England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr. Justice Hamblen)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/06/2016

The Honourable Mr. Justice Baker :

1. This is an application for permission to appeal by StormHarbour Securities LLP ("StormHarbour") against the judgment delivered on 19 January 2015 by Hamblen J (as he then was) in which he found that StormHarbour was liable under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 for the death of its employee, Mr Tomas Dusek. The Claimants in the proceedings are Mr Dusek's widow and children. Mr Dusek died in a helicopter accident in the Peruvian Andes on 6 June 2012. The application for permission to appeal was refused by the trial judge and subsequently by Tomlinson LJ on paper, but renewed before me at a hearing at which both StormHarbour and the Claimants were represented.
2. At the same hearing, I also heard an application for permission to appeal in another case, Cassley v GMP Securities Europe LLP [2015] EWHC 722 (QB), which also involved a claim under the Fatal Accidents Act against an employer arising out of an air accident. There are some similarities between the two cases. Hamblen J's judgment was cited by the trial judge in the Cassley case and in the course of their submissions to this court. the parties to each application have referred to the judgment in the other case. The cases are, however, otherwise unrelated and I shall give separate judgments in respect of the two applications.

Summary of facts

3. As this judgment concerns an application for permission to appeal, it is unnecessary to recite the factual background in full detail. It is fully set out in the judgment of Hamblen J which is reported on the BAILII website under neutral citation number [2015] EWHC 37 (QB). In outline, the facts were as follows.
4. StormHarbour is a financial services firm specialising in the global capital markets. Mr Dusek was employed by StormHarbour from July 2009, latterly as a managing director. He was in Peru working on a project for the financing of a proposed hydroelectric complex to be built in the foothills of the Andes. StormHarbour had been engaged by Acres Investments SA ("Acres"), a local investment company behind the project, to identify and introduce potential investors and had identified a consortium comprising of two Korean companies, including a subsidiary of the Samsung group.
5. In April 2012, Samsung made enquiries as to how access for a site survey might be achieved. Acres initially informed them that vehicle access to the project site was impossible and access would therefore have to be either by helicopter or by long overnight walks through the jungle. Acres said that previous helicopter surveys had been conducted by flying to the town of Puerto Maldonado, taking the Interoceanic Highway to the town of Mazuco and then flying from Mazuco over the project sites. However, when the Acres project team started planning the itinerary for this trip, they proceeded to plan for travelling to Mazuco by helicopter from the international airport at Cusco which is situated in the Andes.
6. In further emails, Samsung indicated that they wanted a representative of StormHarbour to take part in the trip. It was decided that Mr Dusek would represent StormHarbour and he subsequently sent an email to his superior seeking approval of the travel plan. Approval was granted and he flew to Peru on 3^rd June.
7. Meanwhile, Acres had approached 6 helicopter operators to quote for the expedition and ultimately selected an operator called HeliCusco. The charter as originally planned comprised six sectors spread over two days - on 5^th June, sectors 1 and 2 from Cusco to Mazuco and back for the purposes of positioning fuel and, on the following day, sector 3, comprising a flight from Cusco to Mazuco with the passengers, sectors 4 and 5 involving flights around the various proposed sites, and concluding with sector 6, the return flight from Mazuco to Cusco. The two airfields are very different. Cusco is an international airport in the Andes at an altitude of 10,860 feet above sea level, with an 11,000 feet runway and full lighting, fuel and air traffic control facilities. Mazuco, on the other hand, is a disused airfield without lighting at an altitude of 1,181 feet. The planned route, via Paucartambo, involved crossing ground which was approximately 13,500 feet above sea level. Once at Mazuco, however, the altitude of the various project sites was below 5000 feet.
8. On the morning of 6th June, the third sector of the trip was delayed by nearly 3 hours because of poor weather. This had an impact on the safety of the flights that day because of the helicopter's density altitude restriction. "Density altitude" is defined in the judgment (at paragraph 151) as "a combination of pressure altitude and temperature" and "the height in standard atmosphere to which the actual air density at any particular point corresponds." The aircraft used was restricted by its certificate for take offs and landings up to 12,000 feet density altitude. At its planned departure time (06:30 hours) the density altitude would have been around 11,300 feet. The delay in take off meant that the temperature had increased and with it the density altitude at Cusco. For the actual departure time (09:09 hours) the density altitude would have been around 12,400 feet. The delay and consequent change in temperature also meant that the helicopter then exceeded its maximum weight by 457 lbs.
9. The crew was able to follow the planned flight route for the third sector. From Mazuco, the helicopter conducted two exploratory flights over the survey area but found itself in difficulties due to bad weather and returned to Mazuco at 16:01 local time which left insufficient time to return to Cusco in daylight. Evidence subsequently presented by HeliCusco to the accident investigators indicated that there had been pressure from the passengers to return to Cusco that evening because some of them had scheduled flights on the following day. As a result, the aircraft departed Mazuco at 16:46 hours with an estimated arrival time at Cusco of 17:58 hours, about 30 minutes after sunset. About 24 minutes into the flight, the helicopter changed course, perhaps because of the presence of low cloud. The judgment continues (at paras 94-5):

