Psychiatric injury law – more injustice in the wake of Hillsbrough
The current law on psychiatric injury for so-called 'secondary victims' is under scrutiny, 25 years on from the Hillsborough disaster.
The disaster led to the death of 96 Liverpool supporters and more than 700 people were injured, many suffering psychiatric injuries. Relatives and friends of victims unsuccessfully sought compensation having witnessed the distressing scenes on television, or having been present in the aftermath of the disaster.
Matthew Stockwell, President of The Association of Personal Injury lawyers (APIL) commented recently that there has never been a better time to look at reforming this part of the law which "we believe is old-fashioned, inflexible and unfair". APIL are currently campaigning for a change in the law.
The law defines a secondary victim as someone who has witnessed injury, harm or death of another. If they have suffered a recognised psychiatric illness (which is more than temporary grief or fright) then they can consider a claim for their injuries. However, the current law limits the scope of who is able to claim. It is usually assumed by the courts that only parents, children or spouses / fiancés that qualify as having "a close tie of love and affection" with the deceased or injured.
Tom Hartigan, Associate solicitor at Trethowans, comments: "The law is extremely inflexible in terms of who can bring a claim as a secondary victim. Siblings, grandparents or grandchildren are excluded. 'Closeness, love and affection' in other relationships such as friends or civil partners has to be proved and is not automatically recognised. This is clearly discriminatory and wrong. It adds insult to injury for many bereaved people."
A further test, that the claimant must have been 'connected in time and space' with the event that caused injury or death, also restricts the right to bring a claim. In cases such as Alcock v Chief Constable of West Yorkshire , which arose directly from Hillsborough, the court held that the claimant must have witnessed the event with their own unaided senses, either by sight or hearing. Essentially, they had to be present when it happened.
Tom Hartigan comments: "These cases failed as the claimants (members of the families of the deceased) had not actually been at Hillsborough at the time their loved ones died. They had watched the scenes unfold on television, but that was insufficient in law and accordingly they were not compensated. It is high time, 25 years later, that this test be revised, or removed altogether".