The Hillsborough disaster: how it has changed UK healthcare law. Part 1 Richard Griffith
Key words: Psychiatric injury ■ Negligence ■ Primary victim ■ Secondary victim ■ Rescuers
T
he law of negligence has long recognised that individuals who breach their duty of care by carelessly harming another must pay compensation for the harm caused. Such harm is not limited to physical injury. Often there is also a psychiatric injury that results from trauma that can be as debilitating as any physical harm. Yet, while compensation in relation to claims for physical harm is well-established, the courts have been more reluctant to allow claims for psychiatric injury. Until the Hillsborough football stadium disaster, the law in relation to psychiatric injury developed piecemeal and cautiously with the courts weary of opening the floodgates to claims not just from the immediate victim but also from onlookers to the tragic scene.
Fear of injury to oneself Delieu v White & Sons [1901] was the first successful claim for psychiatric injury largely because it manifested itself in physical symptoms when a pregnant barmaid feared for her life after a dray horse crashed through the bar where she worked. She claimed for psychiatric injury as a result and prematurely Richard Griffith is Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University, Wales
536
gave birth soon after. In awarding damages, the judge stressed that claims should be limited to circumstances where the person was in reasonable fear of immediate personal injury to themselves.
Fear of injury to a close relative The limitation introduced in Delieu was eventually extended to include fear of injury to close relatives in Hambrook v Stokes [1925] when a mother suffered psychiatric injury as a result of seeing a runaway lorry careering down a hill towards her daughter playing in the garden. She ran out to a loud crash to discover the child had sensibly run away from the area and was safe. Again the physical manifestation of the psychiatric symptoms swayed the court. The mother later miscarried and eventually died.
Forseeability of psychiatric injury As medical knowledge of mental health became more developed, the law reluctantly began to consider claims for psychiatric injury as a discrete form of harm. However, fear of a flood of claims lead the courts to place controls on when a duty of care would be owed. In Bourhill v Young [1943], a woman heard the impact of a serious accident behind the tram she was alighting from and later walked over to see what had happened and suffered a psychiatric injury as a result of what she saw. Her case failed as the court held
Proximity to the incident The Hillsborough football stadium disaster gave the courts and eventually the House of Lords the opportunity to consider a wide range of claims for psychiatric injury (Alcock v Chief Constable of South Yorkshire [1992]). Ninety-six people were crushed to death at the stadium with the events unfolding on live television and radio. Many of the relatives in the ground and watching and listening on TV and radio along with other spectators and rescuers suffered psychiatric illness as a result of the disaster and many sought to recover damages for nervous shock from the police. However, the House of Lords largely rejected the claims in a test case of 16 victims on the grounds that those who had witnessed the scenes on TV and radio were too remote from the incident and that the pictures had not shown any detail sufficient to identify victims. A father of one victim who drove to Sheffield from Liverpool only to find his son had been killed in the tragedy when he identified his body in a makeshift mortuary 9 hours later also failed in his claim because it was held that he had not come across the immediate aftermath of the event (Alcock v Chief Constable of South Yorkshire [1992]). Relatives in other parts of the stadium who had witnessed the disaster unfolding were also largely unsuccessful with the courts rejecting claims from brothers, brothers-in-law, uncles, grandparents and friends of the deceased as there was no proof of the required bond of love or affection to establish a duty of care. The sense of injustice arising from the cases were heightened by the High Court initially awarding compensation to police officers who suffered psychiatric injury as a result of watching the disaster unfold because they had special status as rescuers (White v
© 2014 MA Healthcare Ltd
Abstract
The 25th anniversary of the Hillsborough Stadium disaster was commemorated this year with memorial services and a toll of bells to remember the 96 who died that day. Their legacy is largely seen in safe, modern, all-seat stadia but it endures beyond football. Court cases resulting from the aftermath of the tragedy have helped shape healthcare law in the UK and in a short series of articles Richard Griffith highlights the impact the Hillsborough disaster has had, beginning with the development of the law in relation to psychiatric injury arising from another’s negligent act.
she was outside the area of impact and was a complete stranger to the motorcyclist. They also held that as a pregnant woman she was more susceptible to shock than a person of customary phlegm or normal fortitude who would not have been affected by the aftermath of the accident.
British Journal of Nursing, 2014, Vol 23, No 10
British Journal of Nursing. Downloaded from magonlinelibrary.com by 217.112.157.007 on April 4, 2016. For personal use only. No other uses without permission. . All rights reserved.
