Cassley & Ors v GMP Securities Europe LLP [2016] EWCA Civ 711

Case No B3/2015/1314[2016] EWCA Civ 711
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
The Honourable Mr. Justice Coulson
TLQ/14/0468 HQ13X02001
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 th July 2016
Before
THE HONOURABLE MR JUSTICE BAKER
Between
GMP SECURITIES EUROPE LLPDefendant
Gerard McDermott QC and Matthew Reeve (instructed by Stewarts Law LLP) for Claimants/ApplicantsJohn Ross QC and Kiril Waite (instructed by Berrymans Lace Maawer LLP) for Defendant/RespondentHearing Hearing dates : 16 th June 2016
JudgmentMR JUSTICE BAKER :
[1]By a notice of appeal dated 21 April 2015, the three Claimants in these proceedings seek permission to appeal against the judgement of Coulson J delivered on 31 March 2015 [2015] EWHC 722 (QB) dismissing their claim for damages against GMP Securities Europe LLP (“GMP”) following an accident on 19 June 2010 when an aircraft crashed in the remote jungle in the Republic of Congo. All 11 passengers on board died, including Mr James Cassley, the husband of the 1st Claimant and son of the 2nd and 3rd Claimants. The application for permission to appeal was refused by the trial judge and subsequently by Tomlinson LJ on paper but renewed before me at a hearing at which the Claimants and GMP were both represented. The Claimants also sought damages against a 2nd Defendant, Sundance Resources Ltd, (“Sundance"). That claim was also dismissed but no appeal has been brought against that decision.[2]At the same hearing, I also heard an application for permission to appeal in another case, Dusek and others v StormHarbour Securities LLP [2015] EWHC 37 (QB), which also involved a claim for damages against the employer arising out of an air accident. There are some similarities between the 2 cases, and the judgment of Hamblen J at first instance in Dusek was cited by Coulson J in his judgement in this case. Although the applications for permission to appeal were heard together, and in the course of argument counsel in each case referred to the other, the two cases are otherwise unrelated. It was agreed that I would give separate judgements in respect of the two applications. On 24th June 2016, I handed down judgment in the Dusek case [2016] EWCA Civ 604.

