Renewed call for reform of law on psychiatric injury

Association of Personal Injury Lawyers (APIL) continues to press for urgent reform of the law on psychiatric injury to enable more claimants to be properly compensated.

Despite increasing awareness and understanding of mental health in recent years, the law regarding psychiatric injury has not kept pace, leaving many claimants unable to pursue compensation.

Psychiatric injury is still regarded by the law as somehow less serious than physical injury, despite the fact that its effects can be just as devastating and debilitating.

The law relating to those claimants who can claim for psychiatric injuries dates back to the 1992 case of Alcock v Chief Constable of South Yorkshire Police.  This was a claim for the victims and relatives who suffered psychiatric injury due to horrific scenes they witnessed at the Hillsborough Disaster.  This April marks the 30 year anniversary of that tragic event when 96 people lost their lives.

That case established two categories of people who can claim for psychiatric injury:

• Primary victims – Those people who are directly involved in a single shocking, often life threatening event
• Secondary victims – Those people who witness such a shocking event unfold but who themselves are not directly involved, threatened or exposed to danger

It was established that for secondary victims to succeed in a claim for psychiatric injury, they must meet all of the following criteria:

• There must have been a sudden, shocking event;
• They must prove a close tie of love and affection with the primary victim who was injured or killed in the event;
• They must have been physically present in time and place at the scene or immediate aftermath of the event;
• They must have suffered a reasonably foreseeable recognised psychiatric injury as a result of the shocking event

Despite the Negligence and Damages Bill having been presented to Parliament in October 2015, which proposed to widen the category of secondary victims who could bring a claim for psychiatric injury, the Bill did not progress further than its first reading.  The law in this area remains outdated and unfair, leaving many people who have suffered psychiatric injury after witnessing the death or injury of another due to someone else’s negligence, unable to claim damages.

The law requires urgent reform to remove the need for the injury to arise from a single shocking event.  It cannot be right that a person who witnesses a loved one die in a single accident can bring a psychiatric injury claim, yet a widow who watches their husband die from an asbestos related disease, cannot bring such a claim.

In today’s modern society, the need for the person to have been physically present at the scene or immediate aftermath of the shocking event is also out of touch with reality.  Often events are live streamed and viewed on phones as they unfold via Facetime, video link and other social media platforms, meaning it is not uncommon for someone to witness a tragic event as it happens and suffer psychiatric harm as a result, even if they are not physically present.

The requirement to prove a close tie of love and affection with the primary victim makes it more difficult and sometimes prevents claimants from bringing a claim, as this is only automatically assumed between parents and their children, spouses and engaged couples.  Unmarried couples, civil partners, siblings, grandparents and their grandchildren, friends and work colleagues need to prove a close tie of love and affection between them and the primary victim, to succeed with a claim for psychiatric injury.

APIL have long campaigned for reform in this area and with the 30 year anniversary of the Hillsborough Disaster in April, it is now surely time for the Government to sit up and take action to bring this area of the law up to date.

Lyn Gibbons is a Senior Litigation Executive and Associate of Cilex, specialising in personal injury claims, including psychiatric injury compensation cases.  Lyn can be contacted on 01622 680422 or at lyngibbons@brachers.co.uk

This content is correct at time of publication