IN THE COURT OF APPEAL OF TONGA

Polynesian Airlines (Investments) Ltd

v

Kingdom of Tonga

Court of Appeal, Nuku'alofa 
Burchett, Tompkins and Beaumont JJ 
CA 13/98 

17, 18 July 2000; 21 July 2000 

Negligence — duty of care — reasonable standard —respondent not shown to fall below the standard required 

On 14 September 1994, a Boeing 737 aircraft, flying on a Polynesian Airlines service between Tonga Fua'amotu airport, Tonga, and Faleolo airport, Western Samoa, came close to disaster. When the pilot, Captain Gilfillan, attempted to lower the landing gear to land at Faleolo, the right main landing gear failed to extend because its operation was impeded by the body of a man who had stowed away in the right main wheel well, and died there of hypoxia. (At the height the plane flew, death from hypoxia in the rarefied atmosphere, or else from the extreme cold, was the fate to be expected if someone rode in the unpressurized wheel well.) Despite repeated efforts, it proved impossible to get the right landing gear to extend, so an emergency landing had to be made on the left main wheels and the nose wheel. Although this was accomplished by the pilot with extraordinary skill, it involved the plane skidding for many hundreds of meters on the right jet engine, to which damage was sustained. It was agreed that, if the appellants succeed in their claim, their damages were US$1,906,774.57 plus interest. The Appellants sued the Respondent, as operator of Fua'amotu airport, for damages for negligence in relation to the failure of the airport authorities, and particularly the airport security service, to prevent the stowaway (who was being sought by the police for questioning) from reaching the wheel well undetected and concealing himself there. The learned trial judge held the airport authorities had not been shown to be liable in negligence for what occurred. From that decision, the appellants appealed. 

Held (Beaumont J dissenting): 

1. If the appellants were to succeed it was necessary for them to show on the evidence some respect in which the respondent fell below the standard of care required of it. An obvious respect to be considered was the performance of their duties by the security officers. The trial judge saw and heard a number of them, who gave evidence, and he was not prepared to find that they were inattentive or that they had not kept an adequate and reasonable lookout. These findings, dependent as they are on the oral evidence, are entitled to be accorded the greatest weight. 

2. The duty of care was imposed by law in accordance with the test of what "a reasonable man in the position" of the respondent would do. The standard of care to be exercised in accordance with the duty of care was also measured by what was reasonable in the circumstances: it was not a standard of unrealistic perfection, nor was it to be established by the deceptive illumination of hindsight. 

3. The Appeal Court accepted that there was a duty of care and found that the trial judge's finding that there was no breach of it could not be reversed. The Court could not say that the judge was wrong when he held the security arrangements fulfilled the Respondent's duty of care. 

4. per Beaumont J (dissenting): There was evidence, on the uncontroverted facts, from which the respondent's negligence should, on the whole of the evidence, be inferred. The appellant bore no onus to demonstrate how the stowaway gained access to the aircraft. Since the respondent was the occupier and security controller of the apron, and thus the facts were within its knowledge and control, and not within the power of the appellants, only slight evidence was required to discharge the appellants' burden of proof, in the absence of a satisfactory explanation from the respondent (and none was forthcoming). 

5. The appeal was dismissed with costs. 

Cases considered: 
Allison v Rank City Wall Canada Ltd (1984) 6 DLR (4th) 144; (1984) 29 CCLT 50 
Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 
Bondurant v Mastin, 2522 NC 190, 113 SE2d 292 [1960] 
Byrne v Boadle (1863) 2 H&C 722; 159 ER 299 
Cinnamond v British Airports Authority [1980] 1 WLR 582; [1980] 2 All ER 368 (CA) 
Clarke v Edinburgh Tramways Co [1919] SC (HL) 35 
Dulhunty v JB Young Ltd (1975) 7 ALR 409; 50 ALJR 150 
Fardon v Harcourt-Rivington (1932) 146 LT 391; [1932] All ER Rep 81 (HL) 
Fred Olsen Flyselskap A/S v Norwich City Council (High Court, 27 July 1979) 
Goldman v Hargrave [1967] 1 AC 645; [1966] 2 All ER 989 (PC) 
Hampton Court Limited v Crooks (1957) 97 CLR 367 
Haynes v Harwood [1935] 1 KB 146; [1934] All ER Rep 103 (CA) 
Home Office v Dorset Yacht Co Ltd [1970] AC 1004; [1970] 2 All ER 294 
Hughes v Lord Advocate [1963] AC 837; [1963] 1 All ER 705 
Johnson v Lamb 273 NC 701, 710, 161 SE2d 131, 139 (1968) 
Jolley v Sutton London Borough Council [2000] 1 WLR 1082; [2000] 3 All ER 409 (CA) 
Mummery v Irvings Pty Ltd (1956) 96 CLR 99; [1956] ALR 795 
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 AC 617; [1966] 2 All ER 709 (PC) 
Plewes v Lancaster 171 Pa.Super. 312, 90 A. 2d 279 [1952] 
Powell v Streatham Manor Nursing Home [1935] AC 243; [1935] All ER Rep 58 
Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) 
Salmond & Spraggon (Aust) Pty Ltd v Joint Cargo Services Pty Ltd (the "New York Star") [1977] 1 Lloyd's Rep 445 
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 201; 74 ALJR 743 
Scott v London and St Katherine Docks Company (1865) 3 H & C 596; 159 ER 665; [1861-73] All ER Rep 246 
Screaming Eagle Air Limited v Airport Commission of Forsyth County (387 SE 2d 1990) 
Smith v Leurs (1945) 70 CLR 256; [1945] ALR 392 
Smith v Littlewoods Organisation Ltd [1987] AC 241; [1987] 1 All ER 710 
Stansbie v Troman [1948] 2 KB 48; [1948] 1 All ER 599 (CA) 
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588; 73 ALJR 306 
Watt (or Thomas) v Thomas [1947] AC 484; [1947] 1 All ER 582 
White v Dickerson, Inc, 248 NC 723, 105 SE2d 51 [1958] 
Williams v Boulerice, 268 NC 62, 149 SE 2d 590 [1966] 

Counsel for appellants: Mr Jackson QC and Mr Waalkens 
Counsel for respondent: Mr Wood QC and Mr Lydiard 

Judgment 

On 14 September 1994, a Boeing 737 aircraft, flying on a Polynesian Airlines service between Tonga Fua'amotu airport, Tonga, and Faleolo airport, Western Samoa, came close to disaster. When the pilot, Captain Gilfillan, attempted to lower the landing gear to land at Faleolo, the right main landing gear failed to extend because its operation was impeded by the body of a man who had stowed away in the right main wheel well, and died there of hypoxia. (At the height the plane flew, death from hypoxia in the rarefied atmosphere, or else from the extreme cold, was the fate to be expected if someone rode in the unpressurized wheel well.) Despite repeated efforts, it proved impossible to get the right landing gear to extend, so an emergency landing had to be made on the left main wheels and the nose wheel. Although this was accomplished by the pilot with extraordinary skill, it involved the plane skidding for many hundreds of meters on the right jet engine, to which damage was sustained. It is agreed that, if the Appellants succeed in their claim, their damages are US$1,906,774.57 plus interest. 

The Appellants sued the Respondent, as operator of Fua'amotu airport, for damages for negligence in relation to the failure of the airport authorities, and particularly the airport security service, to prevent the stowaway, a Mr Felemi, from reaching the wheel well undetected, and concealing himself there. There is no doubt that Mr Felemi, who was being sought by Tongan police for questioning about a theft, gained access to the aircraft at Fua'amotu. But the learned trial judge held the airport authorities had not been shown to be liable in negligence for what occurred. From that decision, the Appellants appeal. 

At the trial, a number of issues were debated, not all of which are still in dispute, or are significant for the determination of the appeal. One important question was when Mr Felemi got into the wheel well. Was it while the aircraft was on the apron at the terminal? Or was it at the threshold of the runway, after the aircraft had taxied there, and just before power was applied to the engines for take-off? The Respondent argued for the latter occasion, but on this issue the Appellants were successful, and the point was not contested on the appeal. Having regard to evidence and findings not now in dispute, it must be accepted that Mr Felemi got into the wheel well at some time during a period of about 12 minutes when the aircraft was standing on the apron at the terminal, and before it began to taxi down the runway. Immediately prior to that relatively brief period, and shortly after 2 a.m., the aircraft having landed at Fua'amotu, at 1.50 a.m. and being scheduled to depart at 2.20 a.m., Captain Gilfillan carried out a routine check, in accordance with the Boeing 737 operations manual, which included an examination of the interior of the wheel well. No stowaway was there then. Departure was delayed by a search for the luggage of a passenger who had got off at Fua'amotu, and after the period of about 12 minutes to which we have referred, the aircraft taxied off. It was airborne by 2.35 am. 

Some understanding is required of the position of the aircraft on the apron, which is a short distance in front of the terminal. The apron, the judge found, is 70 meters wide and 120 meters long. At the edge of it, on the terminal side, was a line of lighting towers 18 meters high, of which the centre two, each carrying quartz halogen lamps totalling 4200 watts, were in use on the night in question. The aircraft was occupying the central parking position, which was at an angle of 45o to the apron edge, the right hand side of the aircraft being on the far side, and the nose being angled towards the terminal. The nearer of the lighting towers was 35 meters from the plane. This arrangement, of course, produced some shadow on the far side, that is the right side, of the aircraft, and one witness referred to a "halo-like effect", doubtless caused by light from the elevated towers shining over the aircraft and reaching the apron at some distance beyond it. The judge, however, did not accept evidence that there was deep shadow, pointing out there was no suggestion of any complaint that the Captain had insufficient light to check the exterior of the aircraft or that refuellers or baggage handlers had any difficulty. He held "there was sufficient light for the ground crews to do their routine work on the unlit side." What the Appellants suggested at the trial, as the trial judge noted, was that the stowaway came from scrub some 20 meters from the edge of the apron at the rear or rear right of the aircraft, crossed the apron, and got into the wheel well without being noticed. During his approach, he would, of course, have had some cover, from the aircraft itself, from observation by persons near the terminal. The judge found that the evidence about the range of the apron lights was not precise, but that they were of the standard suggested by the International Civil Aviation Organization. He formed the impression "that the light reached beyond the aircraft to the far edge of the apron, but beyond the aircraft it was reduced, and there was shadow. The light did not reach to the scrub, which was 20 meters or so from there." The judge concluded: 

"If this situation did occur, it occurred when there were no persons observing the right side of the aircraft. This was after the fueller had withdrawn, perhaps while the forward hold occupied everyone's attention; otherwise after the forward hold had been closed and the baggage handlers had withdrawn, probably while Mr Karalus was engaged in visiting the flight deck." 

It is necessary to explain his Honour's reference to the forward hold and to Mr Karalus. Mr Karalus was the Tonga Station Manager of Polynesian Airlines, of whom his Honour made the following remarks: "In general, his role in meeting the Plaintiffs' flights at Fua'amotu was supervisory, and after ensuring that Airport Facilitation Services, which included security, were in place, he tended to concentrate on working with the aircraft while it was on the apron. He supervised loading and unloading, cleared the documentation with the flight crew after loading and gave the all-clear for departure ... As Tonga station manager with the plaintiff he was also its security manager." During the vital 12 minutes period, Mr Karalus and one of the security officers were, for some time, involved in a search of the forward cargo hold of the aircraft. The trial judge found: "At this time the forward cargo hold door, on the right side of the aircraft beneath and slightly behind the first officer's side window, remained open while a search was conducted inside the hold for baggage of an alighting passenger. The first officer, sitting on the right side, put his head out the window twice; first to check the reason for the open cargo door, and second, to enquire whether a luggage trolley noticed earlier by the captain had been removed. Engaged in both those activities on the ground was the plaintiffs' local manager, Mr Karalus." After that, the passengers being all on board and the hold door closed, Mr Karalus went to the flight deck to complete some paper work and then left, after which the steps were wheeled away, the engines started, and the aircraft moved off. 

During the turn-around of the aircraft, a substantial number of people had responsibilities in connection with it. Apart from Mr Karalus and the Respondent's security officers, there were baggage handlers, the refueller, and two fire officers in the fire truck parked on the apron near the aircraft. As the judge noted, the refueller gave evidence that "there was a security guard walking around the apron, but did not specify when." Mr Karalus, speaking of the search for a passenger's missing luggage which occurred during the 12 minutes period, said that a security officer went out to the forward cargo hold with himself and the passenger. Mr Fiva, the shift supervisor of the security officers at the time, gave evidence that there were twelve security guards on duty at the terminal. His Honour made it clear that he gave credence to the evidence of Mr Fiva and to that of his superior, Mr Holi. According to Mr Fiva, ten of the security officers had assigned positions, "of which three provided security for the air-side of the terminal. These three positions were (i) immediately outside the gate by which boarding passengers left the terminal, (ii) at or near the open access from the air-side to the cargo area and (iii) the area immediately in front of the entrances for arriving passengers." Mr Fiva himself was required both to supervise the other staff and to patrol. He gave evidence that "once an aircraft stopped on the apron, he would stand at the bottom of the steps until all passengers were off, then patrol the apron during the turn-around. In particular he would move to the starboard side of the aircraft to observe the cargo holds and refuelling." Mr Holi also gave evidence of patrolling "mainly on the air-side," and said that "he went around the aircraft at least twice, and then continued circulating to check the security officers at the other posts." There was other evidence, particularly from a security officer, Mr Moeaki, of surveillance of the apron. 

The trial judge referred to an expert witness called by the Respondent, who had been Chief Security Officer for the worldwide operations of Qantas for a number of years, a Mr Armstrong. Mr Armstrong had indicated that five guards on or near the apron would have been sufficient, in his opinion, under the conditions prevailing at Fua'amotu Airport. His Honour, perhaps, slightly overstated this evidence when he said: "The Defendant's expert witness Mr Armstrong put the number of guards who should have been on or near the apron at five. If the three at the terminal and Mr Moeaki were in position on 14 September 1994, and if both Mr Holi and Mr Fiva were on and off the apron, then at most times if not at all times there were five. In closing submissions counsel for the plaintiffs submitted that the evidence of Messrs Patolo, Holi and Fiva about the regular presence of a guard on the apron had been contradicted "… My conclusion after considering all of the relevant evidence is that the conflict does not establish the plaintiff's contentions." His Honour continued: "After hearing the security guards give evidence and submit to cross-examination, my impression is that those whose assigned duties gave them responsibilities on the apron were on the apron for those duties. Messrs Holi and Fiva were performing their assigned tasks, which took each of them to the apron, and there is no evidence to suggest any inference that they were not attentive. At the terminal were Mr Moeaki and at least two other witnesses, not yet named, Mr Tu'uholoaki (near the arrivals gate) and Mr 'Ulukivaiola (outside the departure gate). In the absence of evidence for any other inference, one must find that these guards were all in position and watchful as they said they were." 

The judge also referred to the evidence of the driver of the fire truck, Mr Fakatou. This, his Honour said, was "on the apron behind the aircraft and both firemen were in it. Their primary task was to stand by during refuelling and during start-up. Between times their duties included surveillance of the apron. Mr Fakatou … said he saw Mr Fiva patrolling on the apron … and another security guard." 

The evidence accepted by the trial judge, which we have summarised, shows that there was surveillance of the apron by a number of security guards at the relevant time, when also two fire officers and Mr Karalus were present, who also had a duty to keep watch. But the security officers did not include anyone with an undivided and specific duty to watch the area on the right hand side of the aircraft, which was partially obscured by the aircraft itself from positions on the terminal side of it, or the right hand side of the fuselage itself. The judgment makes it clear that the trial judge considered the officers were doing their duty, but nevertheless they did not see a conspicuously dressed stowaway (he was wearing jeans and a blue parka and carrying a machete, though whether in his hands or concealed on his person is not known). A question which, plainly enough, is raised by this state of the evidence is whether a further guard should have been stationed, throughout the turn-around, on the far side of the aircraft. As to this, his Honour thought that the Respondent had done all that could reasonably be required of it. In reaching this conclusion, he placed weight on the evidence of Mr Armstrong, who said: "Trespass is not uncommon at the most secure of airports, as is, to a lesser degree, stowing away in various sections of a commercial aircraft. The instance (scilicet incidence) of stowing away has increased over recent years mainly by oppressed people seeking refugee status out of Eastern Europe, certain parts of Africa and Asia. It is not a problem of the South East Pacific." 

