The terrible events in the Hillsborough Stadium, now 25 or more years ago, are still with us, as the renewed inquests rehearse the drama of that tragedy. It is still with us in the civil law of personal injuries. Some might say that its impact on that law has also led to untoward consequences.
Following that disaster, involving the loss of so many lives, the parents, spouses and other close relatives of those who lost their lives, some having the horror of seeing what was happening on television, and others being present at the scene, suffered severe shock. Those who tended the victims suffered psychiatric injury. And so in the cases of Alcock v. Chief Constable of South Yorkshire Police  1 AC 310, and Frost v. Chief Constable of South Yorkshire Police  2 AC 455, the House of Lords was faced with the task of deciding who could make claims for the shock and psychiatric injury suffered by so many people. It could not be disputed that it was eminently foreseeable that the deaths of so many in such tragic circumstances would cause enormous shock and distress, not only to those who were present at the same time, but also to those who saw what was happening, albeit on television, or who had to assist in tending the injured and removing the dead.
Faced with this problem, the House of Lords imposed strict control mechanisms to limit what were described as “secondary victim claims”. The limitations which were imposed were not merely that the injury was a recognised psychiatric injury, and was caused by the negligence of the Defendant, but that it was reasonably foreseeable and that the secondary victim was a close relative of, or had a close emotional relationship with the primary victim. Furthermore, injury had to be caused by the shock which was the result of the sudden perception of the death of, or risk to, or injury to the primary victim, and the secondary victim must have been present either at the scene of the accident or involved in the immediate aftermath of the accident which caused the death, and must have perceived the death or risk of injury with his or her own senses. Seeing it on television, even contemporaneous television, would not do.
Since then, there have been numerous efforts by claimants to try to surmount the barrier erected in the Hillsborough cases. The latest is Taylor v. A Novo (UK) Ltd  QB 150. The case arose out of an accident suffered by Mrs Cindy Taylor at work, when a stack of racking boards fell on her, causing injuries to her head and left foot. Three weeks later, apparently making a good recovery from the severe injuries, she suddenly collapsed and died in the presence of her daughter, Crystal. The collapse and death were due to the injuries sustained in the accident. Crystal suffered a severe shock and Post-Traumatic Stress Disorder. There was no doubt that she suffered psychiatric injury as a result of witnessing her mother’s death caused by the negligence of the Defendant. The Judge held that the event which caused the damage was Crystal’s mother’s sudden death and such an injury was a reasonably foreseeable consequence of the Defendant’s negligence. On appeal, the Court of Appeal reversed his decision.
The Court of Appeal recognised that the decision to exclude all save a limited class of claimants who were secondary victims was not a decision of principle, but purely policy. Lord Dyson MR recognised that if Crystal had been present when her mother was injured, and suffered shock and psychiatric illness as a result of seeing that, she would have had a claim, but she could not recover damages for the shock and illness she suffered of seeing her mother’s death, because that was three weeks after the accident.
I find this utterly unsatisfactory and contrary to common sense, but it is a decision reached in loyal obedience to the law as laid down by the House of Lords, and the only way to alter it seems to be by means of an Act of Parliament.
One small loophole is, however, left by the Court of Appeal. In Taylor’s case, the Judge took the common sense view that there were two events: the first being the actual accident, and the second being the foreseeable consequence, three weeks later. He might have approached the position on an alternative basis, namely that the death of Mrs Taylor was part of the aftermath of the accident. The Judge considered this approach, but rejected it as contrary to common sense. The alternative line derives perhaps from North Glamorgan NHS Trust v. Walters  PIQR P232. There, as a result of negligent misdiagnosis, the Claimant’s young son had a major epileptic seizure, leading to coma and irreparable brain damage. The following day, the Claimant was told by a consultant that the brain damage was so severe that he would have no quality of life and she and her husband decided that his life support should be terminated, and he died in her arms about 36 hours after the seizure. She suffered a pathological grief reaction. The Judge held, and the Court of Appeal upheld him, that there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the child, to the dreadful climax when the child died in his mother’s arms. On that basis, that the death was part of a “seamless tale”, the Claimant was held entitled to succeed. Similarly, in Galli-Atkinson v. Seghal  LL.R.Med. 285, where the Claimant’s daughter was killed in a road accident at 7.05pm and the Claimant and her husband saw her dead body in the mortuary at 9.15pm the same day, the Claimant suffered a psychiatric illness. The Court of Appeal, reversing the trial judge, said that the events which constituted the aftermath retained sufficient proximity to the event.
In Taylor v. A Novo, those cases were accepted, and it was recognised that if one could say that the cause of the psychiatric illness was the immediate aftermath of the incident which caused the death, the Claimant could succeed. To that limited extent, claimants have been able to penetrate the barrier created by the Hillsborough cases.
11th April 2014