In the run up to the 25th anniversary of the Hillsborough disaster, the Association of Personal Injury Lawyers (APIL) is launching a campaign to expand the category of individuals who can claim for psychiatric injuries and to loosen the strict criteria that must be met.
The current rules for claiming for psychiatric injuries arise from the case of Alcock v Chief Constable of Yorkshire Police, which was a claim brought by a number of individuals for psychiatric injuries after seeing their friends and family killed in the tragic Hillsborough disaster. In the case, the court distinguished between “primary victims” - those who were physically injured or at risk of injury - and “secondary victims” - those who were not physically injured or at risk of injury.
While primary victims were allowed to bring claims for psychiatric injuries automatically, the court, in its judgment, saw the potential risks of opening the floodgates to such claims from “secondary victims”. To control this risk, it set out the strict criteria required to make a claim. The currently accepted criteria are:
- The victim must perceive the shocking event over and above a 'normal' situation (ie over and above grief and sorrow)
- The shock must be a sudden assault on the victim’s nervous system
- The victim must show a sufficiently close relationship to the person injured. This is often described as “close ties of love and affection”, and includes relations, including parents and children
- It must be reasonable foreseeable that a person of “normal fortitude” would suffer psychiatric damage. The closer the tie between the victim and the person affected by the negligent act, the more likely that this element will succeed. The two criteria where reform is considered necessary are the requirement of a “shocking event” and that of the “close ties of love and affection”.
The requirement for a “shocking event” currently requires a single specific event. This therefore excludes those who suffer psychiatric injuries suffered by those as a result of more prolonged distressing period, for example watching a loved one slowly die.
The “close ties of love and affection” currently only extend to relationships between parents and children, husbands and wives, and engaged couples. Civil partners, brothers and sisters, grandparents and grandchildren are not presumed to have such a relationship to the injured person and are, therefore, are required to prove this. Scotland has already extended those who qualify to these relationships and it is considered that England and Wales should follow suit.
William Broadbent, associate in the personal Injury and clinical negligence team at Penningtons Manches, comments: “The criteria as they stand are very restrictive and, as such, exclude a lot of victims who have suffered severe psychiatric injuries from claiming the compensation to which they should be entitled.
“When the strict criteria were originally put in place, there was a concern that the floodgates would be opened to a large volume of claims resulting in massive costs to the NHS or insurers alike. That concern will remain and the Government will undoubtedly have this in mind when considering reforms. However, through our day to day dealings with or clients, it is clear that the current criteria are too restrictive and have the potential to be grossly unfair. We recognise that any reform will have to be very carefully considered but our view is that it is time for this unhelpfully complex area of law to be clarified.”