"Starting at around 17:14 hours, the aircraft exceeded 15,000 feet for a period of about 7 to 9 minutes on this final sector of its flight. This would have pushed its density altitude significantly above its release to service limit of 15,000 feet. This would have made the aircraft more susceptible to aerodynamic instability which could lead to a loss of control. At 17:21 hours, there was a very sharp turn to the left through approximately 100° to the south. This was a defined turn away from the general track and must have been a conscious decision on behalf of the crew. This new track turned the aircraft directly towards the ridgeline of Mama Rosa mountain on which the aircraft crashed two minutes later at 17:23 hours at 16,026 feet."

10. The direct causes of the accident as agreed by the expert witnesses who gave evidence at the hearing, and found by the judge, were: (1) either lack of knowledge or disregard of aircraft limitations which resulted in the significant exceedance of the approved flight envelope; (2) the extremely demanding and unforgiving environment of high mountainous terrain which reduced margin for error to a bare minimum; (3) the deteriorating weather conditions that constrained the pilots' options and caused them to change their route while in the air; (4) a failure to make a timely decision to abort the attempt to return to Cusco and instead return to Mazuco; (5) the decision to leave Mazuco at a time that would inevitably result in breaching regulations by flying the aircraft and in night conditions; (6) the crew's failure to withstand client pressure to take off and return to Cusco on 6th June.

The judgment

11. Having summarised the facts, the judge set out the relevant law concerning an employer's non-delegable duty to take reasonable care for his employees' safety, which may extend to third-party premises and transport to places of work. He cited a number of cases, including the decision of this court in Uren v Corporate Leisure (UK) Ltd and Ministry of Defence [2011] EWCA Civ 66 in which Smith LJ described risk assessments as "an important feature of the health and safety landscape" and confirmed that the duty on employers to carry out such an assessment is also non-delegable. Of particular importance to this case was the following citation from Smith LJ's judgement in Uren at paragraph 39

"It is obvious that the failure to carry out a proper risk assessment can never be the direct cause of an injury. There will, however, be some cases in which it can be shown that, on the facts, the failure to carry out a proper risk assessment has been indirectly causative of the injury. Where that is shown, liability will follow. Such a failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being 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."

12. In addition, the judge recorded that he had been referred to a number of other authorities to which, although not expressly quoted in the judgment, he had regard, including Davie v New Merton Board Mills Ltd [1959] AC 602, on which StormHarbour's lawyers strongly relied, as they have done before this court. The judge's summary of the law is clear and comprehensive and he plainly had all the relevant principles in mind.
13. The judge identified the first issue as whether the scope of StormHarbour's duty of care as employer extended to the HeliCusco charter and helicopter flight. He found that Mr Dusek had taken the flight in the course of his employment and that StormHarbour was therefore under a duty to take reasonable care to ensure that he was reasonably safe travelling to and from the place of work, in this case the project sites in the jungle. He noted the arguments raised by StormHarbour to negate any duty of care – in particular that the flight was part of the operations of Acres and Samsung, not StormHarbour, that StormHarbour did not assume any responsibility for the trip and that Mr Dusek was a high-level employee with great autonomy - and accepted the submission that in most cases a duty would not require anything to be done. Nonetheless, he concluded that a duty arose here, given the factual circumstances of this case.
14. The second issue was whether StormHarbour was in breach of the duty. This required consideration of the risks involved in the trip and the knowledge StormHarbour had or should have had about those risks. The judge prefaced his analysis of the first of these matters by observing (at paragraph 145):

"I have no doubt that this was a high-risk flight and, for this helicopter a dangerous one."

