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(HIS HONOUR JUDGE BENTLEY QC )

B e f o r e:

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PLAINTIFF/APPELLANT

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DEFENDANT/RESPONDENT

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(Transcript of the Handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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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

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(As approved by the Court )

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©Crown Copyright

LORD JUSTICE BROOKE:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. At the trial Dr Wood told the judge that initially there was a shock to Mr Hunter’s nervous system. The events he had been a part of (and was still very much a part of, from a psychological point of view) had caused him very great distress. His reaction was partly connected with the severity of the injury to his fellow worker and partly with his feelings of personal responsibility. His feeling of guilt was an abnormal or atypical bereavement reaction. It was a form of “survivor guilt”, which is a common feature of the psychopathology of survivors in armed conflict. His ability to socialise was sufficiently impaired to regard him as having a mental illness of mild severity.

15. Dr Baker, who gave evidence for the Defendants, did not see Mr Hunter until December 1993, and he told the judge that he was willing to accept Dr Wood’s history that Mr Hunter had had a mild to moderate depressive illness during the two years that followed the incident. The main difference of opinion between the two psychiatrists was whether that illness continued, and whether it was proper to describe Mr Hunter’s feeling of guilt as pathological.

16. The judge said that he preferred Dr Wood’s evidence to that of Dr Baker. He summarised his evidence quite briefly as being to the effect that Mr Hunter’s description of experiencing very acute detachment from reality after hearing that Mr Carter was dead was consistent with his being in a state of shock, and that he thereafter developed a psychiatric illness as a consequence.

17. Section 83 of the Mines and Quarries Act 1954 provides that no internal combustion engine or locomotive shall be used below ground in a mine otherwise than in accordance with the provisions of regulations in that behalf, or with the consent of the minister or an inspector. The relevant consent, issued by the Mines Inspectorate, authorised the running of FSVs in roadways where there was a vertical clearance of at least 300 millimetres above every part of the vehicle and a minimum roadway width, in a road where there was a conveyor, of the vehicle width plus 0.6 of a metre.

18. The judge found that measurements taken after the accident showed that at the time of the accident clearances in the roadway were below the prescribed minimum. In particular the vehicle clearance was less than the prescribed minimum due to the hydrant projecting further into the roadway than it should have done. The judge was satisfied that this state of affairs had come about due to the gradual convergence of strata, which was a constant problem in this roadway, and not due to the kind of sudden and temporary strata movement which would have afforded an express exemption from the requirements of the consent. He held in those circumstances that British Coal had committed a breach of Section 83 of the 1954 Act which was causative of the accident, and that they were also negligent in failing to maintain the minimum clearance at the accident site. He found Cementation negligent and in breach of statutory duty as Mr Hunter’s employers on similar grounds, and rejected the allegations of contributory negligence which were levelled at the way Mr Hunter had loaded and driven the FSV. There is no appeal by either defendant against these findings.

19. The judge held, however, that Mr Hunter did not qualify as either a primary victim or a secondary victim (within the definitions offered by Lord Oliver of Aylmerton in his speech in Alcock v Chief Constable of the South Yorkshire Police [1992] AC 310 at pp 406-7). He said he was not a primary victim because he was not at any stage put in fear for his own safety and did not witness Mr Carter’s accident. When he heard the noise of the water bursting from the range and saw the dust it threw up, he had felt no great anxiety, much less experienced shock. It was only after he had turned the water off and was returning to the scene that he suffered shock, and that not as a result of anything he saw, but as a result of something he was told. By that time, the judge held, he was not a participant in the event, since his participation had ceased when he turned off the water.

20. The judge then said, quite shortly, that he was not persuaded that Mr Hunter had made out his claim as a secondary victim any more than did the deputy in Duncan v British Coal Corporation [1997] 1 All ER 540. In that case a pit deputy was at the other end of a coalface 275 metres away when one of his men was crushed to death. He was called to the scene by telephone and arrived there within four minutes.

21. Mr Berrisford set out to attack the judge’s findings both on the facts and on the law. He soon abandoned his attack on the factual findings, however, when he conceded that on his own client’s evidence the judge was entitled to find that he had not suffered shock, or indeed anything resembling psychiatric injury, until he was told about Mr Carter’s death while he was going back from J12 to see what happened. His challenge on issues of law was more formidable, and raised issues which have not previously arisen for decision in this court.

22. Put shortly, he contended that Mr Hunter was entitled to be compensated as a primary victim because the law would regard him as a participant in the events that were triggered off by the defendants’ negligence. Alternatively, Cementation owed him a contractual duty of care, and the psychiatric injury he suffered was a foreseeable consequence of their breach of duty. In the further alternative he was entitled to be compensated as a secondary victim. Mr Berrisford was anxious that we should make a finding in his client’s favour on his first contention since the House of Lords is due to review the decision of this court in Frost v Chief Constable of South Yorkshire Police [1997] 3 WLR 1194 later this year, and the law relating to his second contention cannot therefore be regarded as settled. He relied entirely on arguments based on the breach of a common law duty of care, and expressly disavowed any separate argument based on the judge’s findings of a breach of statutory duty.

23. In advancing his first contention, Mr Berrisford relied almost exclusively on some obiter dicta of Lord Oliver of Aylmerton in the leading case of Alcock v Chief Constable of South Yorkshire Police [1992] AC 310 at p 408. At p 407D-E Lord Oliver had sought to divide the cases involving a direct assault on a plaintiff’s mind or nervous system into two categories:

“those cases in which the injured plaintiff was involved, either mediately or immediately as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others.”

24. Because the appeals in Alcock fell into the second category, Lord Oliver said that the cases of the former type were not particularly helpful, except to the extent that they illustrated only a directness of relationship (and thus a duty) which was almost self-evident from a mere recital of the facts. He then referred briefly to Dulieu v White & Sons [1901] 2 KB 669, where the plaintiff was directly threatened when the runaway vehicle broke through the front of the public house where she was employed; Bell v Great Northern Railway Company of Ireland (1890) 26 LR Ir 428, where the plaintiff was personally threatened by a terrifying experience as a passenger on the defendant’s railway; and Schneider v Eisovitch [1960] 2 QB 430 where the plaintiff was herself directly involved as a victim in the accident in which her husband was killed.

25. Lord Oliver went on at p 408A-D to put the so-called “rescue cases”, of which he gave Chadwick v British Railways Board [1967] 1 WLR 912 as an example, into the same category. He said that it was well established that the defendant owed a duty of care not only to those who are directly threatened or injured by his careless acts but also those who, as a result, are induced to go to their rescue and suffer injury in so doing. Lord Oliver then said at pp 408D-409C:

“These are all cases where the plaintiff has to a greater or lesser degree been personally involved in the incident out of which the action arose, either through the direct threat of bodily injury to himself or in coming to the aid of others injured or threatened. Into the same category, I believe, fall those cases such as Dooley v Cammell Laird & Co Ltd [1952] 1 Lloyd’s Rep 271; Galt v British Railways Board (1983) NLJ 870; and Wigg v British Railways Board , The Times, 4 February 1986, where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another’s death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact. The fact that the defendant’s negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event established of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable.

