Why proposed reforms do little to fix problem with compensation for trauma

(Corrected article by adding Craig Purshouse as one of the authors of the article.)

Although mental illnesses can be every bit as devastating as physical injuries, for a long time the courts in England have significantly restricted who can claim compensation for negligently inflicted psychiatric harm. It’s harder to get compensation for, say, post-traumatic stress disorder than it is for a physical injury such as a broken leg.

A Private Member’s bill introduced by the MP for Middlesbrough, Andy McDonald, aims to relax these rules. The Negligence and Damages bill 2015-16 will have its second reading in the House of Commons on January 22. It could radically transform English negligence law.

Hillsborough legacy

The current rules were established after the Hillsborough disaster in 1989. In the Alcock case, 16 relatives of Hillsborough victims sued South Yorkshire Police when they developed psychiatric illnesses after witnessing the disaster. The House of Lords dismissed their claims.

English courts only award damages to people who have suffered psychiatric injuries after witnessing shocking events when three conditions are met.

First, they must share “close ties of love and affection” with the victim of the defendant’s negligence. Spousal and parent-child relationships will automatically satisfy this condition. All others must be proved to have close ties. Second, the claimant must have been in “close proximity” to the scene of the accident or its immediate aftermath. Third, the claimant’s psychiatric injury must result from a “sudden shock”.

The law in this area is controversial due to the arbitrary nature of the Alcock rules. The 2015-16 bill is the latest attempt to implement reform of this area of the law.

The bill

The McDonald bill would presume that relationships between siblings; grandparents and grandchildren; aunts, uncles, nieces and nephews; cousins; friends and colleagues all entail close ties of love and affection. It would also abolish the “close proximity” and “sudden shock” requirements. These reforms would remove many of the obstacles which prevent people with psychiatric injuries recovering damages.

If the bill’s provisions had been in force at the time of the Hillsborough disaster, it is likely that many of the Alcock claimants would have won damages. Set against the backdrop of the Hillsborough inquests and the ongoing justice campaign, the 2015-16 bill seems both timely and important.

But it’s doubtful that these reforms will improve the law. The presumption that collegiate relationships are based on close ties of love and affection is likely to raise eyebrows. Relationships between colleagues typically develop in professional contexts and are not necessarily underpinned by “love and affection”. Also, two people can be “colleagues” because they work for the same company or institution but they may never have met.

The bill’s presumption about friendships could also be contentious. Although there’s no doubt that some friendships are underpinned by genuine affection, the definition of friendship is elastic. For example, Facebook “friendships” can be rather superficial and are often based on tenuous connections. The idea that these artificial friendships have “close ties” defies logic. Against this backdrop, a requirement that friends and colleagues prove the strength of their relationships seems rather sensible.

Imagine that Poppleton University carelessly caused an explosion in its chemistry department. Tom, a chemistry lecturer, was fatally injured. Dick, a passer-by, saw the blast and tried in vain to save Tom’s life. Harry, a lecturer in the English department who’d never met Tom, learnt about the incident the next day via email. If both Dick and Harry suffered psychiatric injury as a result of Poppleton’s carelessness, the law, if this Bill is enacted, would look more favourably upon Harry’s claim due to his collegiate relationship with Tom. This is despite the fact that Dick, who witnessed the explosion and attempted to save Tom’s life, arguably has a stronger moral case for damages than Harry. This can hardly be described as a coherent result.

Reform of the law in this area is long overdue, but it seems that the 2015-16 bill risks making the rules even more illogical and unfair than they already are. It’s hard to avoid the conclusion that major aspects of this bill will need to be rethought before it reaches the statute books.

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.

John Fanning, Lecturer in Law, University of Liverpool

Craig Purshouse, Lecturer in Law, University of Liverpool

This article was originally published on The Conversation. Read the original article.