Compensation for psychiatric injury Hillsborough, 23 years on

As we near the end of the football season, for some, particularly those who support Liverpool and those families who lost loved ones in the Hillsborough disaster, it acts as a reminder that the 23^rd anniversary of the disaster (15 April 1989) approaches. This inevitably also brings to mind again the question of whether the law as it currently stands relating to nervous shock claims is in need of change to keep pace with modern society.

The disaster brought nervous shock claims under intense scrutiny and led to the House of Lords in Alcock v Chief Constable of South Yorkshire (1991), reaching what many see as the wrong decision.  However, whilst there has been considerable coverage of the injustice for so many of the claimants as a result of the decision, few have an understanding of the law and what has made the decision in Alcock so criticised.

In brief, a number of claimants sought to bring claims against the Chief Constable of South Yorkshire for psychiatric injury (nervous shock) as a result of watching the tragic events at Hillsborough unfold on live television, when they knew friends or family were in the stadium at the time. These claimants were known as secondary victims in so far as they were not directly involved in the incident, as opposed to being a primary victim who were those either injured or in danger of immediate injury.

The law in this complicated area had already been set out in McLoughlin v OBrian (1982), in which the House of Lords affirmed the principles in which a secondary victim could recover damages for psychiatric injury.  The Court held that a claim for psychiatric injury could be made out where the shock resulted from the death or injury or the fear of death or injury to the claimants spouse or child, and the shock came about from seeing or hearing the event or its immediate aftermath. This case was seen as an extension of the law as the Court extended the requirement for the secondary victim to be at the scene of the accident or its immediate aftermath. In McLoughlin, the claimant had been told about an accident involving her husband and children some two miles away, an hour after it occurred. She was taken to hospital, where she saw her dead daughter and seriously injured husband and other children in the state they had been at the scene of the accident.  The claimant went on to suffer with nervous shock as a result of what she witnessed at the hospital. The court held that this she was sufficiently proximate to the event both in time and place to recover.

So what made the decision in Alcock so important?  It differed as the claimants saw events evolve through the media of live television as opposed to being at the stadium. The House of Lords was therefore asked to not only modify what was meant by immediate aftermath, but to remove the restriction on the categories of people who could recover and, to some the most important extension, – to extend the means by which the shock could be caused to cover watching the tragedy on live television.

The House of Lords were not to be swayed and the principles by which a secondary victim can recover were set firm. There have been little inroads on the principles since, despite the Law Commission recommending simplification of the law.

The decision is probably best known for the Lords refusal, arguably on floodgate concerns, to extend the means by which nervous shock could be caused. As detailed, many of the claimants watched the tragedy unfold on live television and as a result went on to develop nervous shock.  Their claims failed as the Lords held that the shocking event must be seen or heard with unaided senses, or by viewing the immediate aftermath.  Consequently watching on television was not enough, with the Lords relying heavily on the reporting guidelines that the television broadcaster would have been expected to have followed/rther, the Lords were not prepared to provide further definition to what was meant by immediate aftermath, considering such matters turned upon the facts of each case, but did go as far as to say that attendance at a mortuary several hours after the event was insufficient.

Was the decision wrong?  Arguably yes.  Victims who no doubt suffered as a result of watching a horrific event and knowing a loved one was possibly involved were left to suffer without recourse to the law, on grounds of public policy and a misunderstanding by the Court of the medical complexities surrounding nervous shock.  Should the decision be overturned?   Again, arguably yes, when there have been so many developments in the speed and manner in which the media portray such disasters.  Is however the law in this area likely to change in the near future?  Arguably no.  It is 21 years since the decision in Alcock and despite the Law Commission report seeking to offer simplification of the law, the Government has made it clear that it has no appetite for reform, so as the 23^rd anniversary of the disaster approaches, it will take a brave Supreme Court prepared to revisit the issue.  In 21 years it has not done so.