The Airport Authority v Western Air Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 09 November 2020 |
| Neutral Citation | [2020] UKPC 29 |
| Docket Number | Privy Council Appeal No 0056 of 2018 |
| Court | Privy Council |
| Date | 09 November 2020 |
[2020] UKPC 29
Michaelmas Term
From the Court of Appeal of The Bahamas
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Briggs
Lady Arden
Privy Council Appeal No 0056 of 2018
Appellant
Stephen Houseman QC
Janet P Fountain
(Instructed by Stephenson Harwood LLP (London))
Respondent
Katherine Deal QC
Hannah Fry
(Instructed by Tynes & Tynes and Sinclair Gibson LLP)
Heard on 23 January 2020
The Airport Authority, the appellant, is a statutory body in The Bahamas. It was created by the Airport Authority Act 2000. It owns and operates the Lynden Pindling International Airport at Nassau. Western Air Ltd, the respondent, is an airline operator which owned and operated commercial aeroplanes. One of these was a Metro III aircraft, registered number C6-SAQ. It is this aeroplane whose theft is the subject of this appeal.
In the early hours of 26 April 2007, the aircraft was stolen. It had been parked at the airport on its selected stand on what was known as Apron 5. This was part of the designated restricted zone. The appellant was required to control access to this zone as the statutory authority for the airport. According to the appellant's security programme, the requirements for control of the restricted areas had been established to prevent unauthorised persons from gaining access and to safeguard aircraft. A system was in place for controlling access to the airside part of the airport. This included securing the perimeter of the airport, providing patrols and designated entry points (known as “gulfs”). The gulfs should have been manned constantly by security guards. Access to Apron 5 should have been gained through gulf 3.
During the night of 25/26 April 2007, according to Tamara Winder Sears, a security officer at the airport, no one tried to obtain access to Apron 5 via gulf 3. No one other than mechanics for another airline would have been expected to need to enter that part of the airport in the course of the night, although it was possible for other authorised personnel to be permitted to enter the airside area of the airport.
During the night, a security officer heard the propellers of the aircraft start up and saw it emerge from its parking space. Its lights had not been illuminated. The officer informed a supervisor who in turn reported the matter to her supervisor, although that supervisor had recalled that on a number of occasions in the past Western Air aeroplanes had embarked on late flights and she assumed that this was just another instance of that. Nothing was done to impede the take-off of the aircraft.
Anyone with a rudimentary mechanical knowledge could easily open the Metro III aircraft and gain access to it. All that was needed was to pull a lever which was easily accessible. The stairs which provided entry to the aircraft were built into the door. They had not been removed on the night of the theft. When the door was opened, therefore, the stairs came down and gave ready access to the interior of the plane.
Access to the area where the aircraft had been parked should have been controlled by a manned security booth at gulf 3. As noted, employees of airlines could gain access to parked aircraft by showing an identification card to the appellant's staff who were present in the booth. This access could be obtained at all hours of the day. The two officers who manned the booth on the night that the aircraft was stolen assert that no unauthorised person was admitted.
A police investigation into the theft of the plane took place. The officer in charge was Sergeant Paul Lewis. He gave evidence that there were defects in the security fencing around the airport and that it was therefore possible to obtain access to the area where the aircraft was parked without passing through the access points where the security booths were. The manner in which the person who stole the aircraft gained access to it was not established, however.
After investigation by the police, an employee of Western Air was identified as the suspect. His name was Terreros. He had been a pilot with Western Air. Mr Terreros had been denied compassionate leave by Western Air a short time before the aircraft's theft. It appears that he may have been aggrieved about that. In any event, he had not been seen in The Bahamas since the plane was stolen and, in a telephone conversation with Sergeant Lewis during the latter's inquiries, he said that he had stolen the plane and that he had flown it to Venezuela. This was the sum of the evidence as to who stole the plane. Although it was received by Adderley J, its admissibility (because of its apparent hearsay nature) is at least questionable. In any event, the identity of the person who stole the plane has never been firmly established.
