A somewhat comparable Irish case took a similar line to Ashby. John C. Doherty Timber Ltd v Drogheda Harbour Commissioners [1993] 1 IR 315. The plaintiff had been given permission to leave a cargo of timber on a quay in a port for which the defendants were the statutory authority. The quay was also a public thoroughfare; no security personnel were engaged to protect goods left there and the plaintiff’s goods were severely damaged when set on fire by children. Flood J held that the plaintiff company should, as the owner of the goods, bear responsibility for the loss suffered, as the risk could be foreseen by them as easily as it could by the defendants. In the absence of a bailment, the plaintiff’s self-responsibility negated any possible duty owed by the defendants. Flood J classified the loss as pure economic; I would have thought physical damage – though it doesn’t really affect the duty/no duty analysis.

Perhaps the public thoroughfare aspect makes this case different from Western Air . Also, you could make a case that Airport security would be more efficient than each owner providing protection for their own planes (if you think efficiency arguments have any place in tort analysis)

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