Dusek & Ors v Stormharbour Securities LLP

On 6 June 2012 a Sikorsky S58-ET helicopter operated by a Peruvian company, HeliCusco, crashed at an altitude of some 16,026 ft above mean sea level into a mountain known as ‘Mama Rosa’ in the Andes mountain range in Peru. The helicopter disintegrated and caught fire, killing all 12 passengers and 2 crew on board.

One of those passengers was Mr Tomas Dusek who was an employee of the Defendant (“StormHarbour”), an independent global markets and financial advisory firm and an English limited liability partnership. Mr Dusek was in Peru for his work on a project (“the Project”) known as “Nueva Esperanza” (New Hope) which concerned a proposed hydroelectric complex being built in the province of Carabaya in the region of Puno, south-east Peru. The helicopter had been chartered for the purpose of a visit to the proposed sites for the Project.

Mr Dusek’s widow and children bring this claim under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. It is alleged that StormHarbour was in breach of its duty as employers to provide Mr Dusek with a safe place of work, safe equipment and a safe system of working. Mr Dusek was 37 years old when he was killed and had two children then aged 8 and 5.

The present trial concerns liability only. Although the issues raised involve various different parties, this action only concerns Mr Dusek and StormHarbour and I have had no evidence or submissions from any other companies or individuals involved in the tragic events of 6 June 2012. Any findings I make must be understood with those limitations in mind.

At the trial there was factual oral evidence called on behalf of the Claimants from Mr Dusek’s widow, Mrs Angela Dusek; Mr Thomas Gruber, a managing director at Credit Suisse; Mr Alex Jacques-Martin, the Chief Financial Officer (“CFO”) and principal shareholder at the material time of another Peruvian helicopter company, Helinka. There was factual oral evidence called on behalf StormHarbour from Mr Terry Keeley, the Chief Operating Officer (“COO”) of StormHarbour and the partner with responsibility for health and safety, and Mr Hong Hoo Moon of StormHarbour Securities (Hong Kong) Ltd (“StormHarbour Hong Kong”). There was also evidence from Mr Graham Dickinson of StormHarbour’s solicitors, DWF LLP, in which he spoke to a witness summary of evidence prepared by him from an interview carried out with Mr Dusek’s colleague, Mr Paul Kozary. Unfortunately, Mr Kozary died suddenly from cancer in January 2013 before he had an opportunity to consider that summary.

Both sides called experts. In relation to aviation and operation of helicopters there was evidence from Mr Connolly for the Claimants and Mr Nash for StormHarbour. In relation to corporate risk assessment and auditing of helicopter charters there was evidence from Mr Watson for the Claimants and Mr Commander for StormHarbour.

There were extensive written and closing submissions provided by both sides. I have drawn on those submissions, with appropriate adaptations and amendments, for parts of the judgment, particularly in relation to the background facts and the parties’ arguments.

The principal liability issues may be summarised as follows:

Mr Dusek was a Czech national, living with his family in England. He had a distinguished educational background, winning a scholarship to Cambridge, and obtaining an MPhil in Finance with a Distinction. He was awarded a Magdalene College Prize for Economics. Mr Dusek had previously obtained a BSc in Economics and Mathematics at Charles University in Prague. After leaving Cambridge, Mr Dusek had gone into investment banking and worked for Deutsche Bank AG, JP Morgan Chase, and Banque AIG in London, before becoming employed by StormHarbour in 2009.

His colleague, Mr Kozary, who was working with him in Peru when he was killed, described Mr Dusek in the following terms:

Following Mr Dusek’s death a Memoir of his life that was “put together by Tomas’ colleagues from [the Defendant] StormHarbour for his children Isabelle and Max”. It shows him to be a person who led a full and active life. He enjoyed mountain climbing, skiing and bungee jumping and was described as “an adrenalin junkie”. It emphasised that “[a]all of Tomas’ colleagues at StormHarbour were without doubt as to how important family was to Tomas”, and “how Tomas was always talking about his family. He loved cycling with his kids and dancing with his wife”. Mr Dusek’s boss, Mr Antonio Cacorino, recorded in the Memoir, that “Tomas was very much a family man. I got the sense that family group were very close”. Indeed, Mr Cacorino declared, that “Tomas’ family will always be my family from now on. That will just be a reality. Through tragic events we built a link which will not disappear as long as I’m alive”. Mr Dickinson explained in evidence that Mr Cacorino had said to him that whatever the outcome of the litigation he would personally make sure that Mrs Dusek was looked after, that it was a matter for him personally and that he was simply not prepared to get involved in the litigation – hence his non-appearance as a witness despite clearly having relevant evidence to give.

StormHarbour is an independent global markets and financial advisory firm, specialising in the global capital markets. It was established in March 2009. It has been described as an intermediary between people who need finance and investors willing to provide it.

It was led by a group of about 7 partners, including its Managing Principal, Mr Cacorino, and its COO, Mr Keeley, who formed a governance group. Thereafter the management structure was flat with each of numerous and largely autonomous “managing directors” reporting directly to a member of the governance group.

Mr Dusek was employed by StormHarbour under a written contract of employment from July 2009. His employment contract was expressly governed by English law. Although Mr Dusek’s duties as an employee related primarily to the UK where he habitually carried out his work, the contract made it clear that ‘occasionally you may be required to travel abroad, when required by the Partnership for the proper performance of your duties’ (clause 3.2).

Clause 6.1 provided that he would be reimbursed reasonable expenses incurred by him in the proper performance of his duties, including for travel by air and rail, and car rental. The employee handbook also referred to travel on the firm’s business in the UK and abroad and working at client offices in accordance with need from time to time. It included travel policies and procedures. By clause 6.2 it was also a term of Mr Dusek’s contract of employment that he would comply with StormHarbour’s employment policies from time to time, one of which (the global expenses policy) expressly provided that it did not pay travel insurance.

Mr Dusek was employed initially as a sales and marketer, earning a minimum basic draw of £100,000 with an additional entitlement to net commission, but by the time of the crash he was a “managing director” on the same level as Mr Kozary and Mr Moon. For about two years he represented StormHarbour in Central and Eastern Europe, before progressing to be involved in infrastructure and project finance.

The evidence shows that Mr Dusek was given a degree of autonomy in relation to many matters, including organising and (subject to reimbursement) funding his own client entertainment and business trips (including travel), and whether to accept hospitality and invitations from third parties, including clients and potential investors in clients.

The Project’s aim was to secure funding for the development of hydroelectric projects located in the province of Carabaya in the foothills of the Andes mountains. This was a ‘run-of-river’ hydro power project. In 2009, Nueva Esperanza S.A. (“Nueva Hydro”) had been granted a temporary concession by the Peruvian government to construct 4 hydro projects on the river Inambari and 3 additional projects on the main tributaries (Ayapata, Limbani and Coasa).

Acres Investments S.A. (“Acres”) was an investment company behind the development of the Project. In the promotional documentation seeking subsequent investment for the Project (with total Phase I costs estimated at USD994 million) Acres was described as a company which identified, structured and developed Peruvian business opportunities. It was also described as a “leading Peruvian investment company with a successful track record in developing hydro projects”. Nueva Hydro was a special purpose vehicle established by Acres to hold the concession for the development of the Nueva Hydro hydroelectric projects.

In April 2011 StormHarbour was engaged by Acres as exclusive introducing broker to source and introduce to Acres and Nueva Hydro (together “the Peruvian clients”) potential investors interested in investing in the Project.

By schedule A of that contract, Acres would only consider potential investors who had the capacity to purchase up to 85% of the equity in Nueva Hydro, the capacity to provide the necessary equity to support the debt required to fund the construction of at least one 610MW hydroelectric project, and who would commit to observing and fulfilling the requirements necessary to obtain a “definitive concession”. StormHarbour’s remuneration for the services to be provided would be USD6.5million, but it was conditional on a number of matters, including the introduction of potential investors and the subsequent sale of 85% of the equity in Nueva Hydro.

StormHarbour’s ‘deal team’ for the Project was Mr Kozary, Mr Dusek and, initially at least, Mr Stephane Marchi. Their work on the Project appears to have begun in about May 2011, and subsequently involved investment road shows in Europe, Israel, and the Far East. The Project was anticipated as having at least two phases. Phase I, involved the sale to potential partners of the project by StormHarbour (including the preparation of a data room and investment road shows) and was intended to result in potential partners submitting a non-binding preliminary indication of interest. Phase II was where a limited number of potential partners, selected by Acres, would be able to conduct further due diligence and upon a satisfactory completion of such due diligence were expected to submit a final binding offer. It was during the second of these phases, the “due diligence period”, that Mr Dusek was killed.

After extensive work by the Project team, one potential consortium emerged as a possible investor. This was a combination of two Korean companies, Samsung C&T Corporation, Engineering and Construction Group of Seoul, South Korea (‘Samsung’) and the Korean Water Corporation (“K-Water” – together “the Consortium”). Samsung is a global corporation involved in large scale trading, investment and construction and part of the well-known Samsung group of companies. K-Water is a state-owned Korean public entity specializing in dams, water treatment and hydroelectric power. The Consortium was introduced by Mr Moon, who is of Korean origin.

A meeting took place with Samsung and Acres on 21 December 2011. Samsung signed a confidentiality agreement and eventually a Memorandum of Understanding with Acres. A revised Memorandum of Understanding (“MOU”) was negotiated by Mr Moon on behalf of the Peruvian clients and Samsung via a Mr Travis Woo, Mr Moon’s main contact at Samsung, between 15-16 March 2012. It was signed on 26 March 2012 and granted Samsung a period of exclusivity in relation to the Project.

By 13 April 2012 Samsung was considering a visit to Peru. In an email of that date Mr Woo wrote “Expected Trip to Peru is from 13^th of May for 2 weeks and draft of agenda & itinerary will be back to you as sooner” [sic].

Samsung was concerned as to how access for a site survey might be achieved. In April 2012, Samsung sent a series of questions relating to the information contained in the “Requirement for detail study of Carabaya Project Pre-Feasibility Study” (Part 1. Technical Side”).

