Mental Injury and the Law: Time to move on from Hillsborough

By Alexander Shea (Barrister in Training; MPhil International Relations, Oxford; BA History, LSE First Class Hons)

Last October (14 October 2015), a ‘Negligence and Damages’ Bill was introduced into Parliament. A Private Members’ Bill (PMB) sponsored by the backbench Labour MP, Andy McDonald, the Bill challenges an entrenched hierarchy in the law whereby damages for physical injury inflicted through the negligence of a third party are easier to obtain than if those injuries are psychological.

In challenging this hierarchy, the Bill reflects changing attitudes towards mental health in Britain. A 2015 survey of 1,734 adults conducted by the King’s College London Institute for Psychiatry, Psychology and Neuroscience in conjunction with the mental health charity MIND, found that ninety-one percent of Brits agree that mental illness merits increased recognition within society. British workers are also now more willing than before to disclose their own mental health conditions. As documented in The Department for Health’s annual Health Survey England report, a report that interviews ten thousand Britons each year to identify changes to their lifestyle and outlook on health, between 2003 and 2008 alone the prevailing attitude toward mental illness amongst the British populace reversed course. Whereas in 2003, respondents suggested that the overwhelming stigma attached to mental health meant they would be likely to ‘hide away’ any problems they might have, by 2008 respondents argued that they were increasingly expressing feelings attached to even low and moderate stress with friends and family. This change in attitude was seen amongst individuals from a variety of occupational sectors, from teachers to bankers, right through to the military.

Despite these changes, a historical lag exists between evolving social attitudes and case law. Whilst attitudes toward mental health are changing on a yearly basis, the referent point underpinning the law’s approach to psychological injury is still found in 1989 and the events of Hillsborough (the ‘Hillsborough Disaster’; see here for additional background). The Hillsborough Disaster refers to the event of 15 April 1989 when a human crush occurred in the Leppings Lane stand of Hillsborough Stadium in Sheffield, during an F.A. Cup  semi-final  between Liverpool and Nottingham Forest. The events resulted in 96 fatalities and over 760 injured.

Hillsborough was the worst disaster in British sporting history. It was also an event, however, that brought to a head a series of social tensions then at work within Britain- tensions that drove to the heart of mental health’s status under the law and made Hillsborough a key event in determining legal precedent. To understand this, it is important to appreciate that the aftermath of Hillsborough was played out amongst society in an acutely psychological fashion as a clash of competing media narratives and accusations. The visceral imagery, stories and trauma of the day became the subject of an acrimonious debate between the South Yorkshire Police Force, which suggested that the footage and photographs of the day indicated that drunken, ticketless fans were responsible for the crush, and the victims and their families who countered that the evidence pointed to police negligence as precipitating the crush. Hillsborough now a public scandal and with the Taylor Inquiry of 1990 broadcasting to the nation haunting stills, photographs and witness testimony of the day, the mental trauma of Hillsborough as an event rather than a mere site of physical injury became apparent to all.

As the Taylor Inquiry soon laid bare that it was police negligence that triggered the crush, and worse that the police had orchestrated a cover-up to conceal their responsibility for events and shift the blame onto football supporters, the police was encouraged to issue an apology. The Taylor Inquiry noted that the police’s position had exacerbated the mental suffering of survivors and families in both demonising Liverpool fans and denying the police’s own role in events.

Hillsborough is remembered primarily for the physical injuries it saw. Often overlooked, however, is that it also inflicted psychological damage. Family members who were seated in different sections of the stadium to their loved ones watched helplessly as the crush developed in the lower tier of the Leppings Lane stand. Broadcast live on television and radio, the trauma was transmitted directly to thousands who had family at the game. Hours after waving away family members, next of kin identified their bodies.

Many witnesses to such events developed post-traumatic stress disorder (PTSD). This PTSD was not always the result of being overwhelmed by one exceptionally traumatic event, such as identifying a loved one’s body. For many, the trauma accumulated in more gradual fashion, consequent, for example, to the daily moral attrition of coming home each night to a newly-handicapped spouse.

Hillsborough thus lay at the intersection of three developments that made the question of mental injury central to any legal analysis of it. First, the event itself was lived as a traumatic event of visceral images and sounds by those who witnessed it. Second, it was processed in a uniquely psychological manner in a clash of media narratives centred around claims of drunken, thuggish football fans. Third, it evolved at a time when mental illness was receiving increasing consideration under the law. Following Parliament’s passing of the 1974 Jurors Act and the 1983 Mental Health Act, English and Welsh common law was forced to consider mental illness as a legal category unto itself that would require its own set of case law. Hillsborough thus came at a time of ‘legal awakening’ with regard to mental illness, even if the courts’ first judgements in this area were not particularly liberal. These three developments combined, Hillsborough was to be a seminal event in legal history, the moment when case law would have to confront the question of psychiatric injury.

In the 1991 case of Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5, ten claimants sought damages for the mental injuries they incurred following Hillsborough. They made their claims as ‘secondary victims’ of that day’s event. None had been present in pens 3 and 4 of the Leppings Lane stand where the crush occurred. Their relation to the event was thus not primary, in that they were not the ones in imminent danger of being crushed. Instead they were indirect victims. Their injury was the result of processing the harm that had been inflicted on their loved ones.

Two of the claimants were at the match.  Both suffered emotional distress after seeing the crush from adjacent stands whilst knowing their brothers were in the Leppings Lower. Another claimant fell ill after identifying her son’s body just eight hours after watching him leave home. Further claimants were traumatised via television or radio, mediums that conveyed the danger their loved ones were in.

