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......