On 26 April 2012 Mr Woo asked whether there was “any access roads / site survey routes” to the Project sites. On 28 April 2012, the Mr Anto of Acres replied in a widely circulated email attaching information about the access roads to the towns near to the Project, and informed Samsung that access to the exact locations of the Project tunnels would not be possible by vehicles: “there are some dirt roads from the towns to the river (the journey takes two days- walking in the jungle)”. Mr Anto therefore suggested:

“The alternative in order to make quick site survey is to go to the project area by helicopter”.

By 2-3 May 2012 Mr Javier Riofrio of Acres had separately answered Samsung’s earlier series of questions. In his reply he emphasised that vehicle access to the Project site was impossible: it would have to be either by helicopter or long overnight walks through the jungle. Acres stated that their previous helicopter surveys had been conducted by flying to Puerto Maldonado, taking the Interoceanic Highway to Mazuco, and then from Mazuco flying over the Project site, explaining that:

“The only current alternatives to visit the project areas are by helicopter or long overnight walks thought the jungle. By helicopter (we have done this before) it is necessary to fly to Puerto Maldonado city and then go by road (Interoceanica highway) to Mazuco district approximately three hours trip. In Mazuco the helicopter will take you to the project area.”

On 4 May 2012 Mr Woo, in his email in response asked whether “you [i.e. the Project team] can deal with – helicopter boarding available persons”. On the same day, Mr Jayson Cho, part of Mr Woo’s team, sent a further email, asking the Project team to assist in, inter alia, “booking domestic line tickets for site survey. On 5 May 2012, Mr Riofrio replied, saying:

“We will help you have the most efficient itinerary in Peru as possible. I suggest visiting the project sites by helicopter (we need to find out how many people they can take and the cost of rental)”.

In relation to the itinerary, on 26 April 2012 Mr Woo had said that Samsung would send over a draft itinerary. In an email dated 28 April 2012 and circulated widely Mr Riofrio replied saying: “I would personally like to be involved in organising your trip to Peru in order for Samsung’s team to get the most out for the days you will be here. Please send to me a proposed schedule of meetings and visits you all wish to accomplish in Peru so that I can help organise accordingly. Should I suggest your itinerary please also let me know”.

In his 4 May 2012 email to the Project team, Mr Woo included a “proposed itinerary (highly tentative)”. As Mr Woo explained, each item of the schedule in this proposed itinerary “would be changeable on your arrangement in better way of movements except 1^st day’s Intro meeting.” Samsung stated that it wished 3 representatives of its infrastructure development team together with 3 representatives of its technical team to visit Peru, together with 2 overseas business representatives from K-Water, as well as 5 external engineering consultants hired by Samsung, making a total of 13. In the same email, Mr Woo stated that Samsung wished to invite at least one representative from StormHarbour to attend during the visit.

On page 2 of Samsung’s draft itinerary the agenda item for the morning of Tuesday 15 May 2012 was “Lima  Carabaya region”. The agenda item for the afternoon of that day and the morning of Wednesday 16 May was “project site survey”. The participants in the project site survey were identified as Samsung, K-Water, Acres, SWECO and HC&A (SWECO and HC&A were engineering consulting firms appointed by Acres/Nueva Hydro).

On the same day Mr Kozary forwarded Mr Woo’s email first to Mr Cacorino (copying in Mr Dusek) for the purposes of explaining why he, Mr Kozary, was proposing to extend his trip in Peru by another week, and then to Mr Keeley for the purpose of explaining why the holiday he had booked might turn out not to be all holiday, to which Mr Keeley replied “of course”.

Also on the same day Mr Moon acknowledged Mr Woo’s email at 13:01hrs, indicating that he realised it was a big undertaking and commitment for Samsung, that he was glad that the engineering team were on board, and that StormHarbour would co-ordinate with Acres to do its part of the preparations to make the trip as productive as possible. Mr Moon then sent an email to Acres at 13:18hrs stressing that since Mr Woo’s infrastructure team had finally convinced Samsung’s engineering team to visit Peru, it was important for the Acres team to make good preparations for the trip. He then sent an email to Mr Kozary and Mr Dusek, copied to Mr Cacorino, stating:

At 14:00hrs on 4 May 2012, and adding to Mr Woo’s email, Mr Cho wrote to Mr Riofrio and the Acres’ team by email with additional requests, including a request that Acres arrange car rentals and a guide. Mr Cho pointed out that the itinerary was highly tentative and that Samsung would like Acres to advise, reschedule, coordinate and arrange Samsung’s schedule.

Later that day, and expressly picking up Samsung’s reference to one representative from StormHarbour, Mr Kozary suggested in an email to Mr Moon that Mr Moon (who had originated Samsung’s interest) should join the trip and thus be that representative. Mention was made about whether Samsung were offering to pay for flights and accommodation. Mr Moon replied the next day: “Our role is more to coordinate with Acres to help feed information requested by Samsung and [Mr Woo] is expecting our London team to join for that role ...... I do not think Samsung’s intention is to offer to pay for travel expenses for [StormHarbour]. We are mandated by Acres, who should absorb travel costs if we are not going to”. This accurately reflected StormHarbour’s role as one of coordination and facilitation.

In an email on 7 May 2012 Mr Woo informed Mr Riofrio and others that Samsung would be postponing the trip to 2 June 2012 for various reasons, including to give Acres/StormHarbour time to prepare agenda, meeting venues, rent vehicle, accommodation, etc.. Mr Kozary advised Mr Riofrio on the response the next day, including to confirm that they were thenceforth looking at the 10 day period from 2 June 2012 and Mr Riofrio then sent a brief email to Mr Woo simply saying “We look forward to seeing you on June 2^nd in Peru.”

On 16 May 2012 Mr Cho wrote to Acres asking them to “… please comment, reschedule, and arrange our trip itinerary sent by Travis [Woo] on May 4^th”.

On 20 May 2012 Acres’ Mr Anto informed Mr Cho that Acres were working through the itinerary which Samsung had sent.

On 21 May 2012 Mr Anto circulated a draft itinerary to the Acres’ team, now including Mr Cruzatt, adding “we are still waiting for the response of the helicopter companies”. The draft itinerary provided:

“6 June

07:15 Transport to heliport

08:00 Flight Cuzco – San Gaban (in two helicopters)

08:45 Visit- San Gaban Power Plant

12:30 Flight San Gaban – Cuzco

13:15 Transport

7 June

07:15 Transport to heliport

08:00 Flight Cuzco – project area (in two helicopters) - Cuzco

14:00 Transport”

On or shortly before 21 May 2012 it was decided that Mr Dusek might fly out to Peru in place of Mr Moon. An email from Mr Kozary states:

“I have discussed this at length with Tomas and he has decided to make himself available for the week. He has yet to explain to Mrs Dusek and his kids, so please say nothing when he walks in with a limp to your office.

Please Confirm authorization and payment of fare by Acres”

Acres subsequently authorised the cost of the flights for Mr Kozary and Mr Dusek. The light hearted reference to a “limp” was because Mr Dusek had been due to go on a family holiday to Bulgaria to visit his wife’s family for her aunt’s 60^th birthday and their 10^th wedding anniversary.

Late on 22 May 2012 Mr Kozary circulated a further draft itinerary amongst the Acres’ team, adding that he would try to get clarity on the helicopter they required. The itinerary provided:

“5 June

07:15 Transport to heliport

08:00 Flight Cuzco – San Gaban (in two helicopters)

08:45 Visit- San Gaban Power Plant

12:30 Flight San Gaban – Cuzco

13:15 Transport

6 June

07:15 Transport to heliport

08:00 Flight Cuzco – project area (in two helicopters) - Cuzco

14:00 Transport”

Mr Kozary subsequently sent the further draft itinerary to Mr Cho. He explained that the main change was to accommodate the availability of the helicopter on 5 and 6 June 2012 which was said to have required reorganisation/acceleration of the trip to Cusco. (The flights were the same as in the initial itinerary save that they had been advanced by one day.) Mr Kozary stated that his then understanding was that the helicopter requested had the capacity to carry 12 passengers and Acres needed 4 seats. He also asked whether Samsung wanted a second helicopter to be made available, or whether Samsung did not need all 13 of their party to fly to the Project area. He added that Acres was checking with other operators about additional smaller helicopter availability.

By email on 23 May 2012 Mr Woo suggested material changes to the itinerary. In particular the planned helicopter trip on 5 June 2012 to San Gaban was scrapped, and in relation to the helicopter trip on 6 June, Mr Woo wrote “provide helicopter movement mapping and stay time (landing time) available to check Geological/Topography on each project site and also have to see access road”.

On 24 May 2012 Mr Anto informed Mr Kozary and Acres’ team of the responses from various helicopter companies that Acres had approached. His email stated that the best alternative was HeliCusco and from the quoted price there needed to be deducted the cost of flights to and from San Gaban which had been originally planned but subsequently ruled out by Samsung and referred to the payment per seat “(4) from Acres/ SH/ SWECO team”.

Mr Anto sent a further email to Mr Kozary and others not long thereafter stressing that it was very important that Samsung clarify whether they wanted 13 people to go to the Project sites, suggesting the 12 passenger seats be split 4:8 in favour of Acres: Samsung. Mr Moon responded to Acres’ Mr Anto to the effect that he had spoken with Samsung, that they needed one helicopter for 12 people and that they wanted the split to be 3:9. The email reads “3 from Acres, SWECO, (SH)”. In a further email of the same date to Acres’ Mr Anto, Mr Moon added that Samsung would like Acres and Samsung to share the costs of the helicopter 50/50.

On the same day Mr Moon mentioned the suggested 50/50 split to Mr Kozary who queried it given that Acres was taking fewer seats and that Samsung was a substantial company.

On 24 May 2012 Mr Dusek sent an email to Mr Keeley about the visit to Peru, mentioning that Samsung had requested StormHarbour to participate and asking Mr Keeley to approve the travel plan for him and Mr Kozary for Peru. The email stated:

“Travel Approval- Peru- June 4-15

Hi Terry

This is a request to approve travel for Paul and I to Peru on June 4-15^th.

Samsung + K-Water of Korea are sending 13 persons to Peru for on-site due diligence for New Hope from 3^rd June for 11 days.