The claims of all ten were dismissed. To understand why is to understand the anachronism of today’s case law.

Providing judgement, Lord Oliver outlined four cumulative criterion that set an extremely high benchmark for any claim to succeed. Termed the ‘Alcock Principles’, to qualify for damages, a victim of mental injury sustained after witnessing harm brought upon a loved one through the negligence of a third party must:

1. Have a relationship of love and affection with the primary victim
2. Have direct perception of the event with unaided senses
3. Have proximity to the event or its immediate aftermath
4. Experience psychological injury via a single nervous shock.

“A relationship of love and affection” was presumed to exist only between parent and child and spouses.  Claimants who lost siblings, grandchildren, or others therefore were excluded.

The second clause disqualified the witnessing of events via television or radio. The UKHL judges argued that experiencing events in this mediated fashion was less traumatic as it encouraged disassociation.

‘Direct perception of the event’ meant the claimant must have actually seen their family member be injured amongst the crowd. Witnessing a crush and presuming a loved one was injured was not enough.

The third criterion reinforced the ruling’s restrictive ethos. Proximity was whether one’s injury occurred close enough in time to the event, to be determined arbitrarily by the judges. The eight hours that expired before the mother identified her son were deemed excessive.

This may appear rather odd to the layman.  When the Hillsborough Disaster is referred to as an ‘event,’ what comes to mind is a chain of developments that progressed inexorably from one to another. The massing of fans prior to kick-off, the scrambling over fencing for survival, family members arriving at mortuaries – all these constitute a single time-lapse of eight to ten hours that we consider to represent a discrete event.

In contrast, the judges interpreted the notion of an ‘event’ rather differently. Rather than accept that an event could refer to a series of interconnected developments that spun over a number of hours, the judges argued that an event could only ever refer to a single incident that occurred at a single moment in time and which must be isolated from the developments that preceded and followed it.  The judges limited police liability solely to the exact moment when the trampling of bodies occurred. Where this is the elucidation of ‘event’, damages would be awarded only to those whose psychological injuries happened at this precise time.  This excluded victims whose mental injury was sustained cumulatively. As Lord Oliver noted in his judgement, excluded was:

“psychiatric illness caused by the accumulation of gradual assaults on the nervous system.”

Often, psychological injury, its ‘flashbacks’ and symptoms only emerge cumulatively months after the event at a pace the patient can tolerate. Alcock therefore advanced a legally neat principle. But it is one that is discriminatory.

Furthermore, experiencing an event via radio or television does not safeguard from mental illness. As Amit Pinchevski notes in a 2015 article, we have known since the 1960’s that individuals develop PTSD via broadcasts. Jennifer Ahern has documented the thousands of cases of PTSD amongst those who watched 9/11 on television. Similarly, drone pilots (operators) whose active participation of the battlefield is mediated by screens nevertheless develop intense trauma (see more on this point here, here, and here).

Emphasis on direct perception of events is arbitrary. A series of cases such as Wild v Southend NHS Trust (2014) EWHC 4053 (QB) have failed due to the claimants’ trauma stemming from the mental realization of the death of a loved one rather than the direct perceiving of the death itself. In Wild, the claimant’s appeal was dismissed because it was impossible for him to have directly seen the in utero death of his stillborn child. That learning the shocking fact of the death of a loved one- as long as one does not see it- is deemed acceptable by the law is clearly unjust.

The Negligence and Damages Bill provides a corrective to Alcock. The Bill extends the relationships presumed to involve a “close tie of love and affection,” enshrines a duty of care for psychiatric wellbeing covering both sudden and gradual nervous shock and removes the requirement of proximity. However, despite having initially been scheduled to have its second reading debate in Parliament on the 22^nd of January 2016, the Bill has yet to resurface in Parliament.

This is less to do with the Bill’s inadequacies as it is to do with what the chair of the House of Commons’ Procedure Committee, Charles Walker MP, has described as a “corrupt” and “shambolic” system when it comes to hearing Private Members Bills (PMBs) in Parliament. Walker has described how ’98 percent’ of PMBs are actually “government handout bills,” outsourced to backbench MPs with full departmental support and the promise of sufficient Parliamentary time so that they reach statute. This allows the government the flexibility to make amendments to its legislative agenda, or disassociate itself from more controversial proposals that it nevertheless wishes to see discussed. The result of such practices, however, is that items such as the Negligence and Damages Bill are pushed down the agenda.  When due to reappear in Parliament on the 22^nd of January, the Bill was listed behind eight other PMBs that were accorded priority over it. The result was there was little chance that the Bill’s second reading would be heard. The identical scenario produced itself on the 16^th of April 2016 when the Bill was once again up for second reading. The 2015-2016 parliamentary year thus reached its end without the Bill receiving a ‘carry over’ motion for it to continue to receive consideration in the 2016-2017 sitting. For all intents and purposes therefore, the Bill has been shelved.

Theresa May has promised a government that will work not for the few, but for the many. Changes in public attitudes towards the mentally ill mean that the latter are no longer treated as a group apart from society, but rather as an increasingly recognised part of the body politic. If May really wishes to lay claim to the social interventionist legacy of the Victorian reformer Joseph Chamberlain, she would be well advised to address one of the law’s most entrenched injustices. It is time that the mentally injured are recognised by our courts.