Will be interesting to follow the development of this...
Will be interesting to follow the development of this...
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]
(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]
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Background on the HeliCusco S-58ET crash, from the archives -- Tourist helicopter missing in southern Peru
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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.
Very sad for the families of the deceased.
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.
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.
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 [U]StormHarbour[/U].
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.
If the pilot was licensed, the ac was serviceable and no laws were broken, I think it's a bit harsh to blame [U]StormHarbour[/U].
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.
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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?
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?
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.
Hence why I said it will be interesting how it progresses.
What were they doing there in the first place?
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.
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.
Last edited by Self loading bear; 20th Jan 2015 at 22:14.
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Pittsextra says:
The case did not create new law.
The Judge applied existing law to the facts of this case.
It is important to look at the context.
At the very end of his judgment, he said:
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
Will be interesting to follow the development of this...
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 ....."
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.
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
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Dusek & others (Claimant) v. Stormharbour Securities LLP (Defendant)
(* Financial matters will be decided later. SOP when not straightforward.)
....................
Full Judgment here -> Dusek & Ors v Stormharbour Securities LLP [2015] EWHC 37 (QB) (19 January 2015)
....................
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.
.
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.
.
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?
.
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)
....................
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.
.
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.
.
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?
That would also seem a bit reckless no?
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.
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.
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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
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
From the transcript of the judgement
So the rub is around if SH needed to do anything but that seems to be contradicted by the following:-
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.
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......
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.
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.
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.
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......
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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
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