The judge commented that none of the evidence "had the effect of establishing in my mind that stowing away on aircraft was a reasonable likelihood against which positive measures need to be taken at Fua'amotu." The judge also pointed out that the risk of damage to the aircraft, such as happened here, would be even more remote. On the other hand, there was evidence of an incident, one month earlier, on 13 August 1994, when two unauthorized persons gained access through the cargo handling facility of the terminal to an Air New Zealand aircraft in daylight. They were two intoxicated youths, who were observed by the Air New Zealand station manager, Mr 'Aho, at the end of the line of boarding passengers. When observed, they ran to the wheel well and one climbed up into it. They were restrained. The Appellants stressed that the Respondent's Director of Aviation had graphically referred to the possibility of damage being caused to aircraft equipment and of the death of anyone who stowed away in a wheel well. However, it was plainly open to his Honour to regard this incident as quite different from a planned and resolute attempt to gain access to the wheel well of an aircraft from the runway side of the apron at night. 

The Appellants' argument, that, since Mr Felemi was able to penetrate the security screen dressed as he was (though at night), either the system must have been unsatisfactory or the operation of it was careless, verges upon, if it does not amount to, an appeal to res ipsa loquitur. But that mode of reasoning is not generally appropriate in cases involving the actions of third parties. For the res must be under the control of the defendant before it can speak of itself as to his negligence. It is notorious that the control attempted by security cordons has on many occasions been evaded by those with intelligence and determination, or luck, who have taken up the challenge. At the least, an argument along the lines of res ipsa loquitur would require expert evidence that evasion would not succeed if proper care were exercised: Mummery v Irvings Pty Ltd (1956) 96 CLR 99; [1956] ALR 795. 

In the circumstances, if the Appellants are to succeed, it is necessary for them to show on the evidence some respect in which the Respondent fell below the standard of care required of it. An obvious respect to be considered is the performance of their duties by the security officers. But the trial judge saw and heard a number of them, who gave evidence. He had the opportunity, not only to consider the truthfulness of what they said, but also to form an estimate of them as men, and to reach his conclusions accordingly about the happenings on that night. He was not prepared to find them inattentive. On the contrary, he held "that the lookout kept by the security guards was on the evidence adequate and reasonable", and he concluded: "The factual contentions of the plaintiffs about an insufficient standard of security, as a cause of the boarding by the stowaway, are not substantiated by the evidence that I heard." These findings, dependent as they are on the oral evidence, are entitled to be accorded the greatest weight. In Watt (or Thomas) v Thomas [1947] AC 484 at 491-492; [1947] 1 All ER 582, Lord Simonds referred to "the principles laid down … for the guidance of courts of appellate jurisdiction, where the appeal is against a finding of fact by a lower court." His Lordship said: 

"Applying those principles to this case I am satisfied that an appellate court having none of those advantages which the trial judge enjoyed of hearing and observing the witnesses, was not justified in concluding that he was so clearly wrong that their judgment of fact should be substituted for his. Nor do I find in the judgment of Lord Mackay any real appreciation of the weight that should be given to the trial judge's own estimate of the value of testimony." 

In the same case, Lord Thankerton said (at 488): 

"It may be well to quote the passage from the opinion of Lord Shaw in Clarke v Edinburgh Tramways Co [1919] SC (HL) 35, 37, which was quoted with approval by Viscount Sankey L.C. in Powell v Streatham Manor Nursing Home [1935] AC 243, 250. Lord Shaw said: 'In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.'" 

That leaves for consideration the system, which relied on the numbers of officers, and their disposition, that have already been discussed. This system was adopted in a situation where there were two fire officers, as his Honour found, "required to remain on the apron throughout a turn-around and conduct security surveillance," who did so remain, whose "duty to keep a lookout was clearly established in the evidence of Mr Fakatou" (one of them), although "their authority to act as security guards was not made clear … in the evidence". Their position gave them a clear view of much of the area Mr Felemi would have crossed to the right of the aircraft. The trial judge considered their view of people on the apron would have been "good". Further, the adoption of the system must be seen in the context of his Honour's finding "that there were as well on the apron other persons employed by the plaintiffs, who were engaged in the tasks of their employment, but who had a residual responsibility through the plaintiffs' own security programme for the security of the aircraft. Of these persons, the station manager Mr Karalus in particular was aware and vigilant." 

The trial judge's appreciation of the situation, as well as his estimate of the witnesses, were important for his conclusion that the system was adequate. Although this conclusion is not a primary finding of fact, it is based on an assessment of a number of facts, and is entitled to respect: cf Jolley v Sutton London Borough Council [2000] 1 WLR 1082 at 1089; [2000] 3 All ER 409 (HL) at 416 and 417, per Lord Steyn. 

The ultimate judgment on the sufficiency of the Respondent's arrangements must also be made, of course, in the light of the relevant principles of law. The duty of care is imposed by law in accordance with the test of what "a reasonable man in the position" of the Respondent would do: Bolton v Stone [1951] AC 850 at 867, per Lord Reid, 868-869, per Lord Radcliffe; Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 AC 617 at 642-643; [1966] 2 All ER 709 (PC), authorities cited by the judge. The standard of care to be exercised in accordance with a duty of care is also measured by what is reasonable in the circumstances: it is not a standard of unrealistic perfection, nor is it to be established by the deceptive illumination of hindsight. In Smith v Littlewoods Organisation Ltd [1987] AC 241 at 251; [1987] 1 All ER 710, Lord Griffiths said: 

"I agree that mere foreseeability of damage is certainly not a sufficient basis to found liability. But with this warning I doubt that more can be done than to leave it to the good sense of the judges to apply realistic standards in conformity with generally accepted patterns of behaviour to determine whether in the particular circumstances of a given case there has been a breach of duty sounding in negligence." 

Similarly, in Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1039; [1970] 2 All ER 294, Lord Morris of Borth-y-Gest said of the duty of care: 

"It was not a duty to prevent the boys from escaping or from doing damage but a duty to take such care as in all the circumstances was reasonable in the hope of preventing the occurrence of events likely to cause damage to the company." 

Applying the law as to the duty and standard of care stated in these cases to the facts and circumstances as found by the trial judge, his view of which we do not think we can properly disturb, it is inescapable that, accepting there was indeed a relevant duty of care, the ultimate decision denying any breach of it cannot be reversed. We cannot say that, in the circumstances prevailing in the Pacific and particularly in Tonga, where nothing resembling an incursion from the runway side had ever occurred, the judge was wrong when he held the security arrangements fulfilled the Respondent's duty of care. 

We have said "accepting there was indeed a relevant duty of care". We do accept this. The time has long gone when it could be argued that the mere fact the damage was the result of the act of a third party provided a ground for denying a duty of care. In many situations, of which the present case is an example, the duty of care relates to the prevention of the possible acts of third parties: Home Office v Dorset Yacht Co Ltd; Smith v Littlewoods Organisation Ltd at 259, 261, 272. But the Appellants placed reliance on some statements in the judgment under appeal which, if they stood alone, would wrongly state the test in such cases. In Home Office v Dorset Yacht Co Ltd at 1030, Lord Reid said: 

"These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the 'very kind of thing' which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel were the very kind of thing that these Borstal officers ought to have seen to be likely." 

The judge referred to the proposition stated by Lord Reid several times, and on occasion, he treated it as requiring foreseeability of the very thing that happened. But, in the end, his Honour made it clear he had not misunderstood the principle. On the third last page of his judgment, he stated the question it had been held the court must ask as: "[W]as the accident that caused the damage one of a different type and kind from anything that a defendant could have foreseen?" And, still later, he asked: "So, was the presence of the stowaway in the wheel well something of a different type and kind from anything that a reasonable defendant in the position of the present defendant could have foreseen?" Accordingly, the point fails: no error is shown. 

For these reasons, the appeal must be dismissed with costs. 

Beaumont J (dissenting) 

Index 

Introduction 
	178	
(a) The case pleaded by the appellants	178	
(b) The defences	179	
(c) The conduct of the trial - the location where the Stowaway gained access	180	
(d) The findings of the primary Judge on background facts	180	
(e) The primary Judge's description of the evidence about the events on the night of the incident	185	
(f) The primary Judge's factual conclusion	192	
(g) The primary Judge's rejection of the "threshold theory"	194	
(h) The primary Judge's re-statement, or summary, of factual conclusions	194 	
(i) His Honour's conclusions on questions of law
	195	
CONCLUSIONS ON THE APPEAL		
(a) Did the respondent owe the appellants any relevant duty of care?
	198	
(i) The uncontroversial background facts	198 	
(ii) The relevant legal principles	205	
		
(b) Did the respondent breach its duty of care?	217 	
SUMMARY OF CONCLUSIONS ON THE APPEAL 	229	
ORDERS PROPOSED	230	

Introduction 

The appellants, two related Western Samoan companies, instituted proceedings in the Supreme Court of Tonga, claiming damages against the respondent as the authority responsible for one of Tonga's airports. The appellants were respectively the lessee and sub-lessee of a Boeing 737 aircraft ("the Aircraft"). The respondent was the occupier, and responsible for the management and operation, of Fua'amotu International Airport ("the Airport"). (Although of no legal significance for our purposes, it may be noted here that the Supreme Court was informed that all parties were insured by overseas insurers.) 

The appellants' claim was, relevantly, in negligence at common law. The claim was said to arise from the following circumstances. During the turn-around of the Aircraft at the Airport in the early hours of 14 September 1994, Akuila Felemi, a stowaway ("the Stowaway"), gained access to the Aircraft by climbing into the right main landing gear wheel well ("the Wheel Well"). The Stowaway died from lack of oxygen during the flight and his dead body caused the landing gear of the Aircraft to become jammed in the Wheel Well. As a result, an emergency landing at Faleolo International Airport, Apia, became necessary. During that landing the Aircraft sustained substantial damage to one of its engines. The appellants sued for, inter alia, the cost of repairs to the Aircraft engine in the amount of approximately $US2 million. (This amount was agreed, during the hearing of the appeal, at $US1,906,774.57.) The Supreme Court dismissed the action. The appellants now appeal from this order. The appeal has raised for our determination several important legal questions as to the liability in negligence of an airport authority, and as to the functions of an appellate tribunal. 

In order to understand the issues arising in the appeal, it will first be necessary to describe the appellants' case as (relevantly) pleaded at first instance. 

(a) The case pleaded by the appellants 

The appellants claimed that the respondent owed them a duty of care as follows: 

"6. At all material times, the [respondent] owed (and/or assumed) a duty of care to the [appellants] to provide reasonable security and protection to all users of the Airport including the [appellants] so as to ensure: (a) security, sufficient to prevent unauthorised access to the air side and other areas of the Airport; and/or (b) adequate monitoring and/or supervision of movement of persons within the Airport; and/or (c) any unauthorised entry to the Airport is detected and acted upon; and/or (d) that aircraft using the Airport will not be subjected to unauthorised entry by any person(s) to it and/or to intrusion or interference; and (e) that they would not suffer loss and/or damage to their aircraft whilst at the Airport; … ." 

The appellants claimed that their loss and damage was caused by the respondent's breach of duty of care or negligence (relevantly) as follows: 

(a) Failing to prevent the stowaway gaining access to the 'air side' and other areas comprising the Aerodrome of Fua'amotu Airport. 

(b) Failing to detect the stowaway's access to the areas referred to in (a) herein. 

(c) Failing to prevent the stowaway gaining entry to the aircraft by its wheel well. 

(d) Failing to detect the stowaway's gaining entry to the aircraft as referred to in (c) herein. 

 … 

(f) Failing to provide reasonable perimeter guard patrols and/or intrusion detection devices to protect the areas comprising the Airport. 

 … 

(k) Failing to provide any or any sufficient mobile or other reasonable security force to protect aircraft within the Airport. 

(1) Failing to re-evaluate security measures and procedures adopted by it and to take remedial action to prevent attempted stowaway action following previous stowaway attempts including an incident on or about 13 August 1994 at Fua'amotu Airport. …" 

The appellants also pleaded the doctrine of res ipsa loquitur. 

(b) The defences 

By its defence, the respondent put all the claims of negligence in issue, but raised no special defences. No defence of contributory negligence was raised, although at times during the proceedings the respondent appeared to suggest (and, as will be seen, his Honour's reasons seem at some points to pick up the suggestion) that the appellants' own responsibility to safeguard their own aircraft reduced the respondent's responsibility to provide security at the Airport's apron to all persons and property requiring protection, including the Aircraft. In any event, as will be seen, on the uncontroversial facts, it is plain (a) that the appellants were not guilty of any contributory negligence, and (b) that the respondent in no relevant sense relied upon the appellants to provide security at the Airport, in particular at the apron. The contrary was not suggested by the respondent on the appeal. At the same time, it was naturally expected that the appellants would co-operate in the planning and implementation of the respondent's own security arrangements, and in fact, the appellants did co-operate. 

It should also be noted that, initially, the respondent sought to deny liability on the ground that the appellants' claim was a special one in negligence for "pure" economic loss. His Honour mentioned the well-known legal difficulties of establishing such a claim. But it was clear, as the respondent now accepts, that the appellants' claim was a conventional one for damages for negligence which caused physical damage to the Aircraft's engine. The claim was never one for "pure" financial loss. 

(c) The conduct of the trial - the location where the Stowaway gained access 

At the trial, a major factual dispute arose as to the location where the Stowaway actually gained access to the Aircraft. The respondent's case was that it was more likely that he climbed into the Wheel Well at the threshold of the runway (some distance from the terminal); and that there could scarcely be liability on the part of the respondent to guard against such an unlikely event. For their part, the appellants' case was that it was immaterial where the Stowaway gained access, in that the respondent's perimeter fencing, lighting, access control and security patrols were insufficient to deter premeditated intrusion onto the Airport and/or to apprehend an intruder, wherever the Stowaway boarded. Nonetheless, the appellants contended (and as will be seen, the trial Judge subsequently held) that the more likely entry place was the apron outside the terminal. At the trial, neither side suggested that boarding could have occurred at some point other than either the apron or the runway threshold. 

(d) The findings of the primary Judge on background facts 

It will be necessary to refer here to his Honour's findings on background facts. His Honour's reasons are lengthy, but his material findings in this area may be summarised as follows: 

(1) Security of the Aircraft while on the apron was a responsibility undertaken by both the appellants and the respondent independently. 

(2) The appellants' responsibilities were vested in Mr P D Karalus, their Tongan station manager. His role in meeting flights was, in general, supervisory. After ensuring that airport facilitation services, including security, were in place, he tended to concentrate on working with the aircraft while it was on the apron. He supervised loading and unloading, cleared the documentation with the flight crew after loading, and gave the all-clear for departure. Under his supervision up to twelve other staff engaged in handling passengers, cargo and documents, up to six of whom would be working around the apron. These were the aircraft marshaller, cabin cleaners and baggage handlers. In addition, there were refuellers and the crew of the fire tender on the apron, but these were not under Mr Karalus' control. 

(3) Mr Karalus said in evidence that in the month of September 1994, the respondent's airport security staff were not on the apron, except to stand at the bottom of the steps during disembarkation. He saw none on the apron during the turn-around on 14 September, although this position changed after that night. However, he felt no unease about security on the night, to the extent that he was able to identify the people who were on the apron. After the cabin door was closed and the steps removed, he visually checked the front and rear hold doors, checked to see whether the aircraft fuel display panels were secured, and checked the position of the fire tender on the apron. He signalled the all-clear and the aircraft taxied away. 

(4) Mr Karalus was aware of the manual specifying basic security measures for Samoa's Faleolo International Airport in (relevantly) these terms: 

"A vital part of the programme is to maintain an acceptable level of vigilance. Even though there may be no specific security alert, experience shows that by the very nature of its operation an airline is constantly at risk. Accordingly at all times the following basic security measures are to be implemented: 

… 

(c) Polynesian Airlines staff should be alert to challenge unauthorised persons or unmarked vehicles. 

(d) Periodic checks to be conducted of doors/gates which should be kept locked to ensure that they are secure. 

… 

(g) Pre-flight check - (International aircraft). Flight crews and maintenance staff will ensure that the interiors and exteriors of aircraft are inspected for questionable or unaccounted-for articles prior to boarding or loading. This procedure must apply at all ports. …" 

(5) The Samoan manual's description of the duties of the airport security manager included: 

"(3)Ensuring that airport access points are guarded, locked or kept under surveillance as appropriate. 

… 

(7) Arranging for tarmac patrols as appropriate to cover the Airline area of responsibility. 

… 

(11) Maintenance and monitoring of security practices. The Security Manager will establish and maintain a quality assurance system to confirm that all aspects of the Airline Security Programme are maintained to the established standards for all departures. Records for quality assurance checks and procedures are to be maintained and the results of all checks recorded and made available for inspection by persons authorized by the various Civil Aviation Authorities of countries to which Polynesian Airlines operates. …" 

(6) Mr Karalus said, in evidence, that in Samoa most of the responsibilities of the security manager were delegated to and performed by the airport authority, and that the appellants expected the airport authority to attend to them. His responsibility under the manual, he said, was to ensure that the airport authority did attend to them. 

(7) Mr Karalus emphasised in his evidence that the appellants relied upon the civil aviation authority to provide security, that is, the physical ways of ensuring security, such as fences and guards. The appellants' concern at the time had been about people on the "air-side" of the terminal without identification. ("Air-side" is the movement area of an airport, adjacent terrain and buildings or portion thereof, access to which is controlled.) 

