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Compensation for psychiatric harm: the lesser known victims of Hillsborough

About The Author

Holly Abel (Former Writer)

Holly is currently in her third year at the University of Birmingham, studying Law with Business. All being well, she starts her training contract with a magic circle firm in 2015. Holly's interests lie in Land, Human Rights, Tort and Company Law. Outside of her studies, Holly enjoys writing and participating in Bro Bono work.

Many people would be surprised to know of the stringent tests you must satisfy before the law compensates a claimant for psychiatric harm resulting from the negligence of another. The traditional negligence tests of duty of care, breach of this duty, causation and actionable damage have to be achieved in order for liability to be established. Psychiatric harm as a form of actionable damage has had a rough upbringing. Following Hinz v Berry (1970psychiatric harm is only actionable if it is diagnosed as a recognised psychological or psychiatric injury. The law of tort then goes on to make an extra requirement at the duty of care stage, the distinction between a primary and a secondary victim.

It is clear that, with today’s sophisticated medical science and the development of knowledge on psychiatric conditions, awards of compensation for this head of damage should be more forthcoming. Proof of such a condition can be more certain with modern medicine, which was previously an issue for the early twentieth century cases. However a balance needs to be maintained between restitutio in integrum (to restore the victim as to the position before the tort was committed) and over use of damages. Just as medical science has helped to diagnose psychiatric conditions, it can help to ease the pain and suffering of the claimant. Compensation should not always be the last word in an attempt to set things right.

Present test: Alcock

The prominent issues relating to whether more compensation should be given for cases of psychiatric harm caused by negligence concern the primary/secondary victim distinction famed in the case of Alcock v Chief constable of South Yorkshire (1993). This case arose out of the well-known horrific Hillsborough disaster, where 96 people died in the semi-final FA Cup tie between Liverpool and Nottingham Forest on 15 April 1989. Due to negligent directions by the South Yorkshire police, overcrowding led to a crush at one end of the stadium. The scenes were broadcast live. Here 16 claims were brought for nervous shock (otherwise known as Post Traumatic Stress Disorder) resulting in psychiatric injury. The claimants (close relatives of the victims who had seen the events unfold on television or had identified bodies at the morgue) appealed to the House of Lords, but all appeals were dismissed.

A distinction was drawn between a primary and a secondary victim. The former is someone immediately involved in the physical zone of danger and the latter someone who is no more than a passive, unwilling witness of injury to others. For primary victims an automatic duty of care was owed, but for secondary a stringent and challenging set of four tests had to be satisfied;

  • A tie of close love and affection
  • Proximity in time and space
  • Perceiving the incident with un-aided senses
  • The psychiatric harm must be the result of a shocking event.

There has been criticism and judicial inconsistency in interpretation, demonstrating their weaknesses. The focus of this article is not to lay out an in depth criticism of the tests and the judgment. Instead I will consider three things: what is the present law in England and Wales on bereavement damages in comparison to Scotland, should the tests be changed in the wake of medical science, and is public opinion in support of this expansion of liability. The present law is not satisfactory as it will be shown, however increasing the level of damages is not the solution.

Postcode lottery

The recent debate on bereavement damages and psychiatric injury stems from a survey, commissioned by the Association of Personal Injury Lawyers (APIL) in which 80% of respondents said the Scottish system of bereavement damages is fairer. This has prompted calls for a review of the law in other parts of the UK.

APIL criticises the current law established by Alcock as ‘archaic and inflexible’. In my opinion, it cannot be right that a person who suffers psychiatric damage over a cumulative period is denied damages, when a person who suffers an illness after one shocking event is able to obtain damages. Both circumstances are equally traumatising.

The present situation in England and Wales is that those recognised in law as being owed a duty are paid a fixed sum of £12,980, by those who have caused the death, but in reality this is paid by the insurance companies. The law in Scotland is much more flexible about who can receive damages and in general the merits of the cases are considered more thoroughly and the levels of damages are generally higher reflecting this.

Whilst this geographical difference does not appear satisfactory, damages for psychiatric harm in England and Wales system should not be expanded for the sole purpose of aligning with the Scottish system. The amenity of damages should be carefully considered.