This is a very important event to close the deal, with a packed schedule, including site visit to the project area and high level meetings such as with the President of Peru, the Prime Minister, etc.

Samsung has requested SH London team to participate.

Travel & accommodation costs will be reimbursed by ACRES as per previous trips.

Please let us know if you have any questions.”

Mr Keeley approved the travel to Peru.

On 25 May 2012 Acres’ Mr Anto circulated a revised draft itinerary. The flights to San Gaban on 5 June 2012 had been dropped. The revised draft itinerary provided:

“6 June

07:15 Transport to heliport

08:00 Flight Cusco – project area - Cusco

15:00 Transport to Monasterio Hotel”

On 29 May 2012 Mr Cho indicated that Samsung wanted 9 seats on the flight: 4 for Samsung, 1 for K-Water, 2 for KECC and 2 for Seyeonge.

On 1 June 2012 Acres’ Mr Anto sent an updated draft itinerary and then the final version to Samsung.

Mr Dusek flew to Peru on Sunday 3 June 2012.

It appears that Acres approached 6 helicopter operators, namely, HeliCusco; Helinka; Inaer; Heliamerica; Heliasur and Helicopteros del Pacifico. Heliamerica did not respond to mail or telephone calls and Heliasur and Helicopteros del Pacifico did not have helicopters available for the dates.

On 7 May 2012 Mr Cruzatt sent an email to Helinka seeking a quotation and enclosing a map of the area over which they wished to fly. On 8 May 2012 Mr Cruzatt had a meeting with Ms Anne-Caroline Bonnet of Helinka to discuss the potential charter and subsequently required Helinka to sign a confidentiality agreement.

On 21 May 2012 Mr Cruzatt asked Helinka to quote for 2 flights both leaving Cusco - one on 6 June to San Gaban and back; the other on 7 June to the Project area.

On the same day, Mr Cruzatt pressed HeliCusco’s Mr Schwartzmann for a quote for 6 and 7 June. Mr Schwartzmann responded with a quote for 5 and 6 June, adding “we are running out of available dates in June”.

On 22 May 2012 Helinka sent to Acres a quote based upon using one Eurocopter and Mazuco as the project base “to maximise flight time operations, fuel and payload”. Mr Cruzatt queried the quote and the use of Mazuco because the passengers would be in Cusco. Helinka’s Ms Bonnet responded to the effect that it was crossing the Andes at very high elevation which limited the aircraft’s capacity.

Inaer also provided a quotation. Their helicopter was a single engine AS 350 able to carry only 5 passengers.

In an email dated 22 May 2012, Mr Anto subsequently informed people that HeliCusco was not available for the days expected adding “we need to change our itinerary and obtain the approvals from Samsung as soon as we can (HeliCusco has a highly [sic] demand for its services)”. He replied to Mr Schwartzmann asking him to wait until Friday for Acres’ reply so that they could finalise a few internal details regarding their travel itinerary.

The same day Mr Dusek analysed the HeliCusco quote and relayed it, together with the itinerary, to Mr Moon at 10:02hrs. Mr Moon took and adapted Mr Dusek’s email to inform Samsung’s Mr Woo by email at 12:40hrs that HeliCusco’s availability was limited to 5 and 6 June, that the price for the 12-person helicopter was $39,600 in total, and that as a result of earlier discussions they were not going to hire a smaller helicopter.

Three quotes were provided. HeliCusco’s quote was USD39,589.60, departing from Cusco. Helinka’s quote was USD31,000 not including fuel transport costs, departing from Mazuco. Inaer’s quote was USD28,770 on the basis of a helicopter that could only carry 4 passengers and 3 flying days departing from Cusco.

It was decided by Acres and Samsung that the HeliCusco quote should be accepted at a reduced price to reflect the fact that there would no longer be a flight to San Gaban. The eventual revised price quoted was USD26,279.29 plus 18% tax.

On 25 May 2012 Mr Cruzatt wrote to Mr Moon recording that HeliCusco’s quote had been approved and asking whether Acres or Samsung was to sign the charter. Mr Moon suggested that Acres should sign it.

On 29 May 2012 Samsung’s Mr Woo asked Mr Moon to arrange for Acres to sign the charter and to pay the deposit on behalf of Samsung, and, on the same day, Mr Moon replied stating that Acres would sign the charter. Mr Cruzatt confirmed that Acres would sign the charter and pay the deposit on Samsung’s behalf.

Although at one stage Samsung had suggested that the charter costs be shared 50/50 with Acres, it was eventually agreed that Samsung would pay for the charter but that Acres would pay pro-rata for the three seats it had on the flight.

The charter as originally planned comprised 6 sectors, spread over 2 days:

Cusco was the highest point of take-off and landing for the proposed itinerary. The airfield at Cusco was Alejandro Velasco Astete International. It is a major airport in the Andes Mountains at an elevation of 10,860 ft/3,310 m above mean sea level (“AMSL”). The airfield has an 11,000 ft tarmac runway (10/28) with full lighting, fuel and air traffic control facilities, including an air traffic information device (ATIS) which provides airfield met information every hour. However, the range over which ATIS can be received by aircraft flying in the local area is limited by the mountains to line of sight.

Mazuco was a disused airfield without lighting. It was to be used as a field landing site for this charter. It was at an altitude of 1,181 ft. Fuel, and probably ground crew, were to be positioned at Mazuco the day before to provide support for the charter.

The direct route from Cusco to Mazuco is a distance of 96 nm (nautical miles).

The planned route for the helicopter was via Paucartambo. Flying from Cusco to Mazuco via Paucartambo involves crossing the highest ground at approximately 13,500 ft located 18 nm to the North East (051 degrees) of Cusco. Thereafter, using the valley network to best effect, most of the route would have been close to around 10,000 ft.

Once at Mazuco, the altitude of the various sites to be visited in the Inambari River Basin were below 5,000 ft.

A 13 strong delegation from the Consortium arrived in Peru from Korea on 3 June 2012. Mr Dusek arrived the same day. Mr Kozary was already there.

On 5 June 2012, 6 cylinders containing 351 gallons of fuel were positioned at Mazuco using the same helicopter and flying the same route from Cusco. The aircraft left Cusco at 07:10hrs.

The crew on 5 June 2012 is likely to have been the same as that on 6 June, namely Captain Lozano and Flight Officer Mora.

The 6 June 2012 accident was later investigated locally by an air accident commission and a report produced (“the Accident Report”).

It would appear that the passengers on board the helicopter on 6 June 2012 were Mr Kim, Mr Woo , Mr Yoo and Mr Kupper from Samsung; Mr Kim from K-Water; Mr Jeon and Mr Lee from KECC; Mr Rim and Mr Choi from Seoyong; Mr Anto from Acres; Mr Gustafsen from SWECO and Mr Dusek from StormHarbour.

There is an email from Mr Dusek to his wife dated 6 June 2012 timed at 12:07hrs BST (11:07 GMT or 06:07 in Peru) stating “Now leaving for the famous heli trip”. (From hereon, all times are given in local time.)

The charter was scheduled to depart Cusco at 06:30 for Mazuco but, due to weather concerns at Cusco, the 3^rd sector (namely the first flight on 6 June) was delayed by nearly 3 hours. It is unclear from the Accident Report what information was available to the crew to prompt this decision. However, the Accident Report suggests the weather in the Cusco area was poor and that this caused the crew to delay the take-off until the weather had improved.

The helicopter departed Cusco for Mazuco at 09:09 hrs. The aircraft was restricted by the supplemental type certificate for take-offs and landings up to 12,000 ft Density Altitude. For the planned departure time of 06:30hrs the Density Altitude would have been around 11,300 ft. The delay in take-off meant that the temperature had increased and with it the Density Altitude at Cusco. For the actual departure time of 09:09 hrs the Density Altitude would have been around 12,400 ft, and therefore above its approved Density Altitude.

The delay and consequent change in temperature also meant that the aircraft then exceeded its maximum weight by 457lbs which was well in excess of any margin for error. Thus the delay in take off meant that both maximum permissible Density Altitude and maximum weight were exceeded.

The crew were able to follow the planned flight route. By interpolation of Sky connect data from the Accident Report, it appears that the helicopter did not exceed an altitude of 15,000 ft on its initial transit from Cusco to Mazuco via Paucartambo.

The flight from Cusco to Mazuco (said to have taken 1.16hrs) was successful. No technical faults were recorded.

The helicopter landed at Mazuco at 10:25hrs local time (15:25 UTC). There is an email from Mr Dusek to his wife dated 6 June 2012 timed at 10:54 (16:54hrs BST or 15:54 GMT) attaching a photograph of the helicopter and some passengers on the ground. From Mazuco the helicopter conducted two exploratory flights over the survey area but found itself in difficulties due to bad weather in the area, returning to Mazura at 16:01 local time.

The Accident Report states that:

The decision to return to Cusco was made late in the day, probably knowing that the final part of the flight would occur during (aviation) night which would place the helicopter in breach of Visual Flight Rules (“VFR”) restrictions.

Reports presented by HeliCusco to the accident investigators indicated that there was pressure from the passengers to return to Cusco on 6 June because some of them had scheduled flights to the city of Lima on the following day. This is supported by text and Blackberry messages later recovered. It is also supported by the final itinerary.

It appears that the crew and HeliCusco Ops Staff, together with a manager and a passenger from Acres/Nueva Hydro, discussed whether to complete the task the following day.

Following that discussion a flawed decision to fly back to Cusco via Paucartambo was taken by the crew which was the catalyst for the subsequent chain of events.

The aircraft departed from Mazuco at 16:46hrs. The estimated arrival time at Cusco was 17:58hrs.

The Accident Report states that this left insufficient time to reach Cusco before sunset which was at 17:27hrs. The International Civil Aviation Organisation (“ICAO”) defines night flying as the hours between the end of evening civil twilight and the beginning of morning civil twilight or such other period between sunset and sunrise, as may be prescribed by the appropriate authority. Civil twilight ends in the evening when the centre of the sun’s disc is 6 degrees below the horizon and begins in the morning when the centre of the sun’s disc is 6 degrees below the horizon. Peruvian aeronautical regulations regard aviation night to be the period from sunset to sunrise. Thus for regulation purposes the civil twilight period of 30 minutes after sunset, which is commonly within the definitions, was excluded such that around the final 20-30 minutes of the flight would have been technically at night.