LEGAL Chief Constable of South Yorkshire [1999] 1 All ER 1).
the events and not in the zone of danger are not primary victims.
Primary and secondary victims
Secondary victims
General criticism of Alcock v Chief Constable of South Yorkshire [1992] led the House of Lords to set out the law in relation to psychiatric injury. They concluded that there were two distinct types of victim in cases of psychiatric injury—namely, primary and secondary victims, and different rules applied in each case.
Secondary victims are those who are not directly involved in a negligent incident but are witnesses or mere bystanders. The courts continue to seek to control liability by imposing rules that restrict the imposition of a duty of care to prevent a perceived flood of claims. Just as they did following the Hillsborough disaster. To succeed, secondary victims must: ■■ Not be abnormally susceptible to psychiatric illness—this is tested by asking whether a person of normal fortitude would have been shocked by the incident and takes account of the relationship between the people directly affect by the incident and secondary victim (Bourhill v Young [1943]) ■■ Have suffered psychiatric harm that occurred through shock—Allin v City & Hackney HA [1996] ■■ Be in physical proximity to the accident or its aftermath—that is, be present at the scene of the accident or arrive in the immediate aftermath of the death or injury occurring (Alcock v Chief Constable of South Yorkshire [1992]) ■■ Have had a close personal or familial relationship with the accident victim. The
Primary victims Primary victims are those who are directly involved in the incident. A person will be recognised as a primary victim if they can satisfy one of four conditions: ■■ The defendant should have reasonably foreseen that the victim might suffer personal injury as a result of their negligence —for a primary victim, it is not necessary to consider whether psychiatric injury was foreseeable. It is enough that an injury of some kind is foreseeable (Page v Smith [1995]) ■■ The victim has a reasonable fear of personal injury—it is unnecessary to ask, as a separate question, whether a psychiatric injury was foreseeable ■■ The victim is an involuntary participant in the negligent act—Dooley v Cammel Laird [1951] ■■ They are rescuers—at one time rescuers could claim for what they had witnessed as the law did not want to discourage people from helping the victims of accidents. However, the rule for rescuers was changed by the House of Lords in an appeal to White v Chief Constable of South Yorkshire [1999], a case brought by police officers present at the Hillsborough disaster. A rescuer is now only a primary victim if they enter the zone of danger. Rescurers who are onlookers to
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 Allin v City & Hackney HA [1996] 7 Med LR 167 Bourhill v Young [1943] AC 92 Delieu v White & Sons [1901] 2 KB 669 Dooley v Cammel Laird [1951] 1 Lloyd’s Report 271 Hambrook v Stokes [1925] 1 KB 669 Page v Smith [1995] 2 WLR 644 White v Chief Constable of South Yorkshire [1999] 1 All ER 1
n Secondary victims continue to be subject to judicial controls that limit claims by requiring the person to be of normal fortitude; have received the psychiatric injury through a shock to the senses; have been in close proximity to the incident or its immediate aftermath; and have a bond of love and affection with the person involved in the incident
n
Includes simple strategies to gain the information-seeking skills necessary to get you started
Fundamental Aspects of Finding and Using Information
Barbara Freeman and David Thompson
© 2014 MA Healthcare Ltd
Conflict of interest: none
n Primary victims may sue for psychiatric injury in the same way as any other personal injury under the law of negligence
About the book
n
The aftermath of the Hillsborough football stadium disaster continues to influence the law relating to claims for psychiatric injury. As a result of cases arising from Hillsborough the courts now accept that claims for psychiatric injury are to be regarded as the same as claims for any other form of personal injury under the law of negligence. However, for secondary victims who suffer psychiatric harm as a result of witnessing a horrific negligent incident, the over-cautious approach established in the post-Hillsborough case of Alcock v Chief Constable of South BJN Yorkshire (1992) persists.
n A claim for damages for psychiatric injury requires that person be suffering from a recognised mental health problem
There is a vast amount of information in books, journals and (not least) electronic format on the internet. So how do we manage the vast amount of information at our fingertips? How can we find out which of those 130 million hits are relevant, valid and reliable? The problem we have as health care workers is not the lack of information on which to inform our practice, but the fact that there is so much information from so many different sources. A significant part of all health care professionals’ training is now built around how to find information, evaluate the vast variety of data bases, access on line journals and generally handle the 130 million hits that we often get when looking for information. This book aims to show that finding and using good quality information is a lot less difficult than you might think. Knowing how to use the resources available to you via libraries and the internet efficiently brings much quicker, and better, results than trying to find information in a hit and miss kind of way, and does not require advanced IT skills. Just follow the simple strategies outlined in this book and you will gain the basic information-seeking skills that are all you need to get started. As you become more confident, your ability to evaluate sources will develop too. You will surprise yourself – not just by finding information, but by starting to ask yourself just how good that information is.
