Polynesian Airlines (Investments) Ltd v Kingdom of Tonga [1998] TOLawRp 26; [1998] Tonga LR 178 (28 August 1998)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

C 126/97

Polynesian Airlines (Investments) Ltd

v

Kingdom of Tonga

Finnigan J
14 – 28 April 1998; 28 August 1998

Negligence ⎯forseeability of risk ⎯ stowing away in wheel well too remote
Negligence ⎯culpability of defendant ⎯ not culpable

A Polynesian Airlines aircraft was damaged in an emergency landing at Faleolo airport in Samoa. A person (‘the stowaway’) had entered the wheel well of the plaintiffs’ aircraft at Fua’amotu airport during its turnaround in the early hours of 14 September (local time) 1994. At the time of entering, the stowaway was carrying a machete and was wearing construction boots on his feet, many layers of clothing and outside those a jacket like a parka. He died from lack of oxygen and his body thereafter became lodged in the right main landing gear. This caused a malfunction of the aircraft landing gear, so that the aircraft landed in Samoa with the right main wheel retracted and was damaged. The plaintiffs’ case was that the stowaway boarded the aircraft as a result of the defendant’s negligence in failing to provide proper security. The cause of the plaintiffs’ losses was the boarding by the stowaway, which was a natural and probable result of the defendant’s complacent and inadequate attitude to security. The defendant accepted that it owed invited or permitted visitors to the airport a duty to take reasonable care that the visitor and his/her property would be reasonably safe, and that owners and/or persons interested in and/or operators of aircraft (such as the plaintiffs claim to be) were invitees and licensees to whom a duty of care was owed. The defendant pleaded that the admitted duty of care did not extend to prevention of damage to the property of a visitor damaged by the action of third party, lawful or otherwise. It denied that the admitted duty of care included a duty to provide reasonable security and protection to all users of the airport. The defendant claimed that its duty was to take care to preclude foreseeable risks, and that what occurred on 13 — 14 September 1994 at Fua'amotu airport and at Faleolo airport was outside the ambit of foreseeable risks and outside that duty

Held:

1. The factual contentions of the plaintiffs about an insufficient standard of security as a cause of the boarding by the stowaway were not substantiated by the evidence.

2. The incidence of stowing-away in a wheel well was too unlikely an event for the defendant, as operator of the airport at Fua’amotu, to foresee reasonably as a probable event at Fua’amotu.

3. The law of negligence was concerned less with what is fair than with what was culpable.

4. The plaintiffs’ action was dismissed.

NOTE: The plaintiffs subsequently appealed the Supreme Court decision to the Court of Appeal. The appeal decision will be reported in a subsequent volume of the reports.

Cases considered:

Allison v Rank City Wall Canada Ltd (1984) 6 DLR (4th) 144; (1984) 29 CCLT 50

Bolton v Stone [1951] UKHL 2; [1951] AC 850; [1951] 1 All ER 1078

Candlewood Navigation Corpn Ltd v Mitsui OSK Lines (1985) 3 NSWLR 159; [1986] AC 1; [1985] 2 All ER 935 (PC)

Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC 605; [1990] 1 All ER 568

Fardon v Harcourt-Rivington (1932) 146 LT 391

Home Office v Dorset Yacht Co Ltd [1970] UKHL 2; [1970] AC 1004; [1970] 2 All ER 294

Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837; [1963] 1 All ER 705

Jolley v Sutton London Borough Council [1998] EWCA Civ 1049; [1998] 1 WLR 1546; [1998] 3 All ER 559 (CA)

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1966] UKPC 1; [1967] 1 AC 617; [1966] 2 All ER 709 (PC)

Smith v Littlewoods Organisation Ltd [1987] UKHL 3; [1987] AC 241; [1987] 1 All ER 710

Stansbie v Troman [1948] 2 KB 48; [1948] 1 All ER 599 (CA)