The helicopter did not fly above its operational limits during the initial stage of the return flight en-route to Paucartambo.

After about 24 minutes into the flight and at about 17:09hrs, the helicopter changed course and headed for Urcos. The crew changed direction by turning left, some 35nm from Paucartambo. They headed south west. The Accident Report states:

“one observes the presence of low cloud, which may have been the reason for the initial change in the helicopter’s route: not to continue towards Paucartambo, as had been the plan, and opting to turn to the left and, taking the Interoceanic Highway as a reference, to head for Urcos”

The aircraft appears to have flown on the southern side of the valley which would have been the up-drafting side of the valley. This represents recommended mountain flying practice. It also began to follow the Interoceanic Highway. This is confirmed by the Sky Connect track plot.

Starting at around 17:14hrs, the aircraft exceeded 15,000 ft for a period of about 7-9 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 ft. This would have made the aircraft more susceptible to aerodynamic instability which could lead to loss of control.

At 17:21hrs, there was a very sharp turn to the left through approximately 100 degrees 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 17:23hrs at 16,026ft.

Although the pilots had portable GPS navigation devices, the precise height of the ridge may not have been known to them at the time. Immediately before impact the helicopter had been flying at 16,294ft AMSL.

It is not known which of the pilots was in physical control of the flying controls when the crash happened.

It appears that moments before impact the aircraft veered right but the left hand side struck the mountain.

The Accident Report states that the accident conditions resembled those of a controlled flight into terrain with the engines producing power at the time of the impact. The aviation experts agree that loss of control in flight by reason of the retreating blade stall would also fit the facts, the engines producing power but the blades being stalled - failing to produce lift - resulting in an uncontrolled fall into terrain.

The helicopter caught fire as a result of the fracturing of the fuel tanks.

As a result of the fire, all 14 people on board were killed. Although the autopsy certificate for Mr Dusek gives the cause of death as “carbonisation”, the accident investigators suggest he would have died as a result of the impact.

The aviation experts agree and I find that the likely scenario leading up to the crash is as follows.

During the mobile call while the aircraft was being refuelled, Capt. Lozano was made aware that the weather at Cusco was good. He was also apprised of the extent of the cloud shown on satellite. From previous flights, he was aware of the cloud in the valleys. Later under pressure from passengers, the crew decided to give it a go by flying back on top of the cloud.

After departure from Mazuco, the crew saw the cloud ahead and gradually climbed in order to get above it.

By point 8 on the Sky Connect track plot the aircraft reached the edge of the cloud cover area and the aircraft was flying at a pressure altitude of approximately 15,000 ft. As they progressed, they were probably not technically VFR but flying under Visual Met Conditions (VMC), which are flight conditions in which flight solely by visual reference is possible but without sufficient separation from cloud. Specifically, they would have been skimming at less than 1,000ft above the cloud tops and would have been able to see the ridgeline to the South. As they progressed past point 10 on the Sky Connect plot, the cloud tops rose and the aircraft gradually climbed to try and remain VMC on top.

By point 12 on the plot, the pilots were losing control of the situation. They were flying at a Pressure Altitude of approximately 16,500 ft as shown on their cockpit instruments and were aware they were dramatically exceeding the aircraft’s release to service for Density Altitude. The aircraft’s handling was becoming extremely sluggish and unresponsive. Although still daylight at their altitude, it was getting dark below and they were conscious that a return to Mazuco was now a closed option since the disused airfield has no lighting. They were running out of good options. They could see the ridgeline close by to the South and a snap decision was taken to turn through 100 degrees in an attempt to cross the ridge of the Mama Rosa Mountain. As they approached the ridgeline, they were flying at high power but the rate of climb was low. Realising they were unlikely to gain enough altitude, they attempted to turn away which initiated retreating blade stall and they lost control of the aircraft.

The experts agreed and I find the following direct causes of the accident (in descending order or immediacy):

Other agreed causal factors were:

Employers owe a personal, non-delegable duty to their employees to take reasonable care for their physical safety. The employer's duty is “so to carry on his operations as not to subject those employed by him to unnecessary risk”: Smith v Baker [1891] AC 325 at 362, per Lord Herschell. An unnecessary risk is “any risk that the employer can reasonably foresee and which he can guard against by any measures, the convenience and expense of which are not entirely disproportionate to the risk involved”.^: Harris v Brights Asphalt Contractors Ltd [1953] 1 WLR 341 at 344.

In many cases the employer’s duty relates to the premises occupied by him and the system of work there provided. However, it may also extend to third party premises to which the employee is sent to work, although what the duty of reasonable care requires in such circumstances is likely to be very different.

In Wilson v. Tyneside Window Cleaning Co. [1958] 2 Q.B. 110 Pearce LJ explained the position as follows at pp. 121–122:

“Now it is true that in Wilsons & Clyde Coal Co. Ltd. v. English [1938] AC 57 Lord Wright divided up the duty of a master into three main headings, for convenience of definition or argument; but all three are ultimately only manifestations of the same duty of the master to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk. Whether the servant is working on the premises of the master or those of a stranger, that duty is still, as it seems to me, the same; but as a matter of common sense its performance and discharge will probably be vastly different in the two cases. The master's own premises are under his control: if they are dangerously in need of repair he can and must rectify the fault at once if he is to escape the censure of negligence. But if a master sends his plumber to mend a leak in a respectable private house, no one could hold him negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between these extremes are countless possible examples in which the court may have to decide the question of fact: Did the master take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk? Precautions dictated by reasonable care when the servant works on the master's premises may be wholly prevented or greatly circumscribed by the fact that the place of work is under the control of a stranger. Additional safeguards intended to reinforce the man's own knowledge and skill in surmounting difficulties or dangers may be reasonable in the former case but impracticable and unreasonable in the latter. So viewed, the question whether the master was in control of the premises ceases to be a matter of technicality and becomes merely one of the ingredients, albeit a very important one, in a consideration of the question of fact whether, in all the circumstances, the master took reasonable care.”

In Smith v. Austin Lifts Ltd. [1959] 1 WLR 100 Lord Denning stated as follows at p. 117:

“….employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work, see General Cleaning Contractors Ltd. v. Christmas [1953] AC 180: and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course, on the circumstances, see Wilson v. Tyneside Window Cleaning Co. [1958] 2 Q.B. 110.”

Having referred to the above passages Farquharson LJ stated as follows in Cook v Square D Ltd. [1992] ICR 262 at p268:

“It is clear that in determining an employer's responsibility one has to look at all the circumstances of the case, including the place where the work is to be done, the nature of the building on the site concerned (if there is a building), the experience of the employee who is so despatched to work at such a site, the nature of the work he is required to carry out, the degree of control that the employer can reasonably exercise in the circumstances, and the employer's own knowledge of the defective state of the premises..”

Cook v Square D Ltd. concerned an employee sent to work on short term assignment abroad in Saudi Arabia. Although it was held that the employer had a duty, which could not be delegated, to take all reasonable care to ensure the safety of the employee while working abroad, the Court of Appeal decided that on the facts that there had been no breach of such duty. In reaching that conclusion it was stressed that the employer had been satisfied that the site occupiers and the general contractors were both reliable companies and aware of their responsibility for the safety of workers on site and that “the suggestion that the home-based employers have any responsibility for the daily events of a site in Saudi Arabia has an air of unreality” (at p.271F).

Just as the employer’s duty may extend to third party premises abroad, so it may also extend to transport to and from such a place of work.

So, for example, in Palfrey v Ark Offshore Ltd (23 February 2001, QBD - Deputy Judge HHJ Graham Jones) the claimant was the widow of a former employee of the defendant (Ark). Her husband (P) had died from malaria after travelling twice to West Africa in order to work on an oil rig operated by a third party, (Atwood). These trips involved an overnight stay on an island where P had been bitten by mosquitoes. The claimant had claimed that when P had asked a director of the defendant employers what medical protection he would need, he was told that he would not need any as he would be based offshore. As the Court put it (at paragraph [7] of the judgment):

“The case against Ark was that, as Mr. Palfrey's employers, they ought to have had, but did not have, an effective policy for the provision of advice as to health precautions to be taken by an employee sent to the area of Cameroon in Equatorial Guinea in the course of his employment and because they had no such effective policy they failed to give Mr. Palfrey any or any appropriate and accurate advice as to such precautions, so endangering his safety. They were accordingly in breach of their duty under the contract of employment and at common law to take reasonable care for the safety of their employee, in particular to take reasonable care to see that he was reasonably safe whilst travelling to and from and at his place of work abroad where he was required to go in the course of his employment”.

The evidence was to the effect that there was no need for medical precautions to be taken whilst on the rig offshore but that there was such a need whilst onshore in the course of travel to the rig. Onshore there were endemic diseases giving rise to “a high risk of serious illness”.

The failure to have a practice of ensuring Ark’s employees went to the GPs or took other medical advice to receive relevant inoculations was held to be a clear failure on the part of the employers to take reasonable care of P in the course of his employment, “which included travel to and from the rig”. As the Judge found:

“[24] The weight of the evidence is that Ark did not implement a practice of ensuring that its employees went to their general practitioners or took other medical advice to make sure all relevant inoculations were identified and received. At best, on occasions there were references to jabs being up to date and the need for yellow fever vaccination. None of the employees who went to the Oceanic rig was told that he must consult his doctor and take advice about protection and precautions. Mr. Palfrey was in effect told there was no need to do so. There was a clear failure on the part of Ark to take reasonable care to ensure the safety of Mr. Palfrey in the course of his employment, which included travel to and from the rig.”(emphasis added)

Another example of employer liability for travel and indeed transport abroad is Durnford v Western Atlas International Inc [2003] EWCA Civ 396. In that case the claimant was employed as a position systems analyst, or sea surveyor. His employer was involved in oil exploration of the coast of Nigeria. In the course of his employment, the claimant was required to travel from his home in north-east of England to Nigeria to work on a sea-going vessel, the Telco Dover. His travel involved being transferred to a coach to travel from Port Harcourt airport to the port, accompanied by armed naval personnel and the defendant's shore surveyor, a journey which should have taken about one and a half hours; but the coach broke down about ten minutes into the journey. The claimant and his colleagues then waited at the roadside for about an hour or so while alternative transport was arranged; this consisted of two camper-type mini-buses and the journey in them lasted about one hour and a quarter. Mr Durnford suffered an acute prolapse of an inter-vertebral disc which he alleged was caused by the negligence of his employer in failing to provide a suitable mode of transportation to the Nigerian port, his case being that he sustained an injury to his back as a result of the journey in the mini-bus. After the coach had broken down the defendant had provided two minibuses in its place and he had been placed in a cramped position in the minibus on a folded down seat with little padding and no armrests or back support.

