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You’ll Never Walk Alone: How Hillsborough Put Negligence on a Wrong Turn

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About The Author

Jack Slone (Administrative Law Editor)

Jack is a third-year law student at St. Catherine’s College, Oxford University. He has a keen passion for legal issues which affect the day-to-day lives of people in society, such as criminal law, medical law, and the law of negligence. Outside of law, Jack enjoys a number of sports including cycling, squash and snooker or indulging in his guilty pleasure of American TV programs and box-sets.

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What kind of country leaves people who did no more than wave off their loved ones to a football match still sitting in a courtroom 27 years later begging for the reputations of their husbands, sons, daughters, sisters and fathers?

Andy Burnham MP

The events at Hillsborough on 15th April 1989 had a profound impact on the substantive law of England and Wales. Indeed, with news that 23 names are to be given to the CPS for consideration of prosecution for the events which occurred at Hillsborough, the repercussions of the disaster are still being investigated within the criminal law.

But there were also major ramifications within other areas of the law. This article will focus on the problematic effect that the disaster had on the area of negligence in tort; namely how it affected the way in which a duty of care will be established for negligently inflicted psychiatric harm.

Alcock v Chief Constable of South Yorkshire

Psychiatric harm can be divided up into claims by ‘primary victims’ and those by ‘secondary victims’. The former involves injury caused directly to an individual. The latter relates to cases where the claimant suffers psychiatric harm as a result of injury to another person.

As such, the families of victims of the Hillsborough disaster had a case in tort if they could prove that they suffered psychiatric harm because of the loss of their loved ones which was negligently inflicted by an individual who owed a duty of care towards them.

Indeed, in Alcock v Chief Constable of South Yorkshire [1991], several of the victims’ families sued in negligence the head of the police force responsible for the policing and safety of the football match at Hillsborough. The case reached the House of Lords, where the appeals' were unanimously rejected on the grounds that not all of the necessary ingredients for a claim in psychiatric injury were proved.

This seminal case saw the affirmation of certain criteria that claimants in this area of the law need to fulfil. However, as this article will argue, the decision represents one of the most erroneous decisions ever to have been taken in English law; it is in need of an urgent correction.

The ‘Alcock’ Criteria


In order to have a successful claim for psychiatric injury, the claimant must show proximity in time and space to the victim. This includes being proximate to the incident itself which – as confirmed in McLoughlin v O’Brian [1983]  can constitute the ‘immediate aftermath’ of the event. Here, a mother successfully claimed for negligence after witnessing in hospital the extent of the injuries to her children and husband after a road accident.

However, in Alcock, this precedent was not applied to the situation in which families of Hillsborough victims were required to identify the bodies of their loved ones eight hours later; it was held not to be ‘immediate’ enough.

This is problematic and seems arbitrary. As Stapleton has argued, “the parent who comes across her child’s bloodied corpse just a little too late for the current rules on recovery for nervous shock to apply to her might wonder why the law rules her child’s blood too dry to found an action”. This paints a graphic picture of the artificiality of the law here. 

Close Ties

Another criterion –  perhaps the most controversial of all the Alcock criteria – is the need for the claimant to show proximity to the victim by way of having ‘close ties of love and affection’ towards them. Stapleton has again been critical of this rule, arguing that it could well “bring the law into disrepute”. She continues:

[A]t present, claims can turn on the requirement of ‘close ties of love and affection’ is guaranteed to produce outrage. Is it not a disreputable sight to see brothers of Hillsborough victims turned away because they had no more than brotherly love towards the victim? In future cases, will it not be a grotesque sight to see relatives scrabbling to prove their especial love for the deceased in order to win money damages and for the defendant to have to attack that argument?

Indeed, this rule would unnecessarily drag the families of victims through emotional and distressing ordeals which may not serve a useful purpose. Easily envisioned is the circus which would ensue if this farcical criterion were played out at length in court. After all, psychiatric illness does not only occur to those with close ties of love and affection to the victim, pathological grief may hit anyone regardless of ties to the deceased. As such, drawing an arbitrary line between cases which are now recoverable and those which are not has nothing to do with foreseeability. A person may foreseeably suffer from such grief even though they have no particular tie to the deceased: the creation of the criteria was simply a line-drawing exercise.

Rerouting Tort: Legal Principles Desperate for Reform

The decisions of the House of Lords in the cases of McLoughlin and Alcock clearly highlight the need for reform of the criteria which came out of Hillsborough. There is a pressing need to return the law to principles which preceded the Hillsborough litigation, away from arbitrary and disreputable criteria created as a reaction to the pursuit of those claims.

