Like Andrew, I would love to know why this wasn’t litigated in contract. The judgment of the PC makes no mention of a possible breach of contract, nor do the
judges muse as to why a such an argument wasn’t raised by the plaintiff. Nor can I see any reference to contract in the judgment of the Court of Appeal of the Bahamas (https://www.courtofappeal.org.bs/download/043737200.pdf).
Maybe someone knows why that line wasn’t tried?
If my aircraft had been stolen from the airport where it was being stored, I would definitely think of arguing breach of contract (and, in Scotland at least,
I wouldn’t even have to worry if it was being stored for free – under the (gratuitous) contract of deposit, a keeper of deposited goods must exercise reasonable care in relation to their custody).
Martin
From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Date: Tuesday, 10 November 2020 at 16:44
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Stealing aeroplanes
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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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