Will be interesting to follow the development of this...

[Pittsextra]

StormHarbour Liable for Banker’s Death in Helicopter Crash (1)
(Updates with comment from Dusek’s widow in sixth paragraph.)
By Jeremy Hodges
(Bloomberg) -- StormHarbour Securities LLP is liable for the 2012 death of an employee who died when a helicopter crashed into the Andes mountains in Peru, killing 14 people, a London judge ruled.
The securities firm was in breach of its duty of care to Tomas Dusek by doing “nothing to investigate into the safety of the proposed helicopter flight,” Judge Nicholas Hamblen said in a ruling today. “If Mr. Dusek had not gone on the flight, then he would not have been killed.”
Dusek, who had worked for JPMorgan Chase & Co. and Deutsche Bank AG over his career, was flying with Peruvian clients of StormHarbour on a site survey in pursuit of a joint $1.62 billion project to install five water turbine generators on the Inambari River in the southeastern state of Puno.
At trial, StormHarbour denied any responsibility for Dusek’s death. Also on board were senior employees of Samsung C&T Corp. and Korea Engineering Consultants Corp., according to court documents.
Dusek, a 37-year-old father of two, got on a helicopter that was “flying an inherently dangerous route,” in bad weather “by a pilot who had previously killed two other people in a crash” in the mountain range, a lawyer for Dusek’s widow said at the trial last year.
‘Thrown Away’
“My husband’s life was thrown away by StormHarbour’s disregard for his safety,” Dusek’s widow, Angela Dusek, said in an e-mailed statement. “I can tell my children that today’s decision will hopefully change the way that other employers approach business travel to remote regions of the world, and if that means that even just one less wife, child or parent suffers what we have had to suffer over the last two and a half years, then something positive has come out of this pain.”
StormHarbour declined to comment on the ruling through an external public relations firm.
The ruling was only on liability and no damages were awarded at this stage of the case.
The helicopter crashed at an altitude above 16,000 feet, flying between Mazuco and Cusco when it got into difficulty because of a combination of deteriorating weather and poor decision making from the pilots, according to the ruling.
Under U.K. law, companies have a duty “to their employees to take reasonable care for their physical safety,” Hamblen said in the ruling.
Safety Grounds
“Although Mr. Dusek was prepared to take risks, he did so on a calculated basis,” Hamblen said. “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.”
StormHarbour, with headquarters in London and New York, was founded in 2009 by former Citigroup Inc. fixed-income executives Antonio Cacorino and Fredrick Chapey.
The case is Dusek & Ors v StormHarbour Securities LLP in the U.K. High Court of Justice, Queen’s Bench Division, case no. HQ13X01367

For Related News and Information:
Banker’s Widow Sues StormHarbour Over Andes Helicopter Crash
StormHarbour to Buy Stake in Japan Hedge-Fund Manager Asuka
Top Stories:TOP<GO>

To contact the reporter on this story:
Jeremy Hodges in London at +44-20-3525-8575 or
[email protected]
To contact the editors responsible for this story:
Anthony Aarons at +44-20-3525-2227 or
[email protected]

[terminus mos]

Non scheduled air transport flights should be part of any corporate risk management. They have the highest risk, especially where oversight is poor.

[turboshaft]

Background on the HeliCusco S-58ET crash, from the archives -- Tourist helicopter missing in southern Peru (http://www.pprune.org/rotorheads/487470-tourist-helicopter-missing-southern-peru.html)

[Peter-RB]

Well if the widow goes on to the Liabilities recovery at least the employing company MAY just have sufficient cover or cash in the bank, me thinks however the Heli company would not have that sort of cover..?

Very sad for the families of the deceased.

[Pittsextra]

What I'll be interested to see is to what extent this ruling may then apply to other operations and just how far one takes the view of doing "nothing to investigate into the safety of the proposed helicopter flight".




Does that duty of care stop at the employer of the passenger or does it extend to the operator and/or the pilot, in fact what about the relationship between pilots? and surely death isn't the only pre-requisite to file such action?




There would seem a lot of recent commercial helicopter incidents in the last two years alone that would come into focus depending on how these things are interpreted.

[nowherespecial]

I agree with TM that corporate risk management has failed here but...

If the pilot was licensed, the ac was serviceable and no laws were broken, I think it's a bit harsh to blame ]StormHarbour. [/B]

The pilots made bad decisions in deteriorating weather but what the UK court is basically saying is that you should never get into an ac in Peru as they are all rubbish unless you audit them first.

Even then, an audit would have found an experienced licensed pilot, a serviceable ac and what else... Unless you did the audit on the day of the flight, how could you predict bad weather and the decisions that would follow it? Challenging terrain cannot be mitigated if that's where you are going. Route selection will only do so much.

Clearly if I missed the lack of airworthiness of either pilot or ac, I'll be quiet.

[Sandy Toad]

Do they need to risk assess every taxi driver too? Or only use pre-checked limo companies.
Risk assess the chef who prepares meals in case of food poisoning?
Where does this end?
Any accident with fatalities is very sad but how many cases would be brought to court if there where only minimal damages awarded?

[Pittsextra]

On the other hand perhaps the junior member of staff riding with his boss in his AW139 may have expected better? Or the old musician may have thought his pilot would have come around before a few feet from the trees - the co-pilot certainly did. Maybe those in an EC135 didn't realise the fuel management issue. What about the risk assessment of flying as the 225's did not so long ago... and so on. If you take the view "if it didn't fly they would still be alive view" perhaps the Air Asia flight on a Sunday becomes relevant??

Hence why I said it will be interesting how it progresses.

[Never Fretter]

14 people in an 54 year old helicopter in mountains at over 12,000ft...

[Pittsextra]

Yeah... you could have a 40 year old aircraft with 35 on board over the UK instead.......

BBC News - 'End of an era' as DC-10 makes last international trip (http://www.bbc.co.uk/news/uk-england-birmingham-26272607)

[Self loading bear]

All passengers where either chief-executives of Samsung related companies or bankers? working for an investor company.

They had been "investigating" a prospective site for building a hydro energy dam.

So a banker has to see the site to determine if he can make a profit?
Yeah, you have to taste the water and grit the soil.

Now they have saddly ended up at the bitter side of a sweet business trip.
"Lets go to the rough Andes and have a look"

Dont get me wrong, everybody is entitled to a save journey.
It is sad for the families indeed but i think there was no real reason to go out there in the first place.

[Flying Lawyer]

Pittsextra says:
Will be interesting to follow the development of this...

The case did not create new law.
The Judge applied existing law to the facts of this case.

If you take the view "if it didn't fly they would still be alive view ....."
It is important to look at the context.
At the very end of his judgment, he said: If Mr Dusek had not gone on the flight then he would not have been killed.That statement is obviously correct, and there is a legal reason for the Judge saying so in the judgment, but the sentence should not be read in isolation.
If must be read in context. ie The stages through which the Judge went, and the conclusions he reached, before getting to that point.


FL

[Flying Lawyer]

Dusek & others (Claimant) v. Stormharbour Securities LLP (Defendant)


Introduction

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 trial

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.

.

(* Financial matters will be decided later. SOP when not straightforward.)


The issues

The principal liability issues may be summarised as follows:

(1) Did the scope of StormHarbour's duty of care as employer extend to the HeliCusco charter and helicopter flight?

(2) If there was such a duty, did StormHarbour breach it?

(3) If StormHarbour did breach its duty, did that breach cause Mr Dusek's death?

.



....................

Full Judgment here -> Dusek & Ors v Stormharbour Securities LLP [2015] EWHC 37 (QB) (19 January 2015) (http://www.bailii.org/ew/cases/EWHC/QB/2015/37.html)

....................


Conclusion

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.

.

[rotorspeed]

Pittsextra

What would you do if you were an employer to decide whether a helicopter operator was sufficiently safe for your employees?

[nowherespecial]

SLB, very interesting that you think some bankers would invest $1.62bn of investors money without even looking at the site with some experts.

That would also seem a bit reckless no?

[terminus mos]

The S-58ET was well overweight at that altitude and maybe outside of the flight envelope. Regardless of duty of care, could this be negligence?

[nowherespecial]

TM I don't doubt it but it goes back to it being StormHarbour's fault. I still can;t see how them chartering a licensed pilot to fly an (old but) airworthy aircraft is their fault that he's dead.

I had a colleague a few years ago (A Russian) who was killed in the terrorist Moscow Airport bomb. His wife sued us (he was there on business) and lost. Judge said there was no way we could know it was going to happen and therefore could not blame the company.

If we remove the complexities of aviation from the story, this is surely a very odd way to do business. It's like blaming the company of a passenger going to a meeting when a taxi driver crashes.

How does this liability play out if I'm not travelling on business? If it switched back to the operator then it should be there regardless of the circumstances.

Again I'll caveat that a licensed pilot and certified and serviceable ac are my assumptions here.

[Peter-RB]

Just of late I have been reading and trying in Laymans terms to understand a small part of the UK Corporate Manslaughter Act ( CMA),

In one sentence this act implies than any person working on behalf of the company in question ( who employ that person)( this could be Stormharbour) has a duty of Care even if the person employed is using his or her own vehicle whilst employed on company business, so if I take that as meaning the employing company(could be Stormharbour) would also be covered by that Duty of care if the person was involved with said Helicopter crash.

I hope Flying Lawyer will see this and possibly put in his thoughts , for this CMAct now covers everyone in business in the UK, so looking backwards and experiencing how Insurers wriggle out of so called "Cast Iron " cases it means even small business's will need to ensure they are well covered for sad incidents like this one in question.

Peter R-B
Lancashire

[Pittsextra]

From the transcript of the judgement

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.

So the rub is around if SH needed to do anything but that seems to be contradicted by the following:-

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.


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.

The judge seems to conclude that had SH made any enquiry into the route / flight that it would have concluded that there were safer alternatives and they would not have allowed it to go ahead with their employee on board.

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.

So what one will find "interesting" is that should future employees attempt to fulfil their duty and make some safety assessment, be it followed up with an audit or fuller risk assessment or not. At some point there will be recorded decisions and one wonders just how detailed these assessments will need to drill down or if these views / tests are related to duties of care beyond the employee/employer.

Recent examples that come to mind could be the operation of the EC225 prior to the 2nd shaft failure, or the operation with the interim fix. The risk assessment relating to fuel management of EC135's over populated areas, grubbing around in fog over Central London during rush hours or operations from private sites. After all the general public no doubt make the assumption that those operating helicopters do so with a standard of reasonable care......

[Peter-RB]

Thank you PE,
Your patience to read and translate would seem IMO to agree with what I am reading in the draft I have, re the CMAct UK, so as the Thread title suggests it will be interesting to see what the Widow does next, or indeed if she is successful in using something like this CMAct as the basis for any claim.

Unless the retrospective date of incident also plays such a part..?

Peter R-B
Lancashire

[diethelm]

It is important to remember that the phrase "justice system" is simply a marketing tool used by the legal industry in various countries to make the public believe the legal industry is about "justice".

It is not, it is about winning and losing money either through judgements or legal bills.

No matter how much logic ordinary people attempt to apply to the legal industries, there will be some case, some set of facts that belie that logic.

Naturally the case brings up the obvious question which is, if an employer is subject to a standard of care with respect to inquiring about the aircraft, its' history of maintenance, its' performance capabilities and the like; And if the employer is also subject to a standard of care with respect to the pilots training, history, past performance and the like, what is the purpose of Regulators, Regulatory Authority and the myriad of arcane regulations?

More importantly, since fault was found by this court, why are the regulators not also responsible and paying, if this is actually about justice and laying fair fault?