In those cases in which, as in the instant appeals, the injury complained of is attributable to the grief and distress of witnessing the misfortune of another person in an event by which the plaintiff is not personally threatened or in which he is not directly involved as an actor, the analysis becomes more complex. The infliction of injury on an individual, whether through carelessness or deliberation, necessarily produces consequences beyond those to the immediate victim. Inevitably the impact of the event and its aftermath, whether immediate or prolonged, is going to be felt in greater or lesser degree by those with whom the victim in connected whether by ties of affection, of blood relationship, or duty or simply of business. In many cases those persons may suffer not only injured feelings or inconvenience but adverse financial consequences as, for instance, by the need to care for the victim or the interruption or non-performance of his contractual obligations to third parties. Nevertheless, except in those cases which were based upon some ancient and now outmoded concepts of the quasi-proprietorial rights of husbands over their wives, parents over their children or employers over their menial servants, the common law has, in general, declined to entertain claims for such consequential injuries from third parties save possibly where loss has arisen from the necessary performance of a legal duty imposed on such party by the injury to the victim. Even the apparent exceptions to this, the old actions for loss of a husband’s right to consortium and for loss of servitium of a child or menial servant, were abolished by the Administration of Justice Act 1982.”

26. I have quoted this passage at length because it illustrates vividly the reluctance of the common law to afford compensation in injury cases to those who are not personally threatened or personally involved as actors in an accident, even though the loss they suffer as a result of the injury to the primary victim is readily foreseeable.

27. Lord Oliver was therefore postulating three different types of primary victim in whose favour the law will recognise a direct duty of care owed by the person who performs the act which occasions the victim’s psychiatric injury:

(i) those who are caused to fear physical injury to themselves;

(ii) those who come to the rescue of the injured;

(iii) those who believe that they are about to be, or have been, the involuntary cause of another’s death or injury.

28. Lord Oliver treated those in each category as “mediately or immediately involved as a participant”. They must have been “personally involved” or “directly involved as an actor” in the incident out of which the action arose, and in the second and third of these categories it is the fact that the defendant’s negligent conduct has foreseeably put them in the position of being an unwilling participant in the event that establishes of itself a sufficiently proximate relationship between them.

29. Of the three cases to which Lord Oliver referred in identifying the third of these categories Dooley v Cammell Laird and Company Limited [1951] 1 Ll R 271 is the only one of which we were shown a full report. The plaintiff crane driver in that case recovered damages for breach of statutory duty against his employers, Cammell Laird, for nervous shock. He also recovered damages for negligence against Mersey Insulation, who were using one of Cammell Laird’s cranes for loading material from the quay into the hold of a ship, and it is this part of Donovan J’s decision which attracted Lord Oliver’s attention. The plaintiff suffered his shock, which aggravated his pre-existing neurasthenia, because the rope to which a load was attached suddenly broke, and the load was precipitated into the hold. Although the plaintiff could not see if the load had hit anybody - and nobody was in fact injured - he felt wretched, and had been unable to return to work as a crane driver ever since. Donovan J held that this fear was not unreasonable in the circumstances, and that it had caused the plaintiff’s nervous shock, and that this was a consequence which Mersey Insulation ought reasonably to have expected when it provided a weak rope to the sling. In this connection he applied the dictum of Lord Macmillan in Bourhill v Young [1943] AC 92 at p 104:

“The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”

30. In Bourhill v Young , of course, the pursuer failed on the facts because she was not so placed that there was any reasonable likelihood of her being affected by the deceased’s careless driving.

31. In Wigg v British Railways Board (The Times, 4 February 1986), the plaintiff train driver recovered damages for the shock and trauma he suffered soon after his train was brought to an abrupt halt by the emergency brakes as it was leaving a station. A passenger trying to board a train had been dragged along the platform until he fell between it and the train, and when the driver found his body and stayed with it for ten minutes until help arrived he began to tremble from shock.

32. In Galt v British Railways Board (1983) 133 NLJ 870 the plaintiff train driver suffered a shock as he rounded a bend when he saw 2 railwaymen on the track only 30 yards away from him when he was driving his train at 65 mph. He had a pre-existing condition which predisposed him to myocardial infarction and Tudor Evans J awarded him damages for the consequences of the coronary attack occasioned by this incident.

33. Following the decision in Alcock, in Robertson v Forth Road Bridge Joint Board 1996 SLT 263 the First Division of the Court of Session dismissed the claims of two workmen whose colleague was blown off the Forth Bridge to his death. The court held that the requisite relationship of proximity for secondary victims did not exist. Lord Hope referred at p 268G to Lord Oliver’s third category of primary victims and said:

“The plaintiff may actually have caused the death or injury or he may think that he is about to or has done so. Whichever of these alternatives applies is immaterial. What matters is that it was his own hand, or his own act, which was the cause or supposed cause of it. This is the essential characteristic which distinguishes the category from that of the bystander who, while present at the time of the accident and saw it happen, was not directly involved in it as the actor by whose hand the death or injury was caused to the third party.”

34. Lord Allanbridge said at p 271E that in his view Lord Oliver was:

“indicating that in cases of accidents at work it is only where a workman is placed in a position where he has reason to consider at the time of it that he himself was the involuntary cause of it, so that he suffered from such anxiety and guilt about it as to sustain this trauma, that his employers could be liable in damages for his psychiatric illness caused as a result of his witnessing the accident.”

35. I do not find anything in the judgments in this court in Frost v Chief Constable of South Yorkshire Police [1997] 3 WLR 1194, in which Robertson was dismissed, which advances this line of cases. In Frost the court was concerned with those who witnessed horrors, and Henry LJ’s explanation on pp 1207-8 of the nature of post-traumatic stress disorder in such a case shows that it was involved with a wholly different situation from the one we have to consider. In Dooley v Galt the plaintiffs, as crane-driver and train-driver respectively, were unquestionably direct participants in the action when as a result of what they saw from their driving seats they suffered the shock and resulting physical or psychiatric illness for which they were held to be entitled to recover. I find it hard to detect any general principle arising out of Tucker J’s pre- Alcock judgment in Wigg in which he applied one of the tests appropriate for secondary victims and decided the case on orthodox foreseeability grounds. It is noteworthy that in Alcock Lord Jauncey described Dooley at p 421F as a “very special case” (he did not refer to Galt or Wigg), and the other three members of the House did not mention this line of authority at all.

36. If one puts on one side the questions which may arise out of Mr Hunter’s contractual relationship with Cementation, there is no case of which I am aware in which a plaintiff who was not present at the scene of an accident nor present thereafter as a rescuer, has been held entitled to recover damages as a primary victim of the accident for psychiatric injury which arose when the news of the accident was broken to him/her later. In both Schneider v Eisovitch [1960] 2 QB 430 and the Australian case of Andrews v Williams [1976] VR 831 plaintiffs were held entitled to recover as primary victims for the shock of hearing later that a very close relative (husband in one case, mother in the other) had died in an accident in which they themselves had been involved and suffered injuries.

