The Airport Authority v Western Air Ltd (The Bahamas)

A public authority that has assumed sole responsibility for protecting property may owe a common-law duty of care for negligent performance, even where its statutory security obligation does not itself create tortious liability. The statutory duty may provide the framework and proximity for the private-law duty. The ordinary threefold test of foreseeability, proximity, and fairness applies. Liability is not excluded because the loss follows a third party’s criminal act, is caused by an omission, or involves loss of a valuable asset rather than consequential economic loss. Res ipsa loquitur may apply where the occurrence is unexplained, would not ordinarily happen without negligence, and the circumstances point to the defendant’s negligence.

Western Air Ltd claimed damages from The Airport Authority after one of its aircraft was stolen from a restricted area of Nassau airport. The Authority was responsible for airport security, and the trial judge found that Western Air could not provide its own private security and that the identity of the thief remained unknown.

Adderley J found a common-law duty of care, negligence, and liability. The Court of Appeal of The Bahamas dismissed the Authority’s appeal. The Privy Council considered the permissible scope of appellate interference with factual findings, whether the statutory security obligations supported a common-law duty, liability for third-party criminal conduct and omissions, the characterisation of the loss, and the application of res ipsa loquitur.

The appeal was dismissed. Lord Kerr delivered the single judgment of the Board.

1. Factual findings. The trial judge was entitled to find that the Authority alone was responsible for protecting aircraft parked at the airport and that the thief’s identity remained unknown. An appellate court must show substantial reticence before interfering with primary findings of fact. It should not re-examine the evidence minutely and substitute a diametrically opposite conclusion without the exceptional circumstances recognised by the authorities.
2. Statutory framework. The Airport Authority Act 2000 required the Authority to provide airport security under section 6(1)(c), with section 21 supplying ancillary security provisions. The Act contained no express provision safeguarding aircraft, and the statutory breach claim was not viable. Nevertheless, the statutory provisions established the framework within which the Authority assumed responsibility for airport security.
3. Duty of care. The restrictions concerning statutory duties did not apply because the claim was based on negligent performance of security, rather than a failure to exercise a broad discretionary public power. The threefold test stated in Mitchell v Glasgow City Council [2009] AC 874, Van Colle v Chief Constable of Hertfordshire Police [2009] AC 225, and Caparo Industries plc v Dickman [1990] 2 AC 605 was satisfied. The Authority was solely able to provide protection, harm to an unguarded aircraft was foreseeable, and it was fair, just and reasonable to impose liability.
4. Third-party harm, loss and omissions. The Authority had created a risk of danger through defects in its security system and had assumed responsibility for protecting the aircraft. The fact that the immediate wrongdoing was criminal did not prevent liability. Loss of the aircraft was loss of a valuable asset, not pure economic loss in the conventional sense. Ordinary negligence principles applied equally to negligent omissions and acts.
5. Res ipsa loquitur. There was evidence of fault without relying on the doctrine. In any event, the theft was unexplained, would not ordinarily have occurred without negligence by someone other than Western Air, and the circumstances pointed to negligence by the Authority. The trial judge and Court of Appeal were entitled to apply the doctrine. The Board advised that the appeal be dismissed.

1. Privy Council: Dismissed the Authority’s appeal from the decision of the Court of Appeal of The Bahamas.
2. Court of Appeal of The Bahamas: John JA, with Blackman and Conteh JJA agreeing, dismissed the appeal from Adderley J’s decision.
3. Trial court: Adderley J found that the Authority owed a common-law duty of care and was liable for the stolen aircraft.