Mourners at a Hillsborough Memorial service in 2009. Photo: John Giles / PA Archive/Press Association Images. All rights reservedLast October, a ‘Negligence and Damages’ bill was introduced to parliament. The bill challenges an entrenched hierarchy in the law whereby damages for physical injury inflicted through the negligence of a third party are easier to obtain than if those injuries are psychological. The bill's progress into law has stagnated, but if it passes it promises to transform how the law regards trauma and psychological harm.
In challenging this hierarchy, the bill reflects changing attitudes toward mental health in Britain. A 2015 survey by King’s College London found that ninety-one percent of britons agree that mental illness merits increased recognition amongst society. Nevertheless, a historical lag exists between changing social attitudes and case law. Whilst our attitudes are now of the modern era, the referent point underpinning the law’s approach to psychological injury is still found in 1989 and the events of Hillsborough.
Though Hillsborough is remembered primarily for the physical injuries it saw, it also inflicted psychological damage. Family members in different sections of the stadium to their loved ones watched helplessly as the crush developed in the lower tier of the Leppings Lane stand. Broadcast live on television and radio, the trauma was transmitted directly to thousands who had family at the game. Hours after waving away family members, next of kin identified their bodies.
Many witnesses to such events developed post-traumatic stress disorder (PTSD). This PTSD was not always the result of being overwhelmed by one exceptionally traumatic event, such as identifying a loved one’s body. For many, the trauma accumulated in more gradual fashion, consequent, for example, to the daily moral attrition of coming home each night to a newly-injured spouse.
In Alcock v Chief Constable of South Yorkshire Police in 1991, ten claimants sought damages for the mental injuries they incurred following Hillsborough. This case is the source of the anachronism of today’s case law.
Two of the claimants were at the match. Both suffered emotional distress after seeing the crush from adjacent stands whilst knowing their brothers were in the Leppings Lower. Another claimant fell ill after identifying her son’s body just eight hours after watching him leave home. Further claimants were traumatised via television or radio, mediums that conveyed the danger their loved ones were in. The claims of all ten were dismissed.
Providing judgement, Lord Oliver outlined four criterion that set an extremely high benchmark for any claim to succeed. Termed the ‘Alcock Principles’, to qualify for damages, a victim of mental injury sustained after witnessing harm brought upon a loved one through the negligence of a third party must:
- Have a relationship of love and affection with the primary victim
- Have direct perception of the event with unaided senses
- Have proximity to the event or its immediate aftermath
- Experience psychological injury via a single nervous shock.
“A relationship of love and affection” was presumed to exist only between parent and child and spouses. Claimants who lost siblings, grandchildren, or others were excluded. The second clause disqualified the witnessing of events via television or radio. The judges argued that experiencing events in this mediated fashion was less traumatic as it encouraged disassociation. ‘Direct perception of the event’ meant the claimant must have actually seen their family member be injured amongst the crowd. Witnessing a crush and presuming a loved one was injured was not enough. The third criterion reinforced the ruling’s restrictive ethos.Proximity was whether one’s injury occurred close enough in time to the event, to be determined arbitrarily by the judges.The eight hours that expired before the mother identified her son were deemed excessive.
This seems odd to the layman. When society refers to Hillsborough as an ‘event,’ we think of a chain of developments that progressed inexorably from one to another. The massing of fans prior to kick-off, the scrambling over fencing for survival, family members arriving at mortuaries- all these constitute a single time-lapse or event. In contrast, the judges interpreted ‘event’ in blinkered fashionas a single moment in time to be isolated from the developments that preceded and followed it. The judges limited police liability solely to the exact moment when the trampling of bodies occurred. Damages would be awardedonly to those whose psychological injuries happened at this precise time.
This excluded victims whose mental injury was sustained cumulatively. As Lord Oliver noted, excluded was: "psychiatric illness caused by the accumulation of gradual assaults on the nervous system." Often, psychological injury, its ‘flashbacks’ and symptoms only emerge months after the event at a pace the patient can tolerate. Alcock therefore advanced a legally neat principle. But it is one that is discriminatory. Furthermore, experiencing an event via radio or television does not safeguard from mental illness. As Amit Pinchevskinotes in a 2015 survey article, we have known since the 1960’s that individuals develop PTSD via broadcasts. Jennifer Ahern has documented the thousands of cases of PTSD amongst those who watched 9/11 on television. Similarly, drone pilots whose experience of the battlefield is mediated by television screens nevertheless develop intense trauma.
Emphasis on direct perception of events is arbitrary. A series of cases such as Wild v Southend NHS Trust (2014) have failed due to the claimants’ trauma stemming from the mental realisation of the death of a loved one rather than the direct perceiving of the death itself. In Wild, the claimant’s appeal was dismissed because it was impossible for him to have directly seen the in utero death of his stillborn child. That learning the shocking fact of the death of a loved one- as long as one does not see it- is deemed acceptable by the law is clearly unjust.
The Negligence and Damages bill provides a corrective to Alcock. The bill extends the relationships presumed to involve a “close tie of love and affection,” enshrines a duty of care for psychiatric wellbeing covering both sudden and gradual nervous shock and removes the requirement of proximity. Yet, as the spectre of Brexit looms large over the legislative agenda, the bill has been shelved. This is unfortunate. The mentally injured deserve to be recognised by the law.