The trial judge, Walton J, found for the claimant on liability in relation to the breach of the employer’s duty towards his employee in relation to his travel on a mini-bus on Nigerian roads. It was found that the minibus was the most significant causal link between the journey and the injury and that it was foreseeable that there was a risk of injury to a person of ordinary physical robustness as a result of that minibus journey. Walton J. found that although there was evidence of the need to get away from the area where the coach broke down due to security risks, there was no evidence of any inquiries made regarding alternative transport and therefore the defendant had not discharged the evidential burden of satisfying the court that reasonable care was taken in providing the minibus transport for the claimant.

The Court of Appeal (Peter Gibson, L.J; Mance, L.J; Hooper J) rejected the employer’s appeal. As Mance LJ commented at [29]:

“As I see it there was nothing wrong with a minibus per se, but the two minibuses provided did not in fact have enough places to offer the claimant any satisfactory form of seating on a substantial journey over not the best of roads. There was no evidence that larger minibuses could not have been provided or that a further minibus or car could not have been provided to ensure that everyone had a proper seat. That, it seems to me, was at the root of the present problem which, as a matter of causation, led to the claimant's injury”.

As StormHarbour pointed out, that was a case where the defendant’s shore surveyor was present and arranged for the transport. Nevertheless, it is an illustration of liability of an employer for breach of duty of care in relation to transport abroad. It also provides an illustration of the potential need to consider the safety of such transport arrangements, as borne out by the provision of an armed escort in that case.

Hopps v Mott MacDonald Ltd & the MOD [2009] EWHC 1881 (QB - Christopher Clarke J) is another case which considers an employer’s duty of care in relation to transport provided abroad. In that case the claimant (H) claimed damages against his employer (M) and the MOD for personal injuries suffered in a roadside bombing in Basrah, Iraq. Following the invasion of Iraq in March 2003 an emergency infrastructure plan was implemented to provide support for essential services in order to improve the life of ordinary Iraqis. M was a consultancy which provided contract personnel for the Department for International Development and others in a wide range of services including energy and civil engineering. M entered into a contract to supply a team of consultant engineers to the Coalition Provisional Authority in control of Iraq. H was a consultant electrical engineer who volunteered to go to Iraq under contract with M. M's staff were located in a secure area of Basrah international airport, a military base, and had army protection both there and during site visits.

While travelling through Basrah in a Land Rover Discovery, escorted by another Land Rover containing soldiers, H was injured when the vehicle was struck by the exploding material from an improvised explosive device incorporating an artillery shell. The vehicle in which H was travelling was a standard production Land Rover. Of the four people in the vehicle, three were injured including H and one was killed. H claimed damages against M and the MOD on the basis that there had been a failure to take reasonable care for his safety. H contended that M should have carried out a risk assessment to assess the suitability of the proposed transport arrangements and the provision of security and in light of the security situation at the relevant time should have ensured that staff including H travelled only in an armoured vehicle or remained in the base; if he had been in an armoured vehicle, he would have suffered either no injury or significantly less injury as a result of the explosion.

There was no dispute that the duty covered the mode of transport used to transport H in Iraq. It was on the facts and not the scope of the duty of care that H’s claim failed. He failed to show that the level of risk from improvised explosive devices in Basrah at the relevant time was such that his employer should only have allowed him to travel in an armoured vehicle. Before the incident the point had not been reached at which the exercise of reasonable care required the procurement of a factory produced armoured vehicle. On the evidence, the Court held that it was not unreasonable for H to have been carried around Basrah at the relevant time in an unarmoured vehicle. Christopher Clarke J approached that issue as follows:

“… In determining what is reasonable it is, firstly, necessary to consider the extent of the risks to which the claimant and others were exposed. I accept the submission of the MOD that that involves considering (a) the nature of the risk; (b) the likelihood of it eventuating; and (c) the likelihood of harm being sustained (and the extent of that harm) if it does. In deciding what steps had to be taken in order to deal with these risks it is relevant to take into consideration (i) the nature and purpose of the work that the claimant was employed to perform; (ii) the priority of the risks i.e. which were the principal and which the secondary risks; (iii) the effectiveness of various protective measures that could be taken and (iv) the consequences of taking them”.

Hopps was a case in which there was an obvious need for some form of risk assessment. As Smith LJ observed in Uren v Corporate Leisure (UK) Ltd & Ministry of Defence [2011] EWCA Civ 66 at [42]“risk assessments are an important feature of the health and safety landscape”. She noted that the employer (the MOD) had a statutory duty in that case to carry out a risk assessment and that this duty was also non-delegable, stating that:

“[71] It is trite law that the common law duty of an employer to an employee cannot be delegated: see Wilson's and Clyde Coal Co v English [1959] A.C. 604 . It seems to me that the duty to undertake a risk assessment is so closely related to the common law duties of the employer that it would be remarkable if the duty to undertake a risk assessment were delegable and yet the general responsibility for safety were not. In my view, the judge was clearly right to hold that the risk assessment duty is non-delegable.

[72] I do accept that what amounts to ‘a suitable and sufficient’ risk assessment may well vary according to circumstances. For example I can see that if an employer uses a contractor for some activity and satisfies himself that the contractor has carried out a thorough risk assessment in relation to that activity, that might well lead to the conclusion that the risk assessment carried out by the employer is suitable and sufficient even though it is not as detailed as would be otherwise required. That would be a question of fact in each individual case and it is impossible to generalise as to the standard of risk assessment which will be required of an employer. Here, on the facts, it is clear that CL did not carry out a suitable or sufficient risk assessment and it could not sensibly be argued that the MoD could properly rely on it. The two defendants did not even confer about risk assessments”.

As Smith LJ further observed in the Uren case at [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 taken which would probably have avoided the injury. A decision of that kind will necessitate hypothetical consideration of what would have happened if there had been a proper assessment”.

I was referred by to both parties to a large number of other authorities. I have had regard to all those authorities, including Davie v New Merton Board Mills Limited [1959] AC 602, a case upon which StormHarbour placed particular reliance. However, on the facts of this case I consider the cases referred to above to be of most relevance.

Mr Dusek went on the flight in the course of his employment for StormHarbour.

There was some debate at the hearing as to whether he was required by StormHarbour to go on the trip. In this connection the Claimants laid great stress on the notes taken of DWF’s meeting with Mr Kozary which referred to the fact that “someone from StormHarbour had to be on the helicopter trip”; that “StormHarbour had 2” people on the helicopter and that “it was StormHarbour itinerary”. They emphasised that none of these matters appeared in the draft witness summary which was produced at the time and then later provided for these proceedings and they criticised DWF and Mr Dickinson for this. I reject those criticisms. I am satisfied that Mr Dickinson prepared the draft witness statement in the normal way for consideration and review by Mr Kozary. Due to his sudden death that never occurred. There was no attempt to edit out points which might not be helpful to StormHarbour. Indeed Mr Dickinson had only recently been instructed and had no detailed knowledge of the case and the likely issues at the time. Later he simply exhibited what had been prepared at the time. There was no intent or attempt to mislead.

In any event I find the contemporaneous documents to be a more reliable guide to these matters than Mr Kozary’s draft witness summary. These show that Samsung did require a StormHarbour representative to be on the site visit. They do not show that more than one StormHarbour representative was required, although whilst Acres had 4 places on the aircraft it was possible that there would be more than one. They show that the itinerary was determined by Samsung and Acres and that StormHarbour’s role was to coordinate and to facilitate agreement on the itinerary, not to decide what it should be.

StormHarbour did not expressly order Mr Dusek to go on the helicopter trip. However, that does not alter the fact that, as found below, senior management well knew that either Mr Kozary or, as was more likely given his greater technical knowledge, Mr Dusek, would be going on the trip and would be doing so in order to further the Project which was the main task which they were employed to carry out at that time. It was Samsung who required there to be at least one StormHarbour representative present on the site visit and Mr Dusek and senior management went along with that requirement in the interests of client management. Mr Dusek went on the trip because it was considered necessary to do so to service the objectives of StormHarbour in relation to the Project and for the performance of his job. The only reason he was on the trip was because of his employment. Further, it was within StormHarbour’s power and control to decide whether he should be on the trip. In all the circumstances I find that he was travelling on the helicopter because he was required to do so for the purposes of his employment.

In going on the flight Mr Dusek was acting during the course of his employment and in my judgment StormHarbour owed him a duty to take reasonable care not to subject him to unnecessary risk. As StormHarbour submitted, the performance of that duty may not have required StormHarbour to do anything, but even if that be so that does not mean that there is no duty.

In my judgment, as found in the Palfrey case, StormHarbour was on the facts of this case under a duty “to take reasonable care to see that he was reasonably safe while travelling to and from and at his place of work abroad where he was required to go in the course of his employment”. In this case that place of work was the Project site.

The main matters relied upon by StormHarbour to negate any duty of care were:

Many of these factors go to whether StormHarbour owed a duty of care in relation to either the chartering of the helicopter by Acres/Samsung or the performance of the charter by HeliCusco. I accept StormHarbour’s case that it owed no such duty. It was neither required to nor did it charter the helicopter. All that it was required to do was to send one of its employees on that helicopter for the chartered trip to the Project site and it is in relation to that employment role that it owed a duty of care.

