A ruling in the UK High Court about 18 months ago (Merrett vs. Babb) confirms that it is quite possible for a professionally-qualified employee to assume a Duty of Care to a client or customer of the company of whom he or she is employed, and that such a Duty need not necessarily be expressly assumed and accepted by that professional employee.
This Court decision means that a qualified employee can be held personally liable for advice offered or actions taken on behalf of his or her company.
It's ultimately down to a question of "reasonableness" i.e. was it reasonable that the ATCO knew something and that he/she could have said or done something. A civil Court would decide.
A failure of a Duty of Care can arise if there is a failure by that person or company to do what it reasonably should be expected to do OR does what it reasonably should be expected not to do.
Merely complying with MATS Part 1/MATS Part 2 or JSPs doesn't necessarily cover your "six o'clock". However, the pilot(s) also have a Duty of Care as do ATS providers, AOs, airport operators, etc., etc.
Be aware that "damage" can be death, injury, nervous shock, damage to property, or a financial loss.
So, make sure you always have a good lawyer available and if you can't afford one, join GATCO, Prospect or Unison and take advantage of their legal representation insurance!
