Going back to the judgment itself, it reads like a case from the 1990s or early 2000s. I didn’t expect to see X v Beds being resurrected in 2020, for example … and how come it was ‘incumbent’ on the Bahamas court to apply the threefold Caparo test when the UKSC has said more than once in recent years that there is no such thing?

The outcome seems fair enough, and can be explained on an assumption of responsibility basis. But I don’t think much of the reasoning can be reconciled with weightier recent decisions of the HL/UKSC.

All best

Donal

From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 10 November 2020 18:45
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Philippa Ryan <Philippa.Ryan@anu.edu.au>; obligations@uwo.ca
Subject: RE: Stealing aeroplanes

For some reason, seemingly an artefact of the common law ‘activity duty’ doctrine, as far I know the courts have never found that wording extends the common duty of care to protecting parties from threats arising from things happening on what are otherwise per se safe premises (Fairchild [2002] 1 WLR 1052 at [149]; Bottomley v Todmorden [2003] EWCA Civ 1575 at [31]; Portsmouth YAC v Poppleton [2008] EWCA Civ 646 at [7], [17]-[20]; Yates v National Trust [2014] EWHC 222 (QB) at [33].

If the plane had injured someone e.g. it was inadequately supervised while taxiing, you could get around that problem by saying the plane itself was ‘premises’ (s.1(3)(a) and its interpretation in Wheeler v Copas [1981] 3 All ER 405). But that doesn’t help here because it is the loss of the plane itself which is being complained about. The law is a complete mess.

Matthew Hoyle

Barrister

One Essex Court

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender.

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 10 November 2020 18:08
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Philippa Ryan <Philippa.Ryan@anu.edu.au>; obligations@uwo.ca
Subject: Re: Stealing aeroplanes

Things "omitted to be done" on premises? (section 1).

From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: 10 November 2020 18:05
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Philippa Ryan <Philippa.Ryan@anu.edu.au>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Stealing aeroplanes

Dear Rob,

I largely agree with you re occupiers' liability. But I'm not sure if this case turns, or should turn, on occupation. The complaint wasn't of a danger on the land, but of failure to take steps to keep thieves at arm's length. The real issue should be whether the airfield took charge of the aircraft, either as bailee or by assuring the owner of the machine that they'd look after it. If the PC had asked the question, answered it in the affirmative and found liability on that basis I'd have been happy.

I still have one soft spot for Diplock. I think he was the man who opened a House of Lords appeal with the words, "My Lords, my clients have no merits. But they are right."

Best from Prison House 2.0

Andrew

On 10/11/2020 17:52, Robert Stevens wrote:

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

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From:	Donal Nolan <donal.nolan@law.ox.ac.uk>
To:	Matthew Hoyle <MHoyle@oeclaw.co.uk>
	Robert Stevens <robert.stevens@law.ox.ac.uk>
	Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
	Philippa Ryan <Philippa.Ryan@anu.edu.au>
	obligations@uwo.ca
Date:	10/11/2020 18:54:24
Subject:	RE: Stealing aeroplanes