There was a dispute as to whether the Airport Authority had exclusive control of security in the airport. The trial judge, Adderley J, held that it was the sole agency which could provide security. Western Air “was not allowed to provide its own private security” — para 7 of his judgment. This finding was made after hearing evidence from Rex Rolle, president of Western Air, that it was understood, as a result of discussions with various managers of the Airport Authority, that individual tenants/lessees of the stands in the airport could not provide their own security at the airport. Evidence had been given for the Airport Authority that private security had never been requested by Western Air or any other airline at the airport and that, if it had been requested, the Airport Authority would have reviewed the application and tried to facilitate it. The general manager of the airport, Milo Butler, gave evidence that, in his former role as general manager of another airline, private security had been requested and allowed for a period. (Mr Butler was not the manager of the airport at the time of the theft of the aeroplane.)
On the basis that the appellant was alone responsible for the safety of the respondent's aircraft, Adderley J had no difficulty in finding that there was a sufficiently proximate relationship between it and the respondent so as to give rise to a duty of care. He examined the three stages described by Lord Hope of Craighead in Mitchell v Glasgow City Council [2009] AC 874 and found that each was readily met. The threefold test was described by Lord Hope in para 21 of his speech in that case where, relying on what Lord Bingham of Cornhill had said in Van Colle v Chief Constable of Hertfordshire Police [2009] AC 225 he stated that what must be shown was “that harm [done to the claimant] was a reasonably foreseeable consequence of what [the defendant] did or failed to do, that the relationship [between the claimant and the defendant] was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care …”. Lord Hope also observed that this test had been applied in Caparo Industries plc v Dickman [1990] 2 AC 605 where Lord Bridge of Harwich had emphasised that the application of the threefold test was not limited to the question whether there was a duty at all but was to be applied also to the question whether the situation gave rise to a duty of care of a given scope.
Adderley J observed that the scope of the duty had also been addressed by Smith LJ in Everett v Comojo [2012] 1 WLR 150, para 26 where she said that “once the possibility of a duty has been established the extent of the duty must be delineated by what is fair, just and reasonable.”
Applying these authorities, Adderley J held (i) that there was a sufficiently proximate relationship between the appellant and the respondent since only the former could provide the necessary security; (ii) that it was reasonably foreseeable that, without proper security, an aeroplane could be stolen; (iii) that the theft could not have occurred without negligence on the part of the Airport Authority and that the doctrine of res ipsa loquitur applied; and (iv) that it was fair, just and reasonable to impose liability on the Authority.
The judge also found that, notwithstanding Sergeant Lewis's evidence about Mr Terreros, the identity of the person who had stolen the plane remained unknown.
John JA (with whom Blackman and Conteh JJA agreed), citing well-known authority ( Watt v Thomas [1947] AC 484; Benmax v Austin Motor Co Ltd [1955] AC 370; In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911; McGraddie v McGraddie [2013] 1 WLR 2477), recalled that an appellate court should not reverse the findings of a first instance or trial court, save in very limited circumstances. In particular, as John JA observed, in Piglowska v Piglowski [1999] 1 WLR 1360, Lord Hoffmann, referring to the advantage that a judge at first instance enjoyed, suggested that the appellate court should be slow to reverse a trial judge's evaluation of the facts.
The Court of Appeal then turned to what John JA described as “the central point”, namely, whether a defendant could ever be liable for a criminal act committed on its premises by an act of an independent third party where that act resulted in damage or loss to the claimant.
Counsel for the appellant had asserted that there was no general duty on a defendant to prevent others from suffering loss or damage caused by the wrongdoing of a third party unless there had been an assumption of responsibility to the claimant or where there was a special relationship between the claimant and the defendant and the latter had some measure of control over the actions of the third party. John JA observed that no authority had been cited in support of that argument and, although not expressly so stated, it was impliedly...
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