Examining the case of Alcock –v– Chief Constable of South Yorkshire (1991)
One of the most important and contentious psychiatric injury cases in recent history sprang out as a result of the events at Hillsborough on 15th April 1989. Twenty-three years on there remains questions as to whether or not the right decision was arrived at and whether or not the law on psychiatric injury should be changed.
In the aftermath of the events on that terrible day a number of claimants sought to bring claims for psychiatric injury against the Chief Constable of South Yorkshire. The full judgment in the case can be found here.
Knowing that family and friends were in the stadium the claimants alleged that they had suffered from nervous shock as they watched the tragic events at Hillsborough unfold on live television or listened on radio. These claimants were designated as “secondary victims” because they were not directly involved in the incident. (Note: In comparison a “primary victim” was one of those either injured or in danger of immediate injury.)
The House of Lords had already set a legal precedent in the case of McLoughlin v O’Brian (1982), in which the court held that a “secondary victim” could indeed recover damages for psychiatric injury. However, in order for a “secondary victim” to have a valid claim for psychiatric injury it must be proved that the shock resulted from the death or injury, or the fear of death or injury to the claimant’s spouse or child, and that the shock came about from seeing or hearing the event or its immediate aftermath.
The McLoughlin case was seen as an extension of the law of psychiatric injury as the Court made a further requirement that the Claimant had to actually be at the scene of the accident or its immediate aftermath. In McLoughlin, the claimant had been told about an accident involving her husband and children approximately two miles away, and roughly an hour after it had occurred. The claimant was taken to hospital, where she saw the body of her deceased daughter and her seriously injured husband, as well as her other children in the distressed and injured state they had been at the scene of the accident. As a result of what she witnessed there at the hospital the claimant went on to suffer with nervous shock. The House of Lords held that this meant she was sufficiently close to the event both in time and place to recover damages from the defendant for psychiatric injury.
So why was the decision in Alcock so contentious? The claimants in Alcock witnessed the events unfold through live television coverage as opposed to actually being at the stadium. The claimants argued that the House of Lords should amend the meaning of “immediate aftermath”, as well as to remove the restriction on the categories of those people who could recover and, furthermore, to extend the means by which the shock could be caused to cover watching tragic events occurring on live television or radio.
However, the House of Lords were not to be swayed by the claimants arguments and the principles by which a secondary victim could recover damages went unchanged. Their claims failed as the Lords held that the shocking event(s) had to be seen or heard with “unaided senses”, or by viewing the immediate aftermath. Watching events on television was just not enough for the Court at this time. The Lords chose to rely heavily on the reporting guidelines that the television broadcaster would have been expected to follow in such instances.
Furthermore, the House of Lords, in their judgment, raised concerns that if they were to accept the claimants argument then they risked opening a “floodgate” of similar claims for psychiatric injury. Moreover, the Lords were not prepared to provide further definition to what was meant by “immediate aftermath”, believing that such matters should be judged upon the facts of each individual case before the Court. (The Lords did, however, go as far as to say that attendance at a mortuary some hours after the event was not sufficient for a claim for nervous shock to succeed.)
Another psychiatric injury claim was brought to the House of Lords in the case of White v Chief Constable of the South Yorkshire Police  2 A.C. 455. It was brought by police officers on duty against the Chief Constable who was said to have been vicariously liable for the disaster. In the Court Of Appeal at least some of the claims succeeded, although none of the claimants were exposed to any personal physical danger, and none would have succeeded on the criteria in the Alcock case, there claims instead succeeded either because they were deemed to be rescuers or because the Chief Constable of South Yorkshire, as their ’employer’, owed them a duty of care to prevent psychiatric trauma.
However, on further appeal to the House of Lords, their claims were dismissed and the Alcock decision was upheld. It affirmed the position of the Courts once again towards claims of psychiatric injuries of secondary victims. Part of the House of Lords decision was once again undoubtedly on grounds of public policy. As all the claims for compensation by relatives of the Hillsborough victims had already been rejected it could, and ultimately did, cause a public furore that police officers would be compensated in what was deemed to be a less deserving case. Furthermore, the House of Lords held in a majority decision that employers did not have a prima facie duty of care to prevent psychiatric injury, and that rescuers did not become “primary victims” by the mere fact that they were rescuers. The effect of this decision is that the Alcock test went on to apply to all psychiatric injury claims where personal injury is not reasonably forseeable.
Law students will come across the Alcock and White cases at an early stage in their studies due to the nature of the academic arguments and for the fact that they are still seen as such contentious decisions. There were many victims who suffered as a result of watching the horrific events of that day, but as a result of public policy and a misunderstanding by the Court of the medical complexities surrounding psychiatric injury, many were left to suffer without recourse to the law.
In the aftermath of the recent Hillsborough Report, as well as greater knowledge of psychiatric injuries, one may question whether the House of Lords decision should be overturned? There is an argument to say that it should be. In a world where rolling 24 hour news coverage and social networking have developed and increased the speed and accuracy of reporting, where one can now watch sport in 3D (bringing one closer to the action), things have changed drastically in 21 years.
Unfortunately it is highly unlikely that the law will indeed change. It has been 21 years since the decision in Alcock and despite a recent Law Commission report seeking to offer simplification of the law, the Government has made it clear that it has no intention to change the status quo in this area of law. No doubt there will be some that will continue to agree with the current law on the basis of a predisposition to opposing the current “compensation culture” in the UK.
While it is possible that the Supreme Court could revisit this issue they would arguably have to be very brave to do so. Until such time as this happens law students will continue to learn of the Alcock and White cases, lawyers specialising in personal injury will continue to try to sharpen their arguments to try to triumph in future tragedies of such nature as that of Hillsborough, and those who suffered from psychiatric injury as a result of the tragic events 21 years ago must continue to try to move on with their lives. As difficult or as impossible as that may be.
Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.