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A Struggle to Soldier On? Reforming Psychiatric Injury Claims for the Military

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About The Author

'Elizabeth Peters' (Guest Contributor)

'Elizabeth' served in Her Majesty's Armed Forces as an RAF Registered Nurse, serving in the Princess Mary's Royal Air Force Nursing Service. After a successful military career, she is following her dream of becoming a barrister, specialising in military law. 'Elizabeth' has graduated from law school and is currently completing her BPTC alongside her LLM. Outside the law, 'Elizabeth''s interests and hobbies include travelling, reading, writing and European history.

We few, we happy few, we band of brothers. For he today who sheds his blood with me shall be my brother.

William Shakespeare in Henry V

As with anything, legislation over time becomes tired and outdated: new demands on an ever-evolving legal system that seeks to bring justice and fairness to victims in new ways can necessitate a radical overhaul. This is especially so in relation to the law surrounding who can claim for psychiatric injury following a breach of a duty of care owed to that person.

As Jack Slone has previously argued for Keep Calm Talk Law, some of the legal principles governing this area – particularly regarding the ability of so-called ‘secondary victims’ to launch claims – are in need of a rethink. This article offers support for these calls for reform by harnessing the context of claimants from the military.

Arguing that there has never been a more apt time to reform the law surrounding psychiatric injury, it notes how a rising plethora of veterans from the British Armed Forces who have been discharged from the armed forces with mental health problems, especially Post Traumatic Stress Disorder (PTSD), are being wrongfully denied the chance to claim compensation.

The Law of Negligence

The law governing claims for compensation for psychiatric injury has as its jurisprudential root the principles of negligence in tort. Indeed, as with any claim in negligence, the claimant must satisfy four criteria before their claim will succeed by showing that:

  • A duty of care existed
  • That duty was breached
  • That breach caused harm – in this instance, psychiatric injury – to the claimant (“factual causation”)
  • That harm was not too ‘remote’, such that the law prevents liability from arising (legal causation)

It is in relation to this final criterion of legal causation that, in the view of the author, military veterans have been wrongly denied the opportunity to launch compensation claims.

Legal Causation (‘Remoteness’)

The law of negligence has drawn a distinction between factual causation and legal causation, with both criteria needing to be satisfied for a negligence claim to succeed. Legal causation represents the idea that the damage caused to the claimant by the breach of the duty of care was too remote from, or not a foreseeable consequence of, the actions of the defendant’s. The rationale underlying this concepts is the idea that it is necessary to, in the words of Cardozo J in the US Supreme Court case of Ultramares Corp. v Touche [1931], prevent the defendant from being exposed to ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class’.

There are a number of doctrines that dictate when a court will find damage too remote from the initial breach of duty, the most typical being novus actus interveniens – unforeseeable events caused by third parties, victims or other uncontrollable causes. In relation to psychiatric shock in particular, the courts have developed a number of methods by which the liability for negligence to which a defendant is exposed.

Recognised Illness

Psychiatric injury relates to mental health conditions which manifest over a period of time as a result of being involved in, or exposed to an event that is either life-threatening or catastrophic.  To successfully claim, the claimant needs to show that they are suffering, or suffered from, a legally recognised mental illness. Whether this is the case will be determined on a case-by-case basis by medical professionals, though – as explained by Lord Oliver in the seminal case of Alcock v Chief Constable of South Yorkshire Police [1991] – ‘mere grief, distress or anger are not enough’ for claimants to be successful, on the grounds that these are common and transitory emotions that do not give rise to physical injury.

The law’s reliance on medical professionals in this context means that – as the medical profession's understanding of psychiatric conditions develops – the law may accept that new mental conditions may trigger liability. A notable example of this has been the condition of post-traumatic stress disorder (PTSD) which has been increasingly deemed to give rise to liability since Alcock.

This acceptance that PTSD is sufficient to trigger liability is crucial for veterans seeking to make claims for psychiatric injury: American research has discovered that between 10% to 18% of troops who served in the initial invasions of Iraq and Afghanistan are likely to have PTSD after they return. On the whole, therefore, this method of limiting liability has – fortunately – not had too significant an impact on the ability of veterans to make claims.

Primary and Secondary Victims

The law has developed a further method of limiting liability for defendants: the creation of a distinction between two types of claimant for psychiatric injury: a primary victim and a secondary victim. A primary victim is not subjected to such intense scrutiny in their claim and will be more likely to succeed than a secondary victim.

