A bizarre assertion at [35] that the reason there is no common law duty is because ‘it would be incongruous that a statutory duty which does not create tortious liability’. The reason is, obviously, that they are just different things. It is not that the statute somehow excludes an otherwise applicable private law duty. A public law duty does not create a private duty in negligence, it either creates a statutory duty or it has no particular private law consequence. The existence of a private law duty by e.g. an assumption of responsibility. That is what I read Michael v CC of SW, esp. at [111]-[119].

Also, Michael at [97] makes very clear different principles apply to omissions and failure to protect parties than to positive actions (although query whether omission/act is the right distinction – as East Suffolk Rivers shows it is really about whether you are obliged to make someone better off). Likewise, this is not a damage to property rights case as Lord Kerr suggests it is at [47].

With respect, Lord Kerr seems to have used this judgment to subtly relitigate Michael, a decision which he was in the minority and where his judgment (including the deployment of Caparo) was specifically attacked by the majority.

A rum UKPC decision a couple of days ago in Airport Authority v Western Air [2020] UKPC 29. Lax perimeter security at a Bahamas airfield let an evildoer steal an aircraft parked on the tarmac and by all accounts escape to Venezuela in it (why anyone would actually want to go there not being revealed). Liability in tort was upheld in a fairly summary decision.

A few oddities, though.

(1) This was a claim for a pure omission (to keep out intruders) against a defendant who as far as I can see wasn't a bailee of the aircraft. At [48] this was very lightly dismissed: "Likewise, the circumstance that this case can be characterised as one where the loss stemmed from omissions by the appellant rather than any action on its part cannot provide an exemption from liability. As Lord Browne-Wilkinson observed in X v Bedfordshire County Council these claims are to be adjudicated upon applying the ordinary rules applicable to the common law of negligence. Those rules apply equally to negligent omissions as they do to actions which are lawfully remiss." (!)

(2) What about cases like Ashby v. Tolhurst [1937] 2 K. B. 242, saying that unless you're a bailee you don't have to lift a finger to stop people stealing property on your premises? It's not obvious that letting someone put a chattel on your land shouldn't comport any duty to ensure that it remains there.

(3) Why didn't the plaintiff sue in contract?

I may be missing something very obvious. If I am I'm happy to be enlightened.

Andrew

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