Psychiatric injury - calls for urgent reform
5 April 2017 marked the 28th anniversary of the Hillsborough disaster, in which 96 people lost their lives and many more were physically injured and/or psychologically affected by the terrible scenes they witnessed. The case of Alcock v Chief Constable of South Yorkshire Police (1992) dealt with the claims of victims and their relatives who had suffered psychiatric injury after witnessing the tragedy.
The categories of claimant
Fearful of opening the floodgates to huge numbers of claims, in the Alcock case the Court determined a distinction between two categories of claimant in claims for psychiatric injury:
- Primary victims – those who are directly involved in the shocking, often life threatening event
- Secondary victims – those who witness the event unfolding but are not directly involved, threatened or exposed to danger
In Alcock, the Court established the criteria which must all be met for a secondary victim to succeed in a claim for psychiatric injury, rather than physical injury:
- There must have been a sudden, shocking event;
- There must have been close proximity in time and place, ie the individual must have been present at the shocking event or its immediate aftermath and have witnessed it through their own senses;
- They must prove a close tie of love and affection with a primary victim (someone who was injured in the event); and
- They must have suffered a reasonably foreseeable recognised psychiatric injury due to the shocking event.
The law on psychiatric injury
Since Alcock the law on psychiatric injury has stood still, preventing many secondary victims from bringing successful claims for psychiatric injury, despite the often devastating impact this can have on a person’s life.
The requirement for there to have been a sudden, shocking event means that a person who develops psychiatric illness as a result of gradual events, would not succeed. For example, a parent who witnesses their child slowly die due to medical negligence or a widow/widower who witnesses their spouse die from mesothelioma. Yet, if they witnessed their loved one die in a single accident, they would be able to bring a claim.
With technology now commonplace, it is quite possible for someone to witness a tragic event as it happens, such as via Facetime, a webcam, or through a video link etc, without actually being physically present at the scene or immediate aftermath, but still suffer significant psychiatric injury as a consequence.
A close tie of love and affection with a primary victim is only automatically assumed between parents and children, spouses and fiancés. This means that unmarried couples, civil partners, brothers and sisters, grandparents and grandchildren, and friends and work colleagues must prove that there was a close tie of love and affection between them and the primary victim in order to succeed.
The reform of the law on psychiatric injury
APIL (Association for Personal Injury Lawyers) have long been campaigning for reform on the law relating to psychiatric injury, which is out-dated and no longer reflects the relationships and increasing use of technology in modern life.
The Negligence and Damages Bill, which was presented to the House of Commons in October 2015, sought to change the law for those suffering psychiatric injury, with the aim of bringing claims for psychiatric injury from the death or physical injury of others, in line with those suffering direct physical injury. It also dealt with reform relating to bereavement damages in England and Wales. The Bill proposed no longer requiring the illness to have been caused by a sudden, shocking event, suggested an extension of the types of relationship in which a close tie of love and affection would be assumed and removed the requirement for the individual to have been in close proximity, ie physically present. The Bill also proposed the introduction of a duty of care on a Defendant to take reasonable care to avoid causing a person to suffer a recognised psychiatric illness as a result of another person’s death or injury.
Sadly, the Bill did not progress beyond its first reading and the law on psychiatric injury has remained unchanged since 1992, leaving many genuine victims unable to pursue a claim for compensation.
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