Cassley & Ors v GMP Securities Europe LLP

An appellate court should not grant permission where the proposed appeal is in substance an attempt to reopen factual findings on causation, unless the lower court’s findings lack evidential support, rest on a misunderstanding of the evidence, or are conclusions no reasonable judge could reach. In assessing causation for breach of an employer’s duty to protect an employee travelling for work, the question is what a reasonable employer ought to have done in discharging the duty, rather than whether the actual employer would have acted differently with hindsight. A breach does not establish causation where reasonable enquiries would still have led the employer to regard the proposed arrangements as safe. Different results in comparable cases may be justified by materially different findings about the risks inherent in the relevant journey.

The claimants sought permission to appeal against Coulson J’s dismissal of their damages claim against GMP Securities Europe LLP following the death of an employee in an aircraft crash in the Republic of Congo. The claim against a second defendant, Sundance Resources Ltd, had also been dismissed, but no appeal was brought against that decision.

The High Court held that GMP owed a non-delegable duty to take reasonable care for the employee’s safety during work travel and was in breach by making no enquiries about the trip. It nevertheless found that the breach did not cause the death: GMP did not know of the last-minute change of carrier, and reasonable enquiries would have reassured it that the flight was safe. The central issue was whether those factual and causation findings disclosed an arguable appeal.

Permission to appeal refused. The Court of Appeal accepted that the High Court judgment was carefully and fully reasoned and identified four findings which were open to Coulson J and determined the application:

1. The accident was caused by pilot error.
2. The flight was routine and low risk, both in its original and modified form, with no foreseeable risks inherent in the flight plan.
3. GMP neither knew nor had any reasonable way of knowing that Sundance had changed the carrier from Jetfly to Aero-Service.
4. Even if GMP had known of the change and made reasonable enquiries about Aero-Service, the responses would have reassured it that the flight was safe.

The court rejected the claimants’ reliance on Mr Butterworth’s evidence that he would have acted differently had he appreciated the risks. The deed did not remove Sundance’s liability for negligence; it required GMP to indemnify Sundance for liability arising from such negligence. The relevant causation inquiry was what a reasonable employer ought to have done in discharging its duty, not what the actual employer might have done with hindsight. A proper risk assessment would not, on the findings, have led GMP to conclude that the flight was unsafe.

Although factual findings can be challenged where unsupported by evidence, based on a misunderstanding of the evidence, or beyond the range open to a reasonable judge, none of those grounds was established. The difference from Dusek was explained by the materially different findings concerning the inherent risk of the flights. There was no real prospect of success and no other compelling reason for an appeal to proceed.

• Court of Appeal (Civil Division): permission to appeal against the dismissal of the claim was refused. [2016] EWCA Civ 711.
• High Court of Justice, Queen’s Bench Division: Coulson J dismissed the claim against GMP following the aircraft crash. [2015] EWHC 722 (QB).
• The claim against Sundance Resources Ltd was also dismissed, but that decision was not appealed.