Summary of facts

[3]The factual background is set out in full in Coulson J’s judgment. For the purposes of this application for permission to appeal, it is only necessary to recite the salient features.[4]Mr Cassley was employed by GMP as a corporate finance executive. GMP is the London branch of a bank providing investment services in the mining, oil and gas sectors. Mr Cassley’s job involved frequent foreign trips and in the year of his death he had already travelled to Africa on several occasions. The judge found that he knew there were some risks attached to his job and the flying to remote locations that is entailed, although there was nothing to suggest that he ever knew of, let alone accepted, any unnecessary risks when undertaking those flights.[5]The judge described GMP’s health and safety documentation, and the evidence of the company’s executive, Mr. Butterworth, responsible for legal matters and compliance, including health and safety, as “not very illuminating”. The documents produced included one entitled “Office Risk Assessment” which identified those at risk as including employees travelling to remote locations and including provision for risk assessments in cases where hazards could not be eliminated or risks avoided. The document contained a policy statement in respect of contractors which asserted that the firm would plan, coordinate, control and monitor the activities of contract companies to effectively minimise the risk presented to employees and would only use contractors who proved able to discharge their primary responsibilities to safeguard the employees.[6]In 2010, GMP opened discussions with a view to providing investment in a mining project in Africa coordinated by Sundance, an Australian mining company which had acquired exploration rights in respect of iron ore deposits at a site in Cameroon called Mbalam and another site some 70 km away in the Republic of Congo at Nabeba. The judge found that the board of directors at Sundance, many of whom lost their lives in the accident, were well respected and experienced, including CEO Mr Lewis and the company secretary Mr Carr-Gregg. The judge found that the directors were not the sort of men knowingly to expose themselves, or others, to unnecessary risk. Sundance had concluded that charter flights were the best option for travelling to Mbalam and Nabeba. The judge found that each charter flight had to be approved by Mr Lewis, so that he and Mr Carr-Gregg were aware of the risks of air travel and addressed those risks with potential carriers, including making enquiries about insurance certification and other documentation, and that Mr Carr-Gregg arranged insurance for every flight taken. Sundance’s travel policy for charter flights provided that any fixed wing aircraft would be twin-engined and carry 2 pilots, that the operators would confirm that they had the necessary Air Operator’s Certificate (“AOC”), that all flights would be approved by Mr. Lewis and that there was evidence of third-party liability insurance cover of at least $10 million.[7]Prior to the fatal flight on 19 June 2010, Sundance had successfully completed three chartered flights to the area, the first in January 2010 using a Cameroonian charter company called Jetfly, the second in March 2010 using a Congo company called Aero-Service, and the third later in March using Jetfly again. Jetfly was the preferred operator, but the earlier flight with Aero-Service was also regarded as a success. The judge concluded that he was in no doubt that Aero-Service held an AOC and, on a balance of probabilities, that this had been seen by Sundance. He found that the arrangements for the March flight with Aero-Service were in accordance with Sundance’s travel policy.[8]Sundance then decided to convene a board meeting in Cameroon in June 2010, including a site visit to Mbalam and Nabeba, because high-grade ore had been identified at both sites. It was agreed that a representative of GMP would take part in the visit and Mr Cassley was selected in that capacity. GMP’s point of contact at Sundance for the arrangements concerning this trip was a Mr De Nardi who was based in Perth, Australia. On 1 June 2010, he informed Mr Cassley by email that the visit would take place on a Jetfly charter flight. The judge found that this was the only reference to any carrier provided to GMP by Sundance and that at no time did GMP seek any further information about Jetfly. It then emerged that Jetfly would not be permitted to land at the airport in Congo, Yangadou, because they were not a Congolese registered carrier. Sundance therefore decided to use Aero-Service for the trip but the judge found that neither Mr De Nardi nor anyone else at GMP was told about the change of carrier. There was communication between GMP and Sundance in the days leading up to the flight, but the judge found that this was taken up with Sundance’s attempts to ensure that GMP waived any rights in respect of an accident. For several weeks prior to the flight, various versions of a document entitled “Confidentiality and Waiver of Liability Deed" drafted by Sundance were circulated in email correspondence. Although Sundance and GMP each signed a version of this document, no version was signed by both sides and therefore it never came into effect. In the course of the negotiations, however, Mr Butterworth had informed other executives in GMP that there was no objection to the deed “from a legal and compliance perspective”. In cross-examination, Mr Butterworth accepted that he should have looked into the risks and dangers himself. The judge found that, although he realised that the wording of the proposed deed was an attempted abdication of responsibility by Sundance, he never thought through the obvious consequences for Mr Cassley's health and safety.[9]On 15 June 2010, Sundance decided to cancel the order with Jetfly and instead ask Aero-Service to undertake the flight. On 19th June, Mr. Lewis approved the Aero-Service flight. The judge found that it was assumed that Aero-Service would use the same plane and pilot as had been used on the earlier March flight. In fact, Aero-Service informed Sundance that a different plane would be used, although the judge found that nobody at Sundance appeared to have picked this up.[10]The original flight plan showed what the judge described as a straightforward flight from Yaounde to Yangadou at about 11,000 feet. The day before the flight, the route was changed to include flying over another mine at a location called Avima operated by another company. The Aero-Service crew pre-programmed Avima way points into the GPS they were using as navigation. The judge found that there were no foreseeable risks in respect of the flight plan in either its original or modified forms. The consequences of this last-minute change were identified by the judge as including(1) that the flight was being operated by a company who had not been asked for all the documentation which Mr Lewis had required;(2) that the flight was being undertaken by an aircraft which had not landed at Yangadou before;(3) that the pilots on board had never flown from Yaounde to Yangadou and(4) that the change of route would necessitate a longer period of low-level flying. The judge concluded, however, that none of these changes altered the fact that the flight was low-risk and routine. He accepted the submission that if Mr. Lewis or any of the Sundance Board had any reservations, the flight would not have gone ahead.[11]The flight took off at 8:13 on the morning of 19th June. At about 9 AM the aircraft approached the area of the Avima mine on the southern side of a ridge. It began to descend preparing to fly over the mine and as it did so flew into cloud. At 9:15, it flew into the ridge.