37. The law’s reluctance to recognise anxiety caused by survivor’s guilt was evidenced in one Australian case in which a plaintiff claiming damages on this account did suffer injuries in a car accident in which the driver suffered catastrophic injuries. In Rowe v McCartney [1976] 2 NSWLR 72 the New South Wales Court of Appeal was concerned with a case in which the owner of a car somewhat reluctantly allowed a friend to drive her car on the basis that he would be careful. While the friend was driving, the car ran off the road and hit a telegraph pole. The driver became a quadriplegic as a result of his injuries, and the owner was less seriously injured. In addition to her physical injuries, however, she suffered a depressive neurosis caused by a feeling of guilt arising from the fact that if she had not allowed her friend to drive, the tragedy which had befallen him would not have occurred.

38. The majority of the Court of Appeal (Moffitt P and Samuels JA, Glass JA dissenting) held that the nature of the harm the plaintiff suffered was not a foreseeable consequence of the events that happened, and they distinguished this type of case from the more familiar case, exemplified by Hughes v Lord Advocate [1963] AC 837 where a foreseeable kind of injury is caused in an unforeseeable way.

39. Samuels JA said at p 89E-90C:

“It is necessary, first to characterise the nature of the harm which the plaintiff did suffer - held in this case to have been unforeseeable - in order to determine whether that harm can reasonably be included in a wider, more general and foreseeable category. The harm which she sustained as a result of the events which happened was the onset of a complex or obsessive feeling of guilt or remorse which manifested itself symptomatically as a depressive illness. No doubt the feeling of guilt was a neurotic reaction to the circumstances, and was thus a mental illness. But I do not consider it to be an adequate answer to the present problem merely to seize upon that description, and allot the plaintiff’s damage, without more, to the category of foreseeable harm. I do not see anything in Mount Isa Mines Ltd v Pusey (1970) CLR 383, for example, which compels such a step; indeed, Windeyer J’s reasoning tends the other way. Certainly, if the infliction of a feeling of guilt was foreseeable, as the infliction of emotional shock was in Mount Isa Mines Ltd v Pusey , then the nature of the sequential symptoms would not be determinative: it would not matter what kind of psychiatric disability followed. But the question here, of course, if whether that initial injury was indeed foreseeable. The learned judge found that it was not, and that conclusion is not open to challenge. However, he did fail, with respect, to make the next inquiry: so it is thus necessary for me to decide whether the feeling of guilt was harm of a kind which was foreseeable. I do not think that it was. Granted that the harm suffered might be designated as mental illness and that mental illness was foreseeable, I take the view that, in this case, it is necessary and legitimate to penetrate the categories more closely. The plaintiff’s agreement to let the defendant drive was a relevant cause of the harm in fact suffered, but was, or would have been, casually irrelevant to the mental damage which the defendant ought to have foreseen. The harm suffered was, in my opinion, of an entirely different kind from that to which the defendant ought reasonably to have had regard as a likely consequence of his negligence.”

40. Moffitt P, agreeing, compared the case at p 76B-C with the case of a mother who sues an insurance company through the agency of her son as defendant where the son injured himself upon a motor bike, a gift from his mother, and where she suffers psychiatric injury due to her neurotic blaming herself for her son’s injury; or that of the mother who sues a motorist who negligently injures her child on the way to school, the mother suffering a psychiatric injury, not from nervous shock, but by self-blame for allowing her child to go to school. He then said:

“These classes of psychiatric injury are not, in my view, foreseeable. The tenuous connection between these types of psychiatric damage, which are directly connected with the plaintiff’s own conduct and the plaintiff’s abnormal reaction to it, places such damage into a class where such damage is not foreseeable.

It was argued that the kind of injury sustained was simply some injury or at least some psychiatric injury to a passenger, which kind of injury, of course, is foreseeable if the driver is negligent. It was then argued that, as the plaintiff was a passenger, all injury sustained by her with any link with the negligent act, whether foreseeable or not, was compensable. Such an approach seeks to define the class by reference to the relationship of the injured person to the defendant, for example, passenger and driver or employee and employer. Upon such an approach, however, it seems to me the further question must arise, namely, whether there is included in this class of injury any injury, no matter how remotely linked, proved only it is sustained by a person who is a passenger or employee, or whether the injury must be one sustained by the person in the capacity of a passenger, namely, by reason of his being a passenger or employee. I would answer the question in favour of the latter alternative. The plaintiff’s psychiatric injury, upon his Honour’s findings, did not depend in any way upon her being a passenger. The relationship of the parties relevant to her injury, so far as there was any link with the accident, was that which arose out of her ownership of the car and her surrender of control of it to the defendant. However, her class of injury is wider than that of an owner of a car lending it to a person to drive, and falls in a class which, rather, is shared with the two examples I gave of the mother, than that shared with passengers.”

41. I do not suggest that the present case is on all fours with Rowe v McCartney , but the judgments of the majority in Rowe illustrate vividly the problems that are likely to occur while the law grapples on a case by case basis with the conundrum of identifying the categories of people who should be entitled to recover damages for guilt-induced depression following a serious accident. While it is true that on conventional principles of causation, Mr Carter’s death would be found to have been “caused” by the Defendants’ breach of duty to him in permitting a situation in which a hydrant jutted out into the path of Mr Hunter’s FSV, the immediate circumstances of his death were that he somehow or other wrenched the hydrant in such a way that it burst when Mr Hunter was already 30 metres away from him going up the tunnel in search of a hose, and Mr Hunter was not detrimentally affected by the accident until very much later. There is no binding authority which compels this court to hold that Mr Hunter was personally involved or directly involved as an actor in the tragic incident in which Mr Carter met his death, and in the absence of binding authority I am not willing to find that he was. The law requires a greater degree of physical and temporal proximity than was present in this case before Mr Hunter could properly be treated as a direct, or primary, victim in Mr Carter’s accident.

42. In my judgment it would be quite wrong for this court to push forward the frontiers of liability in the way advocated by Mr Berrisford, particularly as the case was not very fully argued, at a time when the Law Commission, whose report on this topic has not yet been published, has just completed a major review of this area of the law. I am wholly unpersuaded that Mr Hunter is to be treated as a participant in the accident, as the law now stands, and the concept that he still believed himself to be still psychologically involved as a participant in an accident which had occurred at least a quarter of an hour before he was told that his workmate had died is not one which is currently recognised by English law. It must of course be remembered that a direct victim can recover even if he/she is not a person of ordinary fortitude, so that this control mechanism would be wholly absent in “survivor’s guilt” cases if Mr Berrisford’s submissions are correct. Employers will then be liable for damages suffered by the most nervous of their employees in such circumstances, since they must take their direct, or primary, victims as they find them. The present law, of course, makes recovery less easy for a nervous wife or mother who suffers post-traumatic stress disorder but does not qualify as a direct victim.

43. I cannot believe that this would be a satisfactory form for the law to take, at any rate without a much greater understanding of the possible consequences of a change of this type than is available to us in a single case. If Hobhouse LJ, whose judgment I have had the opportunity of reading in draft, is indeed correct in his understanding of the present state of the law, this may be just another of the odd consequences of the introduction of control mechanisms on policy grounds for secondary victims, which appealed to the majority of the House of Lords in McLoughlin v O’Brian [1983] AC 410, and was further explained in Alcock itself. In my judgment, in our hierarchy of courts this is a matter for the House of Lords to decide.