Considering the factors relied upon in that context, as to (1) and (2), whilst I accept that StormHarbour did not order Mr Dusek to go on the helicopter trip it, as already found, it did in all the circumstances require an employee to go on it. As StormHarbour knew, he (or Mr Kozary) would be going on the trip as its employee in order to further the Project and it was in a position to decide whether or not either of them should do so.

As to (3), as found below, StormHarbour knew on or by 25 May 2012 that one of its employees would be going on the helicopter site visit.

As to (4), whether or not StormHarbour assumed responsibility for the trip it had a responsibility as an employer to take reasonable care to ensure that it was reasonably safe for its employee to go on that trip. That was a duty it owed personally. It was not a question of delegation to Acres or Samsung.

As to (5), the duty of an employer to take reasonable care for its employee’s safety arises regardless of whether that employee makes it clear that he is looking to it to perform that duty.

In my judgment many of the matters relied upon by StormHarbour are more relevant to the question of whether its duty of reasonable care required anything to be done than to whether such duty was owed.

StormHarbour further submitted that to find that a duty of care existed in relation to the travel of employees for work purposes would be unreasonable and undesirable and would have far reaching consequences. I do not accept that. In many cases an employer will be able to entrust performance of its duty to reputable travel agents who will address and satisfactorily deal with any safety issues which may arise. Further, as StormHarbour itself submitted, in most cases such a duty would not require anything to be done. If, for example, an employee is sent on a scheduled flight from London to New York for business purposes nobody would suggest that the employer’s duty required some further steps or inquiry to be made. Such a trip would not be subjecting the employee to unnecessary risk. It might, however, be different if, for example, the employee was being required to go on a chartered internal flight in an undeveloped country on an airline with a notoriously poor safety record and/or on the EU’s banned operator list. It all depends on the facts.

I accordingly conclude that in the factual circumstances of this case StormHarbour did owe a duty to take reasonable care not to subject Mr Dusek to unnecessary risk in travelling to the Project site for the purpose of his employment.

In considering this issue it is necessary to consider both the risks involved in the helicopter trip and the knowledge which StormHarbour had or should have had of those risks.

In the light of the evidence at trial I have no doubt that this was a high risk flight and, for this helicopter, a dangerous one.

The Andes mountains are hostile terrain for helicopter flying. As StormHarbour’s aviation expert, Mr Nash, said in evidence:

“Make no mistake about it, this is some of the most challenging operating terrain in the world because of the mountain ranges that you have and the temperatures as well which affect the performance of helicopters”.

As Mr Nash explained in his report:

“Mountain flying is highly demanding due to rapidly changing weather conditions and turbulence. Turbulence is a particular issue for helicopter mountain ops and can disrupt the airflow around the rotor disc causing lift to be disrupted and extra stresses to be placed on the rotor blades. In addition, up and down draughts can have a dramatic impact on the flight path of the aircraft when operating at or near the edge of the performance envelope. For this reason, experienced mountain pilots never fly directly towards ridges and choose instead to make oblique crossing so that, in the event of downdraught, the aircraft can be turned away from the rock face. Therefore, the implication of operating outside of the performance envelope in these conditions is hazardous in the extreme.”

The evidence of Mr Connolly was to similar effect:

“Pilots operating in the mountains should be aware of the volatility of the weather and the techniques to avoid severe updrafts, downdrafts and turbulence, as well as the need to maintain visual contact, or to fly above Safety Altitude if in IMC. Safety Altitude in the case of this sector would, in my opinion, have needed to be at least 1500 ft above the highest ground or obstacle within 10 miles of intended route, or such greater limits as may have been specified for safety in the company operation manual.”

In evidence Mr Connolly described the topology of the area as:

“A. Mountainous, high mountains. The whole area really was mountainous with some valleys, with isolated valleys in the mountains, but still at relatively high altitude.

Q. By comparison with other mountain ranges you are familiar with say, for example, the Alps where you trained with the French?

A. Much more inhospitable than the Alps in terms of territory, very what one might call hostile territory, hostile terrain.

Q. Why?

A. Because the nature of the relief, the steep-sidedness of it, the cragginess, the general very high altitude which would be close to the operating limits of many helicopters, and the probable lack of many areas suitable for forced landings would make it what might be called inhospitable or hostile territory.”

HeliCusco’s S58ET had significant operational limitations for such mountain flying. In particular, its maximum permitted altitude was 15,000 ft Density Altitude. It was also only authorised to operate under daytime Visual Flight Rules (VFR) in Visual Meteorological Conditions (VMC). Further, under its Ops Manual HeliCusco was not to conduct operations “under Instrument Flight Rules (IFR) or under Visual Flight Rules (VFR) at night” or “over the top of clouds”.

Density Altitude is a combination of pressure altitude and temperature and is defined as the height in standard atmosphere to which the actual air density at any particular point corresponds. High temperatures have a negative impact on Density Altitude. Decreased air density adversely affects helicopter performance in several important ways and in particular the power available; the power required; handling; stability and lift.

As Mr Connolly explained:

“At or near its maximum operation altitude the cleared airspeed envelope is restricted for reasons of aircraft controllability and airframe fatigue. The aircraft is less responsive than at low altitude and needs careful handling to reduce the possibility of blade stall, which can lead to loss of lift and to possible control problems. Reduced air density also degrades climb performance, so a sudden need to climb, for example to clear an obstacle, would be difficult.”

VMC are meteorological conditions expressed in terms of visibility, distance from cloud and ceiling equal to or better than specified minima, namely: when above 3,000 ft or 1,000 ft above terrain, whichever is higher of 1500m horizontally and 1,000 ft vertically from cloud or flight visibility 5km below 10,000 ft and 8km above 10,000 ft: when below 3,000 ft or 1,000 ft above terrain, whichever is higher of clear of cloud and in sight of the surface or flight visibility 5km.

In this case the aircraft’s Ops Manual’s requirement that it was not to operate “over the top of clouds” meant that helicopter was not authorised to operate over cloud, even if 1,000 ft vertically from it. In effect it was prohibited from flying in between or above cloud.

Cusco is very high. Its airport is 10,860 ft AMSL. High temperatures could mean that this was over the required 12,000 ft Density Altitude for take off and landing. This was indeed the case when the flight took off at 09:09hrs on the morning of 6 June 2012 when its Density Altitude would have been around 12,400 ft.

The trip to Mazuco would involve going via Parucartambo and the evidence of Mr Nash was that this was the only feasible route. This meant crossing an elevation of about 13,500 ft AMSL. Depending on the temperature this could be above the 15,000 ft Density Altitude limit. Temperatures would be likely to rise during the day so that risk would increase with an afternoon return flight, as was planned. Afternoons also brought an increased risk of thunderstorms.

As Mr Nash explained in evidence:

“A. The cross-section there gives you an indication that Cusco is an extremely high airport. I think it is probably the highest airfield in the Andes Mountains and then to go up from there, the top line is obviously 15,000 feet. Go across the ridge and then drop down to Paucartambo so it followed the valley route to get over that ridge which, given where Cusco is and given that this area is, you know, very inaccessible so helicopters are one of the few ways of which you can get around this area, I would assume that Paucartambo is a standard route for people flying out of Cusco to transit across, be it in the S-58, be it the AS350B3, to get out of Cusco to get across because if you go on to the next page you can see as you come from Paucartambo you drop away off the mountains.

Q. Thank you, Mr Nash. Is it fair to say your margin of course depends upon the weather and the temperature?

A. It does, yes, because it's a density altitude calculation not a straight flight.

Q. So there's absolutely no room for any deviation from that planned, original planned route?

A. No.

Q. None at all?

A. No. ….

….

A. By exceeding the aircraft limitation ….you are stepping outside of the flight envelope of the aircraft when you start exceeding the limitations of the aircraft and by definition you are into unchartered territory. Therefore, your safety margin's reduced. The further you go away from the envelope, the further your safety margin is reduced.

Q. I think the phrase you used in your witness statement: "The implication of operating outside of the performance envelope in these conditions is hazardous in the extreme."

A. Absolutely and I stand by that statement.”

As Mr Nash explained, in the event the HeliCusco planned route ran into problems of this nature from the outset because of the delayed start, which made it “more problematic” to come back over the Andes in the afternoon. With the temperature going up, “it could have been doable but I don’t know”.

The planned route therefore always involved a serious risk that the helicopter’s operational limits would be exceeded in terms of Density Altitude, particularly in relation to the planned afternoon return flight.

There was also a serious risk of operational limits being exceeded in relation to meteorological conditions and cloud cover. There is no weather radar in Peru. As Mr Nash said in his report:

“As previously mentioned, from my research, there is no weather radar in Peru. The only detailed Met. Information available would have been able to get a general picture of where the forecast weather deterioration was in the area. There was absolutely no possibility of getting accurate data for weather along their route short of actual observation from the ground – given the total lack of habitation and localised weather in the mountains, this was not an option.”

Since there was “no possibility of getting accurate data for the weather along their route” there was no way of knowing whether one could fly the route without going in between or above cloud. Further, as Mr Connolly explained:

“Cloud formation in the mountains can be unpredictable. Orographic effects of wind with updrafts and downdrafts can result in roll cloud formation. Winds are largely affected by contours and the relief, with increased wind strengths due to funnel effects, and turbulence, particularly in the lee of ridge lines, I have personal experience of unexpected roll cloud formation during night in Snowdonia, UK; and I am well acquainted with a fatal accident in the mountains of Papua New Guinea caused when a helicopter suddenly entered such rapidly forming cloud.”

Whilst local pilots no doubt have good knowledge of local weather conditions they cannot know what those conditions are along the entire route without weather information. Whilst it was suggested that they could speak to other local pilots that would entirely depend upon what flights there were, where and when.

Although the aviation experts agreed that “it would have been possible for the route to be flown safely in good visual conditions, in daylight”, the reality is that there was no means of being sure that visual conditions would be good throughout the route. Further, high temperatures could well mean Density Altitude being exceeded.