Reforming the First Criteria

The kind of reform which the first criteria should undergo varies according to which policy considerations are taken into account. In McLoughlin, Lord Scarman outlined a cogent case for legislation. Yet, in the view of Lord Bridge, deferring any decisions in this area to the government could freeze the law into an unsatisfactory state of affairs, and represented any potential abdication of the courts’ function to adapt principles of the common law to changing conditions. It would be denying justice in the interests of certainty to some who ought to succeed with the application of classic principles of negligence, where the very subject matter is uncertain and continuously developing,

Moreover, any policy arguments levelled against the extension of liability to cases which did not fulfil the proximity in time and space criterion can be easily counteracted. The first was that it would open the floodgates of litigation, including to fraudulent claims. However, Lord Wilberforce dealt with this concern in McLoughlin by suggesting that ‘the scarcity of cases which have occurred in the past, and the modest sums recovered, give some indication that fears of a flood of litigation may be exaggerated - experience in other fields suggests that such fears usually are. If some increase does occur, that may only reveal the existence of a genuine social need.’

Secondly, it has been claimed that an extension of liability would be unfair to defendants: it would impose damages which are out of proportion to the negligent conduct, as well as added to evidential difficulties that could potentially lengthen litigation. Yet this concern is rooted in a questionable assumption that the extension of liability is indeed out of proportion. Indeed, the layman would undoubtedly be outraged by the idea that a young boy’s body was discovered by his mother too late to found an action in tort for the psychiatric injury.

The claimants in Alcock were also blighted by the proximity in time and space criterion because they watched, the events on television or failed to come upon the incident in its ‘immediate aftermath’. However, most claimants who watched the events unfold proceeded to travel to Sheffield in order to find out more about the horror of what occurred before then having to identify crushed bodies.

Denying these claims merely because claimants first saw the events unfold on TV or discovered bodies in the mortuary too long after the events had unfolded is a clear display of how frustrating and illogical these criteria can be. And denying these claims on the basis of subjecting the defendant to “liability in an indeterminate amount for an indeterminate time to an indeterminate class” is an evasion of responsibility to the claimants who did far more than merely receive some shock by the events on the day. Indeed, Lord Bridge in McLoughlin developed this argument further:

[A]ny attempt to define the limit of liability by requiring, in addition to reasonable foreseeability, that the plaintiff claiming damages for psychiatric illness should have witnessed the relevant accident, should have been present at or near the place where it happened, should have come upon its aftermath and thus have had some direct perception of it, as opposed to merely learning of it after the event, should be related in some particular degree to the accident victim - to draw a line by reference to any of these criteria must impose a largely arbitrary limit of liability.

Reforming the Second Criteria

The second criterion – the need to show proximity to the victim by proving ties of love and affection – was one of the main reasons why the claimants’ appeals were dismissed. Parker LJ in the Court of Appeal considered the criterion in relation to parents and spouses, stating:

[O]nly… the parent-child and the husband-wife relationship can be presumed to be so close that fear for the child or spouse can be reasonably foreseen by the wrongdoer as likely to result in nervous shock to a parent or spouse of ordinary phlegm who witnesses or comes upon the immediate aftermath of catastrophe involving, or which appears likely to involve, the child or other spouse.

As such, it may be thought that any other familial connection is not strong enough for it to be reasonably foreseeable that psychiatric injury would be caused. However, this is problematic: as noted above, it could see courtrooms saturated with loved ones scrambling to prove their especial love for the deceased relative.

Therefore, it is proposed that claims of immediate family should be accepted as close enough in proximity, on a presumptive basis which can be rebutted. That way, it can be proved either way on a wider basis of liability; if two cousins hardly speak, it is an unfair burden on the defendant to make him pay damages. However, a step-brother psychiatrically harmed by the death of a victim then submitting evidence of close ties of love and affection could allow the claim. The boundaries of the criterion should be shifted further in order to allow a wider class of claims which are evidenced appropriately.


Lord Steyn stated in White v Chief Constable of South Yorkshire [1998] – a subsequent case in the Hillsborough litigation – that ‘since McLoughlin, the pendulum had swung and the House of Lords have taken greater account of policy considerations’. Lord Hoffmann agreed with this criticism: in the same case, he argued that ‘the search for principle was called off in Alcock’s case’. Indeed, the lack of successful claimants in the Hillsborough litigation because of Alcock criteria demonstrates exactly why the House of Lords erred in their decision when steering away from a wider approach to psychiatric injury claims.

So, where should liability for psychiatric injury stop? Lord Bridge in McLoughlin answered this by saying ‘where, in the particular case the good sense of the judge, enlightened by progressive awareness of mental illness, decides’. This is a very sensible notion, corresponding soundly with common law development. After all, this is the exact function of the courts: to develop the law in a way which is fair and just, instead of waiting for the legislature to respond in a delayed, reactive manner.

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Tagged: Courts, Justice, Tort Law

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