Reforms proposed for psychological harm

While it is possible to claim compensation for some psychological injuries through the Courts in England and Wales, an individual's ability to do so is restricted.

Innocent bystanders, for example, may find it hard to claim for conditions such as post-traumatic stress disorder after witnessing a traumatic event if they were themselves not physically injured in the incident.

A Private Member's Bill, known as The Negligence and Damages Bill 2015-16, aims to reform the rules. If passed into law, the bill could radically transform the ability to make a psychological injury claim where no physical harm has occurred.

Current Law: The Alcock Test

Alcock v Chief Constable of South Yorkshire Police (1992) laid down the current law in the immediate aftermath of the 1989 Hillsborough disaster.

In the Alcock case, relatives of deceased Hillsborough victims brought a claim against South Yorkshire Police when they developed psychological illnesses after witnessing the incident, even though they were not physically injured in the event.

The House of Lords dismissed their claims. For bystanders to succeed in a claim for psychiatric illness, they must meet all the following criteria:

  • They must share close ties of love and affection with the person involved in the incident. Spousal and parent-child relationships will automatically satisfy this condition. Others relatives must prove the strength of their relationship.
  • They must have witnessed the event with their own unaided senses, and not on live or recorded television.
  • They must have been in close proximity to the scene or its immediate aftermath.
  • They must have suffered a recognised psychiatric injury as a result of the "sudden shock."

Criticisms of Alcock

The Alcock test has been widely criticised on the basis that it is unduly restrictive.

In particular, the test prohibits claims for psychiatric illness that may develop over a period of time, rather than as the result of a "sudden shock".

The test also fails to recognise the close relationship that may exist between friends or between distant family members.

Summary of the Negligence and Damages Bill

The Negligence and Damages bill would change the current law in two ways:

  • Relationships between siblings; aunts, uncles, nephews and nieces; grandparents and grandchildren; cousins; friends and colleagues would be presumed to satisfy the "close ties of love and affection" test.
  • The "close proximity" and "sudden shock" requirements would be abolished, since it is now understood that psychiatric illnesses can develop weeks or months after the event even if the person was not physically present at the scene.

In every case, it will still be necessary to prove a recognised psychiatric injury as the result of negligence.

If enacted, these reforms could significantly extend the number of claimants who could potentially claim damages for psychological harm.

Will the reforms improve the law?

Most commentators agree that reform in the area of psychological injury claims is long overdue.

Attitudes towards psychological injury have changed significantly in the last 25 years. Medical provision for the diagnosis and treatment of psychological harm has improved, and affected individuals are not longer expected to suffer in silence while maintaining a "stiff upper lip".

However, certain aspects of the bill could be contentious.

The presumption, for example, that all professional and social relationships are based on close ties of love and affection may defy logic for some members of Parliament. A requirement that non-family members prove the strength of their relationships is expected to form part of the debate.

The Bill is scheduled to have its second reading in the House of Commons on 11 March 2016.

Gaynor Haliday, Legal researcher

Gaynor Haliday, Legal researcher