In the absence of specific legislation relating to a possible claim for PTSD which the employee alleges was caused while at work, we must turn to the common law for assistance. The tort of negligence is essentially concerned with compensating people who suffer from the careless acts (or sometimes omissions) of others. It does not provide a remedy, however, for everyone who suffers loss. Negligence liability will only arise where the law provides that the defendant owed the claimant a duty of care (Donoghue v. Stevenson, 1932). In many cases the fact the claimant owes the defendant a duty of care will be beyond argument, for example in the case of the employer and employee relationship. Perhaps what is more problematic is for the employee to prove that his or her employer has breached that legal duty, by falling below the appropriate standard of care, and that it was the employer's negligent act or omission which caused the damage to the employee.
Claims can be made if the damage was psychological, rather than physical, resulting in a psychiatric illness. The courts have, nevertheless, been cautious in awarding compensation for psychiatric damage for several reasons. First, in the past, psychiatric illness or injury was not properly described, so there could be no duty if the type of damage concerned was not recognised. Second, there was a fear that a person making such a claim could actually be faking the symptoms (Hevicane v. Ruane, 1991). Third, there was the 'floodgates' argument, that once one claim was accepted it would lead to amultitude of claims (Victoria Railway Commissioners v. Coultas, 1888). Fourth, the difficulty of assessing the 'injury' in financial terms, although the courts have always seemed to cope with assessing physical injuries. Finally, the difficulty of proving that the defendant's negligent act caused the claimant's psychiatric damage (Bourhill v. Young, 1943).
Notwithstanding initial reservations, the courts are now more willing to recognise that despite the fact the claimant has actually suffered no physical injury, a defendant may be liable for the 'pure' psychiatric injury caused to the claimant (Page v. Smith, 1996).
That said there appears to be two important aspects to determine whether liability should be imposed. First, the injury alleged must be a recognised psychiatric disorder that is more than a claim purely for a temporary upset such as grief or distress or fright from which we all suffer at times (Hinz v. Berry, 1970; cf. Tredget v. Bexley Health Authority, 1994). Examples of psychiatric illness would include: clinical depression, personality changes, PTSD. Second, the person claiming the psychiatric harm must fall within a category accepted by the courts as being entitled to claim. This latter restriction may present difficulties for the 'professional' rescuer, such as a police officer, as we shall see shortly.
Those who have duties of care, for example employers, will know, or be able to discover, those to whom they owe a duty, their employees. But they do not, similarly, know who will come to the rescue if there is a problem for which they are responsible. But it has been established that a rescuer will be able to recover compensation when suffering from psychiatric harm. However, such cases can be largely explained on the basis that the rescuer was a primary victim and as such at risk of being injured (Chadwick v. British Railways Board, 1967; cf. Duncan v. British Coal, 1990). Usually only professional rescuers will be able to claim if present at the scene of the accident. Such was the case in Hale v. London Underground (1992) where a fireman claimed successfully for PTSD he suffered following the Kings Cross fire. However, claims for psychiatric damage suffered at the scene of a disaster will not be successful in the case of those people who are not directly involved in the rescue but are merely described as bystanders (McFarlane v. E.E. Caledonia, 1994).
The House of Lords, the most senior appeal court in the UK, does appear to be hostile towards claims by the emergency services for psychiatric injury suffered while in the course of their duty in the aftermath of a disaster. In Alcock v. Chief Constable of South Yorkshire (1992) the House of Lords had the opportunity to review the law in this area and to identify restricted circumstances in which a claim can succeed. This was the Hillsborough football disaster. A number of claims for psychiatric harm were made from a variety of people. Some were present at the incident and others had family or friends at the football grounds. The House of Lords refused all claims and identified factors that must be present in determining whether an individual could recover compensation. These were: the proximity in time and space to the negligent incident; the proximity of the relationship with the party who was a victim of the incident (this will depend on the existence of a close tie of love and affection with the victim), or presence at the scene as a rescuer and the cause of the psychiatric harm being a result of witnessing or hearing the horrifying event or the immediate aftermath.
The Alcock (1992) case identifies the classes of claimant who will be successful. Primary victims are those present at the scene and themselves injured—this injury can be either physical, psychological or both (McFarlane v. E.E. Caledonia, 1994). Alternatively, it would cover those who were present at the scene and their own safety was threatened (Dulieu v. White & Sons, 1901). Secondary victims are those who are not primary victims of the accident but who are able to show a close enough tie of 'love and affection' to a victim and witnessed the accident or its immediate aftermath.