He cited the expert evidence concerning the demanding nature of mountain flying, the particularly inhospitable conditions in these mountains, the significant operational limitations of the helicopter involved for mountain flying of this sort and the high altitude of Cusco airport. He found (at paragraphs 159 to 160):

"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."

He further observed at paragraph 163:

"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 will be good throughout the route. Further, high temperatures could well mean density altitude being exceeded."

He therefore found that, for this helicopter with its operational limitations, the proposed trip was dangerous.

15. As to StormHarbour's knowledge of the risks, he made these important findings:

"173. 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 is common knowledge, that Cusco is sited at high altitude.

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

175. 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 the 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.

176. 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.

177. It was not necessary for StormHarbour's employees to be exposed to that risk. StormHarbour always had the option of instructing Mr Dusek … not to go on the flight…..

178. 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."

16. The judge noted StormHarbour's case that it was not required to do anything and set out their detailed submissions in support of that proposition. He also noted the submission, based on the Davie decision, that StormHarbour was entitled to rely on others and in particular on Acres who were based in Peru and had previous experience of flying around the project areas. He rejected these arguments, holding that the risks were such that StormHarbour ought to have realised that an inquiry was required. He quoted the evidence of StormHarbour's employee responsible for health and safety who in cross-examination accepted that StormHarbour had not fulfilled its duty. In the light of that and all the other evidence, the judge concluded that the company was in breach of its duty.
17. The third issue was whether the breach of duty had caused Mr Dusek's death. The judge acknowledged that the first step which StormHarbour should have taken was to make enquiry of Acres as to the details of the flight operator, the helicopter, the flight route and as to how Acres had satisfied itself as to the safety of the proposed flight. He rejected StormHarbour's assertion that it would have been sufficient if Acres had confirmed that HeliCusco had an Air Operator's Certificate ("AOC"), but accepted the expert evidence that an AOC did not indicate its applicability to the particular charter proposed. He concluded that StormHarbour should have made a general safety enquiry of Acres and that, had it done so, the likely response would have included concerns about the itinerary which Acres had heard from a Mr. Martin, an employee of Helinka, another helicopter operator who had quoted for the trip. Mr. Martin was called as a witness and his evidence on this issue, although dependent on hearsay evidence that went beyond the filed documents, was accepted by the judge. At paragraph 207 of the judgment, he summarised Acres' likely response to such an enquiry as follows:

"In those circumstances the likely response of Acres to the enquiry 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 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."

18. This led the judge to his central conclusion (at paragraph 207):

"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 it would have not sufficiently allayed StormHarbour's safety concerns for it to allow its employees to go on the aircraft without further enquiry being made."

19. In the judge's assessment, this in turn would and should have led StormHarbour to make further enquiries via an aviation assessor or consultant, and commission further audits which the judge found would have led to further and stronger advice not to go on the trip. He rejected StormHarbour's submission that it was unnecessary to impose a duty which might require employers to carry out expensive audits, observing:

" 213. … 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 enquiry so that they could carry out an appropriate risk assessment. What that would have required is very fact dependent but on the fact 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.

214. 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."

20. This led the judge to his final conclusion (at paragraph 215 to 216):

"215. I accordingly find that if StormHarbour had made the safety enquiry 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… 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.

216. 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."