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 60 ALR 1; 59 ALJR 564

Statutes considered:

Civil Aviation Act 1990

Occupiers’ Liability Act 1957 (UK)

Counsel for plaintiffs: Mr Waalkens, Ms Barlow, Mr Myles
Counsel for defendant: Mr Webb QC, Mr Lydiard, Mr Gimblett

Judgment

The Pleadings

A Polynesian Airlines aircraft was damaged in an emergency landing on 13 September 1994 at Faleolo airport in Samoa. The plaintiffs claim that the defendant is liable to them for losses said to have been caused to them thereby. The pleadings in their final form are extensive and clear. The defendant, the operator of Fua’amotu airport in the Kingdom of Tonga, is said to have breached its duties to the plaintiffs in permitting access by a stowaway to the wheel well of the aircraft while it was at the airport preparing to depart for Samoa. The breaches alleged are said to have been breaches of the common law duty of care, breaches of statutory duties under the Civil Aviation Act No 17/1990 (Part V), and breaches of duties under the Occupiers’ Liability Act 1957 (UK). The plaintiff, in counsel’s closing address, characterised the action as being primarily a simple negligence action. In argument, counsel for both parties dealt with the common law duties and the Occupiers’ Liability Act duties as being in law the same. The plaintiff acknowledges that the distinction is not marked, although the common law claim is wider in scope.

The plaintiffs’ case is (1) that the defendant had the duty of care, above: (2) that the plaintiffs, to the defendant’s knowledge, relied on the defendant’s undertaking of and performance of security services: (3) that the defendant charged the plaintiffs a fee to use the airport: (4) that the risk of damage as occurred in the present case was apparent and foreseeable (from an event the previous month, and from domestic circumstances in Tonga) and (5) that the defendant actually knew:

(i) that the airport perimeter fencing was inadequate, (with inadequate patrols);

(ii) that there was unacceptable overgrown scrub on the airport;

(iii) that there were risks from these facts including a risk of intruders on the airport; and

(iv) that the previous month there had been a serious breach of access to the controlled part of the airport, because of the inattentiveness of the defendant’s security staff.

In respect of causation, the plaintiffs’ case is that the stowaway boarded the aircraft as a result of the defendant’s negligence in failing to provide proper security. The cause of the plaintiffs’ losses, as summarised in counsel’s closing address, was the boarding by the stowaway, which was a natural and probable result of the defendant’s complacent and inadequate attitude to security.

Several of the plaintiffs’ major claims are admitted by the defendant. It acknowledges that at the relevant date it was the occupier of Fua’amotu airport under the Occupiers’ Liability Act 1957. It accepts that it owed invited or permitted visitors to the airport a duty to take reasonable care that the visitor and his/her property would be reasonably safe, and that owners and/or persons interested in and/or operators of aircraft (such as the plaintiffs claim to be) are invitees and licensees to whom this duty of care was owed. It pleads however, that the admitted duty of care did not extend to prevention of damage to the property of a visitor damaged by the action of third party, lawful or otherwise. It denies that the admitted duty of care included a duty to provide reasonable security and protection to all users of the airport. It accepts that the first plaintiff was lessee of the aircraft and is entitled to sue in tort for damage to the aircraft, and for losses consequential on such damage. However, it queries the nature of the second plaintiffs’ interest in the aircraft and in any consequential losses.

In particular the defendant argues that to establish liability in negligence, the plaintiffs must show, and cannot, (1) that the defendant owed them a duty to avoid causing the types of loss claimed, (2) that the defendant was in breach of that duty and (3) that what the defendant did in breach of its duty caused the losses claimed. The essence of the pleaded defence is that the defendant’s duty was to take care to preclude foreseeable risks, and that what occurred on 13-14 September 1994 at Fua’amotu airport and at Faleolo airport was outside the ambit of foreseeable risks and outside that duty.

