Hunter v British Coal Corpn

For psychiatric injury, an employee is not a primary victim merely because an employer’s breach put him in a sequence of events culminating in a colleague’s death and he later developed survivor’s guilt. The involuntary-participant category requires personal or direct involvement as an actor, with sufficient physical and temporal proximity. A secondary victim must satisfy the Alcock proximity and direct-shock controls; employment alone is insufficient. Where the employee was away from the accident, faced no physical danger, did not witness the event or its immediate aftermath, and became ill only after being told of the death, the injury is too remote and abnormal guilt is not a reasonably foreseeable consequence of the employer’s contractual duty. The Court of Appeal declined to extend liability in this policy-sensitive area.

John Hunter, an employee of Cementation Mining Company working at a British Coal mine, struck a high-pressure hydrant while driving a vehicle. The hydrant later burst and fatally injured his colleague, Tommy Carter, after Mr Hunter had left the immediate area to shut off the water and find a hose. Mr Hunter suffered a depressive illness and survivor’s guilt after being told of the death.

The Sheffield County Court found the defendants negligent and in breach of statutory duty, but dismissed the psychiatric-injury claim. The appeal concerned whether Mr Hunter could recover as a primary victim, under an employer’s contractual duty of care, or as a secondary victim.

By a majority, the appeal was dismissed. Lord Justice Brooke and Sir John Vinelott agreed that Mr Hunter could not recover. Lord Justice Hobhouse dissented.

1. The majority treated the primary-victim categories identified by Lord Oliver in Alcock as covering persons directly threatened with physical injury, rescuers, and involuntary participants who believe themselves to have caused another’s death or injury. Such a claimant must be personally or directly involved as an actor and sufficiently proximate in time and space. Mr Hunter was not at the scene when Mr Carter was killed, faced no physical danger, did not witness the accident or its immediate aftermath, and suffered shock only when told of the death. He was therefore not a primary victim: [1992] 1 AC 310.
2. The secondary-victim control mechanisms also excluded the claim. The shock was not experienced through direct sight or hearing of the accident or its immediate aftermath, and the employment relationship did not itself establish the necessary legal proximity.
3. Brooke LJ further held that, even assuming a continuing causal chain and a contractual duty of care, the abnormal guilt-based psychiatric reaction was not a reasonably foreseeable consequence of the breach. The situation was materially different from the police officers exposed to horrific scenes in Frost: [1997] 3 WLR 1194.
4. Hobhouse LJ would have allowed the appeal. In his view, physical participation in an incident caused by the employer’s breach could create legal proximity even without seeing the death or its immediate aftermath. The claim would then depend on causation and foreseeability of nervous shock, rather than the secondary-victim controls.

The appeal was dismissed with costs. The order was stayed for seven days, with liberty to apply for leave to appeal to the House of Lords.

• Court of Appeal: The appeal was dismissed by a majority. The court upheld the judgment below and rejected recovery for psychiatric injury.
• Sheffield County Court: On 24 April 1997, His Honour Judge Bentley QC entered judgment for the defendants on the psychiatric-injury claim.