Stormharbour Securities LLP v Dusek & Ors

An employer’s non-delegable duty to take reasonable care for an employee’s safety may extend to transport arranged by third parties in the course of employment. Where proposed travel presents significant and unusual risks, the employer must make a suitable and sufficient risk assessment. Checking licensing or relying on a client’s local expertise may be insufficient. The scope of the assessment is fact-sensitive and may require inquiries into the operator, aircraft, route and safety arrangements. Causation may be established where a proper assessment would probably have led to a precaution that would have avoided the injury. Appellate courts should not reopen fact-specific findings absent a recognised basis for intervention.

The widow and children of an employee who died in a helicopter accident in Peru brought claims against his employer under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. Hamblen J held the employer liable in [2015] EWHC 37 (QB), finding that it owed a duty to assess the safety of the proposed flight, had breached that duty, and had caused the death.

Permission to appeal was refused by the trial judge and by Tomlinson LJ on paper. The employer renewed its application before the Court of Appeal, challenging the legal duty, the findings that the flight was foreseeably dangerous, the adequacy of the hypothetical inquiries, and the causation findings. The central issue was whether the proposed appeal had a real prospect of success.

1. Permission refused. The proposed appeal was principally an attempt to retry intensely fact-specific findings. There was no real prospect of success and no other compelling reason for an appeal to proceed.
2. Hamblen J was entitled to find that the proposed helicopter journey through the Andes was high-risk and dangerous for the particular aircraft. His conclusion followed from detailed factual and expert evidence about the mountain environment, altitude and aircraft limitations. Arguments based on Cusco being an international airport did not address the risks of the particular route.
3. The employer’s non-delegable duty was materially different from the duty considered in the so-called holiday cases. It extended to taking reasonable care for the employee’s safety while travelling to and from the place of work. The extent of any risk assessment depended on the nature and extent of the risk. As explained in Uren v Corporate Leisure (UK) Ltd and Ministry of Defence [2011] EWCA Civ 66, a contractor’s assessment might be sufficient in some circumstances, but no universal standard could be prescribed. The employer’s reliance on Davie v New Merton Board Mills Ltd [1959] AC 602 was misplaced in the circumstances and had to be read in light of modern risk-assessment practice.
4. Given the risks known or reasonably foreseeable to the employer, doing nothing, or merely checking that the operator held an Air Operator’s Certificate, was insufficient. The judge was entitled to find that proper inquiries would have heightened the employer’s concerns, led to further safety assessment, and resulted in an instruction that the employee should not fly. The employee’s seniority and autonomy did not prevent that conclusion. On the findings, the instruction would have been obeyed and the death avoided.
5. Findings of fact are not invariably immune from appellate review. The principles identified in MacLeod v MPC [2015] EWCA Civ 688 permitted intervention where the relevant conditions were established, but none was present. The different outcome in Cassley v GMP Securities Europe LLP [2015] EWHC 722 (QB) did not undermine this decision because the cases had crucial differences, particularly concerning the foreseeable risk.

• Court of Appeal (Civil Division): Baker J refused the renewed application for permission to appeal on 24 June 2016.
• High Court: Hamblen J found the employer liable in [2015] EWHC 37 (QB).
• Permission stage: The trial judge refused permission, and Tomlinson LJ subsequently refused permission on paper.