They would almost certainly be an occupier under the 1957 Act as they have operational control of the airfield (e.g.
Wheat v Lacon). But I’m not clear this would count as a ‘danger due to the state of the premises’. It sounds like an “activity duty” to me, and so governed by the common law (Fairchild (CA) at [149]) although the CA suggested in
Everett v Comojo that somehow you can mash the two together to produce a positive duty on an occupier to protect against third parties (at [33]-[36]). But that is based on an incorrect understanding of
Caparo, though it is probably explicable as an assumption of responsibility case.
Matthew Hoyle
Barrister
One Essex Court
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From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 10 November 2020 17:53
To: Philippa Ryan <Philippa.Ryan@anu.edu.au>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations@uwo.ca
Subject: Re: Stealing aeroplanes
Would the result be any different in England today?
As Andrew and Andrew say, the important question is whether the Airport Authority, as owners of the airfield, had assumed responsibility towards the owner of the aircraft. They could have just
said "Park your aircraft here if you like, but we're not assuming responsibility for it." ie aircraft are left here at the owners own risk.
This was (and still is in rational jurisdictions) the difference between the relationship of invitees and licensees. Invitees were (are) people I invited on to my premises who I assumed responsibility
for. Licensees were people I allowed to enter, but to whom I assumed no responsibility.
But in England we foolishly abolished this distinction in 1957, instead opting for an omnibus negligence rule drawing no distinction between invitees (to whom I owe[d] a non-delegable duty that
care is taken of them, that further requires me to take positive action to protect them) and licensees (who only have the vanilla Donoghue v Stevenson duty owed to them).
So, would this be a case of "occupiers" liability in England today, where we no longer draw the important distinctions that we ought to? What pointless fun, arguing over whether a defendant is
an occupier or not within the Act. A credit to our law.
(One Kenneth Diplock QC served on the Law Reform Committee that led to the mistake that was the 1957 Act and dissented from this change to the law. Whatever became of him?)
Rob
From: Philippa Ryan <Philippa.Ryan@anu.edu.au>
Sent: 10 November 2020 17:32
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>;
obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Stealing aeroplanes
Dear Andrew and all
The flight from the Bahamas to Venezuela was very likely a "business trip". Cartels need planes to transport drugs from Venezuela back into Mexico and the US. According
to the United States, 90% of the cocaine smuggled into that country arrives by plane, boat and submarine. Many of the planes end up in Guatemala. According to official data, so far this year Guatemalan security
forces have located 26 planes used in drug trafficking in rural areas in the north and south of the country. In 2019, Guatemala confiscated 54 aircraft on suspicion of having been used to transport drugs. The pilots fly without radio and so many simply crash
en route. It is dangerous work.
As for wanting to travel to Venezuela, it is terribly sad that the country is such a mess. I was born in Caracas in the 1960s. It was dangerous and corrupt back then, but beautiful and filled with
potential.
And I agree that the legal issues raised in this case are baffling.
Cheers
Pip
Dr Philippa Ryan
Senior Lecturer & Barrister
Director, Master of Laws (LLM)
ANU College of Law
Building 7 (Room 7.2.28)
Fellows Road
The Australian National University
Canberra ACT 2601 Australia
t: 02 6125 8351
From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: Wednesday, 11 November 2020 3:42 AM
To: obligations@uwo.ca <obligations@uwo.ca>
Subject: Stealing aeroplanes
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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