The law on the recovery of compensation for psychiatric harm is complex and often inconsistent.
The law recognises two distinct categories of persons when considering claims for psychiatric injury; “primary victims” and “secondary victims”. The Association of Personal Injury Lawyers recently launched a campaign to reform the law for people suffering from psychiatric harm after witnessing the deaths or injuries of loved ones (secondary victims).
A primary victim is someone who is personally subjected to the danger of physical harm and thereby suffers psychiatric harm whereas a secondary victim suffers a psychiatric injury as a result of witnessing physical harm to others without being at risk himself. It is far easier for a primary victim to recover damages for psychiatric injuries but stringent tests apply to secondary victims who must establish
a) that it was reasonably foreseeable that a person of ordinary fortitude would suffer psychiatric injury in those circumstances;
b) they have close ties of love and affection with the victim;
c) they were present at the accident or its immediate aftermath;
d) the psychiatric injury must have been caused by direct perception of the accident and not by hearing about it from someone else;
e) the injury has been sustained as a result of a shock.
These criteria were carefully examined in the case of Alcock -v- Chief Constable of South Yorkshire Police which was a claim brought by friends and family of victims of the Hillsbrough Disaster which occurred almost 25 years ago.
APIL say the current law is “archaic and inflexible” and has deprived many genuine victims whose family members were killed in the disaster from the right to compensation.
The tie of love and affection can be presumed in cases of a spouse, parent or child but other relations and friends must prove the nature of the relationship. In Alcock the claim of a man who witnessed his brother’s death failed due to a lack of evidence of his ties of love and affection.
The issues of proximity of the accident or its immediate aftermath and direct perception can often be more problematic. In Alcock victims attended Hillsbrough several hours after the disaster to identify bodies but this was found not to be part of the immediate aftermath. It was also held that witnessing the disaster on TV did not produce the required proximity as there was not sufficient immediacy.
Psychiatric injuries can be very serious and as devastating as physical injuries. Claims for secondary victims are often difficult and the results can seem very unjust particularly in cases like the Hillsbrough disaster where many suffered serious psychiatric injuries as a result of the deaths of family members and loved ones.
In 1997 the Law Commission prepared a report entitled “Liability for Psychiatric Illness” which made various recommendations some of which, if implemented, would have resulted in the Hillsbrough relatives claims being successful particularly those which were dismissed on the grounds that they failed to satisfy the proximity test.
Frank O’Connor, Solicitor and Director at Macks believes there is a need for amendment to the current law which is restrictive and inflexible. There is clearly a need to strike the right balance between depriving genuine victims and opening the flood gates.
In the case of Frost -v- Chief Constable of South Yorkshire 1999 Lord Steyn commented that “the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify”. He suggested that it “must be left to Parliament to undertake the task of radical law reform”. Hopefully Parliament will now address this difficult issue and allow many genuine victims to claim the compensation they deserve.