The judgment

[12]The judge found that the cause of the crash was pilot error and in particular the decision to fly into cloud when descending and the failure to identify the proximity of the ridge. Having considered a number of earlier audits undertaken on Aero-Service and the subsequent air accident report, he concluded that there were a number of factors that were linked to the accident. There was a lack of any formal safety procedures at Aero-Service. They did not have a safety policy, nor an emergency response plan, nor a quality assurance system. There had been no training of the pilots to avoid a “Controlled Flight Into Terrain". There was no facility for flight planning. There were no aeronautical charts on board, nor had the pilots asked for any meteorological data. The judge found, however, that the primary cause of the accident was pilot error. The pilots were faced with cloud which they did not expect, but they ought not to have flown into or through the cloud cover. Instead, they should have abandoned the plan to fly over the Avima ridge. The judge added:
“the errors made were both one-off mistakes, even if they could be linked back (at least indirectly) to the inadequate culture of safety at Aero-Service.”
[13]Having set out the facts, the judge summarised the issues arising in the Claimants’ case against GMP as follows.(1) As to the duty owed by GMP to Mr Cassley, what was the nature scope and extent of that duty? To what extent, if at all, could GMP relied, without more, on Sundance’s arrangements?(2) As to breach, what did GMP do in discharge of its duty towards Mr Cassley? Was that sufficient? If not, why not? If not, what other things should GMP have done?(3) Assuming that GMP were in breach of their duty, and should have made further enquiries, what further information would have become available as a result of those enquiries? What difference (if any) would that information have made? Specifically, would that further information have meant that, on the balance of probabilities, Mr Cassley would not have been on board the flight? He then summarised the case against Sundance which it is unnecessary for the purposes of this judgment to repeat.[14]At this point the judge made some observations about the expert evidence, concluding that some parts were useful but other parts unhelpful. In passing, it should be noted that one of the experts, an aviation consultant called Mr Watson, had also given evidence in the Dusek case. In the present case, Coulson J formed a much less favourable impression of Mr Watson’s evidence than that formed by Hamblen J in Dusek. In my judgment, however, the fact that two judges form different impressions of a witness does not necessarily undermine the reliability of either judgment.[15]The judge then summarised the law as to an employer’s non-delegable duty to take all reasonable steps to ensure the safety of his employee, noting that it extended to third-party premises and to travel to and from such premises. He cited a number of reported cases including the judgment of Hamblen J in Dusek in which the judge had found that the defendant employer owed Mr Dusek a duty “to take reasonable care to see that he was reasonably safe while travelling to and from and at his place of work abroad where he was required to go in the course of his employment". Coulson J held that in this case GMP owed "a precisely similar obligation" to Mr Cassley. He also cited the decision of this court in Uren v Corporate Leisure (UK) Ltd and Ministry of Defence [2011] EWCA Civ 66 concerning risk assessments, observing that “whether or not an employer owes an obligation to perform a risk assessment in the circumstances of the case, and the nature scope and extent of any such risk assessment, will always be a matter of fact.”[16]So far as the first issue was concerned – the scope of GMP’s duty towards Mr Cassley - Coulson J found that GMP’s duty as his employer included the duty in respect of remote third-party premises and in respect of the travel to and from those premises, all such duties being non-delegable.[17]As to the second issue,

the judge reached this preliminary conclusion (paragraph 217):