(8) There had in fact been an incident exactly a month before, on 13 August 1994, when two unauthorised persons gained access to the air-side of the terminal of the Airport during the turn-around of an Air New Zealand aircraft. This incident occurred in daylight. Two youths were lingering at end of the line of boarding passengers; when observed by the Air New Zealand station manager, Mr Lui 'Aho, they ran to the wheel well; one climbed up into the starboard (right) well; the other was about to follow, when the ground staff stopped him. The youths were said by Mr 'Aho to be drunk. 

(9) In a report to the Director of Civil Aviation on 15 August 1994, Mr 'Aho pointed out the potential for fatalities occurring from tampering with the fittings etc in the wheel wells. In a memorandum to the Director of Civil Aviation written on 15 August, the Chief Airport Supervisor, Soane Patolo, stated that the incident had occurred as a result of the failure of the aviation security service to comply with the procedure then in place to prevent unlawful access to the air-side through the central part of the terminal building. Mr Patolo noted that the procedure provided for three separate points of defence, which should be manned while an international flight was being processed: (i) the domestic departure access; (ii) the cargo make-up area; and, significantly, (iii) the apron. Mr Patolo himself found no fault with the security procedure, but only with the deployment of the staff on duty at that time. 

(10) The Director of Civil Aviation disagreed to a point, and wrote to one of the Principal Civil Aviation Officers (Mr Sitafooti 'Aho) that the failure had been by the officer on duty at the entrance to the departure hall. The Director's immediate action, on 16 August, was to require the airport security staff to adopt rigid checking and patrolling procedures for the following thirty days. This was designed to prevent a recurrence of unauthorised access through the terminal building, particularly at the check-in area, but he required no new security measures. In an associated memorandum to the Police Commander, the Director described what would have happened had the two men not been detected. In a few words, he graphically forecast the death of the Stowaway in an event which was to occur within the thirty-day period. 

(11) Mr Karalus was present when the Air New Zealand incident was discussed at the next meeting of the Airport Facilitation Committee on 9 September, at which the representative of the Air New Zealand ground staff (Mr 'Aho) was commended "for the efficient manner in which they [the airline ground staff] met their security obligations … by preventing two youths, who had penetrated the airport security defence and reached the aircraft while passengers were boarding." 

(12) The International Civil Aviation Organisation's ("ICAO") security manual for the surveillance and guarding of commercial aircraft provided (cl 4.7.5) that: 

"[t]he first line of defence against unauthorized access to aircraft is the safeguarding of the land-side/air-side boundary. The prevention of unauthorized access to aircraft within this boundary also depends on security measures taken in the immediate proximity of the aircraft and in the general area"; 

The security manual further provided that the – 

"[b]asic responsibility for the security of aircraft rests with the [airline] operator, whose plans should take into account the airport security programme so that there may be co-ordination of effort and response. 

(13) It followed from the ICAO provisions at least, that there was a clear security onus on Air New Zealand ground staff in the first incident and, in the second, on the appellants. However, only the civil aviation authority (i.e. the respondent) provided security surveillance. The appellants did not do so, and by no security programme were they expected to. This seems self-evident in the terminal building, but is valid also in respect of access via the perimeters of the Airport. It was not part of the appellants' security programme to provide security staff at the land-side/air-side boundary and thus ensure a safe airport. Nonetheless, by virtue of the above provisions of the documents, the appellants did have their own ("basic") responsibility to provide vigilant ground-handling staff and a safe turn-around. 

(14) The formal security responsibilities of the respondent (which were rather more extensive than those of the appellants), were set out in, firstly, the two ICAO documents, the Chicago Convention on International Civil Aviation and the ICAO Security Manual on "Safeguarding civil aviation against acts of unlawful interference", and, secondly, in the respondent's own aviation security programmes, including the Draft Tongan National AVSEC (Aviation Security) Programme, and, subordinate to that, the Aerodrome Security Programme for the Airport, as well as more specific documents, in particular the Airport Aviation Security Service Local Unit Orders. 

(15) The Draft Tongan National AVSEC Programme focussed on policy directives, rather than on operational details. The methods by which the national policy statements are implemented are contained in documents such as the respondent's Aerodrome Security Programme and the security programmes of the user airlines. The Local Unit Orders are considered by the Tongan authorities to be reasonable security instructions for the circumstances prevailing in Tonga. 

(16) The AVSEC Programme had been presented to the Airport users, including the appellants, at the Airport Facilitation Committee meeting held on 9 September 1994, only a few days before the present incident. The minutes of that meeting record that the respondent's stated objective was to enable it to meet, to the maximum extent, its (ICAO) obligation to safeguard international civil aviation against acts of unlawful interference. This Programme, together with the Aerodrome Security Programme, arose out of acceptance by the respondent of the international safety and security protocols. The respondent undertook, for example in the Aerodrome Security Programme (at cl 3.2), to "[e]stablish and maintain an airport environment in which aircraft operations can take place with safety and security …" and to "[maintain fences] and other such general access control measures … for the purpose of preventing inadvertent unauthorised access and deterring premeditated access to the designated security area of the airport". The respondent also undertook to "[p]rovide adequate security lighting of aircraft parking and adjacent areas" (cl 3.3). The programme noted (cl 3.3) that the "prime objective of the Aviation Security Service … [is] … to prevent acts of unlawful interference against civil aviation by … (a) screening … (b) [foot and mobile patrols … in the security area of the airport for the detection and apprehension of intruders or any other threat which may be a threat to the security and safety of aircraft operation" (emphasis added). In cl 7.1, "physical security measures" are defined; and "constant vigilance" is emphasised as "a vital factor in the maintenance of optimum security relative to this programme". As well, "[s]ecurity fencing, gates and doors" are to be subject to "frequent inspections and surveillance", in order, inter alia, "to create a physical and psychological deterrent to persons attempting or contemplating unauthorised entry", and "to delay intrusion enabling operating and security personnel to detect, interrogate and, if necessary, apprehend intruders". 

(e) The primary Judge's description of the evidence about the events on the night of the incident 

His Honour next proceeded to describe the evidence as to the events on the night, without making findings at that stage, although much of this evidence was to prove to be uncontroversial. (As will be seen, his Honour later made findings and drew inferences concerning these events.) His Honour's description of the evidence can be summarised for our purposes as follows. 

(1) Upon arrival, the Aircraft taxied to its blocks on Gate 2 at about 1.54 am. (Gate 2 is the central position of three on the open concrete apron.) The Aircraft was at an angle of about 45o to the terminal building, pointing towards the right side of the terminal (looking from the Aircraft) and presenting to the terminal (and to the apron lights) its left side. There are four tall light towers for the apron, in a line on the terminal edge of the apron. Two of those towers were lit for this turn-around, i.e. the two central ones. Passengers descended the Aircraft's steps on the left side of the Aircraft (the side nearer the terminal and the lights) and walked across the apron into the terminal from about 1.55 am. The Captain (Capt T W Gilfillan) also went into the terminal and then, about ten or fifteen minutes after arrival, began his routine pre-flight exterior inspection of the Aircraft. (None of this evidence was contentious.) 

(2) The apron is 70 metres wide and 120 metres long. It has three separate standard parking positions, the central one of which was the one in use at the time, along with two of the four light towers. Mr Karalus said that he noted that the nearest of these was at least 35 metres from the Aircraft and that the far side of the Aircraft, the starboard (right) side where refuelling took place, was shadowed. He called it a deep shadow. Capt Gilfillan also said that the shadow was a deep shadow. Mr Karalus said that visibility in the shadow was good enough to work by, but that out toward the edge it was hard to see. He described the conditions as almost a halo-like effect and said that one would have to walk to the edge to see. He did not specify where the edge was, but said that the thick, high bush and saafa grass which covered much of the airport at that time grew to 20 metres from the edge of the apron. (None of this evidence was seriously in dispute.) 

(3) Capt Gilfillan started his inspection in the left main wheel well by turning on the light which illuminates the interior of the well. He stood with his head inside the well, checking hydraulics and other details specified in the aircraft operations manual. He then examined the exterior of the Aircraft, including, among other items, the wheels, tyres, wings, engines and the fuselage generally. He completed his walk-around by returning to the right side wheel well (the Wheel Well), where he made similar checks and then turned off the switch inside the well. He then went up the steps to the flight deck, joining the first officer who had not left the Aircraft. (None of this evidence was controversial.) 

(4) By 2.15 am, the cargo and baggage operations were complete, as was refuelling. The rear cargo hold was closed. Passengers were then walked out to the Aircraft to board. At this time the forward cargo hold door, on the right side of the Aircraft beneath and slightly behind the first officer's side window, remained open while a search was conducted inside the hold for baggage of an alighting passenger. The first officer, sitting on the right side, put his head out of the window twice: first, to cheek the reason for the open cargo door, and secondly, to enquire whether a luggage trolley noticed earlier by Capt Gilfillan had been removed. Mr Karalus was engaged in both activities on the ground. (None of this was contentious.) 

(5) Mr Karalus said that the only security officer he saw on the apron came out to the Aircraft with a disembarking passenger to search for and identify some missing luggage. Mr Karalus went to the forward hold with the baggage handlers, the security officer and the passenger; the baggage was found in the forward hold. At about 2.22 am, there were one or two baggage handlers on the apron to close the forward hold, the last of the passengers was aboard, and Mr Karalus went up to the flight deck. The engines were started at about 2.25 am, and he then made his visual cheek of the front and rear cargo hold. The Aircraft left the blocks at about 2.29 am. (None of the above was controversial.) Mr Karalus suggested in his evidence that the only times when a stowaway could have approached the Aircraft would have been (i) in the period of about 3 minutes when the ground staff, including him, were gathered at the forward hold, searching for baggage (i.e. from about 2.15 am) or (ii) in the following 7 or so minutes (Capt Gilfillan estimated a little longer, about 12 minutes) until about 2.25 am, when Mr Karalus visually checked the hold doors and the fuel display panels. 

(6) As has been noted, by 2.22 am, the passengers were all on board and the hold door was closed; Mr Karalus came up to the flight deck, then left, after which the steps were wheeled away. At 2.25 am start-up procedures commenced; and at 2.29 am, the Aircraft moved off. It travelled to its right towards, and then along, a taxiway at a right angle to the runway. Almost immediately upon its entry onto the taxiway, the apron lights were extinguished. While it was on the taxiway, its speed reached 8 to 10 knots. Illumination was provided thereafter by the Aircraft itself. The lights turned on were the nosegear light, which shone ahead, the wing-root lights which shone 15 to 20 degrees to each side, and, at takeoff, the main landing lights. At the end of the taxiway, it turned right and accelerated to about 30 knots, travelling along the runway to its western end. There is a turning area (a widening of the runway surface) near the threshold. Approaching that area the Aircraft slowed to about 5 knots, veered right, circled left and, without moving below 5 knots, rolled down the runway towards its takeoff. It cleared the ground at 2.32 am. (None of this was controversial.) 

(7) Throughout all this time, the fire tender had been parked on the apron, with its crew on board. In his evidence, Mr Karalus differed from the version of events given by the fire officer and security guards in their evidence. In his opinion, from where the fire truck was placed, the crew inside could not have had good visibility. However, his Honour said that he was not able to see how it could be that their view of the Aircraft and of the people on the apron was not good. 

(8) [As to the lighting, his Honour said at this point (going beyond a description of the evidence) that he was satisfied that there was shadow, but there was sufficient light for the ground crews to do their routine work on the unlit (right) side. Some witnesses agreed with Mr Karalus about a difficulty, when one looked toward the far side of the apron, in the form of a "halo" effect. There was evidence that there had not been any complaint by the appellants, or anybody else, that the ground staff had insufficient lighting for moving about on the right side of an aircraft, refuelling, external cargo and baggage handling, or for checking the closure of the cargo hold doors before giving the clearance to move. His Honour said that he had difficulty accepting the suggestion that there was a deep shadow that could make it significantly easier to achieve a clandestine approach from the scrub at the rear - said by Mr Karalus to be only 20 metres from the edge of the apron - to the underside of the Aircraft.] 

(9) Mr Karalus said that during the entire turn-around, there was no airport security officer on the apron at all, except for the one who came out with the passenger looking for baggage. There had been one at the steps, but only during disembarkation. Mr Karalus disputed the evidence of the fire officer about the position of the fire truck, but there was no dispute that the fire officers were on the apron and on duty. 

(10) Mr Karalus was aware that not only the airport authorities, but also the appellants, as the Aircraft operator, had to maintain security surveillance while the Aircraft was on the apron. He was not on the apron constantly, and his functions there were wider than surveillance. Nonetheless his Honour said that Mr Karalus impressed him as being experienced and aware, both of the environment and of his responsibilities during the turn-around. He was off and on the apron constantly during the turn-around. Although at one time he was in and about the terminal, and at another time he was in or looking into the forward cargo hold, and for a time he was climbing to and descending from the flight deck, he was nonetheless a busy presence and a deterrent. He had security in mind, he removed a baggage trolley from under the wing, he checked the Aircraft from the front and side after the Captain did his cheek, he checked the cargo doors and fuel display panels. Certainly, in his Honour's estimate, so long as Mr Karalus was on the apron, a heavily clad man on the apron carrying on his person a machete (the Stowaway was so clad and carried a machete) was bound to be seen. 

(11) According to the evidence of the refueller (in re-examination), the period between the end of the pilot's walk-around until departure was 10 to 15 minutes. In cross-examination, he had said that he released his hose from the wing when the passengers were boarding and then packed his gear. He then took the fuel documents to the flight deck for clearance. After that, he disconnected the earth wire. This was the last thing he did before leaving the apron. He then saw Mr Karalus waiting on the grass to signal the all-clear to the Aircraft. In evidence-in-chief, he had stated that there was a security guard walking around the apron, but did not specify when this occurred. 

(12) The Chief Airport Supervisor, Mr Patolo, was acting as Airport Manager at this time. He stated in his evidence that the apron was well lit during night turn-arounds. He denied that there was normally "deep" shadow on the apron and/or near the aircraft. He said that he responded to the Air New Zealand incident on 13 August by accepting that there should be increased surveillance of the apron; so did his superior, Mr Vainga Palu, who directed Mr Patolo to carry out this measure and other measures (i.e. identity card enforcement and more rigid enforcement by duty staff). He said that he had verbally directed that an additional security guard was to patrol around the aircraft on the apron during the turn-arounds. The addition of the guard at the apron was a "procedure" which had been in place since the Air New Zealand incident. He said that observance of this procedure by the officer in charge had been required since then. On 13/14 September 1994 the officer in charge was Falanisese Fiva. (It was not seriously disputed that, on some time before and certainly after the Air New Zealand incident, it was proposed that an additional security guard was to be stationed on the apron during the turn-around. However, it is now common ground that this proposal was not implemented until after the events of 14 September 1994.) 

(13) On 13/14 September, as Shift Supervisor, Mr Fiva was in charge of the shift. There were twelve security guards on duty at the terminal. Ten of them had assigned security positions, three of which provided security for the air-side of the terminal. These three positions were (i) immediately outside the gate by which boarding passengers left the terminal; (ii) at or near the open access from the air-side to the cargo area; and (iii) the area immediately in front of the entrances for arriving passengers. Indicating position (ii) in cross-examination, Mr Fiva seemed to say that the post itself was within the terminal (i.e. on the land-side). Mr Fiva was himself the eleventh of the twelve, and he had no assigned guard post, because his role was to supervise the other staff. He was rostered for patrol. He had to ensure that the other guards were at their posts and performing their duties. Once an aircraft stopped on the apron, he was to stand at the bottom of the steps until all passengers were off. Then he was to patrol the apron during the turn-around; in particular, he would move to the starboard (right) side of the aircraft to observe the cargo holds and refuelling. He said he did this on 14 September. On that night, the fire truck followed the Aircraft onto the apron and parked behind it. However, his Honour noted that all of this evidence was disputed by Mr Karalus. He said that he had very rarely ever seen people, including security officers, on the starboard (right) side of the Aircraft. 

(14) Assistant Security Officer Moeaki was also on duty on 13/14 September. After finishing the screening of out-going passengers, Mr Moeaki had the duty of patrolling to check that other guards were in position. He said that he did that, and assured himself that the guards were in position outside the entrance to the arrivals hall, and outside the transit lounge. He then positioned himself in front of the cargo area. He had a good view of the apron. 