44. In its commentary on the relevant part of Lord Oliver’s speech in Alcock, the Law Commission said in paragraph 5.37 of its Consultation Paper:

“We consider this to be a helpful approach. But it should be noted that, in contrast to the facts in Dooley v Cammell Laird Co Ltd [1951] 1 Ll R 271, Lord Oliver’s formulation, on the face of it, would allow an involuntary participant to recover even though the shock was not experienced through his or her own unaided senses and even though he or she was not close to the accident in time and space. For example, it would cover the case of a signalman who, by reason of operating his employer’s faulty equipment, reasonably believes that he has been instrumental in causing a train crash (out of sight and hearing) and suffers a shock-induced psychiatric illness as a consequence. We believe that a signalman in that situation probably ought to be able to recover damages as there is no floodgates objection. We therefore do not regard Lord Oliver’s formulation as being too wide-ranging. Our provisional view is that there ought to be a special rule, a set out by Lord Oliver in Alcock, applicable to involuntary participants. Do consultees agree?”

45. Although in another capacity I was a signatory to that Consultation Paper, this was published in the course of a very thorough review of all the illogicalities in the existing law, with a view to suggesting to Parliament, if a case was made out for it, the redrawing of the law on more rationally coherent lines. The Commission was at that time concerned to find out whether the medical literature and surveys supported the central “policy” fear that the floodgates of litigation would be opened if one simply treated psychiatric illness like any other personal injury, and it observed at paragraph 5.67 of the paper that that sort of information is not easily available, if at all, to the judiciary when they decide individual cases. In my judgment it would be wrong for this court to anticipate the Law Commission’s final conclusions on such a policy-charged matter, particularly as the Commission was also engaged in reviewing the appropriateness of the distinctions that currently have to be made between primary and secondary victims. If judges are to don a legislative mantle in this controversial field again, this, as I have said, is the proper function of the House of Lords and not of this court.

46. For similar reasons, even if the House of Lords were to hold that Frost was correctly decided, I do not consider that the fact that the judge held Cementation, as Mr Hunter’s employers, to be in breach of a contractual duty of care permits him to succeed.

47. Even if there was no break in the chain of causation between Cementation’s breach of duty to him and Mr Carter’s accident, this is a quite different situation from the one with which the Court of Appeal was concerned in Frost. There the majority of the court was prepared to hold that police officers who were exposed to scenes of horror in the course of their duties were entitled to recover damages because they were obliged to stay at the ground witnessing these scenes, and their post-traumatic stress disorder was a foreseeable consequence of their employers’ breach of duty of care in exposing them to horrors like these when they negligently allowed too many people to enter the ground at a particular gate.

48. In Young v Charles Church (Southern) Ltd (unreported, CAT 24 April 1997) this court allowed the appeal of a plaintiff who was working alongside a man who was electrocuted and killed when a pole he was holding came into contact with an overhead power line. The plaintiff was about 6-10 feet away with his back turned when the accident happened. He heard a loud bang and a hissing noise, and turned round to see that the pole held by his colleague had struck the electric wiring and that the ground round his colleague had burst into flames. The majority of the court held that he was a primary victim and the whole court held that they were bound by the decision in Frost to hold that the plaintiff’s psychiatric injury was a foreseeable consequence of his employers’ breach of duty of care and, indeed, their breach of statutory duty.

49. Here the facts are very different. Mr Hunter was not at the scene or in the area of real physical risk and did not himself witness what happened to Mr Carter when he was killed. His illness was not the conventional type of post-traumatic stress disorder. It was an abnormal reaction to the news of his colleague’s death, triggered off (so far as the reaction was abnormal) by what Dr Wood, the psychiatrist who gave evidence on his behalf, described as an irrational feeling of responsibility. In my judgment the law should not treat this kind of abnormal reaction as a foreseeable consequence of Cementation’s breach of a contractual duty of care. Even if the events immediately leading up to Mr Carter’s death did not constitute a novus actus interveniens, the kind of mental illness Mr Hunter suffered was not, in the eyes of the law, a reasonably foreseeable consequence of the original breach.

50. Mr Berrisford tried gallantly to argue that even if Mr Hunter was not able to recover damages for the first two reasons he advanced, he should nevertheless be entitled to recover as a secondary victim. I can see nothing in the speeches of the House of Lords in Alcock which would allow him to be treated as a secondary victim.

51. I would therefore dismiss this appeal.

SIR JOHN VINELOTT:

I have found the issue raised in this appeal one of some difficulty and my mind has fluctuated more than once in the course of the argument. I have however reached the conclusion on balance that this appeal must be dismissed.

The facts are very fully stated in the judgments of Hobhouse and Brooke LJJ and I do not need to repeat them. The question in this appeal can be shortly stated. It is whether, if (a) an employee plays a part in a sequence of events which leads to an accident in which a fellow employee is killed or seriously injured and (b) the accident is the result of some negligent act or omission on the part of the employer and is not caused or contributed to by any negligence on the part of the employee and (c) the employee does not witness the accident but on learning of it and of the death or injury of the fellow employee suffers an emotional shock leading to a psychiatric illness, the employee can recover damages for the infliction of the psychiatric illness.

In answering this question, a convenient starting point is the decision of the House of Lords in Alcock & ors v Chief Constable of South Yorkshire Police [l992] AC 310. That case stemmed from the disasters of the Hillsborough Stadium where a large number of spectators were killed or injured by crushing sustained in pens at the end of the stadium. The respondent Chief Constable admitted liability for negligence in respect of the deaths and injuries. Two of the plaintiffs were present at the ground in a stand from which they witnessed the disaster; one lost two brothers and the other a brother-in-law. Others saw the disaster on live television, or, having heard of it from others, saw a television replay. Two of them lost a son and one a fiancee; they were amongst those who saw the disaster on live television. However, none of those who saw the disaster on television saw the suffering of recognisable individuals. The House of Lords held that none was entitled to damages for nervous shock. In his speech Lord Oliver, having first referred to cases where a plaintiff is put in fear for his or her own safety ( Dulieu v White & Sons [1901] 2 KB 669 and Bell v Great Northern Railway (1890) 26 LRI 428) and to Chadwick v British Railways Board [l967] 1 WLR 912, where the plaintiff recovered damages "for the psychiatric illness caused to her deceased husband through the traumatic effects of his gallantry and self sacrifice in rescuing and comforting victims of the Lewisham railway disaster", went on to define a class of primary victims who were entitled to recover damages for nervous shock. This passage has already been cited but I will read it again. Lord Oliver said:

"These are all cases where the Plaintiff has, to a greater or lesser degree, been personally involved in the incident out of which the action arises, either through the direct threat of bodily injury to himself or in coming to the aid of others injured or threatened. Into the same category, I believe, fall those cases such as Dooley v Cammel Laird & Co. Ltd [l951] 1 LlR 271, Galt v British Railways Board (1983) 133 NLJ 870 and Wigg v British Railways Board , The Times 4th February l986, where the negligent act of a defendant has put the plaintiff in the position of being or of thinking that he is about to be or has been, the involuntary cause of another’s death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact. The fact that the defendant’s negligent conduct has foreseeably put the plaintiff in a position of being an unwilling participant in the event, establishes of itself a sufficiently proximate relationship between them, and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable."

