Stormharbour Securities Llp v Angela Dimitrova Dusek and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Baker,The Honourable Mr. Justice Baker |
| Judgment Date | 24 June 2016 |
| Neutral Citation | [2016] EWCA Civ 604 |
| Docket Number | Case No: B3/2015/0552 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 2016 |
[2016] EWCA Civ 604
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr. Justice Hamblen)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Baker
Case No: B3/2015/0552
Richard Lynagh QC and Jason Evans-Tovey (instructed by DWF Ltd) for the Applicant
Michael McParland (instructed by Stewarts Law LLP) for the Respondents
Hearing dates: 16 th June 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application for permission to appeal by StormHarbour Securities LLP ("StormHarbour") against the judgment delivered on 19 January 2015 by Hamblen J (as he then was) in which he found that StormHarbour was liable under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 for the death of its employee, Mr Tomas Dusek. The Claimants in the proceedings are Mr Dusek's widow and children. Mr Dusek died in a helicopter accident in the Peruvian Andes on 6 June 2012. 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 both StormHarbour and the Claimants were represented.
At the same hearing, I also heard an application for permission to appeal in another case, Cassley v GMP Securities Europe LLP [2015] EWHC 722 (QB), which also involved a claim under the Fatal Accidents Act against an employer arising out of an air accident. There are some similarities between the two cases. Hamblen J's judgment was cited by the trial judge in the Cassley case and in the course of their submissions to this court. the parties to each application have referred to the judgment in the other case. The cases are, however, otherwise unrelated and I shall give separate judgments in respect of the two applications.
Summary of facts
As this judgment concerns an application for permission to appeal, it is unnecessary to recite the factual background in full detail. It is fully set out in the judgment of Hamblen J which is reported on the BAILII website under neutral citation number [2015] EWHC 37 (QB). In outline, the facts were as follows.
StormHarbour is a financial services firm specialising in the global capital markets. Mr Dusek was employed by StormHarbour from July 2009, latterly as a managing director. He was in Peru working on a project for the financing of a proposed hydroelectric complex to be built in the foothills of the Andes. StormHarbour had been engaged by Acres Investments SA ("Acres"), a local investment company behind the project, to identify and introduce potential investors and had identified a consortium comprising of two Korean companies, including a subsidiary of the Samsung group.
In April 2012, Samsung made enquiries as to how access for a site survey might be achieved. Acres initially informed them that vehicle access to the project site was impossible and access would therefore have to be either by helicopter or by long overnight walks through the jungle. Acres said that previous helicopter surveys had been conducted by flying to the town of Puerto Maldonado, taking the Interoceanic Highway to the town of Mazuco and then flying from Mazuco over the project sites. However, when the Acres project team started planning the itinerary for this trip, they proceeded to plan for travelling to Mazuco by helicopter from the international airport at Cusco which is situated in the Andes.
In further emails, Samsung indicated that they wanted a representative of StormHarbour to take part in the trip. It was decided that Mr Dusek would represent StormHarbour and he subsequently sent an email to his superior seeking approval of the travel plan. Approval was granted and he flew to Peru on 3 rd June.
Meanwhile, Acres had approached 6 helicopter operators to quote for the expedition and ultimately selected an operator called HeliCusco. The charter as originally planned comprised six sectors spread over two days — on 5 th June, sectors 1 and 2 from Cusco to Mazuco and back for the purposes of positioning fuel and, on the following day, sector 3, comprising a flight from Cusco to Mazuco with the passengers, sectors 4 and 5 involving flights around the various proposed sites, and concluding with sector 6, the return flight from Mazuco to Cusco. The two airfields are very different. Cusco is an international airport in the Andes at an altitude of 10,860 feet above sea level, with an 11,000 feet runway and full lighting, fuel and air traffic control facilities. Mazuco, on the other hand, is a disused airfield without lighting at an altitude of 1,181 feet. The planned route, via Paucartambo, involved crossing ground which was approximately 13,500 feet above sea level. Once at Mazuco, however, the altitude of the various project sites was below 5000 feet.