(15) The twelfth security guard on duty that night was Sosefate Holi. His rank (and his role) was Senior Security Officer. He said that he, with another Senior Security Officer, made up the rosters and, when on duty, he maintained the airport duty officer's diary of all movements and events during the shift. He said that his job was mobile, involving the patrol of the Airport terminal, mainly on the air-side. Like Mr Fiva, he supervised the other officers at the ten security positions. He supervised Mr Fiva, who was also on patrol. He said that, on the night in question, he did random checks on the other officers. When the Aircraft arrived, he was standing on the air-side of the terminal, between the departure and arrival lounges. He checked on one of the security officers at the terminal; he then went to the apron. He said that he went around the Aircraft at least twice. He then continued "circulating" to cheek the security officers at the other posts. He remembered seeing one of the flight crew walking around the Aircraft, and seeing Mr Fiva on the apron. He also recalled the presence of other security officers, fire service personnel, the refueller and baggage handlers, and Mr Karalus. He saw no unauthorised person during the time he was on the apron. Although there was a shadow cast by the Aircraft on one side, visibility was still very good. 

(16) Some of the respondent's witnesses, in particular Messrs Patolo, Holi and Fiva, agreed that the respondent's Aerodrome Security Programme called for security guard presence on the apron during a turn-around. They all said that this requirement was, in fact, met. The respondent's expert witness, Mr Armstrong, had put the number of guards who should have been on or near the apron at five. [His Honour here observed that "if the three at the terminal and Mr Moeaki were in position on 14 September 1994, and if both Mr Holi and Mr Fiva were on and off the apron, then at most, if not at all, times there were five".] 

(17) [At this point also going beyond a mere description of the evidence, his Honour said that his "impression" was that "those whose assigned duties gave them responsibilities on the apron, were on the apron for those duties. Messrs Holi and Fiva were performing their assigned tasks, which took each of them to the apron, and there was no evidence to suggest any inference that they were not attentive." It was only the argument of the appellants, the Judge said, that they allowed an intruder to enter the Wheel Well, that raised an inference that there were not enough of them there, or if there were, that they were not keeping a proper lookout. Against that, his Honour observed, of the twelve security guards overall, at least three had positions outside the terminal on the air-side. There they were enabled to conduct general surveillance of the apron, one of them, however, for only the latter part of the turn-around; in addition, two supervising officers patrolled the apron.] 

(18) The driver of the fire truck, Iupou Fakatou, gave evidence as to where the truck stood. This was disputed by Mr Karalus, but the truck was on the apron behind the Aircraft and both firemen were in it. Their primary task was to stand by during refuelling and during start-up. Between times their duties included surveillance of the apron. Mr Fakatou said that the refueller had parked on the starboard (right) side, close to the wing and the Wheel Well. He said that there was one guard patrolling the apron around the Aircraft, and three in front of the terminal. He saw Mr Fiva patrolling on the apron. Also, the baggage handlers were moving back and forth between the terminal and the cargo holds. They were on the same side of the Aircraft as the refuelling operation. He saw Mr Karalus. In cross-examination, he was adamant that he saw both Mr Fiva and another security guard, although he did not know which one. The apron was well lit, and any intruder on the apron attempting to get into either main wheel well would have been seen by himself and his colleague, and by the personnel working in and around the Aircraft. He himself saw no-one. 

(19) [Again, departing from a mere description of his evidence, his Honour said that his "impression" was that the light reached beyond the Aircraft to the far edge of the apron. But, beyond the Aircraft, it was reduced, and there was shadow. The light did not reach to the scrub, which was 20 metres or so from there. Therefore, the lit distance for the Stowaway from cover to the Wheel Well, if he boarded at the apron, was not great.] 

(f) The primary Judge's factual conclusions 

His Honour then proceeded to state his conclusions of fact, to the following effect: 

(1) The primary responsibility for physically ensuring that the Aircraft was secure was undertaken by the respondent. It was the respondent that specifically intended to provide a safe environment, and provided a purpose-trained body of security guards. These employees of the respondent were the only people present at the apron, and elsewhere at the Airport, for the purpose of keeping the Aircraft and its people secure, and who devoted their whole attention to the security of the Aircraft on the apron. On the other hand, the appellants' employees at the apron, and elsewhere at the Airport, were present for the purpose of getting on with their jobs, which for none of them (other than the flight crew), included the primary responsibility of devoting themselves to security surveillance. Their security duties, apart from the flight crew's pre-flight check, were defined as being to "be alert", "make periodic checks", etc. Nonetheless, the responsibility for security was shared. The appellants had themselves assumed, in their own security programme, the ICAO basic responsibility for the security of the Aircraft. 

(2) The duties of the respondent's security officers in respect of the apron were not clearly defined at 13 September 1994. No security guard was formally rostered and specifically assigned to stand at his post on the apron while the Aircraft was there. Ten of the twelve rostered officers were specifically assigned to posts elsewhere, seven of them doing necessary work within, the terminal. Of the seven, three, possibly four, had sight of the apron, and they were all assigned to remain near the terminal attending to their assigned duties there. Actual presence on the apron was specifically required of the shift supervisor and the senior security officer only; and each had other supervisory duties, which required them to be elsewhere from time to time, The only officers required to remain on the apron throughout a turn-around and conduct security surveillance were the fire officers. Their duty to keep a lookout was clearly established in the evidence of Mr Fakatou, but their authority to act as security guards was not made clear in the evidence. 

(3) Nonetheless, during the period of the turn-around, two of the respondent's security officers (Mr Holi and Mr Fiva) were present on the apron, and were conducting security surveillance. As well, there were three other security officers in the vicinity of the terminal, and while the one whose post was at the cargo area may have been stationed actually at the land-side (i.e. inside the terminal), nonetheless a fourth (Mr Moeaki) stationed himself immediately outside the terminal; he and at least two of the others had general surveillance of the apron. 

(4) However, it was not established that either Mr Holi or Mr Fiva was present constantly. There was no arrangement between them whereby one maintained constant surveillance, while the other left the apron to perform supervisory duties elsewhere, and there was no specific evidence that the other three were, in fact, watching for unauthorised activity on the apron. 

(5) Present constantly throughout on the apron were the two fire officers, who remained in their truck. At least one of the appellants' ground staff was present for most of the turn-around time. 

(6) The crucial time, during which the boarding by the Stowaway must have occurred, assuming it took place on the apron, was the time between the end of the pilot's pre-flight check and the commencement of taxi. This was the last 12 or so minutes of the Aircraft's turn-around. When that time commenced, the pilot's security check of the Aircraft was complete, and the Wheel Well light, recently on, had been turned off. The passengers came out of the terminal building and went up the steps into the Aircraft. The refueller went up to the flight deck and returned to his equipment on the starboard (right) side, and then left the apron. Mr Karalus and others came to the forward cargo hold, and were engaged in a search in that hold for baggage. Those concerned then returned to the terminal. 

(7) The number of people present around the Aircraft at any one time during the 12 minute period, except during the boarding, was relatively small. Each was there for an assigned task. Each was wearing a uniform. There is no strong indication that either Mr Holi or Mr Fiva were still on the apron, or that they became aware of any particular one of these events. However, they had been patrolling the apron and had stood on it, and there had been no break in the coming and going of people employed by the appellants, all of whom had a duty to be alert for unauthorised persons on the apron. 

The primary Judge then concluded that boarding by the Stowaway during the 12 minute period that the Aircraft was on the apron, was established by the evidence "as a factual possibility, and has not been excluded by the evidence". 

(g) The primary Judge's rejection of the respondent's "threshold theory" 

It will be recalled that, although not pursued on the appeal, at the trial the respondent had contended, and the opinion evidence of Mr Armstrong (the respondent's expert) was to the effect, that the Stowaway must have gained access at the runway threshold. However, as mentioned, the unchallenged evidence of Capt Gilfillan established that the Aircraft was in continuous motion at this point, with a speed of not less than 5 knots. The experts called by the parties agreed that threshold access by the Stowaway was "challenging, difficult and dangerous". His Honour concluded that it was, in principle, less likely than access while the Aircraft was stationary. The trial Judge went on to conclude that access must have been gained on the apron. As indicated, the respondent now accepts this. Indeed, no other conclusion appeared reasonably open, given Capt Gilfillan's evidence of a "rolling" start and all of the other circumstances; for example, the lights in the Wheel Well were then off; access could only have been gained from behind the Aircraft, where the extreme noise, temperature and velocity from the "jet wash" provided a considerable barrier to entry; and the deceased's body indicated only very minor injuries. Accordingly, the respondent's "threshold theory" was rejected and his Honour confirmed that he had concluded that it was more probably than not that access had been gained on the apron. With this finding, several issues agitated at the trial, for instance, the obligation (if any) on the respondent to provide secure perimeter fencing, became academic. 

His Honour then proceeded to analyse authorities on the law of negligence. I will return to this analysis below. Having considered the legal principles, the Judge next made a summary of his earlier factual findings. 

(h) The primary Judge's restatement, or summary, of his factual conclusions 

His Honour prefaced this "summary" with the observation that "the appellants' factual contentions about an insufficient standard of security as a cause of the boarding by the Stowaway, were not substantiated by the evidence". His Honour then went on to make a "summary" of his "major findings of fact" in, inter alia, these terms: 

"… 

(5) that the stowaway most probably boarded the aircraft at the airport apron. 

(6) that, if so, the time of the boarding was the period of 12 or so minutes immediately before the aircraft began to taxi. 

(7) that the parties shared responsibility for security of the aircraft during the turn-around, with the respondent having primary responsibility by providing the physical security surveillance. 

(8) that there were up to five security guards who had the aircraft and the apron under general surveillance during the period of the turn-around, two of them being singly on the apron at different times specifically for apron surveillance. 

(9) that the lookout kept by the security guards was on the evidence adequate and reasonable. 

(10) that there were as well on the apron other persons employed by the [appellants], who were engaged in the tasks of their employment, but who had a residual responsibility through the [appellants'] own security programme for the security of the aircraft. Of these persons, the station manager Mr Karalus in particular was aware and vigilant." 

(i) His Honour's conclusions on questions of law 

Earlier, as noted, his Honour had addressed the legal issues of the duty of care, the requisite standard of care and whether negligence had been established. His Honour considered in particular the reasoning in the House of Lords in Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078, Home Office v Dorset Yacht Co Ltd [1970] AC 1004; [1970] 2 All ER 294, and Smith v Littlewoods Organisation Ltd [1987] AC 241; [1987] 1 All ER 710. 

The primary Judge said: 

"… it is clear that deleterious acts of third parties are included by legal principle among the things which an occupier must guard against, but only if they come within the ambit of 'the very thing which is likely to happen'. This duly in respect of third parties is thus narrower than the general duty of guarding against reasonably foreseeable injury or damage to visitors". 
(Emphasis added) 

It appears that the phrase "the very thing which is likely to happen" picked up a submission, earlier cited by his Honour, made by Senior Counsel then appearing for the respondent. That submission, in turn, was intended to, but did not in truth, pick up a reference by Lord Mackay in Smith v Littlewoods (at 260C) to the very different notion or concept of "the very kind of thing that is likely to happen" (emphasis added). The context of Lord Mackay's observation will be described below. However, later in his reasons, the primary Judge said: 

"… was the presence of the stowaway in the wheel well something of a different type and kind from anything that a reasonable defendant in the position of the [respondent] could have foreseen? I think the answer to that is no [It appears that this is an error, and that the answer should have been expressed in the affirmative, consistently with his Honour's general approach]. First, should the [respondent] reasonably have foreseen that a person who had gained unauthorised access to the airport might get into the wheel-well of the [appellants'] aircraft during turn-around? Second, should the [respondent] reasonably have foreseen the damage such as the losses claimed could result … if [the respondent] allowed such a thing to happen? (Emphasis added) 

As to the first, … I find it factually was too unlikely an event for the [respondent] as operator of the airport at Fua'amotu, to foresee reasonably as a probable event at Fua'amotu. Apart from that, it cannot he said on the evidence … that the [respondent] had any reason to expect that any unauthorised person would get into the wheel well of the [appellants'] aircraft. The previous incident of entering a wheel well one month previously was a foolish act, without any possibility of completion. The seriousness of that event centres round the lax security in the terminal at the passenger entry point. On the apron there were lights, which always till then had seemed adequate to all concerned. There were security guards, fire officers, a refueller and the [appellants'] ground staff including its station manager. If the boarding had been at the threshold, that was not only rare, but it was difficult, particularly on a rolling start. 

As to the second, I am able to find that the [respondent] was bound reasonably to foresee that, if an unauthorised person did stow away in a wheel well, he or she would probably die. After that, however, … there was nothing to show that it was reasonable to expect that, before or after death, his or her body would come to be in a position that blocked the descent of a wheel. It is a more remote probability that, having jammed the wheel, the body would cause the aircraft to sustain engine damage." 

[I return to this later, but it will be noted that his Honour here departed from counsel's misstatement of the test ("the very thing") and instead referred, in accordance with the settled course of authority, to "something of a different type and kind". However, as has been seen, his Honour proceeded, erroneously in my view, to test the matter by reference to the precise circumstances of the present case (ie "very thing").] 

Noting that the respondent's submission focussed on the foreseeability of the particular stowing-away that had actually occurred on the night in question, his Honour referred to the opinion evidence given by the respondent's expert witness, Mr Armstrong, expressed in these terms: 

"Trespass is not uncommon at the most secure of airports, as is, to a lesser degree, stowing away in various sections of a commercial aircraft. The instance of stowing away has increased over recent years mainly by oppressed people seeking refugee status out of Eastern Europe, certain parts of Africa and Asia. It is not a problem of the South East Pacific. 

The primary Judge said: 

"None of [the] evidence … had the effect of establishing in my mind that stowing away on aircraft was a reasonable likelihood against which positive measures need to be taken at Fua'amotu." 

His Honour went on to say: 

"A dead body that somehow descends and jams the wheel as … happened in this case is something that the evidence shows is rare indeed. If these were the only facts I would hold that there was no duly of care that required the defendant to take preventative action against them." 

His Honour cited the expert opinion evidence of Mr Armstrong that the security precautions taken generally at Fua'amotu Airport were adequate and said: 

"… what is reasonable in guarding against any risk must be assessed against the risk itself. The risk assessed must include not just the chances of loss or expense, but also remoteness and the value of what might be lost or spent. An example illustrates the point, even though extreme. For a bank in a major commercial city, a burglar alarm might not be a reasonable minimum precaution. Additional or better precautions may reasonably be required if reasonably assessed risk, including both the chances of loss and the value of what might be lost, indicate that more is required. For a house on a remote Pacific island the reasonably assessed risk might indicate that even the simplest burglar alarm is not needed." 

His Honour stated that the ICAO recommendations had always been a matter for compliance by the respondent, as resources permit, but the respondent's overriding duty was always the duty to prevent, by whatever means are best suited, damage to users of the Airport that would be reasonably foreseeable to a reasonable person in the respondent's position. Hence patrols and static security guards were only one means to an end. At common law, these were only preventative measures which the respondent took in compliance with its general duty of care. In certain circumstances an airport operator may be justified at law in taking measures below the ICAO recommended standards. In other circumstances, it may be that mere compliance with those standards will be held to be inadequate. 

In expressing his final conclusion, the primary Judge said: 

"I may perhaps conclude with the words of Lord Radcliffe in Bolton v Stone. Neither party relied on fairness for its case, and rightly so, for their cases rested properly on the test of culpability. As Lord Radcliffe, said (at p 868), the law of negligence is concerned less with what is fair than with what is culpable and, like Lord Radcliffe in that case, 'I cannot persuade myself that the [respondent] has been guilty of any culpable act or omission in this case.'" 

Conclusions on the Appeal 

It will be convenient to consider first whether the respondent owed the appellants any relevant duty of care. 

(a) Did the respondent owe the appellants any relevant duty of care? 

In order to put this issue in context, it will be necessary to recall the uncontroversial background facts: 

(i) The uncontroversial background facts 

• As his Honour noted, and as the ICAO security manual stated (cl 4.7.5): "The prevention of unauthorised access to aircraft … depends on security measures taken in the immediate proximity of the aircraft and in the general area …". (Emphasis added). 

