Negligently Caused Psychiatric Harm: Recovering Principle and Fairness after the Alcock-Up at Hillsborough
| Author | Jonathan Patterson |
| Position | University of Southampton |
| Pages | 23-35 |
[2016] Southampton Student Law Review Vol.6!
23!
Negligently Caused Psychiatric Harm:
Recovering Principle and Fairness after the Alcock-Up at
Hillsborough
Jonathan Patterson
University of Southampton
Abstract
This article argues that the law concerning pure psychiatric harm caused by
negligence has been in a state of disrepair since the decision in Alcock. It is
contended that the present unsatisfactory situation must be ameliorated in order to
give rise to a principled and fair law. Suggestions that the courts should refuse to
recognise psychiatric harm as actionable damage are dismissed as unjust and
unnecessary. Instead, this article suggests that legislative reform is the best solution
and can be achieved without opening the floodgates. Recommendations are made to
remove the unprincipled and arbitrary distinctions between primary and secondary
victims and the requirement for sudden shock, as well as continuing to use expert
medical evidence to help determine causation for psychiatric injury. This article
concludes that implementing such changes would lead to a fairer and more balanced
situation whereby deserving claimants have a greater chance of succeeding in their
actions and, owing to the duty of care requirements, tortfeasors are not subjected to
limitless liability.
Introduction
he courts have developed the law on psychiatric illness ever since it was first
established that psychiatric harm caused by negligence could give rise to
actionable damage.1 The current approach has been greatly maligned for its
unfairness since the Hillsborough Stadium disaster.2 Despite proposals by the Law
Commission almost two decades ago,3 Parliament has opted not to introduce
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1 Dulieu v White & Sons [1901] 2 KB 669 (HC) 675 (Kennedy J). The plaintiff, a preg nant barmaid,
prematurely gave birth after the shock of seeing an out of control horse and cart crash through a
window of the pub where she was working. She was awarded damages for psychiatric harm because,
though it did not eventuate, her physical injury was foreseeable as her shock arose “from a reasonable
fear of immediate personal injury”.
2 On 15 April 1989, at an FA Cup semi-final between Liverpool and Nottingham Forest, South
Yorkshire Police negligently directed an excessively large number of Liverpool supporters to
Hillsborough’s West Stand. The overcrowding caused a crush that ultimately led to 96 deaths and 766
non-fatal injuries. Relatives of those injured at Hillsborough – parents, siblings and grandparents –
and fiancés were unsuccessful in their claims for psychiatric harm in Alcock v Chief Constable of
South Yorkshire Police [1992] 1 AC 310 (HL).
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