On the morning of 6th June, the third sector of the trip was delayed by nearly 3 hours because of poor weather. This had an impact on the safety of the flights that day because of the helicopter's density altitude restriction. "Density altitude" is defined in the judgment (at paragraph 151) as "a combination of pressure altitude and temperature" and "the height in standard atmosphere to which the actual air density at any particular point corresponds." The aircraft used was restricted by its certificate for take offs and landings up to 12,000 feet density altitude. At its planned departure time (06:30 hours) the density altitude would have been around 11,300 feet. The delay in take off meant that the temperature had increased and with it the density altitude at Cusco. For the actual departure time (09:09 hours) the density altitude would have been around 12,400 feet. The delay and consequent change in temperature also meant that the helicopter then exceeded its maximum weight by 457 lbs.
The crew was able to follow the planned flight route for the third sector. From Mazuco, the helicopter conducted two exploratory flights over the survey area but found itself in difficulties due to bad weather and returned to Mazuco at 16:01 local time which left insufficient time to return to Cusco in daylight. Evidence subsequently presented by HeliCusco to the accident investigators indicated that there had been pressure from the passengers to return to Cusco that evening because some of them had scheduled flights on the following day. As a result, the aircraft departed Mazuco at 16:46 hours with an estimated arrival time at Cusco of 17:58 hours, about 30 minutes after sunset. About 24 minutes into the flight, the helicopter changed course, perhaps because of the presence of low cloud. The judgment continues (at paras 94–5):
"Starting at around 17:14 hours, the aircraft exceeded 15,000 feet for a period of about 7 to 9 minutes on this final sector of its flight. This would have pushed its density altitude significantly above its release to service limit of 15,000 feet. This would have made the aircraft more susceptible to aerodynamic instability which could lead to a loss of control. At 17:21 hours, there was a very sharp turn to the left through approximately 100° to the south. This was a defined turn away from the general track and must have been a conscious decision on behalf of the crew. This new track turned the aircraft directly towards the ridgeline of Mama Rosa mountain on which the aircraft crashed two minutes later at 17:23 hours at 16,026 feet."
The direct causes of the accident as agreed by the expert witnesses who gave evidence at the hearing, and found by the judge, were: (1) either lack of knowledge or disregard of aircraft limitations which resulted in the significant exceedance of the approved flight envelope; (2) the extremely demanding and unforgiving environment of high mountainous terrain which reduced margin for error to a bare minimum; (3) the deteriorating weather conditions that constrained the pilots' options and caused them to change their route while in the air; (4) a failure to make a timely decision to abort the attempt to return to Cusco and instead return to Mazuco; (5) the decision to leave Mazuco at a time that would inevitably result in breaching regulations by flying the aircraft and in night conditions; (6) the crew's failure to withstand client pressure to take off and return to Cusco on 6th June.
The judgment
Having summarised the facts, the judge set out the relevant law concerning an employer's non-delegable duty to take reasonable care for his employees' safety, which may extend to third-party premises and transport to places of work. He cited a number of cases, including the decision of this court in Uren v Corporate Leisure (UK) Ltd and Ministry of Defence [2011] EWCA Civ 66 in which Smith LJ described risk assessments as "an important feature of the health and safety landscape" and confirmed that the duty on employers to carry out such an assessment is also non-delegable. Of particular importance to this case was the following citation from Smith LJ's judgement in Uren at paragraph 39
"It is obvious that the failure to carry out a proper risk assessment can never be the direct cause of an injury. There will, however, be some cases in which it can be shown that, on the facts, the failure to carry out a proper risk assessment has been indirectly causative of the injury. Where that is shown, liability will follow. Such a failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being...
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Hong Cassley and Others v Gmp Securities Europe LLP (Respondent Defendant)
...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 3 The factual background is set out in full in Coulson J's judgment. For the purposes of this application for permiss......