Hunter v British Coal Corporation and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,SIR JOHN VINELOTT,LORD JUSTICE HOBHOUSE |
| Judgment Date | 11 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0211-12 |
| Docket Number | CCRTF 97/0730/C |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 1998 |
[1998] EWCA Civ J0211-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE BENTLEY QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Hobhouse
Lord Justice Brooke
Sir John Vinelott
CCRTF 97/0730/C
MR A BERRISFORD (Instructed by Messrs Raleys, Barnsley, South Yorkshire) appeared on behalf of the Appellant
MRS M BICKFORD-SMITH (Instructed by Messrs Nabarro Nathanson, Sheffield S2 5SY) appeared on behalf of the Respondent
This appeal raises a quite new point. Under what circumstances does the law provide compensation for survivor's guilt? Should a workman who was not present at the scene of a fatal accident to a work colleague for which he believed himself to be responsible be compensated for the reactive depression he suffered as a consequence? The judge dismissed the plaintiff's action on conventional lines, holding that he was not a participant and did not qualify to be regarded as a secondary victim of the accident. It has been argued in this court that the law has now moved on, and that the effect of one obiter dictum in the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and of the decision of this court in Frost v Chief Constable of South Yorkshire Police [1997] 3 WLR 1194, now under appeal to the House of Lords, is to widen the scope of recovery to an extent not previously recognised by English law. If this is indeed the law, it will have incalculable consequences.
This is not a conventional case of post-traumatic stress disorder (for which see Chapter 3 of Law Commission Consultation Paper No 137: Liability for Psychiatric Illness (1995)). It is not a case in which the plaintiff was himself at risk of physical injury when the accident occurred ( Page v Smith [1996] 1 AC 155). It is not a case in which the plaintiff was involved as a rescuer ( Frost). Nor did he ever see the deceased's dead body or the scene of the accident until after it was cleared up. There was nothing particularly out of the ordinary about the shock to his nervous system which he suffered when he was told, 15 minutes later, that his workmate had died. Part of the cause of his anxiety reaction was his feeling that he had triggered off the chain of events which led to his colleague's death: the other part was derived from what he heard about the severity of the injuries he had suffered. It was common ground at the trial that he had suffered a mild to moderate depressive illness for two years following the accident, and the judge accepted the evidence of a psychiatrist who described Mr Hunter's continuing guilt feelings as pathological in origin.
Before discussing the applicable law, I will set out the facts. This is an appeal by the Plaintiff John Hunter against a judgment of Judge Bentley QC in the Sheffield County Court on 24th April 1997 when he ordered that judgment be entered for the Defendants British Coal Corporation ("British Coal") and Cementation Mining Company ("Cementation") on the trial of the Plaintiff's claim that he was entitled to damages for psychiatric injury suffered in connection with a fatal accident on 1st October 1990 at British Coal's coalmine at North Selby, in North Yorkshire.
At the time of the accident Mr Hunter was 33 years old. He was employed by Cementation as the driver of a diesel-powered Free Steered Vehicle (FSV) and was working at North Selby pursuant to contractual arrangements made between the two defendants. The judge accepted Mr Hunter's evidence at the trial without any reservation and said he was an obviously truthful witness. His account of the matter, which the judge accepted, was on the following lines.
He had started work at 6am that day. During the afternoon he was instructed to take four junction legs from J18 to the North Return. He loaded them onto his FSV and secured them in place, using two load binders and pack wood. He then set off inbye, with nobody with him to act as a look out or guard. He went through the air doors on J12, round a bend and then right into the North transport road.
Floor conditions were now very bad. Floor blow had led to the floor being rutted and uneven, and the travelling space available to him was reduced by a conveyor running along the left hand side and by a pipe range to the right. The only light came from his cap lamp and the vehicle's headlights. The driver's seat in his FSV was at right-angles to the direction of travel, and there were blind spots to both front and rear.