“I find that GMP took no steps at all to satisfy their duty of care to Mr Cassley. They undertook no enquiries of any sort about the proposed trip. Although they were entitled to rely to a large extent on Sundance, they needed to satisfy themselves that the trip was reasonably safe. That was, after all, what they had undertaken to do by reference to their own health and safety policies….Instead, they did not ask Sundance any questions about any aspect of the trip. Specifically, they did not ask any questions about the internal flights within West Africa, or about Jetfly, or about Sundance’s experiences of Jetfly. I find therefore that they were in breach of their duty to Mr Cassley.”
At paragraph 219, the judge set out particulars of GMP’s breaches. He added that, insofar as there remained any doubt, the “Confidentiality and Waiver of Liability Deed” amounted to a clear warning to GMP that they needed to undertake their own investigation.[18]The judge then proceeded to consider what GMP ought to have done. On the evidence before him, he rejected the Claimants’ suggestion that the failure to hire an aviation consultant was a breach of duty. He found, however, that GMP ought to have made enquiries of Sundance as to the flight operator, the route, and how Sundance had satisfied itself that the proposed flight was safe. He observed that this conclusion was consistent with that reached by Hamblen J in Dusek. He found that GMP ought to have consulted the Foreign and Commonwealth Office website. Had they done so, they would have discovered that Aero-Service was on a EU list of banned Congolese air carriers. Apart from that, however, the judge concluded that GMP had not been obliged to make any other independent enquiry.[19]The judge then turned to the third issue – causation. He identified a significant gap between, on the one hand, what GMP would reasonably have done based on the information they should have discovered and, on the other, a decision by GMP prohibiting Mr Cassley from getting on the flight. He described this as a causation gap which was “unbridgeable”. He rejected the submission that the blatant attempt in the deed to pass responsibility to GMP should have led Mr Butterworth to tell Mr Cassley not to board the flight. He found that the attempted exclusion gave no indication of the steps which Sundance were taking to ensure that no accident occurred.[20]The judge described the central problem for the Claimants as being that any enquiry made by GMP would have been about Jetfly. He accepted the Claimants’ submission that GMP ought to have been more proactive and sought detailed information from Sundance about the carrier. He observed, however, that even if GMP had made that enquiry of Mr De Nardi, it would not have made a difference because Mr De Nardi knew nothing about the change of carrier until after the accident. Thus the judge concluded:
“246 …. GMP cannot be blamed for an internal communication failure within Sundance. It was a matter over which GMP had no control and could not have reasonably achieved any control. 247. Accordingly, it seems to me that the Claimants’ case against GMP fails on causation. Although GMP were in breach of their duty, because they failed to make any enquiries of Sundance about the carrier, the enquiry that they should have made would have all be about Jetfly, and would have been the subject of satisfactory answers. 248. I regarded this as the ‘elephant in the room’ throughout the trial. It was repeatedly assumed that GMP knew (or should have known) that it was Aero-Service who would be undertaking this flight …. I find is a fact that GMP did not know and had no reasonable way of knowing that this flight was even being undertaken by Aero-Service. Accordingly, the entire factual basis of the Claimants’ case on causation falls away.”
[21]The judge added that, even if he was wrong about that, the information which Sundance would have provided to GMP in answer to questions about Aero-Service would not have put GMP on a trail of enquiry to lead them to conclude that Mr Cassley should not have got on the flight. They would have been told that Aero-Service had been recommended to Sundance; that there was an AOC; and that there were relevant insurance documents. The judge attached particular significance to the fact that they would have been told that Aero-Service had already flown Sundance to Yangadou with no difficulty. Even if the enquiries had gone deeper and identified the earlier audits of Aero-Service, the answer to a question about them would have been more than sufficient to persuade Sundance and therefore GMP that there was no reason not to allow that carrier to take the flight. The judge noted that the aircraft was not fitted with a ground proximity warning system but held that this was of no relevance to the accident. He further found that, even if GMP had discovered that Aero-Service was on a EU banned list, it would have made no difference.[22]This led

the judge to conclude (at paragraph 252):

