Introduction
The horrific events of 15 April 1989 at the Hill’s Borough Football Stadium in Sheffield caused physical injury to more than 700 people and death of 96 spectators. Nevertheless, it caused emotional harm and life-scarring to many people. This led to the case of White and Others versus Chief Constable of South Yorkshire (1998) QB 254, where the chief constable admitted that the events were sparked off by the negligence of police hence causing spectator-overcrowding in pens. This case has had a lot of impacts on cases which entail nervous shock claims. This paper uses both an analytical and a critical approach to explore impacts of this case on nervous shock claims.
The Impacts on Nervous Shock Claims
The case of White and Others versus Chief Constable of South Yorkshire (1998) QB 254 is said to have elicited division of victims into primary victims (those directly involved in the accident or incident) and secondary victims (those who see or learn of others being killed or injured). This case has had a great impact on nervous shock claims. The impacts have been echoed by academicians, law experts and judges, who contend that common law of delictual liability for psychiatric injury or mental harm is defective and needs reform. For example, Teff, a professor of law has argued that untenable distinctions depicted in this case has a negative impact on dispensation of justice. Another professor, Stapleton, has contended that this case depicts complexity and unjustifiable distinctions which contravene modern approaches of understanding psychiatric injury or nervous shock. Furthermore, the impact of this case for nervous shock claims was also echoed by Lord Oliver’s assertion of his inability to ascertain satisfactoriness and logical defensibility of the state of the law (Sprince1995).
The division of victims into two categories and the different rules for their compensation has affected nervous shock claims due to the lack of clear and distinct boundaries. This has an impact on nervous shock claims in terms of compensation and ruling. For example, secondary victim compensation is only awarded on condition of claimants meeting the Alcock criteria (close tie of affection between secondary victim and injured person) and claimants’ presence at the scene or its aftermath and their psychiatric injury caused by direct perception of the scene or the aftermath (Tort Law Cases, n.d). In addition, there has been difficulty in the evaluation of the legal construct that secondary victim’s recovery is on condition of foresee-ability of their injuries in persons of ordinary fortitude. The remedy and reform of defects to minimize negative impact on nervous shock claimants would mean suitable cases be litigated up to the level of the House of Lords and then persuading them to depart from earlier decisions. The inability to distinguish primary and secondary victims has had a negative impact on reforms as evidenced by Lord Steyn’s remark in Frost v Chief Constable of South Yorkshire Police that “… the law on recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify ” (National University of Ireland, Galway 2003, p13-18).
According to Horsey and Rackley (2009), due compensation should be accomplished to nervous shock claims who suffer as a result of negligence, based on the reason that we live in a real and practical world and not a world of utopia, where the tort system limits claim-classes which enlist for consideration. Horsey and Rackley (2009) further contend that common law depicts foreseeability as a tool which is inadequate to dispose off nervous shock claims and only results in imperfect justice for these claims. Before the case of Alcock versus chief of South Yorkshire (1992) 1A.C. 310 where the House of Lords made a leading decision, only spouses could recover for psychiatric harm suffered because of being witnesses to traumatic events. However, in the case of Alcock versus the chief of South Yorkshire Police in 1992 1 A.C.310, the groups of nervous shock claims even included relatives who were present at the scene (Tort Law Cases, n.d). In this case, the House of Lords dismissed all claims including an claimant who was at the scene witnessed death of two brothers. According Kirsty and Rackley (2009), the decision by the House of Lords affected nervous shock claims as it meant that claimants of nervous shock damages cannot recover damages unless (1) A close tie of love and affection with the person killed existed, (2) The acclaimant was close to the scene in aspects of space and time, and (3) The acclaimant had direct perception of the incident. This impact on claims for nervous shock can be attributed to Lord Ackners comment that “…quality of brotherly love is well known to differ widely…” (Tort Law Cases, n.d). On the other hand, Lord Oliver’s comment of non satisfactoriness and logical defensibility of the law depicted explicability in terms of policy considerations. Similarly, impacts of the case of white and other versus the chief constable of south Yorkshire [(1998) Q.B. 254 on nervous shock claim was clearly echoed by Professor Jeff Stapleton in which she depicted difficulty in justifying the law the way it was stated in the Alcock case. The impacts on nervous shock claim is depicted in her statement that;
“At present claims can turn on the requirement of ‘close ties of love and affection’ is guaranteed to produce outrage. Is it not a disreputable sight to see brothers of Hillsborough victims turned away because they had no more than brotherly love towards the victim? In future cases will it not be a grotesque sight to see relatives scrabbling to prove their especial love for the deceased in order to win money damages and for the defendant to have to attack that argument?” (Horsey and Rackley 2009, p33-34)
In the Hillsborough case, the law divided those who were affected (mentally)/those who suffered nervous shock in different categories, mental suffering concomitant to bodily injury, recovered as “pain and suffering”, and mental suffering without physical injury. This has had an impact on present nervous shock claims as the ‘mental suffering without physical injury’ part is further and inevitably divided into two parts, extreme sufferers whose condition is debilitating and suffering concomitant to a recognizable psychiatric illness. The impact on nervous shock claims has been emergence of difficulty to elicit cases which fall in either category (first or second), because symptoms can depict substantial similarity and equal severity (Harvey and Marston 2009). The above divisions and denial of redress in certain cases depicts that grief concomitant to pathological grief disorder is a nervous shock claim which can be recognized, and is recoverable (Lunney & Oliphant 2010). However, expert psychiatric evidence assists in drawing a distinct line in the above divisions. This majorly impacts on nervous shock claims as Lunney & Oliphant (2010) contend that existence of divisions, depicted in the Hillsborough case is a demonstration that the law is unable to compensate all nervous shock claims even in true and acute debilitating situations (Lunney & Oliphant 2010).
