It is trite law that an employer’s duty to its employees is non-delegable. The duty is to take reasonable care to see that the employee is not exposed to unnecessary risk. In the vast majority of cases, the scope and content of this duty will be easy to define, since the accident will have occurred on premises owned or controlled by the Defendant. In perhaps a minority of cases, the accident will occur whilst the employee is visiting other premises, for example to pick up or deliver goods. Again, although the standard of care required may be lower, the employer is not divested of its obligation to take reasonable care, whether through devising a safe system of work or ensuring that the employee has available proper and safe equipment.
What, however, is the case where the employee is sent abroad, in the course of his employment? To what extent does the employer owe a duty in circumstances where it cannot sensibly be said that it owns or controls either the transport used or the premises visited?
The leading authority on this point remains the court of appeal’s decision in Cook v Square D (1992) ICR 262. There the court held that where an employre sent an employee to work abroad in Saudi Arabia, it had not breached it non-delegable duty when the Claimant tripped over a floor tile in the office in which he was working. In dismissing the claim, the Court held that it is necessary to look at all the circumstances of the case, including the place where the work is done, the nature of the building concerned, the experience of the employee and the degree of control that the employer can sensibly be said to have had. In Cook, the court concluded that the employer had reasonably satisfied itself that the companies for which the employee was working Saudi Arabia were competent and aware of their health and safety responsibilities. It was, therefore, unrealistic to hold the English employer liable for the state of the premises abroad.
A different conclusion was reached in the recent case of Dusek v Stormharbour Securities (2015) EWHC 37 (QB). Mr Dusek worked for the Defendant, a financial advisory firm. The Defendant was involved in brokering a deal which would involve investment in a hydroelectric project in Peru. It was necessary for the potential investors to visit the site in Peru where the project would be constructed. The site was located in mountainous terrain and very inaccessible. The Peruvian company involved in the project were asked to charter a helicopter from a local supplier. Mr Duesk was asked by his employer to travel to Peru and accompany the investors in the helicopter to the project area. He did so, but the helicopter crashed in the mountains, killing all those on board.
The Court held that the Defendant had owed Mr Dusek a non-delegable duty of care. The duty was not to charter the helicopter itself, nor was it responsible for the performance of the flight. However, the Defendant did have a duty to carry out some form of risk assessment in relation to theproposed helicopter flight to satisfy itself that it did not involve unnecessary risk. In fact, the proposed flight in to the mountains was very dangerous, in light of the terrain, the altitude, the number of people on board, the visibility and the helicopter used. Had the Defendant carried out this assessment they would have reached the conclusion that it was not safe for itself employee to travel on the helicopter unless or until a proper audit had been done. Had an audit been carried out, it would have concluded that the proposed flight was dangerous and the Claimant would have been told not to go on it. Breach of duty and causation were, therefore, established.
It must be remembered, however, that each case turns on its own facts. Indeed, as the judge recognised in Dusek, where an employer sends an employee on a work trip abroad, “in most cases (the) duty would not require anything to be done”. The example given is that if an employee was sent on a scheduled flight from London to New York, nobody would suggest that the employer’s duty required it to risk-assess the flight.