The text will enable any student to tackle all manner of assignments with confidence and success.
Conclusion
Key points
Fundamental Aspects of Finding and Using Information n
courts accept the relationship between a parent and child or husband and wife as a close personal relationship. Other family relationships are closely scrutinised by the courts and require proof of a bond of love.
Fundamental Aspects of
Finding and Using Information
A guide for students of nursing and health Barbara Freeman and David Thompson
Simple and jargon-free text explainingAbout howthe authors ISBN-13: 978-1-85642-369-4; 234 x 156 mm; Barbara Freeman, BA MCLIP, to access and utilise the information needed paperback; 150 December was Campus Librarian at thepages; Charles Frearspublication Library at De Montfort University, Leicester from 1986 to 2008. She has been closely involved in teaching and supporting nursing for the successful completion of 2008; £19.99 students throughout this period. David Thompson, BA MCLIP, has extensive library experience in both local undergraduate-level assignments. sectors. government and academic More recently he has been based at Charles Frears Library, and in 2008 succeeded Barbara Freeman as Campus Librarian.
Order your copies by visiting www.quaybooks.co.uk or call +44(0)1722 716 935 Other titles in the Fundamental Aspects of Nursing
British Journal of Nursing, 2014, Vol 23, No 10
Research for Nurses Transcultural Nursing Children’s and Young People’s Nursing Procedures Pain Assessment and Management Nursing Adults with Respiratory Disorders Caring for the Acutely Ill Adult Community Nursing Caring for the Person with Dementia
537 Barbara
Series Editor: John Fowler
series:
Complementary Therapies for Healthcare Professionals Gynaecology Nursing Adult Nursing Procedures Palliative Care Nursing Tissue Viability Nursing Women’s Health Men’s Health Legal, Ethical and Professional Issues in Nursing
British Journal of Nursing. Downloaded from magonlinelibrary.com by 217.112.157.007 on April 4, 2016. For personal use only. No other uses without permission. . All rights reserved.
Key words: Psychiatric injury ■ Negligence ■ Primary victim ■ Secondary victim ■ Rescuers
T
he law of negligence has long recognised that individuals who breach their duty of care by carelessly harming another must pay compensation for the harm caused. Such harm is not limited to physical injury. Often there is also a psychiatric injury that results from trauma that can be as debilitating as any physical harm. Yet, while compensation in relation to claims for physical harm is well-established, the courts have been more reluctant to allow claims for psychiatric injury. Until the Hillsborough football stadium disaster, the law in relation to psychiatric injury developed piecemeal and cautiously with the courts weary of opening the floodgates to claims not just from the immediate victim but also from onlookers to the tragic scene.
Fear of injury to oneself Delieu v White & Sons [1901] was the first successful claim for psychiatric injury largely because it manifested itself in physical symptoms when a pregnant barmaid feared for her life after a dray horse crashed through the bar where she worked. She claimed for psychiatric injury as a result and prematurely Richard Griffith is Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University, Wales
536
gave birth soon after. In awarding damages, the judge stressed that claims should be limited to circumstances where the person was in reasonable fear of immediate personal injury to themselves.
Fear of injury to a close relative The limitation introduced in Delieu was eventually extended to include fear of injury to close relatives in Hambrook v Stokes [1925] when a mother suffered psychiatric injury as a result of seeing a runaway lorry careering down a hill towards her daughter playing in the garden. She ran out to a loud crash to discover the child had sensibly run away from the area and was safe. Again the physical manifestation of the psychiatric symptoms swayed the court. The mother later miscarried and eventually died.
