The Courts in England and Wales are increasingly considering cases involving the death or injury of employees travelling abroad for work. The issue is to what extent should an employer make enquiries to ensure that the provider of transportation is safe and reasonable in the circumstances?
This question was raised recently in the case of Cassley and other v GMP Securities Europe LLP, another example of the death of an employee in an air accident whilst travelling in either high risk countries or on high risk routes. A claim was brought by Mr Cassley’s dependants against his employer and their agents for failing to adequately investigate the risk of such air travel and the use of local operators in poorly developed countries.
Mr Cassley was travelling on an aircraft belonging to a Congolese airline which, like all airlines operating within Congo, was blacklisted by the EU for poor regulatory oversight and concerns over safety compared to other airline operators around the globe. The Court agreed that the employer was in breach of duty to Mr Cassley in that it had failed to make inquiries into the airline and the concerns raised by the EU. However, the Court held that that breach was not causative of the death. The flight was a last minute substitute and on the evidence provided, the Court held that even if the employer had carried out reasonable investigations into the airline, these would not have revealed anything that would have led to the cancellation of the booking.
The flight had been arranged by a third party (“Sundance”) on behalf of the employer. Sundance also owed a duty of care to Mr Cassley, however, unlike the employer, they had made reasonable investigations into the method of travel. Sundance had made enquiries of locals who might reasonably expected to know of the track record of the airline in question, which had not raised any concerns that the Court could find made it unreasonable to use the airline. Further, the route in question was not considered to be high risk. Therefore, despite an obligation on the employer to assess the risks, in this specific case, the flight would have gone ahead in any event on the basis of Sundance’s reasonable assessment.
This case comes just after the ruling in Dusek v StormHarbour Securities LLP in which Mr Dusek, who worked for the city finance firm StormHarbour Securities LLP, was killed in a helicopter crash in the Peruvian Andes whilst travelling on business. The Court found that StormHarbour was in breach of its duty to Mr Dusek in failing to make enquires into the helicopter operator, who was in financial difficulties to the extent that affected the safety of operations. Enquiries would also have revealed the high risk nature of the route in question, the unsuitability of the aircraft used and the poor weather; a combination of which led to the crash.
The court has made clear that these cases are fact sensitive; the extent and nature of the investigations to be expected depend on the specific circumstances prevailing at the time. For example, it is less likely that an employer would be expected to investigate the appropriateness and roadworthiness of a hire vehicle taken within the UK, given the laws in England and Wales on mandatory MOT’s and insurance. However, it might be considered reasonable to expect investigations to be carried out into the roadworthiness of vehicles hired for the use of employees in the Congo and other similar developing countries.
As more and more business is carried out between the UK and the developing world, increasing numbers of employees will be expected to travel to countries whose transportation links pose risks requiring assessment. At present, the law places the onus on employers to safeguard their staff, however it remains to be seen to what extent employees should be also expected to take responsibility for their own welfare when acting in the course of their employment.
If you, or anyone you know, has suffered an injury in the course of their employment, you should contact Clarke Willmott’s Serious Injury team.