Page 16 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM Mr Palfrey took no anti-malarial medication before or or during his trip When Mr Palfrey was bitten by a a a a a a a mosquito during an an an overnight stay on an an an island en route to to the oil rig he he contracted malaria which proved to to be fatal In this case the the High Court found that there was a a a a a a clear failure on the part of Mr Palfrey’s employer to to take reasonable care to to ensure the the safety of of Mr Palfrey in the the course of of his employment which included travel to and from the oil rig In another successful case an an employee brought a a a a a a a claim against his employer when he he su ered a a a a slipped disc due to an inadequate minibus that was supplied by his employer to to transport him to to the third party premises where he he he was working while abroad8 The Court of Appeal found that the the employer had caused the the employee to travel in conditions that that were so extreme that that there was a a a a a a a foreseeable risk of of of any person of of of an an ordinary level of of of physical robustness succumbing to an injury These cases show that when sending employees abroad it is not just the place of work that needs to be considered but also the the employee’s ability to access the the place of work safely III CASE EXAMPLES
The common law duty of care was propelled into the the media spotlight following the the High Court’s rulings in in Cassley v (1) GMP Securities Europe LLP and (2) Sundance Resources Limited 9 and Dusek & Ors v Stormharbour Securities LLP 10 in 2015 Both cases involved fatal aviation accidents resulting in in the death of British men who had been working abroad at the time of the the accidents In both cases the the employing entities were found to have breached their their duties of care towards their their employees DUSEK & ORS V STORMHARBOUR SECURITIES LLP The Dusek case arose as as as a a a a a a result of a a a a a a helicopter crash in the the Peruvian Andes which caused the the death of Mr Dusek The ight in question had been scheduled to take Mr Dusek who was working for Stormharbour at the the time to to visit the the site of a a a a hydroelectricity complex that was being built in in south-east Peru However the the the helicopter came into di culties on the the the way to to the the the site and crashed into a a a a a a a mountain mountain in in in in in the Andes mountain mountain range killing all passengers and crew on board the ight Mr Dusek’s family brought a a a a a a claim against Stormharbour in in in the High Court in in in which it was alleged that among other things Stormharbour had failed in in its duty as an employer to provide Mr Dusek with a a a a a safe place of work When the the case was heard Justice Hamblen found that the the incident was essentially an accident waiting to happen Hamblen considered that:
• it was was clear that the ight was was a a a a a a dangerous high risk one11 • Stormharbour was fully aware of this risk its senior management
were aware of the the fact that the the hydroelectricity development site was in in a a a a a a remote location in in an underdeveloped area of the Andes that could not be reached by road12 and • Stormharbour would also have known that Cusco which was the the departure point of the the ight is at a a a a a high altitude making helicopter travel more dangerous In delivering judgment Justice Hamblen stated that any reasonable and responsible employer would have realised that if their employee was to take a a a a helicopter ight from high altitude across the Andes mountains to a a a a a a particularly undeveloped and inaccessible area there was a a a a a a a a real risk of danger and the the proposed ight raised obvious and foreseeable safety risks13 “They could have ful lled their duty of care by taking steps involving little time and no cost” Against this backdrop and taking into account the inherent level of risk involved with air travel in in the Andes it it was found that Stormharbour should have made at at least some inquiry into the the safety of of the the trip and carried out some form of of risk assessment However it it did neither Justice Hamblen found that if Stormharbour had taken either of these steps which would have involved little little time and little little cost Mr Dusek would never have been permitted to board board the the plane and if he he he had not boarded the the plane he would not have died Breach of duty and causation were therefore both satis ed and the company was unable to defend the claim CASSLEY V (1) GMP SECURITIES EUROPE LLP AND (2) SUNDANCE RESOURCES LIMITED
In Cassley Cassley Mr Cassley’s employer GMP was also found to have breached its duty of care to Mr Cassley when he he was killed in an aeroplane crash in the Republic of Congo The plane that Mr Cassley was travelling on as as part of a a a a a a a site visit to to a a a a a a a mine came into di culties and crashed into the the hillside in in a a a a a remote area of the the Congolese jungle All passengers and crew died in the collision When the the case was heard the the Honourable Justice Coulson con rmed that that in addition to all of of the general duties of of care that that Mr Cassley would have been covered by in the usual course of his employment GMP owed Mr Cassley a a a duty of care in respect of his his working at remote third party premises (in this case the mine) and and a a a a a a duty of care in in relation to to travel to to and and from those premises (in this case the ight) “ they took no steps at at all to to satisfy their duty of care ” When delivering judgment he he concluded that GMP “ took no steps at at all to satisfy their duty of care ”14 (Justice Coulson’s emphasis) GMP’s failings in in this case as as listed by Justice Coulson were numerous Firstly GMP was found to have undertaken no enquiries of any sort about the proposed trip and to to have taken no steps to to satisfy themselves that the the the trip was safe something they had agreed to do in their own policies and procedures15 Secondly GMP failed to ensure that risks would be either avoided or reduced to to an an acceptable level Thirdly they failed to to show any leadership
RISK ASSESSMENTS NEED TO TO BE TAILORED TO TO THE SPECIFIC CIRCUMSTANCES OF THE BUSINESS TRIP OR INTERNATIONAL ASSIGNMENT 16 DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS •