Should The Rules For Psychiatric Injury Be Changed?

The Association of Personal Injury Lawyers (APIL) is calling for the laws relating to psychiatric injuries to be changed. Laws relating to negligently-inflicted psychiatric injury were first developed after the Hillsborough disaster in 1989 – nearly 25 years ago – and there are a number of hoops and obstacles claimants may have to overcome if they are to receive compensation.

Primary And Secondary Victims

Firstly, they must be either primary or secondary victims. Primary victims are those who were in physical danger at the time of the traumatic incident, whereas secondary victims are those who witness these events but were never under any danger. Secondary victims must meet four criteria – called the Alcock criteria – if they are to demonstrate liability.

They must have a close tie of love and affection, which generally only means children, parents, spouses or fianc├ęs of the victim. This means that unmarried partners and siblings have to prove they had a ‘close tie of affection’ and must prove their relationship to make a claim. APIL said this will see unmarried partners, brothers and sisters forced to “jump through hoops” during a very difficult and traumatic time. They must also have been close to the incident or its immediate aftermath, and must have suffered the psychiatric injury because they witnessed the event.

Directly Witnessing The Incident

Furthermore, they must be a direct witness to the event. This is another particularly contentious element of the law, and caused controversy following the Hillsborough disaster. Parents who were in the stands at the time of the disaster and who saw their child die could claim psychiatric injury compensation, but those who were watching their child die on television were unable to do so. APIL pointed out that since 1989, communications has undergone a revolution, with people frequently talking to their families and loved ones using Facetime or Skype.

Recently, soldier Justin Poole, who was stationed in Southwest Asia, saw his wife Rachel, who was nine months pregnant, being viciously stabbed while talking to her on Facetime. Fortunately, Rachel survived, and their baby girl Isabella was delivered by caesarean section safely, while alleged perpetrator Corey Moss was charged with attempted capital murder. If this happened in the UK, and Justin suffered psychiatric injuries as a result of this crime, he might have been unable to have claimed compensation for these injuries, solely because he was not at home at the time of the crime but was instead communicating through a screen.

APIL is asking the Law Commission to review the laws relating to secondary victims to ensure people who suffer psychological injuries after witnessing a tragedy involving their young ones can receive the compensation they deserve. Psychological injuries could happen to anyone at any time, and there are no iron-cast rules for which people will suffer from this harm when they witness a loved one being injured or killed, or whether or not these injuries are less likely to occur because they saw the incident happen through a screen. The rules should be made more flexible to ensure that people who deserve psychiatric injury compensation can receive it.