• Although his Honour did not specifically mention it, the respondent's expert, Mr Armstrong, also emphasised this aspect in his unchallenged evidence on this point. In his report dated 28 March 1998, Mr Armstrong said (para 17): 

"Regardless of the number of mobile patrols of the Airport Authority, a person intent on trespass would elude detection short of constant surveillance with the aid of the most sophisticated modern equipment. In such cases it is the intent of the Airport Authority to protect the aircraft against acts of unlawful interference. In the case of Tonga [… where the cost of acquiring modern equipment could be onerous], that [i.e. protection of the aircraft against unlawful interference] can best be achieved by close security attention to the restricted area where the flight is parked …". 
(Emphasis added) 

• As his Honour noted, mobile patrols were mentioned in the respondent's Aerodrome Security Programme. It will be recalled that, by this Programme (1) the respondent undertook (cl 3.2) to "[e]stablish and maintain an airport environment in which aircraft operations can take place with safety and security … [and to maintain] … general access control measures to the designated security area of the airport"; (2) (cl 3.3) "the prime objective of the Aviation Security Service … [is] … to prevent acts of unlawful interference against civil aviation by … (a) screening … (b) [f]oot and mobile patrols in the security area of the airport for the detection and apprehension of intruders or any other threat which may be a threat to the security and safety of aircraft operations"; and (3) (cl 7.1) "constant vigilance" was emphasised as "a vital factor in the maintenance of optimum security … [in order] to create a physical and psychological deterrent to persons attempting or contemplating unauthorised entry", and "to delay intrusion enabling operating and security personnel to detect, interrogate and, if necessary, apprehend intruders". (Emphasis added) 

• Although his Honour did not refer to it, an official statement of Tonga's approach to international aviation security in a regional context was in evidence. At a Regional Aviation Security Seminar held in Nadi, Fiji in October 1993, the spokesman for the Tongan Ministry of Civil Aviation introduced his country's presentation as follows: 

"Introduction

Aviation Security has for the Kingdom of Tonga been extremely fortunate, not having to have dealt with the threat of violence, rioting, sabotage and terrorism, to date. This does not however mean it has been trouble free. 

Many of the issues that the Kingdom of Tonga has had to address are in some respects synonymous with the region, more particularly the small Pacific Island states. The main issues being finance, available manpower with suitable backgrounds (ex policeman, militia) and a suitable infrastructure to align Aviation Security with the other important divisions (Airlines and Airport administrations). 

The Aviation arena has had a fair amount of press, concerning the security measures that it has and proposes to have in place. Anyone who has had to address the amendments for Annex 17 [to the Chicago Convention] will well appreciate this." 

The presentation commenced as follows: 

"The enforcement of Aviation Security is to a degree only as good as the Legislation on which it is founded. 

The Kingdom [of Tonga], aware of the different types of Aviation Security Legislation (British, Australian, New Zealand) knew, that whilst development of its airports and technical equipment were essential, so [was] the development of its Aviation Security program. 

Development of infrastructure would have to be married with a feasible Aviation Security program. The three main aspects are: 

1. Aviation Security Legislation 
2. Aviation Security Program 
3. Suitably qualified and trained personnel 

Legislation of Aviation Security, in the Kingdom, is encapsulated under Part V of the Civil Aviation Act, 1990 (Appendix 1). Aspects covered include: 

a. Authority for the Minister for Civil Aviation to establish an Aviation Security Service 
b. Functions of the Aviation Security Service 
c. Designated security areas 
d. Search of persons and goods 
e. Powers of arrest 
f. Offences and penalties" 

Turning to the subject of security equipment, the presentation continued: 

"Security Equipment

The Aviation Security Services within the Kingdom have available to them: 

X2 X-Ray detection units (Rapiscan 2 and Linescan E-Scan) 

Used for the detection of firearms, knives and in some instances incendiary devices. 

Problems associated with the equipment are, the specific training required for defection of incendiary devices by the operator, the initial cost for purchase, leaving appropriation of this type of equipment to Aid Programs. 

Which leads on to the fact that the equipment usually of European manufacture has a time consuming and costly spare parts problem. 

X1 Walk through metal detector (Astro 200) 

Problems associated with this type of equipment are those similar to the X-Ray detection units. 

X1 Patrol vehicle (Land Rover 6 seater) 

Used for the patrolling of the airport boundary and as a quick response vehicle in an emergency. 

X9 Communication facilities (Icom IC-A20) 

Used for the routine reporting of patrols 

X4 Hand wands (Nikka Densor LTD) 

Used for body and personal searches." 

The presentation concludes: 

"Conclusion

I wish to close this presentation with an adage, which I consider rather apt for my Pacific brethren gathered at this seminar, passed on to me by my colleague I.T. Howard Pelatini (Aviation Security, Fiji). 

quote 'The biggest threat to Aviation Security is the belief that there is no threat' unquote. 

Words I believe that if considered seriously would in their own right provide for a safer Aviation Security environment with the Region." 

• Samoa, another country of this region, had also (as his Honour earlier noted) accepted the need for security at an international airport. The Judge mentioned the references in the Samoan programme to "an acceptable level of vigilance" as "vital" and the statement that "[e]ven though there may be no specific security alert, experience shows that by the very nature of its operation an airline is constantly at risk". (Emphasis added) 

• As his Honour mentioned, the uncontroversial details of the occurrence of the Air New Zealand incident at the Airport on 13 August 1994 (just one month before the subject incident), and what resulted, were officially noticed. But details of the official reaction were, in my view, important and should be mentioned. The response was as follows: 

(a) On the day of the incident, the Airport's Senior Security Officer prepared a confidential AVSEC Incident Report Sheet, describing the incident as "Unlawful entry to Aircraft". The report stated that two boys, who were drunk, were trying to run away to New Zealand on Air New Zealand, and "got thru the conveyor belt and joined the pax going to aircraft. They [tried] to get on one of the wheels but 2 A/NZ staff [pulled] them back …". The Senior Security Officer said that he was "surprised when I saw [Mr] Aho and the other A/NZ guy holding these two guys ...". He stated that "this was my first night on the scene. I hurried there, there was no security personnel around". When he "question[ed] the security at the entrance to check-in area, and the security at the base, they didn't recognise anything about this". 

Under the heading "Recommendations", the following was stated: 

"Short of staff, as some of the personnels were controlling 2 positions. This may cause the unknowing of this act. One should be patrolling and may be lack of walking around, and of being ALERT." [Emphasis in original] 

(b) Mr 'Aho, as an Air New Zealand agent, wrote a letter of complaint dated 15 August 1994 to John Best, Tongan Director of Civil Aviation, also sending a copy to Mr Patolo as the Airport Manager (Chief Airport Supervisor). The letter stated: 

"I am writing to express my concern at an incident which occurred on Saturday 13th instant at the airport before the departure of our flight NZ64 for Auckland. 

Check in of flight NZ64 was completed at […] hrs boarding started at the same time. 

At about […] hrs two local youths presumably access[ed] the airside through the baggage belt and proceeded to the aircraft with the last passenger to board. As the last passenger boarded, they lingered beside the stairs for a few seconds. 

As I was standing nearby with two of our baggage boys, they suddenly rushed and sneaked into the starboard side wheel bay of the aircraft. 

The youths were restrain[ed] instantly by ourselves and were both dragged into the terminal area. They were later handed over to your security officers and the Police. 

Although, the incident was an amateur attempt by two local youths to stowaway, but may be fatal to both of them and also the passengers and crews should they tamper with the wheel well's fittings etc. 

As a result, Air New Zealand is very much in doubt as to the efficiency of the security system now in place at the airport and what measures you have in place to counter such incidents." (Emphasis added) 
 
Mr Best made a notation on a copy of the letter for his staff that he had "requested a full enquiry and report from Airport Management". 

(c) The Chief Airport Supervisor, Mr Patolo, wrote a report to Mr Best dated 16 August 1994 entitled "Security Incident - Unlawful entry with intention to Stowaway" as follows: 

"Two local youths - Lafaele Fe'ao and Hapakuki longa both of Kolofo'ou gained access into the airline counter through the door immediately beside the conveyor belt door and rode the belt to the airside, while Air New Zealand flight 64 was boarding on Saturday 13 August 1994. On entering the airside they joined the departing passengers who were proceeding to the aircraft from the departure lounge. Upon reaching the step, they broke away from the passengers and headed toward the rear undercarriage and entered the compartment. Both were apprehended by the airline staff and brought back into the Terminal Building. The youths were first observed by airline staff when joining the departing passengers from the cargo make-up area. 

The timely action taken by the Air New Zealand ground Staff has indicated that the airlines are meeting their security obligation as demanded by ICAO and specified by the National AVSEC programme. 

The incident however, occurred as a result of the failure of the aviation security service to comply with the procedure currently in place to prevent unlawful accesses into the airside through the central part of the building. The procedure for three separate points of defence, which should he manned while an international flight is being processed, between the airline check-in counters and the aircraft. The three points are, the domestic departure access, cargo make-up area and the apron. [Underlining in original] 

On Saturday the 13th, eleven security staff were rostered for duty. Two were absent and one reported sick. As a result of this shortage, only one officer was detailed to cover the domestic departure access, the cargo make-up area and the domestic arrival exit. No apron foot patrol was provided. Obviously the cargo make-up area was left unsecured at the time of entry and the absence of the apron foot patrol left the first line of defence, i.e. aviation security service, wide open. [Underlining in original] 

It can be established from the above that the failure was due to the inability of the officer-in-charge of the shift to deploy his available resources in a way so that coverage of critical areas is achieved. It is a human failure rather than procedural. [Emphasis added] 

Both youths were handed over to the Police for questioning and further investigation. 

The late submission of this report was due to the absence of a detailed report on the incident which should have been filed by the security service and handed in to this office on Monday morning. 
 
(The above underlining was made by Mr Best.) Mr Best made two notations on the report. First, beside the statement that two security staff were absent, Mr Best noted: 

"Why and what done …" 

Secondly, Mr Best wrote this note at the foot of the report: 

"Security Service is very poor - spoke with [Mr] Aho. Must do something. Responsible officers to be disciplined accordingly …" 

(Mr 'Aho gave evidence (transcript p 100) that Mr Best had "apologised" and said that "Civil Aviation was going to put out an alert to try and improve security at the Airport" and "assured [Mr Aho] that security would be tightened". (Emphasis added) 

(d) Mr Best wrote a note dated 16 August 1994 to Mr Sitafooti, Principal Aviation Officer, as follows: 

"I have spoken to Vainga [Palu] [Mr Patolo's superior] about this and in the first instance have suggested the following: 

Tomorrow when you address the Security Staff about (a) the importance of this incidence and (b) about their failure to prevent access (I really think that the fault lies with the person on duty at the outside 'birdcage' checking-in area door, as had they not entered here, they would never have been able to get to the baggage conveyor belt) you should insist on the following procedures for the next 30 days: 

(a) Security Staff physically check each person's airport ID card (close-up) for validity, correct coding and that the picture matches the wearer. 

(ii) That (i) above should be carried out on every card holder irrespective of rank, personal familiarity or whatever, and where, discrepancies arise questions are asked, notes taken and appropriate action taken. 

(iii) No person other than a bona fide passenger ID card holder (appropriate card) while, on duty a temporary card holder, or any other authorised person should he admitted to the check-in area. 

(iii) All other access to airside patrolled, or if not, doors locked at all times." (Emphasis added) 

(e) At the time, Mr Best also wrote to Police Commander Sinilan as follows: 

"With reference to the attached report, should both men have not been detected prior to the aircraft's departure, the following scenarios could have occurred: 

1. A serious malfunction of the aircraft's undercarriage, thereby endangering the lives of all on board. 

2. Both men would have died through hypoxia (lack of oxygen) at cruising altitude, probably about 30 minutes after takeoff. 

3. At cruising altitude, both men would have been subject to 30 or 40oC below freezing and died within minutes, as the wheelbay or wheel well is neither pressurised nor heated." (Emphasis added) 

• A decision had been made about four years earlier that, in addition to the existing number of security personnel, there would always be a security guard (i.e. an additional guard) stationed (permanently) on the apron. However, that decision was not implemented until after 15 September 1994. (Evidence of Mr Fiva, the respondent's shift supervisor, transcript p 410; evidence of Mr Patolo, Chief Airport Supervisor, transcript p 129.) 

• By memorandum to the Secretary for Civil Aviation dated 16 September 1994 on the subject "Additional Security Measures", the Chief Airport Supervisor (Mr Patolo) described the additional security measures which had been implemented on and from 14 September 1994. They included the suspension of the issue of temporary identification passes, "strict enforcement" of procedures for the use of identification cards, and the following: 

"3. Security guard is provided to secure aircraft on the apron in addition to foot patrol. 

4. Mobile control of western area at night time when international flight is operating. 

5. Positioning of a mobile surveillance unit on the western end of the runway for night time take-off …" (Emphasis added) 

(ii) The relevant legal principles 

Uninstructed by authority, one would have thought it beyond reasonable argument that, in the circumstances, consisting of these uncontroversial background facts, the respondent, as the occupier, manager and operator of the Airport had assumed responsibility, that is, owed a duty of care, to the operator of an aircraft to plan and implement a security system which had, as its objective, the prevention of unauthorised access by third parties to the apron. In other words, one would have thought, in the above circumstances, that it was plain beyond argument that the respondent had assumed responsibility for security on the apron, and owed all concerned a general duty of care accordingly. Indeed, it would be no overstatement to say that, in the above circumstances, it would be an astonishing outcome if the common law did not impose upon every international airport authority in the 1990s, and upon this authority in particular in September 1994, a general duty of care to take reasonable steps to provide security in order to prevent unauthorised access to the air-side area. The respondent's own security programmes were explicit to this effect. Although this issue was apparently contested by the respondent at first instance, and although his Honour apparently accepted the arguments advanced by Counsel then appearing for the respondent (see the references above to "the very thing"), Senior Counsel now appearing for the respondent, as I followed his argument, did accept before us that his client did owe a general duty of care to provide proper measures to secure an aircraft on the apron. 

The principles are well settled. They are conveniently stated in Halsbury's Laws of England, 4th Ed (Re-issue) at 429-30: 

"610. Liability for omissions. The courts are unwilling to hold that a person is liable for failure to act. It is not enough that harm is a foreseeable consequence of that omission; a bystander is not liable for carelessly allowing a blind man to walk over a cliff to his death without warning him of the danger. However, a duty to act may be imposed where the defendant has undertaken a responsibility for the plaintiff himself, or for property or for third parties causing damage to the plaintiff. Responsibility for the plaintiff may be based on the general nature of the relationship, or the specific conduct of the defendant either by exposing the plaintiff to danger, or by creating an expectation that he will act to protect the plaintiff. (emphasis added) 

… 

611. Responsibility for the conduct of third parties. There is no general duty to prevent a third party from causing damage to another, but there are four special circumstances in which a duty may arise: (1) where there is a special relationship between the defendant and the plaintiff based on an assumption of responsibility by the defendant; (2) where there is a special relationship between the defendant and the third party based on control by the defendant over certain classes of persons; (3) where the defendant is negligently responsible for a stale of danger and it is reasonably foreseeable that a third party may interfere with it and cause damage by 'sparking off' the danger; " (emphasis added) 

Although the respondent's submissions to his Honour appeared not to accept it, none of the foregoing is controversial. If specific authority be needed to support these well-established statements of legal principle, it may be found in a number of decisions of the House of Lords and the Privy Council, several of which are cited by Halsbury and were mentioned by his Honour. 

As has been seen, his Honour was much influenced by Bolton v Stone. But, in my view, the facts of that case can provide no useful analogy here. Indeed, it is difficult to imagine circumstances more remote from the present, where the environment and potential for a catastrophe involving many persons or property, demanded the highest level of security, as the respondent's own documents and instruments, for good reason, clearly acknowledged. 

In Bolton v Stone, the plaintiff was hit by a cricket ball while standing on the highway outside her house in a suburb of Manchester. The ball was hit by a batsman in a match played on a ground adjacent to the highway. The plaintiff sued the committee and members of the local cricket club for damages for negligence. The striker of the ball, a member of a visiting team, was not sued. The ground was enclosed on the highway side by a seven-foot fence, the top of which, owing to a slope, stood seventeen feet above the level of the pitch. The wicket from which the ball was hit was about seventy-eight yards from this fence and 100 yards from where the plaintiff was injured. There was evidence that while, over a period of years, balls had been struck over the fence on very rare occasions, the hit now in question was altogether exceptional. The House of Lords held that the members of the club were not liable. 

Lord Porter noted that there was "a conceivable possibility" that someone would be hit. But so extreme an obligation of care cannot be imposed in all cases. If it were, no one could safely drive a motor car, since the possibility of an accident could not be overlooked, and if it occurred, a stranger might well be injured however careful the driver might be (at 858). The quantum of danger must always be a question of degree. It is not enough that there is a remote possibility that injury may occur, the question is, would a reasonable man anticipate it (at 860)? 

Lord Normand said that it is not the law that precautions must be taken against every peril that can be foreseen by the timorous (at 860 - 861). 

Lord Reid said that it would be right to take into account not only how remote the chance is that a person might be struck, but also how serious the consequences are likely to be if a person is struck; but it would not be right to take into account the difficulty of remedial measures. If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all. This was in substance, the test which the trial judge, Oliver J, had applied in dismissing the action. Oliver J considered whether the club's ground was large enough to be safe for all practical purposes, and held that it was. This is a question, not of law, but of fact and degree (at 867). 

Lord Radcliffe said that there was only a very remote chance of the accident taking place at any particular time (at 868). A reasonable man, taking account of the chances of an accident happening in this way, would not have felt called upon either to abandon the use of the ground for cricket or to increase the height of his surrounding fences. He would have done what the club did: in other words, he would have done nothing (at 869). 