[rotorspeed]

Pittsextra

You make repeated references to UK accidents/incidents - a very different environment to this Peru accident. As I've asked you before, could you please say what steps you think a UK employer should take to fulfil its duty of care obligation to ensure safe helicopter travel for its employees?

[Pittsextra]

Rotorspeed - hi.

SH is an LLP and the pay for this employee is likely (although I have no specific knowledge of SH I am very familiar with similar entities) to include bonus treated as a repayment of capital which is beneficial for tax purposes. I'm not sure how in the legal world what effect that has but anyone working in a senior position for such entities does operate with a great deal of autonomy. Certainly it is highly unlikely that (for example) some HR / support staff would call up suggesting that a trip be cancelled especially given they would likely have no idea what is or is not relevant detail wise in aviation.


In that regard this judgement reflects a very poor knowledge of the dynamic within this kind of working environment.

Regardless. You asked what steps a UK employer should take. It's a very good question. What does one ask? I could give you a bunch of flim/flam about seeing an AOC, etc but reflecting on SH being a finance company without knowledge of the relevant documents / process how does one even know?

in the judgement there is reference to a using respected travel agents but what elements allow them to pass that test?

My reference to UK accidents however was not related to that. It is merely a nod to the fact that here is a judge making comment upon the process and tests that they believe are reasonable in terms of assessing risk and having assessed that risk having a reasonable action. The accidents I refer to involve entities that are not merely casual users of helicopters (as was the case with SH).


Therefore it is surely reasonable to expect (for example) a greater awareness. If we simply take the comments made in this case here:-


"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"


Upon reflection how would the EC225 be viewed?? Just for example.

[nowherespecial]

I'm personally looking forward to the day people start beating my door down looking for aviation advice to go on business trips for fear of failing this law and getting CMA'd.

I'm not really, IMHO this whole thing is a joke.

[Flying Lawyer]

Peter-RB

so as the Thread title suggests it will be interesting to see what the Widow does next

The next stage in these proceedings will be determination of the amount of damages and costs payable to her.
Separating determination of liability and determination of damages/costs is SOP in complex cases.
or indeed if she is successful in using something like this CMAct as the basis for any claim.

The Corporate Manslaughter and Corporate Homicide Act 2007 relates to criminal liability, not liability in civil law.
It replaced the old law of corporate manslaughter. Unless the retrospective date of incident also plays such a part..?The Act applies to deaths after 6 April 2008.



It will be interesting to see whether Stormharbour appeals against the Judge's decision and, if so, what the Court of Appeal says about it.

FL

[nowherespecial]

FL,

It will be interesting to see whether Stormharbour appeals against the Judge's decision and, if so, what the Court of Appeal says about it.

What do you think will happen?

NS

[Flying Lawyer]

NS

For professional reasons I don't wish to explain, I'm not free to express personal opinions about this or any other legal matter.


FL

[nowherespecial]

FL - you sounds like my 5 lawyers in Turkey...! :)

[Flying Lawyer]

NS

Note that I said I am not free to do so.

When I was, I frequently expressed opinions on legal matters in this and other PPRuNe forums.

FL

[Pittsextra]

How would that freedom or otherwise extend to other professionals expressing their opinion? For example in recent accident threads there have been a range of expressions of experience around what is or is not accepted practices be it with an employer or type of aircraft. Even as recently as differences over 225's and compressor stall, if we want a less emotive topic.

Is the thinking that expressing such opinion may have negative consequences? Just prompted by you highlighting the "I said I am not free to do so."

[Flying Lawyer]

Pittsextra


I can't speak for others.

The particular restrictions which apply to me in relation to 'legal' topics do not, as far as I am aware, apply to anyone else who posts on PPRuNe.


FL

[terminus mos]

There have been numerous aviation accidents of this type, resource company personnel without Aviation Advice, internal or external exploring in remote areas have often been the victims

It would have been cheap insurance for this company to have spent a couple of thousand on a simple desktop audit and risk assessment. This loss of life was totally avoidable. This aviation operation would have had red flashing lights for me within about 30 seconds.