Law Reform: Psychiatric Harm and Secondary Victims

In the spring of 1989, ninety-six Liverpool fans were killed and many hundreds more seriously injured in a human crush during the team’s FA Cup semi-final match against Nottingham Forest. This tragic event, known as the Hillsborough disaster, is indelibly scarred on the national collective memory; as are the shortcomings of the police, the press and the public inquiries. What is less well known – at least outside of legal circles – is that many of the friends and family of the victims have faced further bitter disappointment in their attempts to win compensation for the intense psychiatric harm they suffered, and continue to suffer, as a result of the disaster. The key legal starting point is the decision of the House of Lords in Alcock v Chief Constable of South Yorkshire [1992]. In this case, the court set out three criteria for a successful claim by secondary victims of psychiatric harm; those who suffer psychiatric damage as a result of injury to, or death or imperilment of, another. Firstly, the claimant must have enjoyed a relationship of ‘love and affection’ with the primary victim. Secondly, the claimant must be close to the accident in time and space. Thirdly, the injury must have been caused be a ‘shocking event’ which is perceived by direct sight or hearing. This article shall seek to explain why this ratio is misguided and the criteria much too restrictive, both in regard to the particular facts of the case, and also in terms of the wider development of tortious principles, and shall suggest some tentative proposals for law reform.

However, even before the decision in Alcock, the law relating to psychiatric harm had long been set on an unfortunate path. The key difficulty remains the initial distinction drawn between psychiatric and physical disorders, with markedly harsher rules applying to the former than the latter; it is worth noting that, until recently, lawyers commonly referred to psychiatric harm as ‘nervous shock,’ a term indicative of the profession’s inherent scepticism.[1] However, there is no clear reason why one form of harm should be prioritised over the other. Who is to say that the mental anguish of losing a loved one in harrowing circumstances is any more or less painful than experiencing severe physical injury? Moreover, such a division of mind and body appears arbitrary in the light of modern medical science; it has long been recognised that conditions stemming from the psyche can have a physical impact, and vice-versa.

A clear example of the more stringent approach applied to psychiatric harm is embedded in the first of the Alcock criteria; the requirement that claimants had a relationship of ‘love and affection’ with the primary victim in order for a duty of care to be established. This is a marked departure from wider tortious principles, according to which, unless statute dictates otherwise, one party owes a duty to another if they have created a dangerous situation which the ‘reasonable man’ would have foreseen as such. There is no personal nexus requirement. Beyond this imbalance, the deeper issue is that only a small class of relationships are presumed to be sufficiently close – that of husband and wife, and that of parent and child. Firstly, is it not somewhat arbitrary that only spousal and paternal bonds are prima-facie recognised?  What of siblings, civil partners, step-parents or close friends?  It appears that the courts’ approach here is rather old-fashioned and out of step with reality. Secondly, and more significantly, placing a burden of proof on the majority of claimants to evidence the fact that they enjoyed a sufficiently close relationship with the primary victim has unseemly practical implications. Professor Jane Stapleton summarises the issue powerfully:

“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?”[2]

Post-Hillsborough, we can already see the impact of the legal hurdles facing non-familial psychiatric harm claimants. Take McFarlane v EE Caledonia [1994]. The plaintiff in this case, a sailor aboard a vessel within sight of the of the Piper Alpha oil rig disaster, watched hundreds of his friends and colleagues burn to death. The Court of Appeal, despite recognising that this was an ‘unusually horrific’ event, nevertheless chose not to undermine the rules set out in Alcock, and defined this claimant as a mere bystander to whom no duty was owed.

Just as restrictive as the relationship criterion are the rules applying to breach; firstly, that the claimant must be sufficiently proximate to the event, in time and space. Whilst this vague requirement has been expanded to include the ‘immediate aftermath,’ it still seems to impose an artificial time limit, inevitably bound to result in inadequacies of justice. Indeed, Mr Alcock’s claim was dismissed on precisely this ground:

“Mr. Alcock identified his brother-in-law in a bad condition in the mortuary at about midnight, that is some eight hours after the accident. This was the earliest of the identification cases. Even if this identification could be described as part of the "aftermath," it could not in my judgment be described as part of the immediate aftermath.”[3]

The court’s reasoning here was that the primary victim was not in quite the same gruesome state that he had been at the time of the accident itself. This ratio betrays the readiness of the court to decide which events meet its own discretionary standard as to what is sufficiently shocking, regardless of the subjective experience of the claimant.

