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Employer's breach caused the employee's death

DUSEK & ORS v STORMHARBOUR SECURITIES LLP - 19/01/2015

An employer owed its employee a duty of care to ensure that a helicopter ride he was taking in the course of his employment was safe, given the knowledge that the flight route was over inhospitable and remote terrain. The employers failure to take any steps breached that duty and was the cause of the employee's death when the helicopter crashed on its flight path, killing all of the passengers.

The claimants, who were the wife and children of a deceased employee, brought a fatal accidents claim against the defendant employer.

The employee had been working on a project to secure funding to develop hydroelectric projects in the Andes Mountains in Peru, along with a Peruvian investment company. Two Korean companies were identified as potential investors. It was decided that it was necessary for the investors to visit the site and the investment company advised one of the Korean companies that the site was reachable either by long overnight jungle walks or by a road trip to an airfield and then a helicopter ride. The Korean companies requested that a representative of the employer was present and so the employer sent the employee on the trip. The Peruvian company chartered a helicopter from Cusco to Mazuco. One of the quotes received advised against flying from Cusco and instead, recommended starting from Mazuco to avoid crossing the Andes because of the remote and inhospitable terrain. The Peruvian company went with an operator willing to fly the route it wanted.

The first leg of the trip from Cusco to Mazuco, although completed, was delayed due to poor weather conditions, and the maximum permissible density altitude and weight were exceeded. The parties then flew around the project site but returned to Mazuco because of poor weather conditions. The crew made a flawed decision to fly back to Cusco the same day and ran into operational difficulties as a result. They crashed into the Andes Mountains and everyone on board the flight was killed. The issues were (i) whether the scope of the employer's duty of care extended to the helicopter charter and flight; (ii) if there was such a duty, did the employer breach it; (iii) if the employer breached its duty, did that breach cause the employee's death.

HELD:

(1) The employee had been on the helicopter for the purposes of his employment and his employer owed him a duty to take reasonable care not to subject him to unnecessary risk. Irrespective of whether it had organised the helicopter trip or whether the employee was looking to it to take reasonable care of his safety, the employer owed him a duty to take reasonable care to ensure that he was reasonably safe while travelling to and from work abroad where he was required to go; Palfrey v Ark Offshore Ltd applied (see paras 132-143 of judgment).

(2) It was clear that there were obvious potential dangers involved in the trip, namely unsafe operation or performance of the helicopter. The employer knew that the employee would be going on a chartered helicopter trip to visit a site in a remote, inhospitable, inaccessible and mountainous area. It owed a duty to safeguard the employee from the danger involved by inquiring into the safety of the trip and conducting a risk assessment. It had no knowledge of whether the companies that organised the trip had flown with the helicopter operator previously, had carried out a risk assessment or had any safety concerns. Its health and safety officer accepted in evidence that something should have been done. In doing nothing, the employer breached its duty of care (paras 145, 166-167, 173-178, 184, 186, 191).

(3) The employer should have inquired of the Peruvian company as to details of the flight operator, the helicopter to be used, the flight route and how they satisfied themselves as to the safety of the flight route. The Peruvian company had been advised to take a coach from Cusco to Mazuco as it was safer to begin helicopter travel from Mazuco because of the dangers of flying over the Andes. If the employer had made the safety inquiry required to make an appropriate risk assessment, it would have instructed its employee not to take the flight because of safety concerns, and he would have listened. The employer's breach caused the employee's death (paras 192, 207-208, 215-216).

Judgment for claimants