal injury is supposed to compensate those who suffered as a result of another’s negligence, it appears arbitrary to require people to jump through this many hoops. It also appears inhumane of the law to insist that those who have suffered psychiatric harm as a result of the death or serious injury of a loved one must prove so directly.
Some who oppose the argument for change do so on the basis of the “floodgate” argument, namely that compensation claims would rise at a time where the general policy aim is to reduce the “compensation culture”. There is also a fear that psychiatric harm is easy to fake. However, claimants would be subject to rigorous psychiatric assessment to support their claims. Further, it is arguable that these proposed changes will produce a less arbitrary system for all parties than the one currently in place, where certain groups are automatically considered to be within the compensation remit, irrespective of their level of psychiatric harm.
The operation of the current law was highlighted in the case of Taylorson v Shieldness Produce Ltd (1994), where the Court of Appeal ruled that no compensation could be awarded to parents of a son who died three days after a serious accident. In that case, the parents were unable to see their son immediately because he was undergoing intensive treatment. His father saw him 10 hours later while his mother was dissuaded from doing so. The Court did not extend the term “immediate aftermath” to cover the parents’ witnessing their son’s deterioration. It is this sort of issue which APIL seeks to address.
APIL has requested that the Law Commission should examine the current law in relation to these secondary victims. It hopes that a private members’ Bill may follow in the next parliamentary year. The Law Commission previously examined this issue in its 1998 report, Liability for Psychiatric Injury, where it concluded that “we believe that the imposition of all three proximity requirements is unduly restrictive”. This central recommendation thus actively supports APIL’s argument.
It appears legally incorrect and morally questionable that relatives have to continue to meet so many requirements. Further, as was recognised in the Frost case: “many people regard it as fundamentally unjust that the police should recover damages for post-traumatic stress disorder sustained on that terrible day while the relatives claiming in Alcock v Chief Constable of South Yorkshire Police failed”.
In light of the recent developments regarding the actions of the police officers in the years subsequent to the disaster, it appears particularly wrong to retain such a distinction between secondary victims and rescuers.