“in all those circumstances, it seems to me that, even if further enquiries… should have been made by GMP of Sundance about Aero-Service, the information from Sundance would have been reassuring. Any reply from the organiser of the flight would have been to the effect that the proposed carrier was established; carried an AOC; had been recently successfully audited; had been previously used by the organisers to fly the proposed destination; and that it was reasonably satisfied as to its safety. That would reasonably have been sufficient for GMP to discharge its duty to Mr Cassley and they would have concluded that the flight was safe.”
[23]Finally, in his analysis of the claim against GMP, he compared and contrasted his conclusion as to causation with that reached by Hamblen J in Dusek, in which the judge had found the employer's breach of duty had caused the death of the employee. Coulson J observed:
“275 …. the facts in the present case were of a completely different order. In Dusek, Hamblen J found that the helicopter flight in question was high-risk. It was an inherently dangerous flight because the planned route meant that the helicopter was working at or beyond its AOC and its density altitude limit. There was also a serious risk of operational limits being exceeded because of the cloud cover …. Moreover, there was evidence that the proposed route was so dangerous for helicopters that there had been express warnings about that danger …. 276. All of that has to be contrasted with the present case. Here, both the original plan journey and the modified journey were low-risk flights. There were no foreseeable risks beyond those which affect every flight over the African jungle to a bush landing strip. There were no prior warnings about this flight because there was no perceived danger.”
[24]Having concluded that the claim against GMP must fail, the judge turned to consider the claim against Sundance. He rejected Sundance’s submission that the existence of the deed demonstrated that they had not assumed responsibility to Mr Cassley. He found that Sundance owed a duty of care to take reasonable care in selecting the carrier. As this was what the judge described as “a low risk routine flight”, the only issue was whether it was reasonable to appoint the carrier to undertake it. He rejected the Claimants’ submission that Sundance switched to Aero-Service without having undertaken reasonable checks. He noted that Sundance had amassed a good deal of information about the carrier over the preceding months. He accepted that there were some things which Sundance had not done by the time of the flight but concluded that this did not mean that the information which they had obtained was insufficient for them to discharge their duty to Mr Cassley. He concluded:
“308 … a company in the position of Sundance, who was selecting a specialist service provider for a one-off charter flight, was obliged to undertake reasonable enquiries as to that carrier. But it was under no duty or obligation to investigate the minutiae of matters such as the equipment fitted on the plane, the charts on board, the manner in which the pilots intended to execute the flight, and the extent to which the pilots might be able to deal with particular weather conditions. Sundance were obliged to identify and evaluate any particular risks associated with the proposed flight plan and to select a reputable carrier. There were no risks in relation to this flight and Aero-Service were a reputable carrier whom they had used before. 309. For all these reasons, I find that there was no breach of duty on the part of Sundance and the Claimants’ claim against them must fail. ”
[25]The judge added that, if he was wrong in concluding that Sundance were not in breach of duty, he was in no doubt that the information which Sundance would have obtained had they carried out further enquiries would have led them to confirm the flight. He found (at paragraph 327) that “the accident, and the causes of the accident, were not reasonably foreseeable and are too remote in law”, adding (and paragraph 329):
“ … It is again worth comparing the facts of the case against Sundance (when taken at their highest) with the decision of Hamblen J in Dusek. In that case, there was an inherently dangerous and high-risk flight which should have been the subject of a careful risk assessment and was not. Here, there was a low-risk flight which did not give rise to any reasonable concerns, and a carrier [which ] had been the subject of reasonable scrutiny. The stark differences in the facts explain, in my view, different outcomes in these two cases.”