Primary Victims

A primary victim is someone who was present at the traumatic event which was caused by the defendant’s breach and, as a result, were mentally harmed through their fear of imminent danger to their safety or from what they witnessed when present at the scene. In Dulieu v White [1901] 2 KB 669, Kennedy J articulated the so-called ‘Kennedy Test’, which explained why a claimant who suffered from shock arising ‘from a reasonable fear of immediate personal injury to oneself’ was considered a primary victim.

It is far easier for primary victims to establish their case than for secondary victims. For example, in Page v Smith [1996], it was held that there is no requirement for a primary victim to show that psychiatric injury was foreseeable as a result of the defendant’s actions; it is sufficient that some sort of physical harm – whether it be psychiatric or otherwise – was foreseeable

Secondary Victims

The criteria for a secondary victim are more difficult to satisfy. Deliberately created by the courts with the rationale explained by Cardozo J in mind, the stringent criteria – known as the ‘Alcock Criteria’ – that must be met are the main reason that a number of veterans of being denied due compensation. As Jack Slone has previously explained for Keep Calm Talk Law, the three criteria in question stem from Alcock v Chief Constable of South Yorkshire Police [1991], which examined whether relatives of those who had been killed in the Hillsborough disaster who had watched their loved ones’ suffering on live television or identified their bodies at the makeshift mortuary could claim for the psychiatric injury this caused them.

The ‘Alcock’ Criteria for Secondary Victims

The first criterion holds that the claimant must be proximate to time and space to the event which caused them the psychiatric harm; they must therefore be present at the scene when the disaster happened or happen upon it straight after it occurred. In McLoughlin v O’Brien [1982], this was referred to as ‘the immediate aftermath’ which was defined as being up to, but no more than, two hours after the event occurred.

Inevitably, confusion and contention has arisen in relation to this criterion: not only is the specified time limit artificial, but there is also nothing which determines how close to the exact vicinity one a claimant has to be. Indeed, the law has strayed from the original criteria from McLoughlin – in Walters v North Glamorgan NHS Trust [2002], a 36 hour period after the traumatic event had occurred was accepted as giving rise to a claim.

The second criterion holds that a secondary victim must also experience the event with their own unaided senses. Derived from Dulieu v White [1901] 2 KB 669 and developed further in Alcock, this has been strictly limited to the sense of sight and hearing.

Meanwhile, the third and final criterion requires the existence of a close tie of love and affection between the victim and the claimant, such that it is reasonably foreseeable that the claimant might suffer nervous shock if they feared that the victim had been or might be injured. The courts operate presumptions that such ties exist between spouses, fiancés and parents and children; for other relationships, including siblings, the existence of such a tie of love and affection must be proved by the claimant.

The ‘Alcock Criteria’ and the Armed Forces

Jack Slone in his past article for Keep Calm Talk Law provided a searing critique of the ‘Alcock Criteria’ for claimants in a general sense. However, this article observes that there are particularly cogent arguments that highlight the inadequacy of the current law in relation to veterans.

Criteria One and Two

A combination of the first and second criteria offers a good example of this. The artificial limitations operating here – both in terms of the time period of in relation to the senses experienced (namely, the omission of taste, smell and touch) – are unjustifiably limiting the abilities of veterans to launch claims.

Imagine, for example, a soldier has lost their glasses due to the kinetic effect of an explosion in the distance that was caused by an improvised explosive device (IED), an explosion which the soldier was near due to the negligence of another soldier (which, for the purposes of a negligence claim, would be attributed to the Ministry of Defence under the doctrine of vicariously liability) failing to warn the soldier’s convey about its location. That soldier now cannot see where they are, or who they amongst; they are disorientated and begin to panic. Seconds later, that soldiers’ comrade grabs them by the arm and pulls them to safety.

However, the convoy has now reached the point of being present at the immediate aftermath of the explosion. By now, the soldiers’ other senses have kicked in and they begin to notice the acrid smell of burning flesh. They reach out to touch a smouldering body that is still warm, realising that their friend, brother and comrade in arms has died right before them.

