Reviewing the "Hillsborough Effect"

The devastating events at the Hillsborough Stadium in April 1989 are well documented.  The tragedy continues to make headlines, not least because of the new inquest opening in Warrington this week.

Many victims brought actions against the Chief Constable of South Yorkshire police, on the basis that they had suffered a psychiatric injury from seeing their loved ones injured or killed during the disaster.  They are known at law as “secondary victims” because they were not directly injured in the crush.

The Chief Constable of South Yorkshire admitted liability in negligence in respect of the deaths and physical injuries.  One important aspect to some of the claims was that the events had been seen on the TV, or heard on the radio, rather than actually being witnessed in person at the stadium.

The House of Lords, the highest court in the land, at the time held in the case of Alcock and others v The Chief Constable of South Yorkshire in 1992 that because the relative was not “proximal” in time and space to the death or injury, such a claim failed.  In addition, the Court stated those making a claim had to prove they had a close tie of love and affection with the person who was killed or injured.

A number of control mechanisms were given for these secondary victim claims.  Many would say how can you justify recognising at law, victims who suffered shock and psychiatric injury by witnessing the injuries to their loved one live, from those who suffered similar, or in some cases worse, psychiatric injury from witnessing the event on television or learning of it afterwards.  The imposition of these tests was justified by the Lord Justices on the basis they did not wish to open the floodgates for large volumes of psychiatric injury claims.

The Alcock decision is regarded as the leading case in this area of the law still today.  These tests remain, despite the fact that our understanding of psychiatric injury has developed greatly in the 25 years since the events at Hillsborough.  There is a greater understanding now of the debilitating nature of such injuries.

With the opening of the inquest bringing the matter back into sharp focus, the Association for Personal Injury Lawyers is campaigning for a change to the way in which the law treats secondary victims.  There should be fewer hurdles to proving the tie of love and affection, and a review of the criteria of proximity to be applied to each case.

In addition other countries have a different approach to close relatives of seriously injured victims   In France, for example, the spouse of a brain injured person may make a claim for the effect of the accident on their own lives, even when they did not witness the event.  There is no need to prove closeness to the accident in order to claim damages for the consequences of it.

It is often those closest to the primary victim who suffer the most, changing from partner to carer, living with a person who has a changed personality and having to give up their own careers and dreams to look after their loved one.  It has been described as being similar to bereavement, and in this country those victims are not able to bring a civil action in their own right.