The factual evidence of Mr Martin of Helinka was also to the effect that the proposed route was dangerous. He described it as being “a very dangerous route” and flying out from Cusco as being “a very complicated thing”. He explained in evidence that Helinka had flown five or six ferry flights, never with passengers, between 2006 and 2008 when Helinka had a couple of helicopters permanently based in Cusco. The dangers encountered involved very strong winds, scissor winds, that had resulted in two, “nearly incidents”. These had been discussed in Helinka’s daily meetings with their chief of operations and also discussed with the pilots. “So that’s why I knew perfectly that it was a dangerous route”. As a consequence, at Helinka, “we knew that we would try to avoid to do this route”. Helinka flew the five or six ferry flights, but never commercially carried passengers. In doing those ferry flights, the company “… were taking all the necessary safety measures in order to make it the safest possible, especially what the weather like and also in regards to when you do it, it is a known fact in the Andes that you should never, ever fly after 1.00 or 2.00 in the afternoon”. He said that for Helinka:

“it was highly recommended not to say mandatory not to fly out from Cusco going to the orient, to the east, to the Amazon, due to the fact that it's known to be an unstable weather region with a high mountains. That's why we never quoted flights going out from Cusco to the Amazon part on the east side.”

As he further explained in evidence:

“….a helicopter's enemy is high and hot and in Peru we have one of the most toughest conditions on earth. It's probably one of the fourth/fifth countries most difficult to fly because we have both enemies of the helicopter together at the same time at the same place. We have high elevation, high altitude. Remember that you have to cross Andes at the height of the Mont Blanc or higher and then you have temperature which are ISO plus 20, which is a reference, just say that in Cusco you have 20/25 degrees temperature sometimes at 10.00 or 11.00 in the morning and you are at 10,800 feet. Can you imagine in Europe or in United States at 10,800 feet you are at minus 10 or minus 15, okay, degrees.”

Although the Accident Report did not set out any views or conclusions as to the safety of the planned trip, on the evidence before the court I find that for this helicopter with its operational limitations it was dangerous.

In relation to StormHarbour’s knowledge, senior management were well aware that the Project site was in a remote and undeveloped part of the Andes, being about 200km from the Peruvian national grid, that the site could not be reached by road and that the roads to the Project area were hazardous.

For example, on 17 January 2012 Mr Dusek had sent an email to Mr Keeley that attached the Project Overview for January 2012, which contained pictures of the mountainous terrain around the project site, a map of the local area, and a diagram of the mountainous terrain.

They were also aware by 4 May 2012 that that the proposed visit to the site would be by chartered helicopter. This was apparent from the 4 May itinerary, copies of which were sent to Mr Cacorino and Mr Keeley.

They were also aware on or by 25 May 2012 that either Mr Dusek or Mr Kozary would be going on the site visit. This was apparent from the Travel Approval sought and given by Mr Keeley on 24 May 2012. As he accepted in evidence, this “highlights that they will be making on this trip a site visit to the project area”.

Further, Mr Keeley’s evidence was that “one Friday night” before Mr Dusek and Mr Kozary left for Peru he saw them looking at a helicopter on their PC and heard them discussing the trip. Although Mr Keeley was not clear which Friday this was I find that it was Friday 25 May 2012.

I am also satisfied that all these details, including that the itinerary involved a chartered helicopter flight from Cusco, would have been known to Mr Cacorino. As Mr Keeley said, both Mr Dusek and Mr Kozary “had a direct line to Antonio Cacorino. They would explain their transactions to him and keep him informed of any progress”. Further, there were discussions going on at this time as to whether Mr Cacorino should himself attend. As Mr Dusek said in an email to Mr Keeley of 24 May 2012:

“Thanks Terry

Both Antonio and Water are aware of the Samsung DD trip.

We’ve been having lengthy conversations with Antonio regarding a request for a retainer from ACRES and we’ve also been discussing with HH & Water the possibility that HH might attend, but it’s a very long and expensive flight (more than the costs of Paul and I put together) and too long time to commit. The Korean group consists mainly of engineers, not high level managers.

In short, I think Antonio and / or Water should attend the closing, rather than sit through due diligence.”

StormHarbour’s senior management therefore knew on or by 25 May 2012 that at least one of their employees would be going on a chartered helicopter trip from Cusco for a site visit to a remote, inaccessible, inhospitable and mountainous area of the Andes in Peru. That visit was likely to involve attempts to land at various different Project site areas. They would also have known, as it is common knowledge, that Cusco is sited at high altitude.

I find that there were reasonably foreseeable and indeed obvious potential dangers involved in such a trip.

A reasonable and responsible employer would have realised that if their employee was to fly on a helicopter from high altitude across the challenging mountainous environment of the Andes mountains to land at and visit remote sites there was a real risk of danger to their employee; that the personal safety of their employee would be entirely dependent on the safe operation and performance of that chartered helicopter flight; that this would be dependent on the helicopter operators and/or crew acting in strict compliance with all relevant air safety/travel requirements necessary to ensure the safety of their passengers, and on the helicopter crew and/or operators being suitably qualified, equipped, trained and/or skilled to take all necessary precautions to ensure the safety of their passengers in the geographical and/or climatic conditions to be found there.

The proposed flight raised obvious and foreseeable safety risks. The essential nature of the risk was unsafe operation or performance of the helicopter flight. Further, there was a real prospect of that risk eventuating given the challenging nature of the flight. Yet further, if such risk did eventuate the likely consequence was catastrophic, namely death or at least serious personal injury.

It was not necessary for StormHarbour’s employees to be exposed to that risk. StormHarbour always had the option of instructing Mr Dusek and Mr Kozary not to go on the flight. This would have involved minimal inconvenience and no expense. On StormHarbour’s own case it was not necessary for them to be on the site visit. It was simply advisable as a matter of good client management given Samsung’s request that a StormHarbour representative be present.

If its employees were nevertheless to be exposed to that risk I find that StormHarbour owed a duty to take reasonable care to safeguard them from the danger involved. In the factual circumstances of this case I find that that required StormHarbour to make at least some form of inquiry into the safety of the trip and carry out some form of risk assessment. For reasons set out below, such an inquiry could well have involved minimal time and little, if any, cost.

StormHarbour’s case was it was not required to do anything. It submitted that on the basis of what StormHarbour knew or is deemed to have known, the risk of an accident was slight and an accident was not sufficiently likely so as to have warranted StormHarbour taking any step. In particular, it submitted that:

Hindsight is to be avoided;

I accept that hindsight is to be avoided, that helicopter flying is regulated at international and national level, that Mr Dusek was a high level and responsible employee who enjoyed a degree of autonomy and that neither he nor anyone else involved in the charter had seemingly raised safety concerns. However, there were safety concerns, both apparent and real. The planned flight was high risk and dangerous for reasons already given regardless of what occurred on the day of the accident. It left no margin for error and any crew errors on the day have to be considered in the light of the hazardous nature of the planned flight. As the aviation experts agreed, the second most immediate and direct cause of the accident was “the extremely demanding and unforgiving environment of high mountainous terrain which reduced margin for error to a bare minimum”.

A number of the factors relied upon would not have been known to StormHarbour (e.g. factors (3), (4), (5), (6) and (8)). Further, in so far as they relate to actual rather than perceived risk they are generic and do not relate to the specific proposed flight.

In my judgment, many of the factors relied upon by StormHarbour are more relevant to what would have been learned had some safety inquiry been made rather than to whether such an inquiry should have been made. As such, they highlight the need for some inquiry to be made. Even if that were not so, I would not regard them as justifying doing absolutely nothing.

StormHarbour further submitted that it was entitled to rely on others and it was in this connection that it placed particular reliance on the Davie case. It emphasised that:

However, StormHarbour did not know anything about HeliCusco. It did know that, as far as it was aware, no safety concerns had been raised by Acres or Samsung, both reputable companies. But, it did not know whether either of them had carried out a risk assessment or, if not, the reasons why not. It knew nothing about what, if any, safety inquiries or investigations had been made. It did not know if Acres had ever flown with the helicopter operator or from Cusco to Mazuco. There was no reason for it to suppose that Mr Dusek would have known about such matters and in any event safety was its responsibility.

In oral submissions StormHarbour accepted that if there was something to put StormHarbour on notice that there might be dangers then some inquiry was required. On my findings that is this case.

Further, Mr Keeley, who was StormHarbour’s responsible officer for health and safety matters, accepted in evidence that something should have been done.

When asked about StormHarbour’s duties he said:

“Q. … What are your duties as a company towards your employees in regards their health and safety?

A. To ensure that they -- where they travel is safe.”

When asked whether those duties were fulfilled he said:

“Q. …I am not asking you what you would do now. I know everyone can learn lessons from the past. I am asking you as to whether you say as the person in charge of health and safety that you believe in May/June 2012 that the company fulfilled its duty of care to Tomas Dusek in relation to that helicopter flight

A. I did not know nor did the company know -- I didn't know, forget about the company, I didn't know until very late that a helicopter -- Tomas was possibly going on a helicopter.

Q. But you did know.

A. At the 11th hour, yes.

Q. And you did nothing?

A. And I did nothing, that's correct.

Q. So how did you or the company fulfil your duty of care to Mr Tomas Dusek when he got on that helicopter?

A. I did not.

Q. You didn't?

A. No, I did not.

Q. Do you believe the company did fulfil its duty?

A.

No, I do not.”

It is correct that Mr Keeley is not a lawyer but as the responsible officer for health and safety he should have a good idea of what his duties are. It is also correct that Mr Keeley did not specify what StormHarbour should have done, but he clearly accepted that they should have done something. I agree.

What they should have done is considered further below, but, depending on the circumstances, they could have fulfilled their duty of care by taking steps involving little time and no cost.

I accordingly conclude that StormHarbour was in breach of its duty of care in doing nothing to investigate into the safety of the proposed helicopter flight.

If StormHarbour did breach its duty, did that breach cause Mr Dusek’s death?

The obvious first step was to make inquiry of Acres in relation to the safety of the proposed flight. This would involve asking for details as to the flight operator, the helicopter to be used, the flight route and as to how they had satisfied themselves as to the safety of the proposed flight.

