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DELAYED PTSD REACTION TO HILLSBOROUGH:

HOW THE HOUSE OF LORDS HANDLES THIS PHENOMENON.

by Gillian Kelly, B.L.*

Martin Long, a former police sergeant who developed symptoms of Post Traumatic Stress Disorder nine years after the Hillsborough disaster in April, 1989, has recently been awarded around £330,000 in an out-of-court settlement with the South Yorkshire Police. Mr. Long suffered a mental breakdown as a result of his rescue operations at Hillsborough.

The concept of psychiatric injury per se is not new. It has been known to military establishments for many years. Each generation has developed its own taxonomy – shell-shock, neurasthenia, war neurosis, and, most recently, post traumatic stress disorder. This last term has achieved common currency having been accorded a diagnostic heading in 1980 by the American Psychiatric Association.[1]

Courts of the common law jurisdictions have also become increasingly aware of the disorder as a valid head of claim in damages for personal injuries. PTSD results from direct or proximate perception of a major tragedy. Symptoms include feelings of alienation, low self-esteem, acute anxiety, and flashbacks and nightmares of the incident. This frequently results in a professional and social dysfunction and sometimes to substance abuse and even violence.

Delayed reaction to a traumatic event, such as that suffered by Mr. Long, is a recognised feature of post traumatic stress disorder, and, according to the American Psychiatric Association’s diagnostic criteria, DSM IV, occurs at least six months after the disaster. The prognosis is not good for such patients, many of whom have been shown to be more seriously affected by the disorder, and to undergo a longer and more difficult recovery process than those who manifest early symptoms.[2]

Assessment of psychiatric suffering is difficult. It engages subjective appraisal of how the quality of a victim’s life may be affected. Courts have been challenged to develop assessment procedures which are both rigorous and fair – that is, which adequately compensate genuine sufferers while minimising the possibility of abuse. Only a minority of persons exposed to a traumatic event actually develop PTSD (between 10 and 15 per cent.), but the disorder can affect even the strongest and most courageous of people. PTSD is a recognised and documented psychiatric condition which must be properly diagnosed and treated, and presented to the court by way of expert psychiatric evidence.

This article poses the question as to why the South Yorkshire Police settled Martin Long’s case out of court, for a considerable sum, and speculates as to the underlying reasons for such a course of action.

It is submitted that this was more than just an out-of-court settlement, that there were compelling reasons, social, judicial, and economic, which led the parties to settle the case rather than bring it before an English court. In the 1991 decision in Alcock v. The Chief Constable of South Yorkshire Police [3] the civilian psychiatric casualties of Hillsborough were denied compensation by the House of Lords for their injuries. That decision provoked ongoing public anger and indignation. Again, in the 1999 decision in White v. The Chief Constable of South Yorkshire Police [4] the House of Lords denied compensation to police officers who suffered psychiatric injury while on duty at Hillsborough. An acknowledged influence on the White judgment was the fear that a decision in favour of the police officers would sit uneasily with the denial of compensation to the civilian victims of the same disaster. The White decision has been severely criticised by the public, and also by legal commentators and by the courts of Ireland and Australia.

Had Mr. Long’s case proceeded, therefore, the English courts would have been in a no-win situation. An award of compensation to Mr. Long would have rekindled the public discontent provoked by the decisions in Alcock and White, and set a legal precedent for similar claims. A denial of compensation to Mr. Long would fuel further indignation and severe criticism, not only from the public, but from legal scholars and practitioners in England and other common law jurisdictions.

Whatever its provenance, litigation of this intensity is bound to reach the House of Lords. The House of Lords has already pronounced on the civil liability for Hillsborough, and does not wish to re-open what it considers to be a closed book. But here is the prospect of a delayed reaction to the Hillsborough disaster, and a resultant claim in damages; a matter which would compel their Lordships to confront the judicial frailty of their judgment in White.

Both parties to the instant proceedings must have been keenly aware of the above dilemma which this case would present to an English court. The more sensible option, therefore, would seem to be an out-of-court settlement of Mr. Long’s claim.

The decision in White v. The Chief Constable of South Yorkshire Police changed the law in the English jurisdiction governing psychiatric injury to rescuers. Now, in order to recover damages for post traumatic stress disorder sustained as a result of rescue operations, the rescuer must have been subjected to a risk of physical injury during the course of the rescue. Such risk may be actual or apprehended.

The great Judge Cardozo of the New York Court of Appeals, said in 1921:

“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.”[5]

Lord Hoffmann, in his judgment in White v. The Chief Constable, dismissed the above words of Judge Cardozo as “a florid passage” and expressed the opinion that if liability for psychiatric injury were extended to rescuers who were not exposed to physical injury, “it may be said that this would encourage people to offer assistance.” [6]

What an affront to a person who has assumed a risk to himself – either voluntarily or by virtue of his employment - in order to rescue victims of another’s negligence, and what a profound misconception of the rescue process. The act of rescue is automatic. It does not qualify as a decision, but rather a split-second reaction to an immediate situation. A rescuer does not address the possibility of physical danger to himself; there is no time. Even less time is there to ponder on the question of damages in the event that he might suffer psychiatrically as a result. And were such a feat of wisdom and foresight to be performed, then the moment is gone and he is not, and never was, a rescuer.

The Irish courts engage in no such judicial semantics as do the House of Lords. They employ a more objective approach to such cases, based on a proper judicial application of the laws of negligence to all the facts of the case. The Irish courts are also acutely aware that no immutable rule can establish the extent of liability for every circumstance of the future. This case-by-case approach leads to a more equitable outcome than that based on hard, policy-driven requirements. It is very evident that the rescuer’s situation at law would be differently viewed by an Irish court. His case would be decided on its facts, and on the evidence of medical experts and of other witnesses in all the circumstances of the case; it would be irrelevant whether or not he had been exposed to physical danger during the rescue.

Underlying the English rationale in this area is the fear of a flood of claims, and the admitted desire to rein in the extent of liability for psychiatric injury. Vigilance is indeed necessary and understandable, and courts have a duty in this regard to avoid subjecting defendants to the possibility of unlimited claims in damages. This said, the entitlement of any plaintiff to an award in damages for personal injury must be a matter of evidence and not of policy, and the evidentiary process is well equipped to deal with unfounded and exaggerated claims. This was made clear by McMahon, J. in his Circuit Court judgment in Curran v. Cadbury(Ireland)Ltd.[7]

Recent decisions from the High Court of Australia indicate that the courts of that jurisdiction view the House of Lords’ position with similar caution as do the Irish courts, and that they too are declining to place artificial barriers in the way of deserving plaintiffs. The preconditions on recovery of damages for psychiatric injury imposed by the House of Lords have been severely criticised by legal academics in Australia. Dr. Peter Handford, Associate Professor of Law at the University of Western Australia, and co-author of Tort Liability for Psychiatric Damage[8] has recently described these measures as

“ a damaging and unjustified limitation on the scope of the law as previously understood.”

While the House of Lords appears to be going its own way, other common law jurisdictions remain true to the spirit of Judge Cardozo, that “..a wrong to the imperilled victim…is a wrong also to his rescuer” and that a rescuer who suffers pure psychiatric injury in an attempt to save the victims of another’s negligence is just as deserving of compensation as are those whose lives he saved. The House of Lords, despite its judicial efforts to the contrary, must be keenly aware of this. It is also aware that, were it to adjudge Martin Long’s psychiatric injury as being worthy of compensation, it would be setting an undesired legal precedent with the consequent risk of a flood of similar claims. It would also rekindle the public discontent at the denial of compensation to other psychiatric casualties of Hillsborough which is still simmering after ten years. Were their Lordships to refuse compensation to Martin Long based on their new, stricter principles, then they would engage the sustained criticism of the public and of legal practitioners and scholars both in England and other jurisdictions.

Professor Jane Stapleton observed in 1994, that “once the law has taken a wrong turning or otherwise fallen into an unsatisfactory internal state in relation to a particular cause of action, incrementalism cannot provide the answer.”[9]

It was thus that Martin Long v. The Chief Constable of South Yorkshire Police was never aired in the courts of England. It might also be conjectured that any future delayed psychiatric reactions to Hillsborough may settle in the same way and for the same reasons. Clearly, the White decision has brought the law in England into an unsatisfactory internal state which will not stand up to either scrutiny or logic. Until it is addressed, cases such as Mr. Long’s will continue to shake their dreaded locks at the House of Lords, and continue to settle – out of court.

*Gillian Kelly is author of “Post Traumatic Stress Disorder and the Law”(Round Hall, Sweet & Maxwell, 2000)

[1] Diagnostic and Statistical Manual of Mental Disorders (3^rd.ed. American Psychiatric Association, Washington D.C. 1980). Current edition is DSM IVof 1994, which classifies PTSD at 309.81.

[2] see Kelly, “Post Traumatic Stress Disorder and the Law” Round Hall, Sweet & Maxwell 2000, pp. 91-92 and 129.

[5] Wagner v. International Railway Co. (1921) 232 N.Y.176 at 180.

[6] See judgment of Lord Hoffmann at [1999] 1 All E.R. 1 at 47, para. g.

[8] Mullany & Handford, Sydney, (The Law Book Company and Sweet & Maxwell, 1993).

[9] Stapleton, in The Frontiers of Liability, ed. Birks, O.U.P. (1994, vol.2) p.87.