Summary
An employer’s personal, non-delegable duty to take reasonable care for an employee’s safety may extend to work-related travel abroad, including transport arranged by a third party. Where a proposed journey presents obvious and foreseeable risks of serious harm, the employer may be required to make reasonable safety inquiries and conduct an appropriate risk assessment. The duty does not generally require an expensive audit. On the facts, a simple inquiry would have led to advice that the flight was unsafe and to an instruction that the employee should not travel. The employer’s failure caused the employee’s death.
Factual background
The claimants, the widow and children of Tomas Dusek, brought claims under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 against his employer, StormHarbour Securities LLP. Mr Dusek died when a helicopter carrying him and 13 other people crashed in the Peruvian Andes during a work-related site visit.
The trial concerned liability only. The principal issues were whether StormHarbour’s employer’s duty extended to the chartered helicopter flight, whether it was breached by failing to investigate the flight’s safety, and whether that breach caused the death.
Held
- Duty. The claimants’ case on liability succeeded. An employer owes a personal, non-delegable duty to take reasonable care not to expose an employee to unnecessary risk. That duty can extend to travel to and from a foreign place of work and to transport arranged by third parties. The employer’s duty concerned Mr Dusek’s participation in the flight, not the chartering of the helicopter or the operation of the flight by Acres, Samsung or HeliCusco.
- Scope and content. Whether reasonable care required action depended on the circumstances. Relevant considerations included the nature and location of the work, the employee’s experience, the employer’s knowledge, the degree of control reasonably available, the nature and likelihood of the risk, and the likely seriousness of the harm. The proposed flight involved a remote and inaccessible region, high mountainous terrain, a helicopter operating close to or beyond its limitations, uncertain weather, and potentially catastrophic consequences.
- Breach. StormHarbour’s senior management knew that an employee would travel on a chartered helicopter from high-altitude Cusco to a remote site in the Andes. Those circumstances created obvious and foreseeable safety concerns. StormHarbour was therefore required to make at least a general safety inquiry and carry out an appropriate risk assessment. It was insufficient to do nothing. Checking only whether the operator held an Air Operator’s Certificate would also have been insufficient, because certification did not establish the safety of the proposed route or particular flight.
- Reasonable precautions. The duty did not require an expensive operational audit. An inquiry of Acres about the operator, helicopter, route and existing safety assessment, followed if necessary by a desktop or remote aviation review, would have been sufficient. On the likely evidence, that process would have resulted in advice not to undertake the flight. StormHarbour should then have instructed its employees not to travel.
- Causation. Mr Dusek would have complied with such an instruction, and would not have been killed. The claimants therefore proved breach and causation. The wider allegations concerning the chartering and operation of the helicopter were not made out. StormHarbour’s liability rested on its failure to investigate and act.
The court’s approach to earlier authorities
Available to signed-in members.
Appeal route
- This judgment [2015] EWHC 37 (QB) High Court (Queen's Bench Division)
- Appealed to[2016] EWCA Civ 604Outcomeapplication for permission to appeal refused
Key cases cited
10 authorities cited.
- Uren v Corporate Leisure (UK) Ltd [2011] EWCA Civ 66
- Durnford v Western Atlas International Inc [2003] EWCA Civ 396
- Wilson v Tyneside Window Cleaning Co [1958] 2 WLR 900
- Hopps v Mott Macdonald Ltd & Anor [2009] EWHC 1881 (QB)
- Palfrey v Ark Offshore Limited 23 February 2001, QBD
- Cook v Square D Ltd [1992] ICR 262
- Smith v Austin Lifts Ltd [1959] 1 WLR 100
- Davie v New Merton Board Mills Ltd [1959] AC 604
- Harris v Brights Asphalt Contractors Ltd [1953] 1 QB 617
- General Cleaning Contractors Ltd v Christmas [1953] AC 180
Sign in to see how the court treated each authority. A free account is enough.
Cases citing this case
3 later cases · 2 positive · 1 caution
Most senior citing decisions:
- Cassley & Ors v GMP Securities Europe LLP [2016] EWCA Civ 711 distinguished
- Teresa White & Anor v Hooke Highways Limited & Anor [2026] EWHC 2020 (KB) applied
- Cassley & Ors v GMP Securities Europe LLP & Ors [2015] EWHC 722 (QB) applied
Sign in for the full treatment table. A free account is enough.