Polynesian Airlines (Investments) Ltd v Kingdom of Tonga [2000] TOCA 3; CA 13 1998 (21 July 2000)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY
ON APPEAL FROM THE SUPREME COURT OF TONGA

Appeal No. 13/1998

BETWEEN:

POLYNESIAN AIRLINES (INVESTMENTS) LIMITED
AND POLYNESIAN AIRLINES (HOLDINGS) LIMITED
Appellants

AND:

KINGDOM OF TONGA
Respondent

Coram: Burchett J
Tompkins J
Beaumont J

Counsel: Mr D. F. Jackson QC and Mr H. Waalkens for the Appellants
Mr W. Wood QC and Mr A. Lydiard for the Respondent.

Dates of hearing: 17 and 18 July 2000
Date of judgment: 21 July 2000

JUDGMENT OF THE COURT

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 45^o 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] HCA 45; (1956) 96 CLR 99.

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, 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 & District Tramways Co., Ltd. [1919] UKHL 303; [1919] S.C. (H.L.) 35, 37, which was quoted with approval by Viscount Sankey L.C. in Powell v. Streatham Manor Nursing Home [1935] A.C. 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 L.B.C. [2000] UKHL 31; [2000] 1 WLR 1082 at 1089, 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] UKHL 2; [1951] A.C. 850 at 867, per Lord Reid, 868-869, per Lord Radcliffe; Overseas Tankship (U.K.) Ltd v The Miller Steamship Co. Pty [1966] UKPC 1; [1967] 1 A.C. 617 at 642-643, 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] UKHL 3; [1987] 1 A.C. 241 at 251, 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] UKHL 2; [1970] A.C. 1004 at 1039, 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.

Burchett J
Tompkins J
Beaumont J