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25 years on from the Hillsborough disaster – a call for changes to the law on psychiatric injury

Earlier this year APIL called for reform of the law on psychiatric injury on the basis that the current law is "old-fashioned, inflexible and…

Earlier this year the Association of Personal Injury Lawyers (APIL) called for reform of the law on psychiatric injury on the basis that the current law is “old-fashioned, inflexible and unfair”.

The law as it stands was established, in the main, in the case of Alcock v Chief Constable of South Yorkshire Police. Claims were presented for psychiatric injury after individuals witnessed their friends and family killed in the Hillsborough disaster.

The law distinguishes between “primary victims” – those who have been physically endangered or injured – and “secondary victims” - those not physically injured or endangered but who witness the injury or endangerment of another. When bringing a claim for psychiatric injury, primary victims are not subject to the same strict criteria that apply to secondary victims.

The criteria for secondary victims which are the subject of the campaign for reform are:

• Proof of a “close tie of love and affection” to the deceased or injured person. At present, the law only actively recognises the relationship between the parent, child, spouse or fiancé of the deceased of injured person. Others (grandparents, for example) must prove the closeness of the tie in each case.

• The requirement that there must be “a sudden assault on the nervous system”. By way of example, the law as it stands does not recognise psychiatric injury suffered by a spouse who cares for their loved one over a long period of time after an incident caused by another person’s negligence.

• That the person claiming must be close to the incident in time and space. In Alcock, the ruling was that those who saw the tragedy on television could not claim. Campaigners believe this is now outdated because of technological advancements.

In March 2014, an Early Day Motion was tabled in the House of Commons. The motion urges reform of the law because, for secondary victims, the present law is “restrictive and unfair” and “no longer reflects modern society”.

In recent years, understanding of psychiatric injury has grown and there does seem to be a wide gap between the requirements for bringing a claim for physical injury and the requirements for bringing a claim for psychiatric injury.

In addition, society has moved on and we now live with technology that allows us to see and speak to someone whilst walking down the street.

There is a widely held view that the current law is too restrictive and that it does not reflect the potential gravity of psychiatric injury.

In 1998, the Law Commission called for the law to be reformed but changes have not been forthcoming. Developing case law means that, in the absence of Parliamentary reform, the law in this area is now very confusing.

When the Alcock case was decided, the court was reluctant to open the floodgates in relation to claims from secondary victims. That, of course, will still be a consideration now.

In addition, the Government has recently brought in a lot of changes designed to reduce the number of claims brought and to reduce costs. Practitioners will know that it is often claims involving psychiatric injury that become very costly.

Although this is clearly an area that is potentially ripe for change we do wonder whether policy considerations will once again prevent reform of the law.