Bolton v Stone was considered recently by the House of Lords in Jolly v Sutton London Borough Council [2000] 1 WLR 1082. Lord Hoffmann, in considering (at 1092-1093) whether the accident which actually happened was reasonably foreseeable, said that although this was in the end a question of fact, the courts are not without guidance. "Reasonably foreseeable" is not a fixed point on the scale of probability. Other factors have to be considered in deciding whether a given probability of injury generates a duty to take steps to eliminate the risk. In Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] 1 AC 617, 642 ("The Wagon Mound (No 2)"), the Privy Council took into account whether avoiding the risk would have involved the defendant in undue cost or required him to abstain from some otherwise reasonable activity. In Bolton, there was a foreseeable risk that someone might one day be hit by a cricket ball, but avoiding this risk would have required the club to incur very large expense or to stop playing cricket. The House of Lords decided that the risk was not such that a reasonable man should have taken either of these steps to eliminate it. On the other hand, in The Wagon Mound (No 2) the risk was caused by the fact that the defendant's ship had, without any need or excuse, discharged oil into a harbour. The risk of the oil catching fire would have been regarded as extremely small. But a reasonable man would neglect such a risk only if there was a valid reason, e.g. that it would involve considerable expense to eliminate it. 

In my opinion, The Wagon Mound (No 2) provides a better analogy than Bolton in the present case. Here, not only were the consequences of neglecting to take proper steps to prevent unauthorised access potentially catastrophic in terms of the loss of many lives and valuable property, but the remedial measures necessary were relatively inexpensive. What was required was the provision of sufficient numbers of security personnel stationed on the apron during the relatively short time of a turn-around. Since there are few international flights per day to and from the Airport, the cost of providing security around an aircraft could hardly be prohibitive. Indeed, as I followed the argument, the respondent did not seek to suggest to the contrary. This accorded with the respondent's own proposal, originating in 1990 but not put into place until after this incident, that an additional permanent guard be stationed on the apron to secure the visiting aircraft. Although the proposal was not earlier implemented, it was never suggested that this was because it was too expensive. Moreover, ensuring that there were sufficient security personnel around an aircraft on the apron, rather than erecting a substantial perimeter fence, an expensive option, was, as noted above, the expert advice of Mr Armstrong in the circumstances (see para 17 of his report). 

The closest authority for present purposes is, I think, Home Office v Dorset Yacht Co Ltd, above. There, seven Borstal boys, who were working on an island under the control and supervision of three officers, left the island at night and boarded, cast adrift and damaged the plaintiffs' yacht which was moored offshore, The plaintiffs brought an action for damages against the Home Office, alleging negligence in that, knowing of the boys' criminal records and records of previous escapes from Borstal institutions, and knowing that craft such as the plaintiffs' yacht were moored offshore, the officers had failed to exercise any effective control or supervision over the boys. The Home Office denied that they, or their servants or agents, owed the plaintiffs any duty of care with respect to the detention of the boys, or to the manner in which they were treated, employed, disciplined, controlled or supervised. A preliminary issue to be tried was whether, on the facts pleaded in the statement of claim, the Home Office owed any duty of care to the plaintiffs capable of giving rise to a liability in damages with respect to the detention of persons undergoing sentences of Borstal training, or to the manner in which such persons were controlled whilst undergoing such sentences. It was held by the House of Lords that the Borstal officers had owed the plaintiffs a duty to take such care as was reasonable in all circumstances, with a view to preventing the boys under their control from causing damage to the plaintiffs' property, if there was a manifest risk that this would occur if they neglected that duty. 

Lord Reid said (at 1027): 

" … [It] is said that the respondents must fail because there is a general principle that no person can be responsible for the acts of another who is not his servant or acting on his behalf. But here the ground of liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind. So the question is really one of remoteness of damage. And I must consider to what extent the law regards the acts of another person as breaking the chain of causation between the defendant's carelessness and the damage to the plaintiff." (Emphasis added) 

[In the present case, as the respondent's own documentation and the ICAO security manual indicated, the real risk of damage to an aircraft and its passengers and crew if unauthorised access to the area were not prevented, was distinctly acknowledged.] 

Lord Reid went on to say (at 1027 -1028): 

" … [If] human action (other than an instinctive reaction) is one of the links in the chain it cannot be said that, looking back, the damage was the inevitable result of the careless conduct. No one in practice accepts the possible philosophic view that everything that happens was predetermined. Yet it has never been the law that the intervention of human action always prevents the ultimate damage from being regarded as having been caused by the original carelessness. The convenient phrase novus actus interveniens denotes those cases where such action is regarded as breaking the chain and preventing the damage from being held to be caused by the careless conduct. But every day there are many cases where, although one of the connecting links is deliberate human action, the law has no difficulty in holding that the defendant's conduct caused the plaintiff loss." 

[Obviously, deliberate human action in the form of gaining unauthorised access to the apron would fall within the scope of Lord Reid's observation.] 

His Lordship proceeded (at 1028) to cite Haynes v Harwood [1935] 1 KB 146 at 156; [1934] All ER Rep 103 (CA), where Greer LJ had said: 

"If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence." (Emphasis added) 

(Lord Mackay cited this passage in Smith v Littlewoods, above, at 260C.) 

In Smith v Littlewoods the defenders purchased a cinema building in 1976 with the intention of demolishing it and replacing it with a supermarket. After their contractors had done some work in June, the cinema remained empty and unattended. The security of the building was, from time to time, overcome by children and young persons, and vandalism took place in and around it, including an attempt to set fire to some old film in an adjoining close and an attempt to light a fire in the cinema itself. On 5 July 1976 a fire was deliberately started in the cinema by children or teenagers, as a result of which the cinema burned down and an adjacent café, billiard saloon and nearby church belonging to the respective pursuers were seriously damaged. The pursuers brought actions against the defenders for damages claiming that the damage to their properties had been caused by the defenders' negligence. It was held by the House of Lords that whether an occupier of property owed a duty of care to adjoining occupiers, in respect of acts of trespass on his property resulting in damage to the adjoining properties, depended on all the circumstances of the case and on socially accepted standards of behaviour. Cases in which such a duty would exist were likely to be rare. The defenders had not known of the previous acts of vandalism in their cinema involving fire and the cinema had not otherwise presented an obvious fire risk, therefore the defenders had not been under any duty to the pursuers to anticipate the possibility of the cinema being set on fire by vandals by keeping the premises lockfast or otherwise taking steps to prevent their entry. 

Lord Brandon said (at 25l): 

" … [So] far as Littlewoods knew, there was nothing significantly different about these empty premises from the tens of thousands of such premises up and down the country. People, do not mount 24-hour guards on empty properties and the law would impose an intolerable burden if it required them to do so save in the most exceptional circumstances. I find no such exceptional circumstances in this case." 

Lord Mackay (at 264) cited a passage (approved also in Dorset Yacht) from Dixon J in Smith v Leurs (1945) 70 CLR 256 at 262; [1945] ALR 392, as follows: 

"… [A]part from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duly of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duly of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature." (Emphasis added) 

Lord Mackay went on (at 268) to cite the following passage from Lord Reid in The Wagon Mound (No 2) at 642-643: 

"... [It] does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, eg, that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity, there can be little doubt but that Bolton v Stone would have been decided differently. In their Lordships' judgment Bolton v Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man." (Emphasis added) 

Lord Mackay (at 269) further relied upon the reasons of Lord Wilberforce in Goldman v Hargrave [1967] 1 AC 645 at 662-663; [1966] 2 All ER 989 (PC) as follows: 

"One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it." 

Lord Mackay concluded (at 270): 

"… [V]arious factors will be taken into account by the reasonable man in considering cases involving fire on the one hand and theft on the other but since this is the principle the precise weight to be given to these factors in any particular case will depend upon the circumstances and rigid distinctions cannot be made between one type of hazard and another. I consider that much must depend on what the evidence shows is done by ordinary people in like circumstances to those in which the claim of breach of duty arises. 

Lord Goff said (at 272): 

"That there are special circumstances in which a defendant may he held responsible in law for injuries suffered by the pursuer through a third party's deliberate wrongdoing is not in doubt. For example, a duty of care may arise from a relationship between the parties, which gives rise to an imposition or assumption of responsibility upon or by the defender, as in Stansbie v Troman [1948] 2 KB 48, where such responsibility was held to arise from a contract. In that case a decorator, left alone on the premises by the householder's wife, was held liable when he went out leaving the door on the latch, and a thief entered the house and stole property. Such responsibility might well be held to exist in other cases where there is no contract, as for example where a person left alone in a house has entered as a licensee of the occupier. Again, the defender may be vicariously liable for the third party's act; or he may be held liable as an occupier to a visitor on his land. Again, as appears from the dictum of Dixon J in Smith v Leurs, 70 CLR 256, 262, a duty may arise from a special relationship between the defender and the third party, by virtue of which the defender is responsible for controlling the third party: see, for example, Dorset." (Emphasis added) 

Again, the observations of Lord Goff, far from assisting the respondent, provide powerful support for the appellants' case that, by virtue of the special (security) relationship between these parties, the respondent owed an aircraft user of the Airport a general duty of care to take proper measures to secure an aircraft from unauthorised access in the restricted area on the air-side of the terminal. 

Another authority is Jolly v Sutton London Borough Council, above (decided after judgment at first instance here). There, a boat was left abandoned for at least two years beside a block of flats on land owned by the defendant council. The council was aware of the boat's presence and made plans to remove it, but they were not implemented. It appeared to be sound but was in fact rotten. Two boys, the plaintiff and a friend, who were aged 14 and 13, started to repair the boat, using a carjack and some wood to prop it up. While the boys were working on the boat, it fell off the prop, crushing the plaintiff, who suffered serious spinal injuries resulting in paraplegia with major complications. He brought an action against the council for damages in negligence. It was held by the House of Lords (per Lord Browne-Wilkinson, Lord Mackay of Clashfern and Lord Steyn) that the trial Judge's detailed findings of fact and the inferences he drew from them were unimpeachable, so that there were no grounds on which the Court Of Appeal was entitled to disturb his conclusion that the plaintiff's accident and the resulting injuries were reasonably foreseeable; and that (per Lord Mackay of Clashfern, Lord Hoffmann and Lord Hobhouse of Woodborough), since the council had conceded that it should have removed the boat because of the risk that children might suffer minor injuries if the rotten planking gave way beneath them, the wider risk of more serious injury being caused by the condition of the boat, which could have been eliminated without the council incurring additional expense, also fell within the scope of the council's duty of care; and that, accordingly, the council was liable for the plaintiff's injuries. 

Lord Steyn (at 1089) cited observations of Lord Reid in Hughes v Lord Advocate [1963] AC 837 at 845 and 847; [1963] 1 All ER 705: 

"The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident, and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way." (Emphasis supplied by Lord Woolf MR [in Jolly in the Court of Appeal]). 

Lord Steyn went on to say (at 1090): 

"Lord Woolf MR observed that he had difficulty in reconciling these remarks with the approach in The Wagon Mound No 1 [1961] AC 388. It is true that in The Wagon Mound No 1 Viscount Simons at one stage observed, at p 425: 

'If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit?' 

But this is to take one sentence in the judgment in The Wagon Mound No 1 out of context. Viscount Simonds was in no way suggesting that the precise manner of which the injury occurred nor its extent had to be foreseeable. And Lord Reid was saying no more. The speech of Lord Reid in Hughes v Lord Advocate [1963] AC 837 is in harmony with the other judgments. It is not in conflict with The Wagon Mound No 1. The scope of the two modifiers - the precise manner in which the injury came about and its extent - is not definitely answered by either The Wagon Mound No 1 or Hughes v Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case: see Fleming, Law of Torts, 9th ed (1998), pp 240-243." (Emphasis added) 

Lord Hoffman said (at 1091): 

"[T]he present law is that unless the injury is of a description which was reasonably foreseeable it is (according to taste) 'outside the scope of the duty' or 'too remote'. 

It is also agreed that what must have been foreseen is not the precise injury which occurred but injury of a given description. The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk which ought to have been foreseen. So, in Hughes v Lord Advocate [1963] AC 837 the foreseeable risk was that a child would be injured by falling in the hole, or being burned by a lamp or by a combination of both. The House of Lords decided that the injury which actually materialised fell within this description, notwithstanding that it involved an unanticipated explosion of the lamp and consequent injuries of unexpected severity. Like my noble and learned friend, Lord Steyn, I can see no inconsistency between anything said in The Wagon Mound No 1 and the speech of Lord Reid in Hughes v Lord Advocate." (Emphasis added) 

Lord Hoffman observed (at 1091) that the short point in the appeal was: 

"... [W]hether the judge … was right in saying in general terms that the risk was that children would 'meddle, with the boat at the risk of some physical injury' or whether the Court of Appeal were right in saying that the only foreseeable risk was of 'children who were drawn to the boat climbing upon it and being injured by the rotten planking giving way beneath them': … Was the wider risk, which would include within its description the accident which actually happened, reasonably foreseeable?" (Emphasis added) 

It is perhaps unfortunate that the House of Lords' judgment in Jolly was not delivered until after the decision at first instance here. In fact, counsel for the respondent did provide the primary Judge, after his Honour had reserved his judgment, with a copy of the decision of the Court of Appeal, the respondent presumably relying upon its reasoning. The primary Judge said, as it happened, that the Court of Appeal decision could be distinguished. The decision of the Court of Appeal was, of course, reversed by the House of Lords where, as has been seen, it was made clear, in accordance with the settled course of authority previously mentioned, that "foreseeability is not as to the particulars but the genus and the description is formulated by reference to the nature of the risk which ought to have been foreseen". 

In the present case, the risk that ought to have been foreseen was plain. It was the risk of unauthorised access to the restricted area air-side when an aircraft was in that area. 

It follows, in my opinion, that there is nothing in any of these authorities which would detract from the strength of the appellants' case; to the contrary, there is much in their reasoning which, upon analysis, wholly supports the proposition that, given the special (security) relationship between these parties, viewed in the context of the known hazards, vividly illustrated by the recent Air New Zealand incident, the respondent owed the appellants the general duty of care previously mentioned. Indeed, as mentioned, as I followed the argument before us, the respondent did not seriously seek to dispute this. 

The existence of a specific duty of care, in the case of an airport authority, is further supported by English authority. 

The general liability of an aerodrome proprietor is explained in Shawcross and Beaumont, Air Law, 4th ed (Re-issue) Vol 1 at III (17) as follows: 

"An aerodrome proprietor, as does any occupier of premises, owes the same common duty of care to all [its] visitors except so far as [its] duly is modified by agreement. The common duty of care is a duty to take such care as in all the circumstances is reasonable to see that the visitor will be safe in using the premises for the purposes for which [the visitor] is invited or permitted by the occupier to be there. The degree of care or want of care which would ordinarily be looked for in a visitor is relevant … . In determining whether the common law duty has been discharged, regard is to be had to all the circumstances". 

In support of their statement of principle, the authors cite (Fn 3) Fred Olsen Flyselskap A/S v Norwich City Council (High Court, 27 July 1979) where an aerodrome proprietor was held liable for the damage caused by the ingestion of gulls into the engines of an aircraft taking off from the airfield, as there was no effective system to discover and disperse the gulls. 

Shawcross and Beaumont also (at 111/59A) cite Screaming Eagle Air Limited v Airport Commission of Forsyth County (387 SE 2d 1990) where an aerodrome operator was held liable as occupier for damage caused by the presence of a dog on the runway. There Cozort J, writing for the Court of Appeals of North Carolina, said (at 200): 

"The duty of an airport to an invitee has been clearly stated by this Court: 

An aircraft landing field operator owes a duty to persons landing thereon by, invitation to maintain the premises in reasonably safe condition for contemplated use, and he must use reasonable care to keep premises in reasonably safe condition so that a person landing his aircraft there will not be unreasonably exposed to any danger. 65 CJS, Negligence, § 63(133), p 913; Plewes v Lancaster 171 Pa.Super. 312, 90 A. 2d 279 [1952]." 

Cozort J went on to say (at 200): 

"… plaintiff must show that defendant failed to use reasonable care to keep the airport premises in reasonably safe condition so that a person landing his aircraft there would not he unreasonably exposed to any danger. In the first portion of its argument concerning the trial court's denial of the motion for directed verdict, defendant contends that plaintiff's evidence does not show that the dog got on the airport through defendant's negligence. Central to defendant's argument is its contention that plaintiff failed to prove how this specific dog, the one struck by plaintiff's aircraft got on the runway on the night in question. Defendant's contention is a misapprehension of the law of proximate cause and foreseeability. Our Supreme Court has stated: 

While this Court has repeatedly said that foreseeability of injury is an element of proximate cause, it is clear that it is not necessary that the defendant should have been able to foresee the precise injury which resulted from this conduct. Williams v Boulerice, 268 NC 62, 149 SE 2d 590 [1966]; Bondurant v Mastin, 2522 NC 190, 113 SE2d 292 [1960]. 'All that the plaintiff is required to prove on the question of foreseeability, in determining proximate cause, is that in the 'exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission or that consequences of a generally injurious nature might have been expected'. Hart v Curry, supra [238NC 448, 78 SE2d 170 (1953)]; White v Dickerson, Inc, 248 NC 723, 105 SE2d 51 [1958]. 