Lord Oliver then distinguished a class of secondary victims where “the injury complained of is attributable to the grief and distress of witnessing the misfortune to another person in an event by which the plaintiff is not personally threatened or in which he is not directly involved as an actor”. It is unnecessary to describe the “control mechanisms” that have been held to limit the class of secondary victims entitled to compensation.

Hobhouse LJ takes the second part of the passage from the speech of Lord Oliver which I have cited (beginning with the words "Into the same category"), as bringing into the category of primary victims cases where the plaintiff is an employee of the defendant and, as a result of the defendant's negligence, is put "in the position of being, or thinking that he is about to be or has been, the involuntary cause of another's death or injury". There is then "proximity in law" sufficient to found liability though there may be no physical proximity. In my judgment if the passage I have cited is read as a whole together with the preceding paragraphs it is clear that Lord Oliver is dealing throughout with cases where there is physical proximity (cases where the plaintiff saw or heard or otherwise became aware through his unaided senses of the accident) and was either involved through the direct threat of bodily injury to himself or in coming to the aid of others injured or threatened or was put in "the position of being, or thinking that he is about to be or has been, the involuntary cause of another's death or injury". In the first of the two cases cited by Lord Oliver the shock to the plaintiff resulted from what he saw - in Dooley the danger to persons whom he thought would be working in the hold and in Galt the danger to the workmen whom the plaintiff saw on the railway line. In Wigg the plaintiff was an actor in the events which led to the death of a passenger and although he did not actually see the accident, he saw the immediate aftermath and the nervous shock he suffered stemmed from that and from his attempt to rescue and comfort the victim. It is true that in all these cases the plaintiff was an employee of the defendant and no doubt that will be a frequent if not invariable feature of similar cases. However, it is not, as I see it a necessary feature. That can be illustrated by reference to the facts of Galt. If the track and signalling equipment had been the responsibility of the defendant and the train the property and responsibility of a separate company (a situation which might well arise today) the defendant would be equally liable for the defect in the signalling equipment due to his negligence.

I can see nothing in Robertson v Forth Road Bridge Joint Board [1996] SLT 262 which is inconsistent with this approach. The plaintiffs failed because although they were engaged in the operation of removing the metal sheet from the bridge and, in the case of Rough, saw Smith blown from the transit van, they did nothing which could lead them to believe and did not claim that they did believe that they were in any way responsible for it. Clearly, if Rough had been responsible for securing the metal sheet and had done so by means of a rope supplied for the purpose by his employers, which, unknown to him, was defective he would have recovered - not because he was an employee and Smith a fellow employee but because he saw the accident happen and would have had good reason for feeling that he had been, albeit it innocently, responsible for it.

Frost and ors v Chief Constable of South Yorkshire Police and ors [1996] 1 WLR 1194 was another case which arose from the Hillsborough disaster. The four plaintiffs who recovered damages were all police officers and were on duty at the stadium and saw the disaster or its immediate aftermath. They were all involved in endeavouring to resuscitate victims and to identify them and to prevent further injury to the public. The decision of the Court of Appeal, as I understand it, was that the successful plaintiffs were bound in the course of their duty to be present at the stadium and to assist in containing the panic and inevitably witnessed the dreadful scenes of carnage which resulted from the negligence of the Chief Constable and his senior officers.

"They were .... at the ground in the course of duty, within the area of risk of physical or psychiatric injury and were thus exposed, by the first defendants negligence to excessively horrific events such as were likely to cause psychiatric illness even in a police officer. There was therefore a breach of duty to such persons." (See per Lord Justice Rose at page 1205).

Lord Justice Henry said at p.1212:

"I regard them as participants for the following reasons. They were on duty under their service contracts. They were directly involved in the consequences flowing from their employers negligent actions in crowd control. They were on duty at the ground close to the centre of the horror, dealing with the dead and injured and the fans, whether distressed or abusive. They had no choice but to be there and be involved. It was that involvement which led to the frustrations at being ineffective and helpless to the guilt and shame of the fact that negligent police decisions caused or contributed to the accident, to the hostility and abuse they suffered, to the long hours of exposure, to horrors from which any mere spectator could simply have averted his eyes. An off duty policeman at the match could, if his conscience permitted, have taken no part in the events whatever, and gone home with the crowd (the match was abandoned from 10pm) No such course was open to those on duty."

It is to my mind doubtful whether it was necessary or helpful to categorise the successful plaintiffs as primary or secondary victims. The categorisation of a plaintiff as a primary victim or a secondary victim and, in the latter case, the question whether the "control mechanisms" are satisfied are determinative in deciding whether psychiatric illness is foreseeable. However, in Frost it was admitted that "some police officers of ordinary fortitude (suffer) psychiatric illness as a result of attending incidents involving death or serious injury or risk thereof." Rose LJ after referring to this admission added:

"Accordingly, in itself, foreseeability of psychiatric illness at least of this first defendant, now appear to present no problem to the plaintiffs and before us, it was not contended otherwise on behalf of thee defendants. Accordingly, it is to the existence and breach of duty that I direct my attention."

Where the plaintiff learns of an accident caused by the negligence of his employer and without negligence on his part for which he feels some responsibility as an actor who played some part in the events leading to it and learns of the accident after it has happened psychiatric injury suffered by him by reason of his feelings of guilt or otherwise, the injury is too remote to found an action for damages.

It may be that the decision in Frost represents an extension of the cases in which damages for psychiatric illness following nervous shock can be recovered. I understand that the case is under appeal to the House of Lords. However, if it is an extension, it is a step in a different direction and does not, in my judgment, have any bearing on the facts of the instant case.

In my judgment, His Honour Judge Bentley QC reached the right conclusion and for the right reasons.

LORD JUSTICE HOBHOUSE:

This appeal raises a question of the entitlement of an employee to recover in the tort of negligence for nervous shock and psychiatric injury. The relevant facts can be shortly stated.

The Plaintiff Mr John Hunter and his fellow worker Mr Carter were employees of the Second Defendants, Cementation Mining Ltd, working in the First Defendant's North Selby mine. No point is taken as between the First and Second Defendants and therefore the case can be considered solely by reference to the liability of the Plaintiff's employer, the Second Defendants. In breach of their duty to their employees to provide them with a safe place of work, the Defendants permitted a high pressure water hydrant to project excessively into and partly obstruct one of the narrow roadways in the mine. As a result, when the Plaintiff was driving an FSV (a long thin flat-bed truck used in mines) carrying a load of girders along the roadway he struck and damaged the hydrant causing it to leak. The leak was sufficiently serious to risk flooding the floor of the roadway. The Plaintiff and Mr Carter who was working in the vicinity reasonably attempted to stop the leak by using a roof bolt as a lever to tighten the valve of the hydrant; but they were unsuccessful and the hydrant continued to leak. The Plaintiff then went to look for a hose with which to divert the water leaking from the hydrant out of harm's way. Whilst engaged in this search at a distance up the roadway of about 30 yards from the hydrant he heard a loud bang (or explosion), saw a cloud of dust and heard the sound of rushing water in the pipes. In fact Mr Carter had been seriously injured and killed by the bursting of the high pressure hydrant; it seems probable that he was standing in front of the hydrant still trying to stop the leak at the time the hydrant burst. The Plaintiff, however, was not close enough to see this and assumed that Mr Carter was still alive, probably unhurt. He realised that the damaged hydrant must have burst but he did not feel that his own safety was threatened. He appreciated that his first priority now was to close off the pipe from which the water was escaping and, for this purpose, he went some 300 yards further up the roadway to where the relevant valve was and with the assistance of another workman proceeded to close that valve. This was apparently a laborious and slow task. After some ten minutes when it was nearing completion, they heard over the tannoy that a man had been injured. Naturally the Plaintiff was concerned that it was Mr Carter that had been injured and he went back down the roadway to see what had happened. Before he had gone about half way he met a man coming in the opposite direction who told him that Mr Carter had been killed. It was this that triggered in the Plaintiff the serious shock which resulted in his psychiatric injury. The Plaintiff was escorted out of the mine in a shocked state without going any further. He never revisited the scene of the accident nor did he see the grievously injured body of Mr Carter.