StormHarbour's submissions in support of this application

21. Before this court, StormHarbour submitted in its written argument that there were three fundamental errors in the judgement: (1) the imposition of an unreasonable and wholly unrealistic duty of care on StormHarbour as an employer in the UK to investigate and risk assess the details of a single day's helicopter charter itinerary in Peru that its employee might travel on when the same had been arranged by its reputable Peruvian client, Acres, whose project manager was also to be a passenger, and when the same was to be provided by HeliCusco, a local helicopter company holding an Air Operator's Certificate and with a good safety record; (2) the finding that not only was the proposed trip high-risk and obviously dangerous but that it should have been so identified as such by StormHarbour in London, a finding that was not only wrong but in any event based on a massive factual and technical evidence adduced at trial that would not have been readily available to a reasonable employer in StormHarbour's position at the material time; (3) the unwarranted and conjectural finding that a hypothetical enquiry by StormHarbour of its client, Acres, would have produced answers that would have troubled StormHarbour when in fact the opposite was the case. It was submitted that, instead of these findings, the judge should have found that in the circumstances there was no obligation on StormHarbour to assess the risk of the proposed flight or, even if there was such an obligation, it would have been satisfied by asking Acres to confirm that HeliCusco held an AOC and that Acres was satisfied about the safety of the flight. If that was insufficient, any obligation to make further inquiries would have been satisfied by reference to advice published by the Civil Aviation Authority, which does not suggest that further enquires are required beyond asking whether a proposed carrier holds an AOC, and/or by the Foreign and Commonwealth Office, whose website gives no warnings about helicopter travel in Peru.
22. The submissions were developed by Counsel for StormHarbour in their written argument. Reliance was again placed on a number of legal authorities. It was submitted that the judge's decision sits uneasily with a line of authorities since Wilson v Best [1993] 1 All ER 353 in which the courts have held in "holiday cases" that the standard of care applicable to a UK holiday company in respect of a holidaymaker who travels abroad is to be judged by reference to standards in that foreign country, not those applicable in the UK. It was further submitted that Mr Dusek was a highly intelligent senior employee with a considerable degree of autonomy and a highly experienced traveller. The decision of this court in Cook v Square D Ltd [1992] ICR 262 was cited as authority for the proposition that the experience of the relevant employee is relevant to determining the extent of an employer's responsibility. Furthermore, it was submitted that the charter was organised by Acres, a reputable organisation based in Peru which could reasonably be regarded by StormHarbour as competent to arrange an appropriate charter. The decision in Davie, supra, was again cited as authority for the principle that an employer may discharge its obligations by acquiring supplies and services from a reputable supplier. It is submitted that the effect of the judge's decision that StormHarbour should have assessed the risk of this flight is to undermine the workable principle in Davie and that as a result an employer can no longer discharge any common law obligation to an employee by obtaining services from a reputable provider without first investigating and second-guessing both the client and the provider, despite the client and provider having far greater relevant knowledge or expertise in the field than the employer.
23. On the extent of the risk, StormHarbour submitted that the judge wrongly assessed it with the benefit of hindsight in the light of a mass of facts, complex technical matters and expert opinion in the evidence adduced at trial which StormHarbour could not possibly have been expected to know in June 2012. Criticism was made of the judge for ignoring or attaching insufficient weight to elements of the evidence including elements of the expert evidence. It was said that the judge conflated the details of the planned itinerary with what happened immediately before the accident. It was submitted that there was nothing to indicate to StormHarbour at the material time that there was anything dangerous about the proposed trip beyond what counsel described as "the truism that any flight or journey carries some inherent element of risk". In their written submissions and oral submissions, counsel stressed that there was no evidence that StormHarbour knew that the trip would be leaving from Cusco. Even if Cusco had been identified as the departure point, it would not have been flagged up to an ordinary reasonable employer that it meant that the flight was dangerous. Cusco is an international airport, albeit one located at a high altitude. It was further submitted that, although the project sites were remote and inaccessible by road, they were easily accessible by helicopter and all at an altitude below 5000 feet. Counsel submitted that the judge "implicitly and improperly discriminated against Peru" by assuming that aviation in that country was dangerous or materially deficient; that no ordinary reasonable employer in 2012 would have seen flying in a helicopter over mountains as inherently dangerous; that there was no evidence that StormHarbour knew or should have known that the helicopter was going to Mazuco and that in any event it would be unreasonable to expect StormHarbour to be familiar with this part of the world.
