Will the Negligence and Damages Bill mend years of injustice?
The tragic events at Hillsborough Stadium during the FA Cup semi-final in 1989 resulted in the deaths of 96 people, injuries to hundreds of fans and traumatised many more.
The verdict of the recent coroner’s inquiry gave the victims family’s some much deserved closure and justice after a long, long fight.
In the years immediately following the tragedy, controversial judicial decisions in cases such as Alcock v Chief Constable of South Yorkshire developed the English common law in relation to the rules on primary and secondary victims of negligently inflicted psychiatric injury. There has been much debate following these decisions, with many commentators believing them to be arbitrary, inconsistent and unfair to claimants.
This was nicely summarised by Lord Steyn in White:
[T]he law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify.
A claimant can only claim for psychiatric harm if he or she suffers or has suffered from a recognised medical condition, such as personality disorder or post-traumatic stress disorder.
Alcock added that the condition must be induced by shock. Damages cannot be awarded for the ordinary grief or sorrow caused by a person’s death.
The Alcock case was the first of two House of Lords cases that stemmed from Hillsborough, and it was Lord Oliver’s judgment which created a formal distinction between ‘primary’ and ‘secondary’ victims, namely those in the area of danger or at risk of danger (primary victims) and those who witness the events as secondary victims.
The rules for primary victims are relatively straightforward. The claimant must have suffered a recognised psychiatric disorder, and there must be reasonable foreseeability of the risk of physical injury following the defendant’s negligence, even if psychiatric harm itself was not reasonably foreseeable. Notable cases such as W v Essex County Council and Farrell v Avon Health Authority have allowed claimants to successfully recover damages as primary victims despite there being no risk of physical injury.
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In contrast, in claims brought by secondary victims, although the requirement to have suffered a recognised condition remains, there are additional control mechanisms that claimants must satisfy.
These were first discussed in McLoughlin v O’Brian, but Alcock later refined these by stating a secondary victim must have close ties of love and affection with the victim; that there must be close proximity in time and space to the accident or its immediate aftermath; that the injury must result from a sudden and not gradual shock and this shock must be seen or heard with the victims “own senses” rather than being told of it.
Later in Page v Smith, Lord Lloyd added that it should be reasonably foreseeable that a personal of “normal fortitude” might suffer psychiatric injury.
It is in these criteria that present the biggest injustices for secondary victims.
In relation to the close ties requirement, it was presumed that only parents and children, spouses and engaged couples possess such ties. For any relationship outside of these, the claimant must prove that such tie exist.
This means relationships between siblings were not presumed to fulfil this condition. So in the Alcock case, Brian Harrison was at Hillsborough and witnessed the crush in the Leppings Lane End knowing his two brothers who died were in that vicinity. He failed in his claim because of the lack of presumed close ties of love and affection, as prior to the case it was not known that such a bond needed to be proved. The lords also dismissed claims by grandparents for such a reason.
Clearly, attempts to codify degrees of love between people is problematic, and reveal the limits of law and the legal language.
Also in Alcock, the court decided the events causing the shock must be viewed with claimants own senses, meaning that they must perceive the events for themselves and not through a third party. This was primarily to prevent floods of claims from people who viewed the fateful game on television, as the match was being broadcast live.
This included the claim of Catherine Jones, whose fiancé was at the match and was killed in the crush; she watched the events unfold on TV after being informed about events by a friend. Her claim was denied because of this, and the lords added obiter that if you can recognise individuals with sufficiently close ties then that would be sufficient to claim, but due to the broadcasters’ code which prevents viewers seeing such distressing scenes, she was unable to recognise her fiancé in the scenes and there was a lack of proximity. Against this you have Hambrook v Stokes and W v Essex County Council where claimants were successful even though they were only told about the event, and did not view it with their own senses.
The position of rescuers throws up further inconsistencies in the law.
In Chadwick v British Transport Commission, a man became psychoneurotic following his efforts as a rescuer at the Lewisham train disaster in 1957. Chadwick helped pull survivors and bodies from the wreckage, and his estate was successful in recovering damages for the psychiatric harm he suffered before his death due to the threat of physical danger he encountered during the rescue.
Rescuers must be actively involved and not just bystanders. This principle comes from White, where police officers who helped with the rescue at Hillsborough were denied their claim because there was no threat of injury at the time. They attempted to claim as primary victims due to their employment relationship with the defendant and then as rescuers, but failed on both counts. Lord Hoffman said that by allowing the police officers to claim as rescuers it produces an unfair result by favouring the claims of the policeman over the bereaved families.
The Law Commission Report of 1998 recommended the abandonment of the requirements of proximity in time and space to the accident and the “own unaided senses” rule, and although the report was not implemented at the time, some years later the spirit of the reforms have been reintroduced thanks to a Private Members Bill proposed by Labour MP for Middlesbrough Andy MacDonald. The bill is making its way through the legislative journey through parliament; the Negligence and Damages Bill 2015-16 aims to do what incrementalism has failed to do.
The proposed act, if enacted, would abolish the requirements for close ties of love and affection, that the condition be induced by sudden shock, and proximity in time and space. The changes proposed within the bill would help to create a much fairer balance between claimants and defendants by removing many of the areas of controversy seen from the cases arising from the tragic events of Hillsborough.
The bill would make it much easier for claimants to establish a duty of care owed to them by the defendant. In relation to close ties of love and affection, s4 of the bill proposes to radically expand the list from spouses, plus parents and children, to include fiancés, civil partners, co-habitees, grandparents, aunts and uncles, and even friends and work colleagues. This effectively reduces the list of those who cannot recover to complete strangers so transfers the balance considerably in favour of the claimant in terms of fairness.
S5 of the bill removes further restrictions in relation to the establishment of a common law duty of care: s5(2) proposes removing the condition that the illness must be induced by a shock, potentially including those who develop a psychiatric injury having watched a loved one die slowly as a result of medical negligence. In addition to this, the need to be proximate in terms of time and space would also be abolished, meaning that the timelines established in cases like McLoughlin v O’Brien would be removed.
The claimants in Alcock would have had a much greater chance of success if this bill had been in place at the time, and is undoubtedly a step in the right direction in regards to making things fairer for claimants.
Many may argue that this tilts the balance too far back in the claimants favour and may open the floodgates to unmeritorious claims as well as encouraging the compensation culture which many think is growing in this country.
But you only have to look at the unfairness of the old common law rules arising from the Hillsborough tragedy to see that the proposed bill goes a long way to righting those wrongs for future claimants, even if it does not help the bereaved families from Hillsborough.
Mark O’Neill is a student at the Open University.
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