The Judge expressly accepted the Plaintiff's expert evidence that, after he heard that Mr Carter was dead, the Plaintiff was "in a state of shock and thereafter in consequence thereof he developed a psychiatric illness". This finding has not been challenged by the Defendants on this appeal and we heard no argument upon it.

At the trial, as part of their case on contributory negligence, and on this appeal (see paragraphs 15 and 27(4) of the Defendants' skeleton argument) the Defendants stressed the Plaintiff's belief, they submitted well founded belief, that he was at least partly responsible for the accident and its aftermath including Mr Carter's death. Asked in evidence by his counsel how he felt at the time of being told of Mr Carter's death, the Plaintiff replied "responsible, responsible for his death because I were driving that machine." "As a result of me hitting that hydrant, a man died." "As a result of my driving, a man died, me hitting that hydrant. You see, me hitting that hydrant were my responsibility ... ." Counsel for the Defendants re-emphasized this evidence by asking the Plaintiff in cross-examination what he had said in response to being told that Mr Carter was dead. He answered that he had said: "I killed him". This evidence corresponded to his signed statement. His evidence was expressly accepted by the Judge. The Judge clearly accepted this evidence although he concluded that, in view of the conditions under which the Plaintiff was being required to work and the very considerable difficulties with which he was faced, he was to be acquitted of contributory negligence. (Judgment pp.9-11) The Plaintiff although not legally to be blamed was the human agent whose act (colliding with the hydrant) had given rise to the accident.

The Judge also held (at p.11) that the Defendants would have been liable in tort for the death of Mr Carter and that "had the Plaintiff sustained some physical injury as a result of the collision of the FSV with the hydrant or have been struck by the torrent of water which burst out of it he would clearly be entitled to recover damages in respect thereof". He held that there had been no contributory negligence on the part of either man in attempting to tighten the hydrant using the roof bolt. It is implicit that the Judge was prepared to find that the accident to Mr Carter was a foreseeable consequence of the Defendants' breach of duty and the Plaintiff's collision with the hydrant. Legally, no distinction was to be made between the collision with and the bursting of the hydrant; it was a single sequence with the same effective cause. If the Plaintiff had been present when the hydrant burst and had seen Mr Carter killed and had as a result suffered nervous shock, the Defendants would, as counsel for the Defendants at one stage of her argument before us rightly recognised, have been liable to the Plaintiff for that injury; it would have been foreseeable and within the scope of the duty of care which the Defendants' owed him.

Therefore, to summarise -

(1) The Defendants were in breach of their common law duty of care in relation to the safety of the Plaintiff and Mr Carter.

(2) As a result of that breach, the Plaintiff was involved in an incident in which he collided with and damaged the high pressure hydrant.

(3) As a result of the breach of duty and the collision, Mr Carter was killed.

(4) At the time that Mr Carter was killed, the Plaintiff was not in any actual or apprehended danger, did not see Mr Carter being killed and was unaware that he had been killed. But the Plaintiff did know that the high pressure hydrant had burst and reasonably believed that the burst was a consequence (as was the case) of the collision with the hydrant in which he had been involved.

(5) Over ten minutes later after the Plaintiff had left the immediate vicinity and without returning to it, the Plaintiff was told of Mr Carter's death. As a result of his feeling of responsibility for Mr Carter's death through having been a party to causing it, the Plaintiff suffered nervous shock and psychiatric injury.

The Judge held that on these facts the Defendants did not owe the Plaintiff a relevant duty of care and entered judgment for the Defendants. The Plaintiff has appealed.

The legal problem in the present case arises from the fact that the Plaintiff's claim does not satisfy the criteria for 'secondary victims' which were applied in McLoughlin v O'Brian [1983] 1 AC 410 and Alcock v Chief Constable of S Yorks [1992] 1 AC 310. This can be most clearly demonstrated from the speech of Lord Ackner in Alcock. There must be physical proximity of the plaintiff to the accident.

"The proximity to the accident must be close both in time and space. Direct and immediate sight or hearing of the accident is not required. It is reasonably foreseeable that injury may be caused to a plaintiff, not only through the sight or hearing of the event, but also of its immediate aftermath." (p.406)

The means by which the shock is caused must also be direct.

"The shock must come through sight or hearing of the event or its immediate aftermath." (p.405)

"Even where the nervous shock and subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading or hearing about the accident are not recoverable." (p.400)

There are similar statements in the other speeches: see for example Lord Keith at pp.397-8 and Lord Oliver at pp.411-2 and 416. All these statements are directed to the question whether there was sufficient legal proximity between the defendant and the plaintiff to establish the existence of the duty of care owed by the defendant to the plaintiff. (See per Lord Keith and Lord Oliver passim). The foreseeability of nervous shock is not alone enough. They were applying what Lord Wilberforce had said in McLoughlin -

"As regards proximity to the accident, it is obvious that this must be close in both time and space. ... The shock must come through sight of the event or of its immediate aftermath." ([1983] 1 AC 422-3)

Lord Ackner (at p.402) adopted and applied what Lord Atkin had said in Donoghue v Stevenson about those to whom a duty of care is owed - they must be

"so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". ([1932] AC at 580)

This too is directed to establishing legal proximity between the defendant and the plaintiff. As will be obvious legal proximity is not the same as and does not as such require physical proximity between the plaintiff and the accident or its immediate aftermath, although for 'secondary' victims in nervous shock cases such physical proximity is a requirement.

It follows from this citation that the Plaintiff in the present case cannot recover unless he can establish the requisite legal proximity in some other way. It must be borne in mind that the purpose of the proximity test is to establish the existence of the relevant duty of care owed by the defendant to the plaintiff. Where the plaintiff is a mere 'secondary' victim with no other nexus with the defendant (beyond mere foresight), he cannot establish the duty of care without showing legal proximity between the defendant and the plaintiff as defined in Alcock. The mere existence of an employer/employee relationship does not without more prove such proximity: see for example Duncan v British Coal [1997] 1 AER 540. This is so even though the defendant employer does in general owe duties of care to his employees, including the plaintiff. The plaintiff's injury, his nervous shock, does not come within the scope of the duty of care.