Such ties would include parents and children. Rescuers may well be primary victims and themselves at risk as in the case of the fireman who suffered from PTSD as a result of the Kings Cross fire.
A fairly recent decision indicates that the courts continue to be hostile towards claims made by the emergency services, who merely deal with the aftermath of a disaster in the course of their duty, and who are later psychologically harmed. In White v. Chief Constable of South Yorkshire (1998) police officers who claimed to have suffered PTSD following their part in the rescue operation at the Hillsborough disaster were denied a remedy by the House of Lords (by a majority). The reasons appear to be two-fold. First, the police officers did not actually put themselves at risk (i.e. primary victims); these police officers dealt with the dying and injured on the pitch. Second, public policy dictates that it would be unfair for them to recover damages when relatives of the victims could not. The House of Lords added that police officers at Hillsborough were not entitled to damages for psychiatric illness, merely by virtue of their status as employees of the negligent defendant. Nor were those who merely assisted in the aftermath to be seen as rescuers.
Lord Steyn, referring to the policy argument in White (1998), felt that it was a 'weighty moral argument: the police perform their duties for the benefit of all of us' (p. 1545). He felt the difficulty was two-fold. First, the pragmatic rules governing the recovery of damages for pure psychiatric harm do not at present include police officers who sustain such injury while on duty. If such a category were to be created by judicial decision, he said, the new principle would be available in many different situations, for example, doctors and hospital workers who are exposed to the sight of grievous injuries and suffering. This is a powerful 'floodgates' argument and the House is thus indicating the importance of keeping some kind of restriction on this area. The second point made by Lord Steyn was that police officers traumatised by such encounters as Hillsborough had the benefit of statutory schemes that permit them to retire on a pension. In this sense, he said, they were already better off than bereaved relatives who were not allowed to recover in the Alcock (1992) case. The White (1998) case altered the position taken in the earlier case of Frost v. Chief Constable of South Yorkshire (1997) where 14 police officers shared £1.2 million damages for the mental trauma of trying to save fans from the crush. The difference in Frost being that the police officers were, in effect, primary victims and in possible danger themselves whereas in the above case they were 'merely' assisting the injured on the pitch and in no direct danger themselves.
Another chapter of the Hillsborough disaster unfolded in March 2001. It was reported that a retired police officer, Mr Long, who claimed he began suffering PTSD nine years after the Hillsborough disaster, received an out-of-court settlement of £330 000. Mr Long helped to rescue fans trapped in the crush on that fateful day. He successfully sued the police on the grounds that he suffered delayed PTSD, his argument being that PTSD did not have to be immediate. This argument was accepted. This case is not dissimilar to the Frost case above in that here, Mr Long had been 'actively involved in rescuing trapped fans' as opposed to assisting with the injured. Nevertheless, such a claim has raised further reaction from the families of victims who were not entailed to claim. While every sympathy is to be given to officers and their families it could be argued, in line with Lords Steyn and Hoffmann, that Mr Long has been given 'appropriate benefits' in the form of an enhanced pension. (See also R v. (1) Joy Madeline Court (2) Dr Ian G Bronks, ex parte Derbyshire Police Authority (1994), where it was held that psychological stress caused as a result of events which occurred in the course of a police officer's work was capable of amounting to an injury. It entitled the police officer to an award ofa pension under the Police Pensions Regulations 1987.)
Calls for reform of the law in this area have made been made amid much criticism. One of the main focuses of criticism (e.g. Stephenson, 2000, p. 250) has been on the severe barriers to recovery placed by the heavy-handed proximity requirements facing secondary victims. These requirements it will be recalled are stated in the Alcock case above. Todd (1999) finds that the law is 'in a dreadful mess' (p. 349). Even Lord Hoffmann in White (1998) said: 'the search for principle in this area of the law has been called off' (p. 1557). The argument now has to be that, if there are to be any further changes to the law in this area, it should be up to Parliament to make those changes and not the judges. The Law Commission (1988), a statutory law reform agency, saw no need for legislation specifically dealing with the entitlement of employees to recover damages for psychiatric illness suffered as a result of death, injury or imperilment of another (paragraph 7.10).
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