Although money could never replace a loved one who has died, damages should aim to compensate the claimant for the reduction in their quality of life, for instance, accounting for setbacks in career. It is important to try and put them back into the position they could have been in but for the psychiatric damage, and, as will be argued below, the impact of psychiatric illnesses on the claimant’s quality of life can be substantial.

On the other hand, the purpose of the law of tort is to put a victim into the position they were before the tort happened. However as much as damages aim try and to mitigate the loss to the loved one and that impact on their life, damages are in some sense a legal fiction as the lost loved one cannot be brought back.

Therefore, a balance must be struck somewhere.

Medical science

In Alcock there was no mention of the medical determinants of psychiatric illness. However, 25 years on from Alcock, given the advancement in medical knowledge, damages can be awarded with less worry of fraudulent claims.The APIL state “Medical science has learned much about psychiatric injury in the 25 years since the Hillsborough disaster, and we know now that psychiatric illness can be every bit as debilitating as a physical injury. It’s time for change to help those left behind after tragedies which should never have happened”.

Whilst medical advancements have allowed a greater deal of certainty in the legitimacy of claims, advancements in medical treatment can also help victims of psychiatric harm deal with their condition in in a much better manner than previously available. In many cases, these treatments will be covered by the NHS, and therefore will incur no financial cost to the claimant.

On this premise, you may think it unjust for a claimant to seek financial compensation, as after all, as highlighted above, no amount of money will bring back a loved one. If a victim decides to obtain treatment via private healthcare, you may see this as a choice they have made, and therefore one they should pay for themselves. Under the present system in England and Wales, the claimant has the right to make this choice, and the defendant must account for it should they choose private healthcare under s. 2(4) of the Law Reform (Personal Injuries) Act 1948. Whether or not this just is beyond the scope of this article.

Regardless, such claims often have non-financial motives, and claimants are simply seeking an admission of guilt from the defendant, as was the case with several of the Alcock claimants. In such cases, could the court not simply just award nominal damages to satisfy the claimants’ needs?

Nominal damage awards would therefore be preferential where the primary reason for bringing a claim is vindicatory in nature, and the claim is more for peace of mind and a sense of justice than the quantum of damages. However when there are more substantial tangible necessary costs of the psychiatric harm which is the primary aim to recover, such as setbacks in career, compensation should reflect this. I believe a focus should be more on the aim and purpose of the litigation to the claimant rather than a more simplistic belief that more damages will be a more attractive remedy.

Public support

In the report carried out by the APIL, it is said 57 per cent of respondents suggest a figure of more than £100,000 would be a more appropriate compensation for the claimants than the current £13,000. Many respondents also suggested the list of people who should be eligible to receive bereavement damages should be extended to include, for example:

  • the parents of a child who is killed, regardless of the child’s age;
  • children (including adopted children) of the person killed, regardless of the child’s age;
  • the co-habitee of the person killed; and
  • the fiancé of the person killed.

Currently, the difference between ages of children is significant. For example, in Hicks v Chief Constable of South Yorkshire [1992], another case following Hillsborough, the parents could recover an amount for the death of their15 year old daughter through the Fatal Accidents Act 1976, but not for their 19 year old.

There is definitely public support for expansion of who can receive damages on the death of a loved one for bereavement. But it must be considered that it is, in many cases, insurance companies who are paying out in cases of 3rd party liability, not the primary defendant who caused the negligence. The Association of British Insurers has a relatively strong influence in the UK and would be very much in opposition to expansion. Their lobbying influence could therefore hamper the possibility of reform.

Overall it seems that our present system of compensation is unsatisfactory with regards to geographical difference, public support and in the face of developed medical science. However these alone are not enough to justify the expansion of damages for psychiatric harm of a secondary victim, as there are other important considerations. These are the amenity of damages, the primary purpose or aim of the claimant’s cause of action and whether other remedies could be more suitable. A balance between expanding compensation due to less opportunity for fraudulent claims and ensuring damages are not awarded on a quantity over quality basis needs to be achieved.  

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Tagged: Personal Injury, Tort Law

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