In April 1989 ninety six Liverpool fans were killed, and many hundreds more injured in the Hillsborough Stadium disaster. In the 25 years since then the friends and families of the victims have been campaigning for justice, and it is hoped that the new inquests into the deaths, which began in March of this year will, finally, shine a clear light into what went wrong.
The shortcomings of the Police and various Inquiries that followed the disaster are well known. Less well known – at least outside of legal circles – is that many of the friends and family of the victims also faced bitter disappointment in their civil claims following the 1992 House of Lords decision in Alcock v The Chief Constable of South Yorkshire.
Historically claims involving psychological injury were known as “nervous shock” cases. There is a hint of scepticism in this phrase, and in fairness, psychological injury is difficult to assess and measure – it is not like a broken leg that you can confirm with an x-ray. That said, modern psychiatrists and psychologists have a whole battery of tests and diagnostic criteria that can be applied in order to assess and measure the extent of psychological injury.
Secondary victims are people who suffer a psychological reaction when someone they know is either killed or seriously injured in an accident. To bring a successful claim the following must be established:-
- That there was a “close tie of love and affection” with the primary victim of the accident. Under the current law only parents and children, spouses and fiancés automatically fall within this category.
- That there was proximity to the incident in terms of time and space.
- The development of “nervous shock” through seeing or hearing the accident or its immediate aftermath (as opposed to being told about it).
- Causation of the injury by an external traumatic event as opposed to death or injury itself.
These are the so called “dearness, nearness and hearness” tests.
In practice this means that many people with very real and severe psychological injury do not have the legal right to bring claims. Common sense would suggest that the starting point should be whether a person has a real injury, but instead, the test focuses upon arbitrary rules.
By way of example, let us suppose that a wife receives a phone call telling her that her husband has been seriously injured in a road traffic accident, and is not expected to live. She rushes to the hospital, where he is in intensive care. He is heavily bandaged, and attached to all sorts of medical equipment, and three hours later he dies without regaining consciousness. The Police tell her that the driver is going to be prosecuted, and that there will also be a coroner’s inquest.
The funeral takes place, and a few months later she still cannot get on with her life. She thinks about her late husband all of the time, and has nightmares about what happened to him in the accident. At work she is unable to function, and goes on to reduced hours before having to give up work entirely.
She does not want to bring a compensation claim, but realises that she may need a solicitor for the inquest, and so she takes legal advice. The solicitor realises that she is probably suffering from a psychological reaction that is greater than conventional grief. Nevertheless, under the Alcock criteria she is unlikely to be able to bring a successful legal claim because the husband died in hospital, and she did not witness the immediate aftermath of the accident.
This will mean that even if the accident was caused by the negligence of another driver, she will not be able to claim compensation for her psychological injury, her loss of earnings, and the cost of legal representation at the inquest.
Had she rushed to the scene of the accident, and seen her husband in the wreckage of his car, she would have been able to claim for all of those things. The presumption behind the legal test is that it is more upsetting to see a loved one in those circumstances than intensive care.
I think that the distinction made by the law is arbitrary, unfair, and patronising to bereaved people. This example is based upon a real case, and is reflected by countless others that I have dealt with. In most cases the immediate aftermath of the accident is not witnessed, but the grief is no less real. The psychological injury – in real life – arises because the loved one has been horribly injured or killed. It is also very important to remember that the secondary victim claim can only ever arise where there is proven negligence for the primary victim. To cope with death or injury for a loved one is always difficult, but to do so in the knowledge that it arose because someone was negligent is so much harder.
The Prime Minister recently apologised to the families of the victims of the Hillsborough disaster, and it is hoped that the new Inquests will finally provide a public investigation that our legal establishment can be proud of. It would be fitting if, at the same time, the legal tests imposed by Alcock were reformed to enable the secondary victims of the disaster to finally bring civil claims, and to ensure that going forward the law is fair, rather than shaped by antiquated policy rules aimed at “keeping the floodgates closed”.
Unfortunately, that can only happen if the Government reforms the law, as requested by George Howarth MP in his “early day motion”. To support the claim please write to your MP to ask him or her to sign “EDM158 – Law on Psychiatric Injury”. The EDM can be viewed on http://www.parliament.uk/edm/2014-15/158
The campaign is supported by the Association of Personal Injury Lawyers (APIL) – for further details contact Sam Ellis, Parliamentary Officer at email@example.com