Johnson v Lamb 273 NC 701, 710, 161 SE2d 131, 139 (1968)." 

Shawcross and Beaumont go on to say (ibid): 

"The aerodrome proprietor may of course hand over control of parts of the terminal building to others, to airlines, shops, and catering concessionaires. [It] may escape liability if [it] is not the occupier of the relevant area." 

It is not, and could not be, suggested that this exception has any relevant application in the present case. Clearly, the respondent was both the occupier and the controller of the restricted air-side areas. 

It appears that none of these authorities were drawn to the primary Judge's attention. 

On behalf of the respondent, it is submitted that the stowaway incident could not reasonably have been foreseen by it. I cannot accept this submission. 

In their explanation of the law with respect to the protection of civil aviation, the learned authors of Shawcross and Beaumont, (op cit Ch 31; at VIII (1)), noting the various forms of criminal acts against civil aviation (hijacking, terrorism, theft, assault, drug smuggling, currency offences etc.) say: 

"Hijacking … is, in fact, almost as old as civil aviation itself. The first recorded hijacking occurred in Peru in 1930, and there was a steady trickle of incidents thereafter, of which the series of hijackings to Cuba in the late 1950s and early 1960s received the most publicity. Between 1968 and 1970, however, the trickle became a flood, but, by 1972 the flood was beginning to recede again. In the face of a grave threat to life and property, the international community became active in new law making as seldom before: between 1970 and 1973 two new conventions specifically designed to deal with the situation were … brought into force, and the application of measures designed to ensure that neither explosives nor weapons should find their way aboard aircraft became widespread …" 

It will be recalled that his Honour placed much reliance upon Bolton v Stone. But in Dorset Yacht, as noted above, Lord Reid observed that the result in Bolton would have been different if the activity in question had been unlawful. In the present case, the relevant activity, that of the Stowaway, was plainly unlawful - gaining unauthorised access to the air-side area was a trespass to land; and gaining unauthorised access to the Wheel Well was a trespass to goods. 

It is true that each member of the public has a right to enter the unrestricted zone of the terminal. But it has been held that, if this right is abused (eg by entering with the intention of gaining unauthorised access) there will be a trespass from the beginning (see Cinnamond v British Airports Authority [1980] 1 WLR 582 per Lord Denning MR at 588; [1980] 2 All ER 368 (CA)); to be a trespasser, it is sufficient to go into a part of the aerodrome where the public are not allowed (A W G Kean, "Aerodrome Operators — Some Legal Problems" (1966) Journal of Business Law 232 at 241). 

In my respectful opinion, the innocent activity of playing cricket provides no analogy to the hazardous illegal activities in the present case. 

Nor, in my view, was the existence of a duty of care to be tested in the method, previously mentioned, adopted by his Honour, that is: 

"What caused the contact between engine and runway? It was the obstruction of the free movement of the wheel by the stowaway's dead body. This point was taken by counsel for the [respondent] who submitted that this was not a reasonably foreseeable danger against which the [respondent] could be held bound to take steps. He did not rely upon novus actus, but he did submit that the dead body did raise a different question. He relied upon case authority generally for the proposition that an occupier of property, say a building or a tree or a train platform, cannot normally be held responsible for the resultant damage suffered by a neighbour if a third party chooses to take a suicidal leap from the building or the tree or the platform. I would agree cautiously — normally so. In my opinion, by the principles which I deduce from the authorities above, the results caused by a dead body of a suicide may in the particular circumstances of any particular case be of a type and kind that an occupier could have foreseen. That is a matter of fact in any case. But in the present case I agree. A dead body in a wheel well is, by the evidence and by ordinary experience, something which is not normally taken into account by people assessing the risks to aircraft and passengers in normal commercial operations." 

In my opinion, his Honour was led, into error by these submissions of counsel then appearing for the respondent. To argue that the far-fetched examples given could provide any useful analogy here, given the recognition in the respondent's own security manuals and in its own expert's evidence of the need for constant vigilance to prevent unauthorised access, was not helpful. 

(b) Did the respondent breach its duty of care? 

In considering this issue, his Honour mentioned a submission by counsel then appearing for the respondent, citing Lord Dunedin in Fardon v Harcourt-Rivington (1932) 146 LT 391; [1932] All ER Rep 81 (HL) that: 

"People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities." 

And, as Lord Dunedin there said (at 392), what amounts to negligence depends on the facts of each particular case (see also Halsbury, op cit at 421). In my opinion, the uncontrovertible facts here (the security manuals, the Air New Zealand incident in particular) indicated that unauthorised access was likely to result in illegal inference with the operation of the Aircraft with a potential to cause an accident of catastrophic proportions. These were not merely "fantastical possibilities". 

The appellants, of course, bore the onus of proving their claim that the respondent was in breach of its duty of care and thus negligent. Yet the respondent stood in a special position. It was not only the occupier of the subject premises, but also the manager of the security system at the Airport so far as concerned the care and control of the premises and the security precautions taken. All of the facts relating to the operation of that system on the night could hardly be directly within the appellants' knowledge. Rather, they were peculiarly within the knowledge of the respondent. The legal significance of such a combination of circumstances was explained by Dixon J, in an action for negligence brought against the owner of hotel premises by a customer who slipped on the floor, in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 -- 372; [1957] ALR 1201: 

"[V]ery little evidence of negligence might have been enough. For the case is one where the facts can hardly be within the knowledge of the plaintiff and … so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant … But a plaintiff is not relieved of the necessity of offering some evidence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observations of Lord Mansfield in Blatch v Archer …" 

In other words, as Halsbury, op cit, states [at p 476]: 

"Where the evidence relating to negligence is particularly within the control of the defendant, little affirmative evidence may be required from the plaintiff to establish a prima facie case which it will then be for the defendant to rebut". 

It is true that the Stowaway, as the actor, of course knew what happened. But the present point is, as Dixon J noted, the relative power of the appellants and the respondents to control the evidence. 

As Jacobs J said in Dulhunty v JB Young Ltd (1975) 7 ALR 409; 50 ALJR 150 at 151: 

"… in circumstances such as those appearing in the present case the plaintiff need only produce slight evidence of negligence before a factual onus may shift to a defendant. The defendant, as was pointed out by Dixon CJ in Hampton Court Ltd v Crooks (1957) 97 CLR 367, at p 371, has the means of knowledge of precautions taken and it may be added that he also has the means of knowledge or of finding out the state of the premises before the accident. 

But there must be some evidence and the evidence must in some way show that an act or omission of the defendant was a cause of the plaintiff's injury." 

In seeking to discharge their onus of proof of negligence, the appellants were bound to accept, as established legal doctrine, as Pollock CB observed in Byrne v Boadle (1863) 2 H&C 722 at 727 - 728; 159 ER 299 at 301; that "…there are accidents from which no presumption of negligence can arise …". On the other hand, the respondent was bound to accept, as Channell B there put it (at 729, 301), that whilst it is not every accident which will warrant the inference of negligence, this is not to say that there is no accident which will in itself raise a presumption of negligence. 

Byrne v Boodle was considered by Dixon CJ, Webb, Fullagar and Taylor JJ in the High Court of Australia in Mummery v Irvings Proprietary Limited (1956) 96 CLR 99 at 113 - 114; [1956] ALR 795. Their Honours went on (at 114) to cite the following passage from the judgment of the Exchequer Chamber in Scott v London and St Katherine Docks Company (1865) 3 H & C 596 at 661; 159 ER 665 at 667; [1861-73] All ER Rep 246: 

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant …, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." (That is, the thing speaks for itself - res ipsa loquitur.) 

Dixon CJ, Webb, Fullagar and Taylor JJ later (at 114) referred to "those special cases in which mere proof of an occurrence causing injury itself constitutes prima facie evidence of negligence" (ie res ipsa loquitur). 

However, I do not find it necessary to consider whether this "principle", in truth one of "application of an inferential reasoning process" [per Gleeson CJ and McHugh J in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 201; 74 ALJR 743 at 748] known as res ipsa loquitur could be applied here. In my view, for the reasons given below, there was evidence here, on the uncontroverted facts, from which the respondent's negligence should, on the whole of the evidence, be inferred. In the absence of any satisfactory explanation from the respondent of how the Stowaway gained unauthorised access to the apron (and none was forthcoming, his Honour having rejected the "threshold theory"), I have concluded that the proper inference to be drawn in the absence of any explanation from the respondent, is that the respondent omitted to exercise reasonable care in the operation of its security system, and that, with all respect, his Honour erred in law in adopting the submissions by Counsel then appearing for the respondent as to the existence of relevant duty of care and on the nature of the foreseeability test and its application to these particular circumstances. 

In this connection, it should be borne in mind that the appellants bore no onus to demonstrate how the Stowaway gained access. A similar argument was rejected in Allison v Rank City Wall Canada Ltd (1984) 6 DLR (4th) 144; (1984) 29 CCLT 50, a case mentioned by the primary Judge here, but presumably distinguished by his Honour. The plaintiff sued the defendant, her landlord, for negligence for failing to provide proper security when she was attacked by a stranger in the parking garage of her apartment building. As the occupier of the garage premises, the defendant was held liable in tort. 

Smith J said (at 149): 

"The negligence of the defendant consisted of failing to reasonably secure the garage premises once having represented their safe condition or alternatively, of allowing the plaintiff to be lulled into a false sense of security. 'You are safe' The fact that security, such as it was, had worked for six years, was due to chance. I do not accept that the evidence fell short of proving that the aggressor's presence was due to lack of security. The plaintiff does not need to show precisely how Howell came to be on the premises. He was bent on criminal activity. He engaged in further and similar criminal activity before he was apprehended at or near the premises some months later. The probabilities are that proper security would have prevented this unfortunate assault as would have a warning to the plaintiff. A knowing and conscious plaintiff could have requested escort services as others had on occasion or exercised greater care or taken up residence elsewhere." (Emphasis added) 

In my opinion, these observations are equally apposite here, as are those of Cozort J in Screaming Eagle Air, considered above, where the Court of Appeal of North Carolina said that the plaintiff was not required to show how the specific dog, struck by the plaintiff's aircraft, got onto the runway on the night in question. 

Yet, when his Honour's reasons in the present case are read as a whole, it appears that the respondent's argument, that the appellants could only succeed if they could show exactly how the unauthorised access was obtained, was accepted by the trial Judge. In my view, the appellant bore no onus to demonstrate this. 

On behalf of the respondent, considerable reliance is placed upon paras (8) and (9) of his Honour's summary of his major findings of fact as follows. 

(8) that there were up to five security guards who had the aircraft and the apron under general surveillance during the period of the turn-around, two of them being singly on the apron at different times specifically for apron surveillance. 

(9) that the lookout kept by the security guards was on the evidence adequate and reasonable." 

As has been seen, these conclusions were critical to his Honour's approach. In understanding the structure of his Honour's reasons for judgment, it is important to recall the origin of these restated conclusions as follows: 

His Honour first gave a description of the evidence, including that of the respondent's staff, without making findings at that stage. The Judge initially mentioned the testimony of Mr Fiva that, of the twelve security guards in the terminal, seven had been assigned positions on the land-side; three others had been assigned to (i) the terminal's passenger boarding gate, (ii) the terminal's cargo access area, and (iii) the terminal's arriving passengers gate. (However, as appeared in cross-examination, assigned position (ii) was, in fact, on the land-side.) Mr Fiva was one of the twelve, but had no assigned guard post, because his role was to supervise the other staff. He was rostered for patrol. He was to ensure that the other guards were at their posts and performing their duties. He was also to stand at the bottom of the aircraft steps until all passengers had disembarked. He was then to patrol the apron during the turn-around. In particular, he was to move to the starboard (right) side of the aircraft to observe the cargo holds and refuelling. Mr Fiva said he did this on 14 September 1994. However, in his evidence, Mr Karalus had said that he had very rarely seen people, including security officers, on the starboard (right) side. 

His Honour then described the evidence of Mr Moeaki, Assistant Security Officer, who had said that, after screening the boarding passengers, he was to check that other guards were in position outside the entrance to the arrivals hall and outside the transit lounge. He said that he did this, and that he then positioned himself in front of the cargo hall. He said that, from there, he had a good view of the apron. 

The Judge next summarised the evidence of the twelfth security guard, Mr Holi, the Senior Security Officer. He said that his Job was mobile, that is, he was to patrol the terminal, mainly on the air-side. Like Mr Fiva, he supervised the other security officers, including Mr Fiva. On the night, when the Aircraft arrived, he stood on the air-side between the departure and arrival lounges. He had said that he had checked on one of the security guards at the terminal, and then went to the apron, went around the Aircraft at least twice, and then checked the security officers at their posts. He had remembered seeing Mr Fiva and other security officers on the apron. 

It will be recalled that, in analysing this evidence, some of which had been contradicted by the evidence of Mr Karalus and Capt Gilfillan, and by the provisions of the Local Unit Orders, his Honour said that his impression was that those assigned to the apron, namely Messrs Holi and Fiva, were there; and that there was no evidence to suggest any "inference"' that they were not attentive. The Judge noted that Mr Moeaki was at the terminal, and that at least two other guards were at the terminal gates. His Honour said that, in the absence of evidence to ground another inference, one must find that the guards were all in position and watchful. 

The Judge then mentioned the evidence of the driver of the fire truck that he saw Mr Fiva patrolling the apron and another security guard there. 

It will be recalled that his Honour next proceeded to make his findings of fact in this context as follows: 

• The duties of the security officers in respect of the apron were not clearly defined, and no security guard was specifically assigned to the apron. 

• Ten of them were specifically assigned elsewhere (ie to areas other than the apron). 

• Three, possibly four, of them had sight of the apron and were assigned to remain near the terminal to perform specific duties there. Only Mr Fiva, the Shift Supervisor, and Mr Holi, the Senior Security Officer, were specifically required to be on the apron, but each had other supervisory duties requiring them to be elsewhere from time to time. The fire officers were required to remain on the apron during the turn-around, but their authority to act as security guards was not made clear. 

• Although Messrs Holi and Fiva were on the apron, they were not there constantly; there was no arrangement between them whereby one would maintain constant surveillance whilst the other performed supervisory duties elsewhere. 

• There was no specific evidence that the other three guards were watching for unauthorised activity on the apron. 

Much later in his reasons, after addressing questions of law, his Honour came, as has been seen, to state: 

"… a summary of my major findings of fact. I have decided … 

[Emphasis added. Then follows ten paragraphs. One para is (8) which, it will be recalled is]: 

(8) that there were up to five security guards who had the aircraft and the apron under general surveillance during the period of the turn-around, two of them being singly, on the apron at different times specifically for apron surveillance." 

Inevitably, as a summary, this paragraph could not convey a full explanation of his Honour's earlier conclusions in this area. But it is apparent that, if viewed in isolation, it could give a new reader a different impression from that gained from reading his Honour's (earlier) actual conclusions. Clearly, his Honour intended the summary only as an aide-memoire, and not to depart from his actual conclusions. In particular, it must be taken that his Honour's crucial earlier conclusions - (1) that the security duties on the apron were not clearly defined; (2) that only Messrs Fiva and Holi were on the apron, and that they were diverted to other responsibilities from time to time; and (3) that the fire officers had no clear security responsibilities - were to stand. 

It will be recalled that para (9) of the summary then read: 

"(9) that the lookout kept by the security guards was on the evidence adequate and reasonable." 

Again, his Honour could not have meant to depart from his earlier, detailed treatment, in particular, his Honour's reference to the absence of any specific evidence that the three guards air-side near the terminal were watching for unauthorised activity. 

Moreover, in considering his Honour's reasons in this area, it is apparent that (8) and (9) were not intended as free-standing specific findings of fact, but merely a summary of conclusions made by his Honour by drawing inferences from the evidence as a whole. 

The two fundamental principles upon which a Court of Appeal acts are explained by Halsbury's Laws of England, 4th ed, Vol 37 at 535: 

"The first is that on an appeal from the decision of the trial judge sitting alone, the presumption is that the decision appealed against is right. The burden of showing that the trial judge was wrong lies on the appellant, and if the Court of Appeal is not satisfied that the judge, was wrong, the appeal will he dismissed. 