These mere words can do no real justice to the stark reality that many soldiers experience, but it does not describe a fictitious scenario: in Iraq alone, BBC figures show that 47 British soldiers have been killed by IEDS.  The fact, therefore, that the law denies veterans who have undergone such harrowing experiences because of artificial limitations on the distance between the event and the victim or the senses that the law deems operable enough – or not, as the case may be – to trigger psychological harm is deeply problematic. Indeed, it is hard to see how the rationale of limiting liability for defendants can lead to the exclusion of three-fifths’ of a human being’s most basic senses.

Criteria Three

The flaws of the third criterion is equally laid bare by the context of veterans, in that it highlights the artificiality of the presumptions that underpin which relationships can give rise to claims and which require proof (which is often impossible and invasive to provide). For one thing, the legal presumption that a husband and wife always have a close tie of love and affection overlooks the inevitable fact that some marriages are by acrimoniousness, while the lack of the presumption for siblings – in itself deeply questionable – controversially excludes twins and triplets from having to find proof of their mutual love and affection.

More pressingly for veterans, however, is the law’s failure to appreciate the close bonds forged between members of the armed forces. These are relationships that, to many an objective observer, would often be characterised by close ties of love and affection. And while it might be argued that the option is always there for the claimant to prove to the court that a close tie of love and affection existed, this overlooks the argument that military camaraderie – for those who have never experienced such a relationship – is difficult to appreciate. Military comrades, unlike perhaps any other relationship, are trained to not only protect each other whilst under fire, but also to preserve each other lives, sometimes by giving immediate lifesaving treatment. Indeed, as research by Timothy J. Hodgetts et al. shows, the relationship between soldiers has aspects which go above and beyond the usual concept of what civilians expect of ‘friendships’.

This argument is strengthened by research contained in a House of Commons Defence Committee report which found that soldiers who have experienced a disadvantaged upbringing will treat their comrades as their family: in some cases, their only family. When combined with documents discovered by the charity Child Soldiers International which showed that the British Army strategically targets young people from deprived backgrounds, a compelling case is made that relationships of reliance that might be argued to resemble those of siblings or – with superior officers to whom soldiers look up to and admire – of parents and children are formed in the military. Indeed, as Group Captain R J A Ford once wrote when expounding his definition of leadership, a superior officer’s duty should be to:

To have true sympathy with your men, constantly endeavouring to see things from their point of view. To know them collectively and individually, and help them carry out their duties. To further their comfort, content and wellbeing. To guard their interests and under all circumstances think first of them and last of yourself.

Conclusion

In the vast majority of cases, a claimant seeking compensation for negligently caused psychiatric harm is seeking recognition of how their lives have been turned upside down. It is therefore concerning that the current law in this area is denying claimants this based on limitations and distinctions that are artificial and unjustifiable. The fact that this injustice is causing military veterans to suffer is particularly concerning, especially given that evidence suggests that – due to the nature of their job – members of the armed forces are far more susceptible to mental health illnesses than their civilian counterparts, for whom they lay down their lives to protect.

Fortunately, the judiciary now appears to be recognising claims for psychiatric injury as far too restrictive. The Law Commission too has also raised concerns that the law is now heavily outdated and denying claims where they should in fact succeed. It is fortunate, therefore, that the current situation is rectifiable. An easy place to start would be to scrap the requirement of having to witness the event by sight or hearing and rethink how the requirement for close ties of love and affection is applied. This would likely prove invaluable to military claimants who may have used other senses to perceive the death, or severe injury, of a close comrade.

When considering reform in this area, it must also not be forgotten that – in comparison to tangible physical injuries – mental health illnesses are tougher to prove. Claimants, who are up against a barrier before they have even commenced legal proceedings, are may take longer to recover if subjected to slow and intrusive litigation process that causes further upset and turmoil in the victim’s life. It is deeply unsatisfactory, therefore, that the ‘Alcock criteria’ place such insurmountable bars for victims who, to try overcome them, will be forced to undergo intense scrutiny of their experiences.  Indeed, victims – whether they be civilian or veterans or current serving soldiers – would benefit from reforms with less stringent and artificial criteria that speeds up the litigation process.

Of all of its flaws, the current law’s worst is the high thresholds it imposes on victims who must repeatedly relive their nightmare of their ordeal as they seek to recover the compensation they deserve.

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Tagged: Armed Conflict, Justice, Medical Law & Ethics, Personal Injury, Tort Law

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