Forseeability of psychiatric injury As medical knowledge of mental health became more developed, the law reluctantly began to consider claims for psychiatric injury as a discrete form of harm. However, fear of a flood of claims lead the courts to place controls on when a duty of care would be owed. In Bourhill v Young [1943], a woman heard the impact of a serious accident behind the tram she was alighting from and later walked over to see what had happened and suffered a psychiatric injury as a result of what she saw. Her case failed as the court held
Proximity to the incident The Hillsborough football stadium disaster gave the courts and eventually the House of Lords the opportunity to consider a wide range of claims for psychiatric injury (Alcock v Chief Constable of South Yorkshire [1992]). Ninety-six people were crushed to death at the stadium with the events unfolding on live television and radio. Many of the relatives in the ground and watching and listening on TV and radio along with other spectators and rescuers suffered psychiatric illness as a result of the disaster and many sought to recover damages for nervous shock from the police. However, the House of Lords largely rejected the claims in a test case of 16 victims on the grounds that those who had witnessed the scenes on TV and radio were too remote from the incident and that the pictures had not shown any detail sufficient to identify victims. A father of one victim who drove to Sheffield from Liverpool only to find his son had been killed in the tragedy when he identified his body in a makeshift mortuary 9 hours later also failed in his claim because it was held that he had not come across the immediate aftermath of the event (Alcock v Chief Constable of South Yorkshire [1992]). Relatives in other parts of the stadium who had witnessed the disaster unfolding were also largely unsuccessful with the courts rejecting claims from brothers, brothers-in-law, uncles, grandparents and friends of the deceased as there was no proof of the required bond of love or affection to establish a duty of care. The sense of injustice arising from the cases were heightened by the High Court initially awarding compensation to police officers who suffered psychiatric injury as a result of watching the disaster unfold because they had special status as rescuers (White v
© 2014 MA Healthcare Ltd
Abstract
The 25th anniversary of the Hillsborough Stadium disaster was commemorated this year with memorial services and a toll of bells to remember the 96 who died that day. Their legacy is largely seen in safe, modern, all-seat stadia but it endures beyond football. Court cases resulting from the aftermath of the tragedy have helped shape healthcare law in the UK and in a short series of articles Richard Griffith highlights the impact the Hillsborough disaster has had, beginning with the development of the law in relation to psychiatric injury arising from another’s negligent act.
she was outside the area of impact and was a complete stranger to the motorcyclist. They also held that as a pregnant woman she was more susceptible to shock than a person of customary phlegm or normal fortitude who would not have been affected by the aftermath of the accident.
British Journal of Nursing, 2014, Vol 23, No 10
British Journal of Nursing. Downloaded from magonlinelibrary.com by 217.112.157.007 on April 4, 2016. For personal use only. No other uses without permission. . All rights reserved.
LEGAL Chief Constable of South Yorkshire [1999] 1 All ER 1).
the events and not in the zone of danger are not primary victims.
Primary and secondary victims
Secondary victims
General criticism of Alcock v Chief Constable of South Yorkshire [1992] led the House of Lords to set out the law in relation to psychiatric injury. They concluded that there were two distinct types of victim in cases of psychiatric injury—namely, primary and secondary victims, and different rules applied in each case.
Secondary victims are those who are not directly involved in a negligent incident but are witnesses or mere bystanders. The courts continue to seek to control liability by imposing rules that restrict the imposition of a duty of care to prevent a perceived flood of claims. Just as they did following the Hillsborough disaster. To succeed, secondary victims must: ■■ Not be abnormally susceptible to psychiatric illness—this is tested by asking whether a person of normal fortitude would have been shocked by the incident and takes account of the relationship between the people directly affect by the incident and secondary victim (Bourhill v Young [1943]) ■■ Have suffered psychiatric harm that occurred through shock—Allin v City & Hackney HA [1996] ■■ Be in physical proximity to the accident or its aftermath—that is, be present at the scene of the accident or arrive in the immediate aftermath of the death or injury occurring (Alcock v Chief Constable of South Yorkshire [1992]) ■■ Have had a close personal or familial relationship with the accident victim. The
Primary victims Primary victims are those who are directly involved in the incident. A person will be recognised as a primary victim if they can satisfy one of four conditions: ■■ The defendant should have reasonably foreseen that the victim might suffer personal injury as a result of their negligence —for a primary victim, it is not necessary to consider whether psychiatric injury was foreseeable. It is enough that an injury of some kind is foreseeable (Page v Smith [1995]) ■■ The victim has a reasonable fear of personal injury—it is unnecessary to ask, as a separate question, whether a psychiatric injury was foreseeable ■■ The victim is an involuntary participant in the negligent act—Dooley v Cammel Laird [1951] ■■ They are rescuers—at one time rescuers could claim for what they had witnessed as the law did not want to discourage people from helping the victims of accidents. However, the rule for rescuers was changed by the House of Lords in an appeal to White v Chief Constable of South Yorkshire [1999], a case brought by police officers present at the Hillsborough disaster. A rescuer is now only a primary victim if they enter the zone of danger. Rescurers who are onlookers to