The claimants’ submissions in support of this application

[26]The Claimants’ case is that in law causation can be established either(a) by proving the action which the Defendant would have in fact taken (regardless of whether he or she was bound to do so) or(b) by reference to what the Defendant would have been bound to do, consistent with his or her duties: Gouldsmith v Mid Staffordshire Hospitals [2007] EWCA Civ 397. They submit that the key to causation here lay in the evidence of Mr Butterworth to the effect that, had he recognised the risks, he would not have signed the deed nor accepted the proposed travel arrangements nor entrusted Mr Cassley to the care of Sundance. The Claimants submit that the judge fundamentally misunderstood their primary case on causation. In the light of Mr Butterworth’s evidence, it was unnecessary and unrealistic to approach causation on the basis of hypothetical enquiries which GMP might have made of Sundance in respect of the charter operators.[27]In the alternative, the Claimant submits that approaching the question of causation on the basis adopted by the judge – minimum competent conduct – he should have held that, if further enquiries had been made of Sundance, the results would not and should not have satisfied GMP that all unnecessary risk in the flight had been eliminated. They contend that the judge fell into error in a number of respects. First, they argue that he was wrong to conduct a hypothetical enquiry by GMP of Sundance that went no further than Mr De Nardi. They submit that he would have been bound to refer these queries to Mr Carr-Greg who would have informed GMP of the change of carrier. They submit that a proper approach would have emphasised to Sundance the need to know the identity of the operator. Secondly, they submit that, as the breach flowing from Mr Butterworth’s failure to appreciate the significance of the deed did not occur till 15th June, it therefore post-dated the change of carrier. Thirdly, it is submitted that the judge’s analysis of risk assessment in this case was flawed. The duty to conduct a risk assessment is non-delegable. Furthermore, in its health and safety policies, GMP had explicitly assumed responsibility for ensuring that contractors prove their safety. Sundance’s failure in this regard could not be a discharge of GMP’s non-delegable duty. In any event, the judge had been wrong to assume an entirely ineffective risk assessment. In addition, the judge’s hypothesis was predicated on the false assumption that Mr Butterworth would have made those enquiries and Sundance would have agreed to answer whereas, as the deed indicated, Sundance were not prepared to share the outcome of their investigations. For these reasons, the Claimants submit the judge’s process of assessing, or “imagining” as Counsel describe it, the course and outcome of a competent enquiry made by GMP of Sundance concerning the safety of the carrier was flawed.[28]Furthermore, the Claimants challenge the judge’s finding that Sundance had seen Area-Service’s AOC. There was nothing to indicate that Sundance had a policy under which the AOC of the operator of a proposed charter had to be obtained.[29]In addition, the Claimants submit that the judge’s treatment of the issue concerning the EU ban was flawed. They contended that he failed to appreciate the significance of the ban, wrongly concluding that, despite the ban, Aero-Service's AOC, if it existed, could be relied on as an assurance of minimum operational safety. They further submit that the judge failed to explore the significance of safety standards in the industry, in particular the Chicago Convention, Annex 6 of which establishes the minimum operational safety standards to be forced, none of which were in fact met by Aero-Service, or the impact of that deficiency on the reliability of the AOC. The Claimant submit that the true outcome of the hypothetical enquiry would have been that Sundance would have told Mr Butterworth that they had done no risk assessment nor asked for the AOC. Furthermore, in the light of the EU ban, any AOC could not be relied on. They would also have told Mr. Butterworth that the CEO had repeatedly asked for detailed enquiries to be made into the safety of Aero-Service but none had been carried out.[30]The Claimants submit that the judge erred in the assessment of foreseeability, by applying the wrong test. Aero-Service, to whom the safety of GMP’s employee had been sub-delegated, was not beyond the control of GMP. Control for these purposes refers to functions in respect of which the defendant, having assumed responsibility, cannot escape liability by delegation: Woodland v Swimming Teachers [2004] AC 53. They submit that the judge failed to take into account the explicit assumption of responsibility by GMP in their policy document for ensuring that contractors prove their safety.[31]It is submitted that courts need to be robust on causation, particularly in a case like this. In the Claimants’ view, the judge’s approach to causation here was too narrow. The expected nature and standard of the risk assessment made it much more likely than not that it would have been effective. It is contended that, on the basis of the information which Sundance would have given in response to the hypothetical enquiries, and given Mr Butterworth’s evidence as to how he would in fact have responded to that information, Mr Cassley would not have caught the flight. On that basis, the judge should have concluded that GMP’s breach of duty caused his death.

The Defendants’ response

[32]In reply, counsel for GMP describe the judgment as well-structured, carefully and fully reasoned and containing clear and correct findings of fact and reached the correct conclusion on the issue of causation, which is in turn a question of fact.[33]They rely first on the finding that GMP had been told by Sundance that the charter would be carried out by Jetfly and could not have known of the last minute switch of carrier because Mr De Nardi did not know about it until after the accident. They therefore submit that the claim failed as a primary finding of fact on causation. They submit that the Claimants’ argument against this primary finding – that, as a matter of fact, if enquiries had been made of Mr De Nardi by GMP, he in turn would have made enquiries of colleagues in the Congo which would have revealed the change in carrier – was not explored in the hearing. Furthermore, because GMP did not know, and could not reasonably be expected to know, of the change of carrier, the EU ban was an irrelevant point.[34]Secondly, they stressed that, contrary to the Claimants’ assertion, the effect of the deed was not to absolve Sundance of liability for negligence but rather to shift the financial consequences of liability to GMP. The judge found that Sundance would have answered all of GMP’s enquiries had they been made, that enquiries about Aero-Service would have led GMP to be satisfied and that Sundance had not been negligent in selecting the carrier. The judge also found as a primary fact that there had been no reason to suppose that anything untoward would happen on this flight. Counsel for GMP submitted that these were primary findings of fact which the judge was entitled to reach.[35]Third, it is submitted that the mere fact that GMP did not carry out a risk assessment does not mean it was responsible for Mr Cassley’s death. They point out that the authorities are replete with cases where employers found in breach of duty to an employee have not caused injury or loss.[36]Finally, it is submitted that the correct test is to inquire what a reasonable employer ought to have done in discharging his duty, not to ask with the benefit of hindsight whether the employer would have acted differently. Where the fundamental complaint is a failure to identify risk, the court must identify the risk and the control measures that were reasonably required and then ask whether a failure to take those measures caused the accident. It is submitted on behalf of GMP that this is precisely the approach adopted by Coulson J in this case.