24. A further criticism of the judgment voiced by StormHarbour's counsel concerns the hypothetical enquiries of Acres. There is no list of prescribed questions. It is unlikely that StormHarbour would ever have asked about the flight route. If an enquiry had been made, it would have elicited that HeliCusco held an AOC and had several years of accident-free travel, was based in Cusco and therefore likely to have good local knowledge, used a properly licensed helicopter which would be flown by properly licensed and experienced pilots who, as the quote provided confirmed, would take into account weather conditions on the day. It would further have confirmed that Acres were entirely content to use this operator. Such information would have been sufficient to lead StormHarbour to conclude that the proposed flight was safe. The judge had been wrong to draw the conclusion that Helinka had warned Acres against flying from Cusco. His conclusion was based on the evidence of Mr Martin, described by StormHarbour's counsel as "an obviously partisan witness", and on a misreading of the written material which did not amount to any form of warning. It was further submitted that, even if StormHarbour had not been reassured by the response of Acres, it would be unreasonable to require them to instruct an aviation risk assessor or conduct any further audit. It was submitted that in reality the planned itinerary was reasonably safe, the accident was caused by major pilot error later in the day, and that those matters could not reasonably have been anticipated by StormHarbour in London.
25. In refusing permission to appeal on paper, Tomlinson LJ characterised the proposed appeal as "a barely disguised invitation to the Court of Appeal to retry the case". He described the judge's conclusions as "intensely fact specific". He draws a distinction between this case and the "holiday cases" cited by StormHarbour in which the risks inherent were simply in being present at the chosen destination rather than being required by an employer to undertake inherently risky activities. He concluded that an appeal against the judge's conclusions of fact would have no prospect of success.
26. In its statement of reasons why permission to appeal should be granted filed pursuant to PD 52 C para 16, StormHarbour submitted that the refusal of permission to appeal on paper was wrong because it failed to address the three fundamental errors identified in the judgement as summarised above. It was submitted that Tomlinson LJ's refusal of permission failed to reflect that is open to the court to interfere with a finding of fact where there is no evidence to support the finding, or where it was based on a misunderstanding of the evidence, or was one which no reasonable judge could have reached: MacLeod v MPC [2015] EWCA Civ 688. It was submitted that, applying this principle, the Court of Appeal can and should interfere with the judge's finding that the proposed trip was high-risk and dangerous and that this should have been known to StormHarbour as a reasonable employer, for the reasons set out in the skeleton argument as summarised above. It is asserted that the refusal of permission to appeal fails properly to recognise that the standard of care the judge sought to impose was not merely fact specific but is of far more universal application and unreasonably high.
27. In their written response, counsel for StormHarbour further submitted that Tomlinson LJ failed to consider the clear parallels between the present case and the decision in the subsequent case of Cassley. In that case, the claim was dismissed and StormHarbour contend that there is no valid distinction to be drawn between the two cases. Their written response seeks to draw further parallels between the two cases.
28. In oral submissions on behalf of StormHarbour, Mr Lynagh submitted that the ambit of an appellate court's powers was not constrained in the manner suggested by Tomlinson LJ because, whereas what a defendant has done is a matter of fact, what a defendant ought to have done to satisfy a duty of care is a mixed matter of fact and law, and whether it has in fact been negligent is a matter of law. In any event, factual findings are not sacrosanct: see Re B (A Child) (care Proceedings: Threshold Criteria) [2013] UKSC 33. On the basis of all the factors known to StormHarbour, there was nothing that obliged them to carry out any investigations. If that is not correct, all that was required was to establish that the helicopter operator was lawfully licensed and held an AOC. StormHarbour did not make any enquiry but had it done so it would have discovered that this was the case. There was no finding that HeliCusco was not a responsible operator, and thus the case falls within the Davie principle. Alternatively, if there was a duty of care, and StormHarbour was at fault in not making enquiries, no loss resulted from the breach because it was inherently improbable that any enquiries put to Acres would have produced answers that would have led StormHarbour to instruct Mr Dusek not to take the flight. Hamblen J's judgement attributed to StormHarbour a degree of knowledge and understanding on matters such as topography, weather conditions and aviation physics which only emerged during the hearing. Mr Lynagh reiterated the central complaint within the written submissions that, contrary to the judge's finding, the trip was not inherently dangerous and, in so far as the judge was right to find on the basis of the evidence that it had been dangerous, that was not something which StormHarbour could reasonably have been expected to know.
29. Mr Lynagh further expanded upon what he characterised as inconsistencies between the approach of Hamblen J in this case with that of the trial judge in the Cassley case, and emphasised the argument set out in written submissions that the judge had misinterpreted the evidence as to what Acres had been told by Helinka staff.
30. In a note in response, Mr McParland, counsel for the claimants, made a number of submissions, his central argument being that StormHarbour's proposed appeal amounts to an invitation to retry the case and reopen findings of fact in a way that goes beyond the proper role of the court, citing in support the dicta of Lewison LJ in Fage UK Ltd v Chobani UL Ltd [2014] EWCA Civ 5 at para 114. He submitted that this is not a case where Hamblen J's key findings of fact could properly be described as plainly wrong; that the contention that the judge imposed an unreasonable and unrealistically onerous duty of care was manifestly ill founded and unsustainable; and that the judge's analysis of what would have happened if Stormharbout had complied with its duty of care is entirely in line with authorities, in particular Uren.