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 Allin v City & Hackney HA [1996] 7 Med LR 167 Bourhill v Young [1943] AC 92 Delieu v White & Sons [1901] 2 KB 669 Dooley v Cammel Laird [1951] 1 Lloyd’s Report 271 Hambrook v Stokes [1925] 1 KB 669 Page v Smith [1995] 2 WLR 644 White v Chief Constable of South Yorkshire [1999] 1 All ER 1
n Secondary victims continue to be subject to judicial controls that limit claims by requiring the person to be of normal fortitude; have received the psychiatric injury through a shock to the senses; have been in close proximity to the incident or its immediate aftermath; and have a bond of love and affection with the person involved in the incident
n
Includes simple strategies to gain the information-seeking skills necessary to get you started
Fundamental Aspects of Finding and Using Information
Barbara Freeman and David Thompson
© 2014 MA Healthcare Ltd
Conflict of interest: none
n Primary victims may sue for psychiatric injury in the same way as any other personal injury under the law of negligence
About the book
n
The aftermath of the Hillsborough football stadium disaster continues to influence the law relating to claims for psychiatric injury. As a result of cases arising from Hillsborough the courts now accept that claims for psychiatric injury are to be regarded as the same as claims for any other form of personal injury under the law of negligence. However, for secondary victims who suffer psychiatric harm as a result of witnessing a horrific negligent incident, the over-cautious approach established in the post-Hillsborough case of Alcock v Chief Constable of South BJN Yorkshire (1992) persists.
n A claim for damages for psychiatric injury requires that person be suffering from a recognised mental health problem
There is a vast amount of information in books, journals and (not least) electronic format on the internet. So how do we manage the vast amount of information at our fingertips? How can we find out which of those 130 million hits are relevant, valid and reliable? The problem we have as health care workers is not the lack of information on which to inform our practice, but the fact that there is so much information from so many different sources. A significant part of all health care professionals’ training is now built around how to find information, evaluate the vast variety of data bases, access on line journals and generally handle the 130 million hits that we often get when looking for information. This book aims to show that finding and using good quality information is a lot less difficult than you might think. Knowing how to use the resources available to you via libraries and the internet efficiently brings much quicker, and better, results than trying to find information in a hit and miss kind of way, and does not require advanced IT skills. Just follow the simple strategies outlined in this book and you will gain the basic information-seeking skills that are all you need to get started. As you become more confident, your ability to evaluate sources will develop too. You will surprise yourself – not just by finding information, but by starting to ask yourself just how good that information is.
The text will enable any student to tackle all manner of assignments with confidence and success.
Conclusion
Key points
Fundamental Aspects of Finding and Using Information n
courts accept the relationship between a parent and child or husband and wife as a close personal relationship. Other family relationships are closely scrutinised by the courts and require proof of a bond of love.
Fundamental Aspects of
Finding and Using Information
A guide for students of nursing and health Barbara Freeman and David Thompson
Simple and jargon-free text explainingAbout howthe authors ISBN-13: 978-1-85642-369-4; 234 x 156 mm; Barbara Freeman, BA MCLIP, to access and utilise the information needed paperback; 150 December was Campus Librarian at thepages; Charles Frearspublication Library at De Montfort University, Leicester from 1986 to 2008. She has been closely involved in teaching and supporting nursing for the successful completion of 2008; £19.99 students throughout this period. David Thompson, BA MCLIP, has extensive library experience in both local undergraduate-level assignments. sectors. government and academic More recently he has been based at Charles Frears Library, and in 2008 succeeded Barbara Freeman as Campus Librarian.
Order your copies by visiting www.quaybooks.co.uk or call +44(0)1722 716 935 Other titles in the Fundamental Aspects of Nursing
British Journal of Nursing, 2014, Vol 23, No 10
Research for Nurses Transcultural Nursing Children’s and Young People’s Nursing Procedures Pain Assessment and Management Nursing Adults with Respiratory Disorders Caring for the Acutely Ill Adult Community Nursing Caring for the Person with Dementia
537 Barbara
Series Editor: John Fowler
series:
Complementary Therapies for Healthcare Professionals Gynaecology Nursing Adult Nursing Procedures Palliative Care Nursing Tissue Viability Nursing Women’s Health Men’s Health Legal, Ethical and Professional Issues in Nursing
British Journal of Nursing. Downloaded from magonlinelibrary.com by 217.112.157.007 on April 4, 2016. For personal use only. No other uses without permission. . All rights reserved.
