‘Nervous shock’ and the Hillsborough disaster: injustices remain
15th Nov 2016
On 15 April 1989, 96 Liverpool FC supporters were crushed to death while attending an FA Cup semi-final at Hillsborough Stadium, Sheffield. Last week, after a two-year hearing, a jury held that the 96 had been ‘unlawfully killed’, and that their deaths were directly attributable to the serious failures of the South Yorkshire Police who had been in charge of crowd control at the stadium.
This finding overturned a 1991 finding of ‘accidental death’, which had been reached notwithstanding the 1989 preliminary report of Lord Justice Taylor, which had been highly critical of the police’s role in the disaster.
Central to last week’s finding was the admission in cross-examination by David Duckenfield, the police officer in command on the day, that he had lied when he told the Football Authority on the day of the disaster that drunken, ticket-less Liverpool fans had forced open an exit gate, thereby causing the fatal crush. 27 years after the event, Duckenfield admitted that, due to his own incompetence and inexperience, he had ordered the exit gate to be opened.
The finding was a great vindication for the families and friends of the dead who, along with the loss of their loved ones, were themselves victims of an organised cover-up and smear campaign by the South Yorkshire Police. This smear campaign — aggressively supported by sections of the tabloid press (most infamously, The Sun) — was designed to shift blame for the disaster onto the Liverpool fans and even the dead themselves.
Despite last week’s finding, various injustices remain for the family and friends of the Hillsborough victims. One such injustice is the lack of legal recognition for the severe psychiatric injuries that many of them suffered as a result of their seeing and/or hearing about the disaster. At law, this type of psychiatric condition is often called ‘nervous shock’, and it is an area where Australian courts have been far more realistic and compassionate than their British counterparts.
‘Nervous shock’ in Britain and Australia
‘Nervous shock’ is a form of psychiatric injury which arises where a person witnesses or becomes aware of a distressing incident or circumstances (for example, someone known to that person being killed or seriously injured).
In Alcock v Chief Constable of South Yorkshire Police  1 AC 310 (Alcock), family and friends of the Hillsborough victims sued the South Yorkshire Police in negligence for their psychiatric injuries. The plaintiffs had not been present at Hillsborough, rather, they had watched the disaster unfold on television.
The House of Lords Judicial Committee found that the South Yorkshire Police did not owe a duty of care to the plaintiffs, and therefore the claim in negligence had to fail.
It was the House of Lords’ view that for a ‘nervous shock’ injury to be recognised at law, the claimant must physically perceive the ‘shocking event’ with his or her own senses, either in its happening or in the immediate aftermath. The plaintiffs – who were not physically at Hillsborough – did not satisfy this requirement.
Additionally, it was held that ‘nervous shock’ required ‘close ties of love and affection’ to exist between the claimant and the victim—defined by the House of Lords’ as parent/child, spouses and fiancés. Other categories such as civil partners, siblings, friends and colleagues were not recognised.
By contrast, since the High Court of Australia’s ruling in Jaensch v Coffey  155 CLR 549, Australian law has held that psychiatric injury may be recognised and compensated in circumstances where the claimant was not physically proximate in time or place to the distressing incident. The mode by which the claimant learns the distressing news (for example, television or telephone) appears to be of limited if any importance under Australian law.
The focus in Australian law is on whether the wrongdoer ought to have reasonably foreseen that a person such as the claimant could suffer a recognised psychiatric injury by reason of the wrongdoing. This explains the less restrictive class of claimants recognised in Australian law—there is no requirement for ‘close ties of love and affection’ between the claimant and the victim.
Despite ongoing campaigns for the definition to be broadened, Alcock remains the law in Britain regarding ‘nervous shock’. It may be hoped that the events of the past week will provide further impetus to the law reform push to bring British law in this area in line with countries such as Australia.
David Schwartz is a Senior Associate at Adviceline Injury Lawyers. He specialises in common law and statutory benefits claims for injured workers. David currently sits on the editorial committee of Precedent, the bi-monthly journal of the Australian Lawyers Alliance.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).