The second element of the rules applying to breach – that the injury must have been caused by a ‘shocking event,’ perceived via direct sight or hearing – is equally unsatisfactory. To begin, there is an implicit assumption at work here that the ‘shocking event’ must constitute a single, discrete phenomenon, which clearly runs counter to reality. For example, in Young v MacVean [2015], a comparable decision of the Scottish Court of Appeal, a mothers’ dawning realisation, after witnessing a fatal accident, that hers son was in fact involved was not considered adequate. Tellingly, the High Court of Australia has rejected the ‘sudden shock’ requirement as arbitrary.[4] Moreover, the caveat that the event needs to be perceived by the unaided senses has thrown up considerably difficulty. In Alcock, the undoubtedly harsh position was taken that the viewing of the disaster on television could not be said to be equivalent to actually seeing or hearing the event. However, there is a potentially much more serious issue relating to the armed and emergency forces. For example, a soldier may not actually be able to see with clarity his comrade fall in the heat of battle; is this to say that the event could not cause psychological trauma, and that he or she should be disqualified from making a claim against the Ministry of Defence if the event was caused by faulty equipment?

The courts have been unusually forthright in their admission that the restrictive criteria applied to secondary victims of psychiatric harm is a public policy position intended to prevent excessive liability; indeed, the term ‘control device’ runs though the case law to refer to the legal hurdles that such victims must pass.[5] Even if one accepts the premise that updating the law in this area would open the floodgates of litigation, this seems poor reason to stall reform. Surely justice demands that victims have appropriate right to redress, regardless of any potential increase in workload for the courts or the legal departments of defendant companies, particularly when institutional defendants are more likely to benefit from deep-pockets and insurance.

Of course, this is not to say that the law in this area should be relaxed entirely. It would be absurd to enable people to win compensation for, say, the trauma they experience following the death of a celebrity that they learned of through social media. Any reform must seek to carve a middle way between striking out legitimate grounds of action arbitrarily and being so open as to as to impose universal duties of care. Broadly speaking, this could be achieved by bringing the law regarding psychiatric harm and secondary victims in line with normal personal injury, but some more specific proposals might include:

1)    A case-by-case, common sense approach to the category of relationship criteria, which leaves it to the judge to (generously) interpret whether a relationship is capable of giving rise to psychiatric harm in the event of injury to, or death or endangerment of one of the parties.
2)    A recognition that psychiatric harm might well be caused by a culmination of shocking events, not only a single phenomenon.
3)    A much broader approach to the perception requirement, which take account of the context of the event and the emergence of 24-hour live news coverage and social media.

Ultimately, in the vast majority of cases, claimants seeking compensation for psychiatric harm are seeking recognition of how their lives have been destroyed by the negligent actions of the defendant. Therefore, it is concerning that the current law in this area is denying claimants fair opportunity for redress and closure due to limitations and distinctions that are both artificial and unjust. It is too late for the families and friends of the Hillsborough victims, but, if the law is to reflect moral values and social and technological contexts, it is imperative that we strive for reform going forward.

[1] For example, see: Dulieu v White & Sons [1901] 2 KB 669
[2] Stapleton J., ‘In Restraint of Tort’, in P. Birks (ed.) The Frontiers of Liability, vol. 2 (Oxford University Press, 1994) 95
[3] Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, p. 405
[4] Fordham M., ‘Psychiatric Injury, Secondary Victims and the Sudden Shock Requirement,’ Singapore Journal of Legal Studies (2014), 41-58 
[5] For example, see: McLoughlin v Jones [2002] QB 1312

The writer, Philip Matthews, is an aspiring barrister based in London, with a keen interest in European Law and Tort Law. Previously, he has studied history at the University of Oxford and the GDL at City, University of London. He is currently pursuing the BPTC at BPP Law School in London.

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