Dusek & Ors v Stormharbour Securities LLP

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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.