Acres’ reply could have been sufficient for StormHarbour to make a sufficient risk assessment and no further inquiry would have been needed. If, for example, Acres had replied that HeliCusco was a well established helicopter operator with no recorded accidents; that it had an Air Operator’s Certificate (“AOC”); that it had used the company before on many occasions including on this proposed route; that HeliCusco had been frequently audited for safety purposes, and that it had been audited by Acres or had recently been successfully audited, then that might well have been sufficient for StormHarbour to be reasonably satisfied as to the safety of the trip.

It was StormHarbour’s case that if it was obliged to make any inquiry it was limited to checking whether the operator had an AOC.

In this connection StormHarbour relied upon the international system of aviation regulation. Aviation is internationally regulated by reference to international standards and recommended practices. Standards are implemented by all countries, with the option to meet recommendations. Peru has a regulatory body in the Directorate General of Civil Aviation (“the DGAC”). Before issuing an AOC, the DGAC will have reviewed an applicant’s operations manual, and will have audited such areas as management and organisational competence, crew training, aircraft maintenance, aircraft loading, flight planning and fuel planning. Also, all routine decision-making is discussed in advance of commercial operation and wherever possible written into the operator’s operating manual.

StormHarbour also relied on the fact that there does not appear to be any statute, statutory regulation or other form of legislation, or government or industry guidance, or any established practice whereby ordinary UK companies are mandated or encouraged to commission any sort of audit of helicopter or aeroplane charter companies that they are contemplating chartering or using for transport of their employees in a foreign company, still less where the employee is going to be invited by a third party to fly on an aircraft chartered by a local company.

StormHarbour relied in particular on the evidence of Mr Commander. It was his evidence that the flight did not warrant due diligence beyond checking that HeliCusco had an AOC and that even this was not usual for most travellers using a helicopter operator. This was strongly disputed by Mr Watson.

I prefer the evidence of Mr Watson on this issue. As Mr Watson explained, holding an AOC does not indicate the quality of the application of the regulations in the country in question nor its applicability to the particular charter proposed. As he said, “I would want to see the operation specifications of that AOC because I need to be able to see that the company is approved to do what I am asking them to do”.

As Mr Commander acknowledged in cross examination, the value of an AOC depends on the regulatory authority, and an AOC tells you nothing about the safety of the proposed route that it is intended to use the helicopter on.

The Peruvian Regulation RAP 119 (which provides the minimum level of compliance needed for an AOC in Peru) is very different to the 390 page CAP 789 document produced by the CAA in the UK. Even so, that CAA document shows that an AOC holder signifies only that the holder is considered “competent to secure the safe operation” of their aircraft. It does not guarantee their compliance with statutory requirements or the “safe conduct of a particular flight” by the operator or aircraft commander.

I also consider that Mr Commander’s evidence is unrealistic as a matter of fact. The safety concerns raised by the proposed helicopter trip related primarily to the route rather than the operator. In such circumstances an inquiry limited to the operator and its certification would be neither likely nor sufficient. I therefore find that StormHarbour was obliged to make a general safety inquiry along the lines indicated above and that this is what it would have done as a matter of fact if it had done something, as Mr Keeley acknowledged it should have done.

What Acres’ reply would have been to such and inquiry raises a disputed issue between the parties as to whether Helinka warned Acres as to the danger of the proposed flight from Cusco.

In his witness statement Mr Martin stated as follows:

“We explained to Acres that for safety they should travel by coach from Cusco to Mazuco Airfield and Mazuco Airfield would then be the base for operations. The coach journey only takes four hours. The road has recently been completed and is in very good condition. We explained that to get from Cusco to Mazuco Airfield by helicopter you have to cross the Andes Mountains which is very high. This limits the capacity of the helicopter to carry passengers because the more passengers that a helicopter carries the lower the maximum altitude that it can be safely operated at, and furthermore because of the high altitude of Cusco you are limited in the total load that you can carry without breaching regulations for maximum takeoff weight. Given the number of passengers that Acres wanted to carry we did not feel that a helicopter could be safely operated to cross the Andes. It was a much safer option to start from Mazuco Airfield.”

In oral evidence it became apparent that Mr Martin was not present at the meetings with Acres and that it was Ms Bonnet who was dealing with them directly. He nevertheless said that she was reporting to him on a daily basis and that he had reports from her as to those meetings. So, for example, he explained and I accept that, although it did not appear in the written quote, another option offered to Acres at the meeting was to fly out from Puerto Maldonado. He said that “unofficial warnings” had been given as to the safety of flying from Cusco and that he knew this from her reports to him. Further, this was company policy and one would not refuse what the customer wanted without fully explaining why.

StormHarbour challenged this evidence in cross examination, although there was no evidence from Acres. Aside from the fact that Mr Martin did not deal personally with Acres, StormHarbour stressed that when Ms Bonnet explained in an email why it was scheduled to use Mazuco rather than Cusco as the base of operations, the reason given was aircraft capacity and no mention was made of safety issues.

I find that Ms Bonnet did raise safety issues in her discussions with Acres. Although Mr Martin’s evidence on this issue is hearsay, it is inherently probable that she would have done so. She was aware that Acres wanted to fly from Cusco and that offering flights from somewhere else risked losing the business. In such circumstances she was likely to give as full an explanation as possible, all the more so if that explanation would help undermine rival offers involving flying from Cusco. I find that an explanation was given along the lines set out in Mr Martin’s statement.

In those circumstances the likely response of Acres to the inquiry would have been to the effect that it had not previously flown by helicopter from Cusco to Mazuco; that its previous flights to the site area had been from Puerto Maldonado/Mazuco and had been carried out without incident; that one of the helicopter companies which had quoted for the trip had raised safety concerns about flying from Cusco across the high Andes and had recommended going by coach to Mazuco and flying from there; that HeliCusco was an AOC certified operator but that Acres had not carried out any specific risk assessment or audit of it.

Such a reply would have heightened StormHarbour’s safety concerns and I find that it should and would have concluded that its employees should not go on the aircraft unless and until a satisfactory audit had been carried out and so instructed them. I do not accept that it would simply have left it to Mr Dusek to make up his own mind. Even if Acres’ reply had not referred to Helinka’s safety concerns I find that it would not have sufficiently allayed StromHarbour’s safety concerns for it to allow its employees to go on the aircraft without further inquiry being made.

Such inquiry should and would have involved consulting an aviation assessor, of which there are many. If that had been done, I accept Mr Watson’s evidence that any competent aviation assessor would have advised against going on the proposed trip on the basis of a desktop review, which could have been carried out at minimal cost. This would be mainly because of the flight risks already identified but the proposed use of a S58ET would also have caused some safety concerns aside from its operational limitations. In particular, the S58ET is a derivative of the S58 which first flew in 1954. This means that its design standard is essentially pre-1954 and that lessons learnt in aircraft design and crashworthiness since then are not built into its design. This is particularly important in relation to passenger transport over hostile terrain such as the high Andes.

That advice should and would have led StormHarbour to instruct its employees not to go on the trip. If, however, it had been decided to take the review to the next stage, that would have consisted of a remote audit. This would have involved a questionnaire; a consideration of key documents and any follow up telephone calls considered necessary. The questionnaire would include questions as to the operator’s AOC; its Ops structure; its safety management system; its own risk assessment of the trip; its insurance; its maintenance programme and details of its engineers; the aircraft, its OpSpecs, its operational limitations and its emergency equipment; its pilots, their qualifications, experience and flight hours; the proposed route, site maps and site briefing notes; details of weather providers and of emergency response plans and recent audits. Such an audit would have resulted in the same advice as the desktop audit, but in stronger terms. The liability insurance limit of USD250,000 per passenger would have been a cause for concern in itself. Further, the aircraft OpSpecs showed that it was not authorised to land at Mazuco without specific authorisation. The OpSpecs also showed that it had to be treated as a single engined helicopter, a further concern. Again the consequence of such advice should and would have been an instruction not to go on the trip.

In both the above scenarios the aviation consultant’s advice would have been fortified by the fact that there were readily available safe alternatives, as demonstrated by the Helinka quote.

The consequence of either of these scenarios would have been that there was no need to consider or to carry out a full operational and technical audit. Such an audit would be likely to have required a site visit and, unlike the other alternatives, would have involved significant cost (around USD5,000). If that had been done it would have resulted in yet stronger advice not to go on the flight.

StormHarbour laid great stress in its submissions on the unreasonableness of the imposition of any duty of care which might require employers to carry out expensive audits. However, the duty I have found does not impose any such requirement, as the facts of the present case well illustrate. I have found that it was insufficient for StormHarbour to do nothing and I have also found that they should have made some safety inquiry so that they could carry out an appropriate risk assessment. What that would have required is very fact dependent but on the facts of this case it would not in the event have resulted in any cost to StormHarbour and it always had the option of simply instructing its employees not to go on the flight.

Further, for Peruvian helicopter operators some form of audit is the norm, as made clear by the evidence of Mr Martin. It was Mr Martin’s evidence that Helinka is frequently audited and that there are a number of local auditors who are used. He said that most of the auditors know the company well as they audit it 3 to 4 times a year. Whilst this often related to projects, he explained that Helinka had been audited for single charter operations and that in his experience at the very least a questionnaire audit would be performed in such a case.

I accordingly find that if StormHarbour had made the safety inquiry which it was required to do in order to make an appropriate risk assessment the result would have been that it would have instructed Mr Dusek and Mr Kozary not to go on the flight because of safety concerns. In such circumstances I find that Mr Dusek would not have done so. Although it was suggested that he was sufficiently independent minded and keen to go on the flight that he would have done so regardless, I find that he would not have done so. Although Mr Dusek was prepared to take risks, he did so on a calculated basis. He was also a devoted family man. He would not have taken on the risk of this flight in the light of an instruction not to do so from his employer on safety grounds.

If Mr Dusek had not gone on the flight then he would not have been killed. In all the circumstances I find causation to be proved.

I find the Claimants’ case on liability to be proved on the basis set out above. The Claimants also put their case on different and wider grounds relating to the charter of the helicopter and the carrying out of the flight on the day in question. I have not found that wider case to be made out on the evidence. StormHarbour’s liability rests on what it did not do; not on what Acres or HeliCusco may or may not have done.