Hong Cassley and Others v Gmp Securities Europe LLP (Respondent Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Baker |
| Judgment Date | 08 July 2016 |
| Neutral Citation | [2016] EWCA Civ 711 |
| Date | 08 July 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2015/1314 |
[2016] EWCA Civ 711
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr. Justice Coulson
TLQ/14/0468 HQ13X02001
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Baker
Case No: B3/2015/1314
Gerard McDermott QC and Matthew Reeve (instructed by Stewarts Law LLP) for the Claimants/Applicants
John Ross QC and Kiril Waite (instructed by Berrymans Lace Maawer LLP) for the Defendant/Respondent
Hearing dates: 16 th June 2016
By a notice of appeal dated 21 April 2015, the three Claimants in these proceedings seek permission to appeal against the judgement of Coulson J delivered on 31 March 2015 [2015] EWHC 722 (QB) dismissing their claim for damages against GMP Securities Europe LLP ("GMP") following an accident on 19 June 2010 when an aircraft crashed in the remote jungle in the Republic of Congo. All 11 passengers on board died, including Mr James Cassley, the husband of the 1 st Claimant and son of the 2 nd and 3 rd Claimants. The application for permission to appeal was refused by the trial judge and subsequently by Tomlinson LJ on paper but renewed before me at a hearing at which the Claimants and GMP were both represented. The Claimants also sought damages against a 2 nd Defendant, Sundance Resources Ltd, ("Sundance"). That claim was also dismissed but no appeal has been brought against that decision.
At the same hearing, I also heard an application for permission to appeal in another case, Dusek and others v StormHarbour Securities LLP [2015] EWHC 37 (QB), which also involved a claim for damages against the employer arising out of an air accident. There are some similarities between the 2 cases, and the judgment of Hamblen J at first instance in Dusek was cited by Coulson J in his judgement in this case. Although the applications for permission to appeal were heard together, and in the course of argument counsel in each case referred to the other, the two cases are otherwise unrelated. It was agreed that I would give separate judgements in respect of the two applications. On 24 th June 2016, I handed down judgment in the Dusek case [2016] EWCA Civ 604.
Summary of facts
The factual background is set out in full in Coulson J's judgment. For the purposes of this application for permission to appeal, it is only necessary to recite the salient features.
Mr Cassley was employed by GMP as a corporate finance executive. GMP is the London branch of a bank providing investment services in the mining, oil and gas sectors. Mr Cassley's job involved frequent foreign trips and in the year of his death he had already travelled to Africa on several occasions. The judge found that he knew there were some risks attached to his job and the flying to remote locations that is entailed, although there was nothing to suggest that he ever knew of, let alone accepted, any unnecessary risks when undertaking those flights.
The judge described GMP's health and safety documentation, and the evidence of the company's executive, Mr. Butterworth, responsible for legal matters and compliance, including health and safety, as "not very illuminating". The documents produced included one entitled "Office Risk Assessment" which identified those at risk as including employees travelling to remote locations and including provision for risk assessments in cases where hazards could not be eliminated or risks avoided. The document contained a policy statement in respect of contractors which asserted that the firm would plan, coordinate, control and monitor the activities of contract companies to effectively minimise the risk presented to employees and would only use contractors who proved able to discharge their primary responsibilities to safeguard the employees.
In 2010, GMP opened discussions with a view to providing investment in a mining project in Africa coordinated by Sundance, an Australian mining company which had acquired exploration rights in respect of iron ore deposits at a site in Cameroon called Mbalam and another site some 70 km away in the Republic of Congo at Nabeba. The judge found that the board of directors at Sundance, many of whom lost their lives in the accident, were well respected and experienced, including CEO Mr Lewis and the company secretary Mr Carr-Gregg. The judge found that the directors were not the sort of men knowingly to expose themselves, or others, to unnecessary risk. Sundance had concluded that charter flights were the best option for travelling to Mbalam and Nabeba. The judge found that each charter flight had to be approved by Mr Lewis, so that he and Mr Carr-Gregg were aware of the risks of air travel and addressed those risks with potential carriers, including making enquiries about insurance certification and other documentation, and that Mr Carr-Gregg arranged insurance for every flight taken. Sundance's travel policy for charter flights provided that any fixed wing aircraft would be twin-engined and carry 2 pilots, that the operators would confirm that they had the necessary Air Operator's Certificate ("AOC"), that all flights would be approved by Mr. Lewis and that there was evidence of third-party liability insurance cover of at least $10 million.