The second is that the hearing of an appeal by the Court of Appeal is by way of rehearing. These words do not mean that the Court of Appeal literally 'rehears' the case, and that the parties have to start afresh as they did in the court below or that the witnesses are heard afresh, but rather that the court will rehear the case on the documents, including the transcript of the shorthand note of the evidence or the judge's notes. The Court of Appeal considers the materials which were before the judge below, and the additional materials, if any, before the court itself, and then makes up its own mind, carefully weighing and considering the judgment appealed against, and reversing it if, on full consideration, it comes to the conclusion that the judgment was wrong. Where the only question is as to the inferences to be drawn from evidence admitted to be truthful, the Court of Appeal is in as good a position to decide as the court below. Where, however, the decision depends upon a conflict of oral evidence, the Court of Appeal should generally defer to the opinion of the trial judge." 

On behalf of the respondent, reliance is placed upon well-known observations made in the speeches in the House of Lords in Watt (or Thomas) v Thomas [1947] AC 484; [1947] 1 All ER 582. It was there held, as the headnote states (at 484 - 485), that: 

"When a question of fact has been tried by a judge without a jury and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to his opinion, because he saw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound. 

As has been seen, I am of the view that his Honour did misdirect himself in law. But, in any event, in Thomas, it was further held, as the headnote goes on to state (at 485): 

"The appellate court is, however, free to reverse his conclusions if the grounds given by him therefor are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved." 

Viscount Simon said (at 486 -- 487): 

"It not infrequently happens that a preference for A.'s evidence over the contrasted evidence of B., is due to inferences from other conclusions reached in the judge's mind, rather than from an unfavourable view of B.'s veracity as such: in such cases it is legitimate for an appellate tribunal to examine the grounds of these other conclusions and the inferences drawn from them, if the materials admit of this; and if the appellate tribunal is convinced that these inferences are erroneous, and that the rejection of B.'s evidence was due to the error, it will be justified in taking a different view of the value of B.'s evidence. I would only add that the decision of an appellate court whether or not to reverse conclusions of fact reached by the judge at the trial must naturally be affected by the nature and circumstances of the case under consideration." 

To similar effect is the decision of the High Court of Australia in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588; 73 ALJR 306. It was there held that the primary Judge had not given sufficient attention to all of the evidence of the case and that there had not been a determination of the appellant's case on a consideration of the real strength of the body of evidence it presented. Moreover, as here, in Earthline it was held that it was not the task of the appellant to exclude every reasonable hypothesis, but to establish its case on the balance of probabilities, and that the primary Judge had applied the wrong standard of proof. It was further held that the Court of Appeal was not precluded from concluding that, in the light of other evidence, the primary Judge had too fragile a base upon which to support his relevant findings and that the appeal in Earthline illustrated the danger of attaching too much significance to the words of restraint expressed in cases such as Thomas, and allowing those words to deflect the appellate court from its duty. 

In Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA), Thomas J, noting [at 199], that "exceptional caution" is "imperative" in departing from the trial judge's findings of fact, went on to say [at 199]: 

"Nothing I have said, of course, means that there will not be cases where it will be appropriate to ask this Court to exercise its jurisdiction on appeal in respect of findings of fact. Obviously, such cases arise where the gap between the advantages ordinarily enjoyed by the Judge at first instance and the appellate Court does not exist or is substantially reduced, or the Judge fails to use the advantage or misuses it in a discernible manner. A case where the facts totally or largely arise from documentary evidence is an example of a case where the Judge at first instance may not have any advantage. In such cases the appellate Court is often in as good a position as the Court at first instance to determine the facts or to draw inferences from the established facts." 

Turning to the case at hand, it appears, upon analysis, that the critical conclusions restated in summary form by his Honour at paras (8) and (9) of his reasons were, in truth, inferences from the circumstantial material in evidence, rather than findings of primary fact made upon an assessment of the credit of individual witnesses. Indeed this approach was inevitable, given the way in which the case for the respondent was conducted at the trial. In essence, as has been said, that case was (1) that none of the security guards could recall anything untoward on the apron and, for this understandable reason, none of them had any distinct recollection of the activities on the apron; and (2) that, logically, it must have followed that access was gained at the threshold. 

In other words, this was not a case where, for instance, one of the respondent's security guards gave evidence of a specific sighting of an unauthorised person on the apron. If that evidence had been given, and accepted without qualification by a trial judge, an appellate court would, of course, pay respect to the advantage of a trial judge in assessing the creditworthiness of such specific evidence. But, as has been seen, there was no evidence of this kind here. Rather, his Honour's approach was to draw inferences from all of the surrounding circumstances. Given that background, the appellate Court is at no particular disadvantage in deciding, on the material disclosed in the circumstances surrounding the events on the apron, what are the proper inferences to be drawn. Indeed, the only conflicts that appeared to emerge in the whole of the evidence were, as noted, that Mr Karalus and Captain Gilfillan disagreed with aspects of the evidence of some of the respondents' witnesses, whose version his Honour appeared to prefer. Given the exceptional nature of the power of an appellate tribunal to interfere with such a finding, depending on an assessment of credibility, I accept his Honour's conclusions in this area for present purposes. In other words, I proceed upon the footing that the whole of the respondent's evidence is accepted, as his Honour found. 

Having, for my purposes, taken it as beyond reasonable argument that the respondent owed the appellants a relevant duty of care, it is convenient at this point to identify, and then to analyse, the essential steps in his Honour's relevant process of reasoning on the issue whether the respondent was in breach of its duty of care. His Honour proceeded (and I would accordingly comment) as follows: 

• The respective security systems of the parties for the protection of visiting aircraft from unauthorised access were independent, but proceeded upon the footing that the parties would co-operate. 

[This is uncontroversial. Nor is there, or could there be, any suggestion by the respondent of any lack of co-operation, or default, by the appellants.] 

• The respondent accepted that it was bound by the ICAO security manual. The manual, inter alia, stated that "[t]he first line of defence against unauthorised access to aircraft is the safeguarding of the land-side/air-side boundary"; and that "[t]he prevention of unauthorised access to aircraft within this boundary also depends on security measures taken in the immediate proximity of the aircraft and in the general area". (Emphasis added). 

[This is uncontroversial. As noted above, it was consistent with the expert opinion evidence of the respondent's expert Mr Armstrong, and with the respondent's own AVSEC programme, its Aerodrome Security Programme and the Local Unit Orders.] 

• Some of the respondent's witnesses, in particular Messrs Patolo, Holi and Fiva, and its expert Mr Armstrong, agreed that the respondent's Aerodrome Security Programme called for a security presence on or near the apron of five guards, and five guards were in fact present. 

[The respondent now disputes this interpretation of Mr Armstrong's evidence. It will be recalled that, in his Report, Mr Armstrong expressed the view that at the Airport, protection of an aircraft "can best be achieved by close security attention to the restricted area where the flight is parked …" (Emphasis added). However, his Report went on to say this: 

"That order of protection [was] in place on 14 September 1994, five officers were air-side at various points around the flight. The protection offered was sufficient to secure the operation." 

Clearly, the opinion expressed in the second sentence was given on the assumption that the evidence would demonstrate the facts stated in the first sentence. However, as has been seen, the evidence by no means revealed such a straight-forward state of affairs, given the difficulties of recollection experienced by the respondent's witnesses. In my opinion, an inference that, on the night, five guards were stationed around the Aircraft was not reasonably open on the evidence previously mentioned. In any event, in cross-examination, Mr Armstrong was asked about his assumption of five security guards stationed around the Aircraft. He said that, in his view, that was "a reasonable number". Although he was not re-examined on the point, on behalf of the respondent it is now submitted that Mr Armstrong's evidence as to numbers of guards should not be interpreted as an opinion that five was a necessary number. In the absence of re-examination in this area, it is difficult, and not appropriate, to speculate about what other views Mr Armstrong might have had. 

In any event, as noted, the respondent's Aerodrome Security Programme emphasised the need for "constant vigilance as a vital factor in the maintenance of optimum security relative to this programme". Moreover, the respondent itself had recognised, but had not then satisfied, a need for an additional guard to be permanently stationed on the apron.] 

• There was no evidence to suggest an inference that the security guards on the apron were not attentive. 

[As mentioned, it appears not to have been suggested that any of the respondent's personnel saw the Stowaway. But, given his Honour's rejection of the respondent's case that the Stowaway could not have gained access on the threshold, if any inference ought to be drawn, it would not be that the guards were attentive. On the contrary, given his Honour's finding that access was gained on the apron, rather than the threshold, the following inferences ought to be drawn, that is, the gaining of unauthorised access by the Stowaway was allowed to occur, that is, the security was somehow breached, and the resulting damage was caused, both by negligence in the system (the absence of sufficient permanent guards in close proximity of the Aircraft) and/or by casual negligence of the security guards (see Salmond & Spraggon (Aust) Pty Ltd v Joint Cargo Services Pty Ltd (the "New York Star") [1977] 1 Lloyd's Rep 445 per Glass JA at 447). 

It is true that none of the parties was able to establish at the trial exactly how the Stowaway gained access at the apron. But, as Smith J and as Cozort J noted in Allison v Rank City and Screaming Eagle Air respectively (above), a plaintiff need not show this.] 

• Mr Holi and Mr Fiva were on the apron, but not constantly, and there was no arrangement between them in order to maintain constant surveillance. 

[For the reasons previously given, an inference can properly be drawn, from this conclusion, both of negligence in the system and casual negligence. There may have been a case in the present circumstances for the application of the inferential principle of res ipsa loquitur, even if the respondent had called no evidence. But it is not necessary to consider that possibility here. The expert evidence, in its documentary form (ICAO manual etc), the views of Mr Best and of Mr Armstrong, was itself unanimous that close attention to the restricted area where a flight was parked was required; yet access was gained; and the relevant circumstances in which entry to the Aircraft was gained were within the exclusive knowledge of the respondent as the occupier of the apron and the party responsible for its security. In those circumstances, only slight evidence of negligence is required of a plaintiff, in the absence of a satisfactory explanation from a defendant. Yet here, the only explanation offered by the respondent was that access had been gained at a considerable distance from the apron, at the threshold to the runway, at an area which was more difficult to secure. The respondent's explanation was rejected by the Judge as impossible, and his finding is now accepted by the respondent.] 

• Two fire officers were constantly present on the apron. 

[It is not, and could not be, suggested that the fire officers were part of the security surveillance system. They had their own responsibilities to attend to. Of course, if a fire officer had seen the Stowaway, other questions would be raised.] 

• An occupier must guard against the deleterious acts of third parties only if they are "the very thing which is likely to happen". 

[With respect, for the reasons already given, his Honour did not correctly state the law. But, in any event, even if the law of negligence required that the "very thing" had to be reasonably foreseeable, it was. The official reaction to the Air New Zealand incident in the previous month makes it plain, beyond argument, that the incident that did happen was actually foreseen as a real possibility if security were not improved and it was not improved. If it were needed, there was evidence at the trial of stowaways on aircraft on other occasions in other countries.] 

• Stowing away on aircraft is not a problem in the South East Pacific. Accordingly, the evidence did not establish that stowing away "was a reasonable likelihood against which positive measures need to be taken at [the Airport]". 

[There are several difficulties in accepting this conclusion. The first is the Air New Zealand incident. Next is the fact that the respondent's relevant duty was to guard against any form of unauthorised access. The evidence shows, again, beyond argument, that any access that was not authorised would, by itself, raise a potential risk of damage to an aircraft, and thus to its passengers and crew. Whether that access leads to a stowaway, or some other activity, is immaterial for present purposes.] 

• The appellants "gave no evidence [as an aircraft operator] of foreseeing what occurred as the very kind of thing that was likely to happen". 

[This has been dealt with above; that is, it is irrelevant. The appellants could, in any event, rely upon Mr Best's expert opinion, expressed in his reaction to the Air New Zealand incident. Moreover, the respondent's presentation at the Fijian regional aviation security conference accepted the need for constant vigilance at South Pacific international airports.] 

• What is reasonable in guarding against risk must be assessed against the risk itself, including not just the chances of loss or expense, but also remoteness. His Honour went on to give the example of a burglar alarm in a house on a remote island, acknowledging it to be extreme. 

[With respect, there was no need here to look for such extreme analogies. As has been said, the expert material, including the opinion of Mr Best, as the respondent's Director of Civil Aviation, was unanimous in accepting that the respondent foresaw, or must be taken to have foreseen, the real potential for a disaster if unauthorised access were not prevented, and security not improved by stationing an additional guard permanently on the apron. This was not done until after the incident.] 

• "A dead body that somehow descends and jams the wheel … is rare indeed. If these were the only facts, I would hold that there is no duty of care that required the defendant to take preventative action against them". 

[As has been said, the relevant duty was to take proper steps to prevent unauthorised access and to exercise "constant vigilance" to that end. The particular sequelae, as Jolly, above, holds, do not have to be precisely foreseen. In any event, Mr Best did foresee the actual risk.] 

• The presence of the Stowaway in the Wheel Well was "something of a different type and kind from anything that a reasonable defendant in the position of the [respondent] could have foreseen". 

[With respect, I cannot agree, for the reasons previously mentioned; in particular, the unanimous expert view that, in order to prevent unauthorised access, close security attention to the restricted area where the aircraft is parked should be provided. As has been said, in my view, it should be inferred that such security was not provided.] 

• In certain circumstances, an airport operator may be justified at law in taking measures below the ICAO recommended standards. 

[It appears that his Honour had in mind perimeter fencing, now an irrelevant aspect, given the explosion of the runway threshold access theory. Here we are concerned only with the apron. Mr Armstrong's view was that, in order to compensate for other security inadequacies or demands, and given the cost of perimeter fencing, removal of scrub etc, "compensatory manpower" should be provided on the apron when an aircraft visits (transcript p 438, 468). So far as concerns an aircraft on the apron, the expert evidence pointed one way: close security attention was required in that area. In my view, it should be inferred that this attention was not provided.] 

• Like Lord Radcliffe in Bolton, I cannot persuade myself that the [respondent] has been guilty of any culpable act or omission". 

[As has been said, it is difficult to imagine a case more removed from the facts of this case than Bolton. It is plainly distinguishable, for the reasons given by Lord Hoffmann in Jolly.] 

Summary of Conclusions on the Appeal 

In summary, then, my conclusions are as follows: 

• On the uncontroversial facts mentioned above, the respondent owed a duty of care to the appellants, as operators of a visiting aircraft, to take proper steps to prevent unauthorised access to the Aircraft when on the apron. In other words, the risk of an attempt to gain unauthorised access was reasonably foreseeable. 

• On the unanimous expert evidence, the standard of care required of the respondent is that it be "constant[ly] vigilan[t]" and provide "close security attention" to the Aircraft. 

• Since the respondent was the occupier and security controller of the apron, and thus the facts were within its knowledge and control, and not within the power of the appellants, only slight evidence was required to discharge the appellants' burden of proof, in the absence of a satisfactory explanation from the respondent. The only explanation proffered, the "threshold" theory suggested by the respondent, was not accepted. 

• The respondent's evidence of the need for an extra permanent guard on the apron, especially after the Air New Zealand incident, is itself evidence from which negligence may be inferred, as is the respondent's evidence of the failure of Mr Holi and Mr Fiva to ensure that one or other of them was always on the apron. 

• Mr Best's expert views, as Director of Civil Aviation, are entitled to great weight. His opinion, expressed after the Air New Zealand incident, that security procedures had been lax and needed to be improved (but were not) is crucial evidence from which negligence in the system may properly be inferred. Moreover, in Mr Best's opinion, the security scheme envisaged by the respondent's own security manuals etc ("constant vigilance"), reinforced by Mr Armstrong's view of the need for "close security attention" in the vicinity of the parked Aircraft, could hardly be described as a counsel of perfection. Given the real potential for a disaster if unauthorised access occurred, these standards were no more than reasonable, for the reasons given by Lord Reid in The Wagon Mound (No 2) at 642. 

• It is true that security guards require training. But it is no answer for the respondent now to say that more time was needed to train an extra security guard to be stationed permanently on the apron during the turn-around. This need had been recognised four years earlier, but not remedied, despite the Air New Zealand incident, until after a catastrophe was narrowly averted by virtue of Capt Gilfillan's skilful efforts, 

• Although his Honour sometimes spoke of foreseeability of "the very thing" and at others of "the very kind of thing", it is clear, beyond serious argument, that either test is satisfied here on the uncontroversial facts, given the warning of the Director of Civil Aviation, only one month before, that if unauthorised access to the apron were not prevented, one scenario was that the trespasser could stow away in the wheel well, the landing gear could malfunction and the lives of those on board and the aircraft could be endangered. 

• With all respect, upon a full consideration, the judgment below was wrong and accordingly ought to be reversed. 

Orders Proposed 

I would propose that the appeal be allowed, with costs; that the orders at first instance be set aside; and that, in lieu thereof, it be ordered that judgment be entered for the appellants for the cost of repair of the engine in the agreed amount; and that liberty be reserved to the appellants to apply, in writing, to a single Judge of the Supreme Court in respect of pre-judgment interest on the agreed amount, and for the costs of the action.