Association of Personal Injury Lawyers
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Blog: A Miscarriage of Justice

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A Miscarriage of Justice
Deborah Evans | 05 Mar 2014

The true tragedy of Hillsborough unfolded when the web of deceit, lies and intricate cover up were finally exposed and laid bare for all to see. Justice is something that lawyers hold dear, and it is clear that a great injustice has been perpetrated. However, did you know that the events of Hillsborough helped to shape the law? That decisions were made in court that still impact –we think unfairly - on cases today?

Where an important decision is made in a case it is known as a ‘precedent’ – a new piece of law that is then applied to similar circumstances in other cases. Such case law is always set within the context of the case in which it is heard – what happened, whose fault was it, and do these people deserve to be compensated? The events of Hillsborough set the law on‘psychiatric harm’, sometimes known as ‘nervous shock’ which is the trauma that you suffer when you witness something truly dreadful happen in front of your eyes - such as a family member dying in front of you in unspeakable circumstances. These memories are burnt irrevocably on the brain, and have a huge impact on a family member’s ability to move forward and live a normal life. This is more than just grief or emotion – this is about family members who end up with a mental condition – whether it is through anxiety, depression,or other serious problems.

At the time, the decision was that only those in the direct proximity of those who died or were severely injured could be compensated. So, a father who watched his son die first hand, and suffers lifelong depression as a result can be compensated, but the distraught mother who hears of the events via the television or the radio, could not be compensated even if she ends up with permanent mental damage as a result of the event.  

This is the rule that is now applied in all cases in which psychiatric harm affects a family member. We think this decision is arbitrary and unfair – if in both cases, the resulting trauma occurred needlessly at the hands of another, shouldn't they both be entitled to compensation?

The decision was based on the facts in the case as they were presented at the time. Facts we now all know to be false. Knowing what we now know about Hillsborough, we can only wonder if the case would have resulted in a different decision if presented with the true facts. It is impossible to answer this hypothetical question. The Law Commission raised its concerns about the arbitrary nature and unfairness of the current decision as far back as 1998, and yet still the law stands. The Law Commission thought it wrong to exclude those family members who were not in close proximity – recognising that those with close ties of love and affection who also suffer a mental illness as a result of the death, injury or imperilment of a family member should be compensated. They thought the law too arbitrary.

APIL calls for the law on psychiatric harm to be reviewed.  It is unfair, unjust and is simply not the way we should treat people who have already been to hell and back.

Past blog entries

A ‘no-fault’ system for clinical negligence claims will not work for anyone, 12 Apr 2022
We need peers to flex their political muscles again, 28 Mar 2022
How to solve a problem like e-scooters, 17 Feb 2022
Accident and negligence: what’s the difference and why does it matter? , 02 Aug 2021
Patient safety problems risk waning public confidence in the NHS , 20 May 2021
Consumers will not benefit from Do-it-Yourself whiplash reforms, 28 Jan 2021
Effects of a change in the discount rate: what happens when a review is expected? , 16 Dec 2020
Three per cent drop in premiums does not reflect massive insurer savings, 09 Nov 2020

About this blog

Deborah Evans

I'm Deborah Evans, APIL's Chief Executive Officer. I shall be using this blog to keep you informed about campaigning and political work carried out by APIL.