The present case therefore concerns whether the facts bring the Plaintiff within a category of employee plaintiff where the law recognises that legal proximity exists. Where the plaintiff comes within the category of a 'primary' victim as that term is used in Page v Smith [1996] AC 155, or where he comes within the category of a rescuer ( Chadwick v British Railways Board [1967] 1 WLR 912 and Wigg v British Rail , inf), or where he is within the area of physical risk created by the employer's breach of duty ( Young v Charles Church 24/2/97, CA), the employee can recover for nervous shock thereby caused. He may also recover, whether an employee or not, when he is put in fear of physical injury to himself. (per Stuart-Smith LJ in Macfarlane v Caledonia [1994] 2 AER 1 at 10) But none of these categories assist the Plaintiff in the present case.

All that I have said about the position of the 'secondary' victim applies even where there is a relationship of love and affection between the 'secondary' and 'primary' victims. This was the decision in Alcock: see also Ravenscroft v Red. Akt. Transatlantic , CA, 30 March 1992. That the same principles prima facie apply to employee 'secondary' victims is also established. Even if the Plaintiff had been the father or brother of Mr Carter, he would not have been able to recover. He was not present at the accident to Mr Carter or its immediate aftermath; he did not see it; he was only told about it. He is expected to display the same phlegm as any other member of the public.

But it appears that there is another recognised category which applies to employees and which potentially covers the Plaintiff. This category is recognised and discussed in the speech of Lord Oliver in Alcock, the judgment of Lord Hope in Robertson v Forth Road Bridge [1996] SLT 263 and the judgment of Henry LJ in Frost v Chief Constable of South Yorkshire [1997] 3 WLR 1194. In Alcock at p.408 Lord Oliver formulated the category as -

"where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another's death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact."

This covers the facts of the present case as spoken to by the Plaintiff and accepted by the Judge. The connecting factor serves to provide a nexus between the Plaintiff's injury and the Defendants' breach of duty. In the context of the employer/employee relationship, it requires the employer to contemplate that his breaches of duty may involve his employee as an unwilling participant in an accident which may cause injury to others, typically fellow employees. It applies whether or not there is in fact any 'primary' victim. It extends what would otherwise be the scope of the duty of care of the employer towards his employee.

There are two first instance decisions which appear to exemplify the application of this principle. The first is Dooley v Cammell Laird [1951] 1 Lloyds 271, a decision of Donovan J sitting on circuit in Liverpool. The plaintiff was the operator of a dockside crane engaged in lifting equipment onto a vessel being fitted out in a shipyard. Owing to defective ropes supplied by his employer a load suspended from his crane fell into the hold of the vessel where other employees were working. In fact no one was injured but the plaintiff not unreasonably thought that they had been. He suffered nervous shock and psychiatric injury. Although the plaintiff had never himself been in any danger, Donovan J held that he was entitled to recover. He held that both physical and psychiatric injury were foreseeable consequences of the defendant's negligence. He continued (p.277):

"Furthermore, if the driver of the crane concerned fears that the load may have fallen upon some of his fellow workmen, and that fear is not baseless or extravagant, then it is, I think a consequence reasonably to have been foreseen that he may himself suffer a nervous shock.

I therefore think there was a duty upon [the defendant] towards Dooley to use a sound rope for the purpose of hoisting the sling."

The second case is Galt v British Railways [1983] NLJ 133. The plaintiff was a train driver employed by the defendants. As he rounded a bend he suddenly saw two men who were also railwaymen standing in front of him on the track only 30 yards away. It was impossible for him to stop. He thought that they had been killed but in fact they got out of the way in time. Tudor-Evans J held that he was entitled to recover damages for the consequences of the nervous shock which he suffered; these included a consequent heart attack. As in Dooley no person other than the plaintiff had in fact been injured but the plaintiff believed that he had been instrumental in causing the death of or injury to fellow workmen albeit without any fault on his part. The report is very short and does not contain any explanation of the judge's reasoning. In each of these two cases the plaintiff suffered nervous shock as a result of what he himself saw; neither raised the Alcock question.

Lord Oliver referred to a third case, Wigg v British Railways (The Times 4/2/86), a decision of Mr Justice Tucker that a train driver could recover damages for psychiatric injury suffered through having to assist a man who had fallen whilst trying to board his train. Mr Justice Tucker treated the case as comparable to that of a rescuer and the case clearly falls within the principles recognized in Chadwick v British Railways Board [1967] 1 WLR 912.

At the beginning of his speech in Alcock Lord Oliver set out the categories of the right to recover recognised in the already decided cases. At p.407 he drew the distinction between two classes of cases: "those cases in which the injured plaintiff was involved either mediately or immediately as a participant and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others". He went on to deal with cases where the plaintiff was personally threatened by a terrifying experience ( Bell v G.N.Rly Co , 1890, 26 L R Ir 428) and cases where the psychiatric injury is accompanied by physical injuries ( Schneider v Eiosvitch [1962] QB 430). Into the same category he put the rescue cases. Negligently causing injury to people may also foreseeably cause physical or psychiatric injury to rescuers. He continued (p.408):

"These are all cases where the plaintiff has to a greater or lesser degree been personally involved in the incident out of which the action arises either through the direct threat of bodily injury to himself or in coming to the aid of others injured or threatened."

He then said that he believed that the Dooley, Galt and Wigg cases fell into the same category and formulated the proposition which I quoted earlier, continuing -

"The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficient proximate relationship between them and the principle question is whether in the circumstances injury of that type to the plaintiff was or was not reasonably foreseeable."

Lord Oliver is thus treating the workman so affected as a participant not as a witness and therefore coming into the first of his two classes; he is equivalent to a 'primary' victim. Lord Jauncey also referred to the Dooley case as providing the necessary element of involuntary involvement in the accident and to the correspondence of this element of the employer/employee relationship to other bases giving the right to recover for psychiatric injury: see pp.420-1.

In my judgment the most illuminating contribution to this question is to be found in the judgment of Lord Hope in the Robertson case. This was an employee/employer case. The plaintiff was one of a group of workmen working on the maintenance of the Forth Road Bridge whilst a gale was blowing. Owing to the employer's failure to provide a safe system of work one of the plaintiff's fellow workmen was blown out of a truck onto the side of the bridge and was killed. The plaintiff saw this and suffered nervous shock leading to psychiatric injury. He was at no time subjected to any physical risk arising from the defendant's breach of its duty to the man who died. The plaintiff played no part in causing or contributing to the incident. He was a mere observer. Lord Hope, and the Court of Session held that the plaintiff was not entitled to recover. Lord Hope grappled with the difficulties raised by the cases and the need to distinguish between bystanders (in the current terminology 'secondary' victims) and those more closely involved. He recognized that this question could arise not only as between various members of the public to whom the defendant owed no other duty of care and as between various fellow employees of the defendant employer. He considered the authorities including Dooley and the speech of Lord Oliver in Alcock. He said:

"In my opinion the feature common to all these cases which was observed by Lord Oliver is to be found in his use of the phrase "the involuntary cause of another's death or injury". The plaintiff may actually have caused the death or injury or he may think that he is about to or has done so. Whichever these alternatives applies is immaterial. What matters is that it was his own hand, or his own act, which was the cause or supposed cause of it. This is the essential characteristic which distinguishes the category from that of the bystander who, while present at the time of the accident and saw it happen, was not directly involved in it as the actor by whose hand the death or injury was caused to the third party." (p.268)

"It seems to me that the principle which was expressed by Lord Porter in Bourhill v Young [1940] 2 SC (HL) 98 applies equally to the relationship between employer and employee as it does between the relationship of wrongdoer and anyone else who is merely a bystander or witness at the scene of the accident. .... '... It is not every emotional disturbance or every shock which should have been foreseen. The driver of a car or vehicle even though careless is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them including the noise of a collision the sight of injury to others and is not to be considered negligent towards one who does not possess the customary phlegm..'" ( ib)

"The existence of the relationship between employer and employee may be said to remove the risk of having to compensate the world at large because it does to some extent restrict the numbers of persons who are likely to be involved in the incident. Nevertheless the numbers may still be very considerable if the enterprise is a substantial one and has numerous employees. Examples were mentioned in the argument in the present case of employees of the defenders who happened to be on the opposite carriageway when the accident occurred, or were present on other parts of the bridge further away from the place where the accident happened, but who might nevertheless claim to have suffered psychiatric illness as a result of witnessing the event. It is difficult to see why the bystander in the case of a road accident should be denied his claim when a bystander who happens to be an employee who has had nothing whatever to do with causing the incident is allowed to recover damages for this type of injury. There appears to be no logical stopping point once the bystander type of case is admitted in the case of employees. On the other hand cases of active participation in the event form a distinct category for the reasons already mentioned by Lord Oliver. I conclude that where the employees are merely bystanders or witnesses as the pursuers were in this case, the ordinary rule must apply. They must be assumed to be possessed of sufficient fortitude to enable them to endure the shock caused by witnessing accidents to their fellow employees. Unless they can bring themselves within one of the other recognized categories their claim for damages for this kind of illness must be refused." (p.269)

"I have not found anything in the pursuers' own evidence or in the medical reports which were lodged on their behalf to suggest that their psychiatric illness was caused by participation in the incident in the sense referred to by Lord Oliver or to fear for their own safety. Nor is there any basis in the evidence for attributing their illnesses to a belief that they had been the unwitting cause of Smith's death." ( ib)

In my judgment this analysis and conclusion is faithful to the principles formulated by Lord Oliver in Alcock at p.408.

This also was the view of Henry LJ in the Frost case at pp.1214-5, Henry LJ summarises the reasoning of Lord Hope including the recognition of the category of employee/employer cases which "when properly understood were limited to cases where the plaintiff may have either caused the death or injury or believed that he was about to or had done so". It appears that he accepts this reasoning. (See also p.1219 and compare Rose LJ at pp.1203-4.)

In my judgment, the effect of these statements of the law is to identify as the relevant factor the physical participation of the plaintiff in the event which resulted from the employer's breach of duty, which participation caused the plaintiff to believe that he was responsible for his fellow employee's death or injury. If so, the employer is liable for the nervous shock and psychiatric injury caused to the plaintiff as a result of his having participated in the event. It puts the plaintiff into the same class as a 'primary' victim; it puts him and his injury within the scope of the duty of care which the employer owes to him. The test then becomes one of causation; the Alcock criteria, or "control mechanisms" (see per Lord Lloyd at p.197 of Page), cease to be determinative. Provided that the Plaintiff can in the present case prove (as, on the Judge's findings, he has proved) the causal relationship between the Defendants' breach of duty and his participation in the incident and between that participation and his suffering nervous shock, and provided that he has proved the foreseeability of nervous shock to him as a possible consequence of the breach of duty, the Plaintiff has discharged the burden of proof that rests upon him. He is entitled to recover damages for his injury from the Defendants. It ceases to be relevant what the actual chain of causation was or whether it was to be foreseen ( Hughes v Lord Advocate [1963] AC 837; Mount Isa Mines v Pusey 125 CLR 383): the class or type of injury was foreseeable as a consequence of the breach. The same conclusion is implicit in Page once it is recognised that the Plaintiff's participation is what has brought his injury within the scope of the duty owed to him.

I recognise that there is no previously reported case the facts of which have necessitated the decision of the point raised by the present case. I also recognise that the law could have come to a different conclusion and have decided for policy reasons that the control mechanisms for 'secondary' victims were to be applied in this situation. But that would not in my judgment be a correct reading of the authoritative statement of the law by Lord Oliver in Alcock nor would it accord with the views of Lord Hope and Henry LJ. I observe that the view of the law I have derived from these authorities is also the view expressed by the Law Commission in its Consultation Paper No.137, paragraph 5.37:

"Lord Oliver's formulation, on the face of it, would allow an involuntary participant to recover even though the shock was not experienced through his or her own unaided senses and even though he or she was not close to the accident in time and space. For example, it would cover the case of a signalman who, by reason of operating his employer's faulty equipment, reasonably believes that he has been instrumental in causing a train to crash (out of sight or hearing) and suffers a shock-induced psychiatric illness as a consequence. We believe that a signalman in that situation probably ought to be able to recover damages as there is no floodgates objection. We therefore do not regard Lord Oliver's formulation to be too wide-ranging."

I respectfully agree. I note that in the present case the explosion which caused Mr Carter's death was in fact within the hearing of the Plaintiff and that the supposed accidents to the workmen in Dooley and Galt did not in fact occur and were in fact out of the sight of the plaintiffs in those cases (otherwise they would have known that the workmen had not been killed or injured).

I have not, save for referring to the judgment of Henry LJ on this one point, referred to Frost. It is under appeal to the House of Lords. Although it was an employee/employer case, I do not consider that its decision provides the answer to the question raised by the present case.

Since preparing this judgment I have had the advantage of reading the draft judgment of Brooke LJ with whom and Sir John Vinelott I have the misfortune to disagree. Brooke LJ has drawn attention to the Australian case Rowe v McCartney [1976] 2 NSWLR 72 which was not referred to in argument. It provides an interesting example of a distinction that needs to be made. It was not an employee/employer case. The shock that was suffered was wholly independent of whether or not the plaintiff had been in the car at the time. It could fairly be said that the injury was outside the scope of any duty of care owed to the plaintiff. It is not in any way inconsistent with what Lord Oliver and Lord Hope have said. It is the participation of the employee in the relevant incident which creates the proximity between him and his employer. In the Rowe case there was, in the opinion of the court, no such participation. The point at which the Rowe decision impinges upon English decisions is the cases of Page and Schneider (sup).

It follows that in my judgment the Plaintiff has in the present case proved that he has suffered a foreseeable injury which was caused by the Defendants' breach of the duty that they owed him and came within the scope of that duty. I consider that his appeal should accordingly be allowed and the case be remitted to the Queen's Bench Division or to the County Court for the assessment of damages.

ORDER: Appeal dismissed with costs; the order not to be drawn up for seven days, with liberty to the plaintiffs within that time for any change of order; with liberty to apply within that time for leave to appeal to the House of Lords, any such application to be made in writing.