Discussion and conclusion

31. The key finding on which Hamblen J's decision turned was that the flight planned through the Andes was high-risk and, for the helicopter concerned, dangerous. StormHarbour make a number of assertions in an attempt to undermine the finding, including that no ordinary employer in 2012 would have seen flying in the mountains in this helicopter as inherently dangerous because that is what helicopters do. However, the judge's finding on this point was based on a close analysis of the evidence, including the expert evidence, about the conditions in the mountains and the challenges faced flying in those conditions. StormHarbour also repeatedly stressed that Cusco, which was the start and finish of the trip, is a well-established international airport and fully equipped. The judge's finding, however, was not about the safety of flying out of and into Cusco generally but, rather, as to the hazardous nature of this particular proposed trip through the mountains. Overall, StormHarbour's attempts to undermine the finding that this trip was dangerous for this helicopter are, in my judgment, hopeless.
32. Equally, I can find no possible basis for any appellate court interfering with the findings as to StormHarbour's knowledge of the risks, as summarised in the passage from paragraphs 173 to 178 of the judgment quoted above. The nature and extent of any risk assessment plainly depends on the nature and extent of the risk. Given the extent of the risk in this case, about which StormHarbour knew or ought to have known, the risk assessment required of any employer was much more onerous and extensive than it would have been if the flight had been of a routine nature with no significant or unusual risks. Here, as a matter of fact, no inquiry was carried out at all. StormHarbour submits that, in so far as the risk gave rise to a duty to make any assessment, that duty would have been fulfilled by establishing that the operator held an AOC, that the helicopter was licensed, and that Acres, with its local knowledge, was sufficiently satisfied with the safety of the venture to permit one of its own employees to go on the trip. The judge rejected these arguments and, in a carefully crafted section of his judgment, analysed the precise steps of the inquiry which a reasonable employer in StormHarbour's position ought to have taken. He concluded that the more inquiries which a reasonable employer made into the detailed plans for this flight the greater its concerns would be. This conclusion was arrived at after a detailed analysis of the evidence and the judge's finding was neither unwarranted nor conjectural but rather a conclusion which he was fully entitled to reach.
33. I respectfully agree with Tomlinson LJ that the non-delegable duty of an employer, including the duty to carry out a risk assessment, is materially different from the duty which arises in the so-called "holiday cases". I also agree that StormHarbour's reliance on Davie is misplaced. That decision must of course now be read in the light of modern practice in which, as the Court of Appeal observed in Uren, risk assessment is a feature of the health and safety landscape. As Smith LJ observed at paragraph 72 in Uren, (a passage quoted by Hamblen J at paragraph 126),

" … 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 otherwise be 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."

In this case, Hamblen J concluded that the nature and extent of the risk required a much more detailed and thorough assessment than that suggested by counsel for StormHarbour. In my judgment, there is no prospect of any appellate court reaching a different conclusion.

34. As for StormHarbour's submission that its responsibility was limited because Mr Dusek was a senior employee with great autonomy, the judge concluded, having considered all the evidence about Mr Dusek, that he would not have taken the risk in the light of an instruction by his employer not to do so. Again, there is no prospect of any appellate court interfering with this assessment.
35. In their written and oral submissions, counsel for StormHarbour placed strong reliance on the contention that the judge had misinterpreted the evidence about what Acres had been told by Helinka staff. But it is plain from the judgment that Hamblen J took into account the fact that Mr Martin's evidence on this point was based on hearsay. It is also plain that he had considered the written communications from Helinka. In the circumstances, I conclude that his finding on this aspect of the evidence was one which he was fully entitled to make.
36. As for the comparisons between this case and the subsequent Cassley judgment, I reject the submission there is an inconsistency between the two judgments that fundamentally undermines the reliability of Hamblen J's decision. Both cases involve fatal air crashes in the jungle in which an employee of a financial services company died. There are other parallels but also crucial differences between the two cases and the two judgments, notably the respective conclusions as to the extent of the foreseeable risk. As always, each case ultimately turns on its own facts. In my judgment, there is nothing in the judgment in Cassley which undermines the decision reached by Hamblen J in this case.
37. Findings of fact are not invariably sacrosanct. Where an appellant establishes one or more of the elements identified in MacLeod, an appellate court may interfere. In this case, however, I conclude that Hamblen J's findings, including his assessment of risk, was manifestly within his discretion. I further conclude that his detailed analysis of the duty on StormHarbour, the breach of that duty, and the foreseeable consequences of that breach followed inexorably from his factual findings and was fully in accordance with legal principle. Accordingly, there is no real prospect of any appeal against the judgment succeeding, nor in my view is there any other compelling reason why an appeal should proceed.
38. Permission to appeal is therefore refused.