There came a stage when he became aware of a hydrant protruding down into the roadway on his right from the water range. He took steps to lower the plate or bed of his vehicle, in order to reduce the height of his load, in an effort to enable the loaded vehicle to clear the hydrant, but as he was lowering the plate and travelling forwards, the front edge of the load struck the hydrant. He immediately reversed back and then stopped his vehicle and got out.
He could see water coming out of the hydrant's mouth, as if a tap had been turned on. He had to stop the water flow as soon as possible as he was afraid his FSV might get stuck in the mud. He therefore tried unsuccessfully to turn the wheel of the hydrant valve, and he was then joined at the scene by Mr Tommy Carter, a fellow employee, who was carrying a roof bolt. The two men then used the roof bolt as a makeshift bar in another attempt to turn the wheel of the hydrant valve, but water still continued to escape. Mr Hunter then looked around for a hose, with the idea of channelling the escaping water onto the conveyor. He went some way inbye in an unsuccessful quest for a hose, and he then came back and set off outbye on the same mission, believing he could probably find one at J99's panels. Unfortunately he failed to spot a hose close to the hydrant itself.
When he was 20–30 yards outbye he heard an almighty bang, like a bomb going off, and the sound of water screaming through the pipes. He looked back and saw a large cloud of dust. He shouted "I'll get the water" and hurried off outbye to find a stop valve and shut off the water. As he hurried outbye he was saying to himself: "I hope that Tommy is out of that". J12 is about 307 metres from the accident scene, and when he got there he managed to turn the stop valve, with help from others, and shut the water off. It took him a good ten minutes to turn the water off. As he was doing this, he heard a message over the tannoy to the effect that a man had been injured.
Once the water had been turned off, he began to walk back inbye. While he was on his way he met a workmate who told him that it looked like Tommy was dead. His immediate reply was "I killed him". He told the judge: "Everything went in slow motion from then on. It was like it wasn't happening to me. People were talking to me and at me and it was just buzzing round me. People's mouths were opening and closing and I could not hear". He said he felt responsible. "A man has died as a result of my hitting the hydrant". He was prevented from going back to the scene of the accident and was escorted out of the pit. Those who attended the scene found that the force of the water when the hydrant burst had torn one of Mr Carter's arms right off, but Mr Hunter did not see this.
Dr Peter Wood, a consultant forensic psychiatrist, told the judge about the effect of this incident on Mr Hunter. Although he knew it was a freak accident, he has felt particularly responsible and guilty about it, and he has been profoundly affected by the experience. He has not been able to sleep properly at night, and he has been preoccupied by his concerns in the daytime. He has not recovered emotionally from the experience. With considerable determination, and the support of his wife, he managed to get back underground a fortnight after the incident, and was able to resume working in similar surroundings. Although this caused him anxiety on a day to day basis, and he found it very difficult to work on his own underground, he coped with his work without breaking down. He lost weight, however, became generally strained and aged a good deal in the aftermath of the accident. Mrs Hunter told the judge that her husband had been a carefree person before the accident, but when he came home that day he was in tears, and for the next two weeks he was unfit for work. He was tearful and went over what had happened again and again.
Dr Wood, who first saw Mr Hunter in March 1992, found that he had developed nervous problems, principally a reactive depression, in response to his exposure to the fatal accident situation in October 1990. He had an irrational feeling of responsibility for his colleague's death, and he remained saddened and pre-occupied by the event 17 months later.
In a report written three years later Dr Wood said that Mr Hunter had suffered a nervous illness due to his involvement in the accident. He tended to be anxious and preoccupied by memories of the event and his illness was in the mild to moderate range of severity in the first two years. He said that if a person's reaction is still displayed four years later it must be considered as pathological. The range of symptoms Mr Hunter displayed, at their particular severity, and with their persistence in time, all added together to form a mental illness. His guilty feelings were understandable and there was nothing psychologically abnormal about them, but their continuance three years after the accident was an example of psychopathology.
At the trial Dr Wood...
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