MORE SHOCK HORROR FOR EMPLOYEES

Abstract

In Hunter v. British Coal Corporation [1998] 2 All E.R. 97 an employee, Mr. Hunter, hit a high pressure water hydrant with the vehicle he was driving at the time, fracturing the hydrant and thereby threatening to flood the mine. One of his fellow employees, Mr. Carter, attempted to help him shut off the valve. They did not succeed and Mr. Hunter went to fetch further assistance. When he was 30 yards away the hydrant exploded, killing Mr. Carter. Mr. Hunter initially assumed that Mr. Carter was unharmed, but when he was informed of the death 15 minutes later he blamed himself and suffered a shock which triggered a two-year depressive illness. The trial judge found as a fact that the accident (and the death) had been caused by the fault of the defendant employer, which had failed to observe the relevant regulations about the siting of the hydrant, and had not been caused or contributed to by Mr. Hunter in any way. Could Mr. Hunter recover damages from his employer for the shock which he suffered on hearing about a death which he did not witness but for which he felt himself to be responsible? The trial judge held not and the majority of the Court of Appeal agreed, but their reasoning demonstrates some of the confusion surrounding this topic. It was accepted by all members of the Court of Appeal that if Mr. Hunter was classified as a secondary victim he would fail in his claim for nervous shock since he lacked, amongst other things, the necessary physical proximity required by the House of Lords in Alcock: he had witnessed neither the accident itself nor its aftermath. The only way in which he could recover was if he could bring himself within some other category, either (i) because he could be regarded as a primary victim or (ii) purely on the basis of the contractual duty of care which the defendant owed him as his employer.