Furthermore, the four police officers who helped to address the tragedy in the Hillsborough case suffered nervous shock (post traumatic stress disorder) hence they sought compensation, and their counsel’s argument was based on lack of jurisdiction to differentiate psychiatric injury and physical injury as two kinds of damage. This was in line with Lord Lloyd of Berwick in Page v. Smith [1996] A.C. 155, 197g (Lunney & Oliphant 2010). This has had a great bearing and impact on nervous shock claims in modern day cases as courts have had to accept lack of rigid and clear cut distinctions between the body and the mind, hence recognition of the fact that recognizable nervous shock is a result of impact in the central nervous system (Scottish Law Commission 2002). This also gives implication of lack of qualitative difference between physical injury and nervous shock and may lead to inadequacies in dispensation of justice for nervous shock claims, especially when nervous shock is more debilitating than physical injury. However, it is difficult to propose that no distinctions ought to be effected on the criteria for compensating nervous shock claims in terms of physical injury and psychiatric injury, as depicted in the case of Caparo Industries Plc. versus Dickman [1990] 2 A.C. 605, 618e (Harvey and Marston 2009,p20).
Horsey and Rackley (2009), further contend that tort law contours are affected by the way different types of damages are differentiated. This has affected nervous shock claims as the almost liberalist approach to compensating physical injury and almost restrictive approach of recovery of economic loss is focused on the mind (Lunney & Oliphant 2010). For example, some perceptions of economic loss liability in Wagner versus International Railway Co., 232 N.Y. 176 are focused on “an indeterminate amount for an indeterminate time to an indeterminate class” and this has crucially played a role in judicial skepticism approaches in nervous shock claims since the case of Murphy versus Brentwood District Council (1991) 1A.C. 398 with respect to recovery of economic loss. Therefore incremental methods have been adopted in terms of distinctions of liability of economic loss (Horsey and Rackley 2009, p13-18).
The case of White and Others v Chief Constable of South Yorkshire (1998) QB 254 elicited need for necessary distinctions between physical injury and nervous shock and has had an impact on nervous shock claims by bringing other policy considerations into play, for example the Criminal Injuries Compensation Scheme and the Criminal Justice Act of 1988 which depict a restrictive approach that “Harm to a person’s mental condition is only a criminal injury if it is attributable – (a) to his having been put in fear of immediate physical injury to himself or another; or (b) to his being present when another sustained a criminal injury other than harm to his mental condition” (Horsey and Rackley 2009, p15-16). According to Horsey and Rackley (2009), the restrictive approach was as a result of fear that a liberalist approach would cause intolerable burden on the tax payer. Other policy considerations which have come into play include the fatal accidents act of 1976, sec 1A7 which depicts a decision that only parents and spouses of the bereaved can claim bereavement damages (p20-30).
According to Horsey and Rackley (2009), existing law suffers from major defects and hence the need for reform and the courts have developed liability rules over the past 100 years on an almost adhoc approach. This has had a negative impact on nervous shock claims as it has resulted to complex and production of unjustifiable distinctions which ignore modern approaches to the exploration and understanding of mental illness (Tort Law Cases, n.d). For example the requirement for sudden shock prevents a claim of damages for people whose nervous shock emanates from wrongfully caused death or bodily injury of a close relative, due to the restriction that they have to be present at the incident’s scene or its immediate aftermath, and observed the event with their unaided senses. When victims of nervous shock, especially rescuers, employees and involuntary participants are classified or categorized as primary and secondary victims, it presents difficulties in the dispensation of justice for nervous shock claims (Cane 2006).
The case of White and Others v Chief Constable of South Yorkshire (1998) QB 254 set out the Alcock criteria which has had a great impact on nervous shock claims. According to the Horsey and Rackley (2009), the proposal of the Alcock criteria is to limit number of potential nervous shock claimants so that wrong doers of horrific events are not tasked with compensating a large number of people. The terms compensating nervous shock claimants on grounds that nervous shock was a consequence of reasonable foreseeability of the defendant’s conduct has been rejected by citing risks of case-flooding and unreasonable increase in nervous shock claims(p22-30).
Conclusion
In this paper, the impacts of the case of White and Others versus Chief Constable of South Yorkshire (1998) QB 254 on nervous shock claims have been explored. However, some people have argued that fear of increase in the number of cases is likely to be unfounded, as claimants are unlikely to suffer psychiatric injury as a result of death or injury of emotionally close persons (Von Bar 2000). Others have argued that potential increase in numbers of nervous shock claims would be noted by courts and conservative approaches of foreseeability taken (Clerk 2010). For example, in Bourhill versus Young, it was upheld that nervous shock claims where bystanders are the claimants should not be considered, as bystanders should have sufficient fortitude of withstanding shock. However, the ‘Alcock criteria’ stipulates that bystanders ought to be entitled to compensation. The ‘Alcock criteria’ has however not been followed in certain cases of nervous shock claims for example, in the case of McFarlane versus EE Caledonia Limited where a claimant who claimed to have watched the piper alpha disaster was dismissed (Von Bar 2000).
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