Discussion and conclusion

[37]I agree with the Defendants’ description of the judgment of Coulson J as well structured and carefully and fully reasoned. It seems to me that there are four key findings in the judgment which he was entitled to make, which could not realistically be challenged on appeal, and which determine the outcome of this application.[38]First, he found that the cause of the accident was pilot error.[39]Secondly, he found that the flight was routine and low risk, both as originally planned and as subsequently varied. In stark contrast to the finding made by Hamblin J in the Dusek case as to the inherent dangers of the helicopter flight through the Andes, Coulson J in this case found nothing inherently dangerous about the flight over the Congo jungle. The judge found that there were no foreseeable risks in respect of the flight plan in either its original or modified forms.[40]Thirdly, he found that GMP did not know, nor had any reasonable way of knowing, that Sundance had switched carriers. He found that Mr De Nardi was the point of contact for GMP about this flight and that he did not know about the switch until after the accident.[41]Finally, he found that, even if GMP had known about the switch to Aero-Service – or could have discovered about the switch had they made reasonable enquiries – and proceeded to make reasonable enquiries about that carrier, the answer to those enquiries would have reassured GMP that it was safe for Mr Cassley to take the flight. This forms a central plank of the Claimants’ challenge to the judgment. They seek to identify a number of matters about Aero-Service which they contend should have alerted GMP to the risk, had they made reasonable enquiries. As already stated, however, the judge found, as summarised in paragraph 252 of the judgment in the passage quoted above, that the enquiries which he considered GMP ought reasonably to have made in those circumstances would not have elicited any responses which would have led GMP to instruct Mr Cassley not to take the flight. As the judge explained in his short judgment when refusing permission to appeal after the hearing, in reaching his decision he took account of the fact that Aero-Service was subject to the EU ban, saying (at paragraph 6 of that short judgment):
“it was simply one point amongst many which GMP would have been required to take into account. I have found, on balance that the material would not have led to a conclusion that Mr Cassley should not have been on the plane.”
In my judgment, his finding that, if GMP had conducted reasonable enquiries, they would have concluded that the flight was safe was a finding that he was fully entitled to make.[42]The Claimants contend that these findings, and the judge’s conclusions on causation that followed, were effectively bypassed as a result of Mr Butterworth’s evidence. The kernel of their submission is that his evidence was that, if he had recognised the real risk, he would not have signed the deed and therefore would not have accepted the travel arrangements proposed nor entrusted Mr Cassley to the care of Sundance. But there was nothing inherently dangerous arising out of the deed. As Counsel for GMP rightly submit, the deed did not absolve Sundance of liability but rather imposed an obligation on GMP to indemnify Sundance for any liability to Mr Cassley arising out of its negligence. Mr Butterworth’s error was not that he failed to recognise the significance of the deed but, rather, that he failed to carry out any risk assessment at all. But the judge found that, even if a proper risk assessment had been carried out, it would not have led GMP to conclude that the flight was unsafe, even if GMP had known of the late switch of carrier, which he did not. GMP’s submission that the correct test is to inquire what a reasonable employer ought to have done in discharging his duty, not to ask with the benefit of hindsight whether the employer would have acted differently, is plainly right.[43]In refusing permission to appeal on paper, Tomlinson LJ described the Claimant’ proposed appeal as "a barely disguised attempt to challenge [the judge’s] factual conclusions on causation”. As I observed in refusing permission to appeal in Dusek, findings of fact are not sacrosanct. It is open to the court to interfere with a finding of fact where there is no evidence to support the finding, or where it was based on a misunderstanding of the evidence, or was one which no reasonable judge could have reached: MacLeod v MPC [2015] EWCA Civ 688. In this case, however, the judge’s findings were plainly based on a meticulous examination of the evidence, and within the ambit of his discretion. The outcome of this case is different from that in Dusek where an employer was found liable for the death of its employee in an air crash. At first sight, it might be thought surprising that the outcome of these two cases was different, but in truth it is not. Despite the obvious similarities, a close analysis of the two cases reveals very significant differences, most obviously the conclusions reached by the two judges as to the risk inherent in the respective flights.[44]I have profound sympathy for the Claimants in this case, but my clear conclusion is that there is no real prospect of an appeal succeeding, nor any other compelling reason to allow the appeal to proceed. Permission to appeal is accordingly refused.