Prior to the fatal flight on 19 June 2010, Sundance had successfully completed three chartered flights to the area, the first in January 2010 using a Cameroonian charter company called Jetfly, the second in March 2010 using a Congo company called Aero-Service, and the third later in March using Jetfly again. Jetfly was the preferred operator, but the earlier flight with Aero-Service was also regarded as a success. The judge concluded that he was in no doubt that Aero-Service held an AOC and, on a balance of probabilities, that this had been seen by Sundance. He found that the arrangements for the March flight with Aero-Service were in accordance with Sundance's travel policy.
Sundance then decided to convene a board meeting in Cameroon in June 2010, including a site visit to Mbalam and Nabeba, because high-grade ore had been identified at both sites. It was agreed that a representative of GMP would take part in the visit and Mr Cassley was selected in that capacity. GMP's point of contact at Sundance for the arrangements concerning this trip was a Mr De Nardi who was based in Perth, Australia. On 1 June 2010, he informed Mr Cassley by email that the visit would take place on a Jetfly charter flight. The judge found that this was the only reference to any carrier provided to GMP by Sundance and that at no time did GMP seek any further information about Jetfly. It then emerged that Jetfly would not be permitted to land at the airport in Congo, Yangadou, because they were not a Congolese registered carrier. Sundance therefore decided to use Aero-Service for the trip but the judge found that neither Mr De Nardi nor anyone else at GMP was told about the change of carrier. There was communication between GMP and Sundance in the days leading up to the flight, but the judge found that this was taken up with Sundance's attempts to ensure that GMP waived any rights in respect of an accident. For several weeks prior to the flight, various versions of a document entitled "Confidentiality and Waiver of Liability Deed" drafted by Sundance were circulated in email correspondence. Although Sundance and GMP each signed a version of this document, no version was signed by both sides and therefore it never came into effect. In the course of the negotiations, however, Mr Butterworth had informed other executives in GMP that there was no objection to the deed "from a legal and compliance perspective". In cross-examination, Mr Butterworth accepted that he should have looked into the risks and dangers himself. The judge found that, although he realised that the wording of the proposed deed was an attempted abdication of responsibility by Sundance, he never thought through the obvious consequences for Mr Cassley's health and safety.
On 15 June 2010, Sundance decided to cancel the order with Jetfly and instead ask Aero-Service to undertake the flight. On 19 th June, Mr. Lewis approved the Aero-Service flight. The judge found that it was assumed that Aero-Service would use the same plane and pilot as had been used on the earlier March flight. In fact, Aero-Service informed Sundance that a different plane would be used, although the judge found that nobody at Sundance appeared to have picked this up.
The original flight plan showed what the judge described as a straightforward flight from Yaounde to Yangadou at about 11,000 feet. The day before the flight, the route was changed to include flying over another mine at a location called Avima operated by another company. The Aero-Service crew pre-programmed Avima way points into the GPS they were using as navigation. The judge found that there were no foreseeable risks in respect of the flight plan in either its original or modified forms. The consequences of this last-minute change were identified by the judge as including (1) that the flight was being operated by a company who had not been asked for all the documentation which Mr Lewis had required; (2) that the flight was being undertaken by an aircraft which had not landed at Yangadou before; (3) that the pilots on board had never flown from Yaounde to Yangadou and (4) that the change of route would necessitate a longer period of low-level flying. The judge concluded, however, that none of these changes altered the fact that the flight was low-risk and routine. He accepted the submission that if Mr. Lewis or any of the Sundance Board had any reservations, the flight would not have gone ahead.
The flight took...
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