In respect of causation, the defendant’s case is that, whether or not the boarding by the stowaway was within the ambit of foreseeable risks, the plaintiffs cannot establish a causal link between that and the losses claimed. As summarised in counsel’s closing address, it is that the plaintiffs must prove more than negligence, they must prove a negligent failure to do something which was owed by duty and, if done, would have prevented the plaintiffs’ losses.

The Claimed Heads of Damage

The damages being claimed by the plaintiffs were summarised in counsel’s closing address as follows:

a) Recovery and Repair Costs

Under this head, with concessions after the evidence concluded, the plaintiffs claim US$2,001,060.45 for the recovery and repair of the aircraft.

b) Consequential Economic Losses

Under this head, the plaintiffs claim a total of US$300,000, although the itemised amounts total a higher sum. The itemised amounts are:

a. US$273,659.94 as the cost of two charters, the cost of sending disrupted passengers to other airlines together with their meals and accommodation for those passengers and for the repair and recovery team;

b. US$30,000 for loss of use and other economic losses;

c. US$25,000 for loss of business chance; and

d. US$50,000 for loss of goodwill.

c) Other Recovery and Repair Costs

Under this head the plaintiffs seek resolution of further disputed claims, namely for AU$24,275 paid as administration fees in the recovery and repair operation, and 150 for inclusion of the costs of full removal and transport of the starboard engine.

d) Consequential Economic Loss

Under this head the plaintiffs claim the costs associated with providing alternative carriage, accommodation and meals to passengers stranded while the aircraft was out of service between 13 September and 2 October 1994.

The defendant contests all these claims, both on the merits and as to quantum, save now as to quantum the amended amount of recovery and repair costs. In respect of all claims for economic loss it raises a defence as follows: if the pleadings and the evidence of the plaintiffs is taken to show that the economic losses were borne by the second plaintiff, they cannot be recovered. This is because the second plaintiff is not 160 entitled to sue in tort for economic loss unless such loss is consequent upon damage to property in which the second plaintiff has a proprietary or possessory right, Candlewood Navigation Corpn Ltd v Mitsui OSK Lines (1985) 3 NSWLR 159; [1986] AC 1; [1985] 2 All ER 935 (PC).

The Facts

1. Introduction

It is common ground that a person (‘the stowaway’) entered the wheel well of the plaintiffs’ aircraft at Fua’amotu airport during the Polynesian Airlines’ turnaround in the early hours of 14 September (local time) 1994. There is no dispute that at the time of entering he was carrying a machete, and was wearing construction boots on his feet, many layers of clothing and outside those a jacket like a parka. It is common ground that he caused subsequently a malfunction of the aircraft landing gear. He died from lack of oxygen and his body thereafter became lodged in the right main landing gear, so that the aircraft at its next landing in Samoa landed with the right main wheel retracted and was damaged. The one major factual dispute in this part of the case is about where the access by the stowaway happened. The defendant submits that it is more likely that he climbed into the wheel well at the threshold of the runway, and that there can scarcely be liability on the defendant to guard against such an unlikely event. The plaintiffs seek to refute those claims, both of fact and of law. It is their case however that it does not matter where the stowaway gained access, inasmuch as the defendant’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. They nonetheless contend that the more likely entry place was the apron outside the terminal.

It is not part of either party’s case to suggest that boarding occurred at any third place.

2. Security at the Airport Apron, and ‘the Apron Theory’

Security of the aircraft while it was on the apron was a responsibility undertaken by both the plaintiff and the defendant independently. The responsibilities of the plaintiffs were vested in Mr PD Karalus, the Tonga station manager of Polynesian Airlines, who gave evidence about what they were. 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. Under his supervision were 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, but these were not under his control. In September 1994, security staff he said were not on the apron, except to stand at the bottom of the steps during disembarkation, and he said he saw none on the apron during the turnaround on 14 September, though he said that changed after the events of that night. However, he felt no unease about security that 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 on the night in question, he checked visually 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.

Mr Karalus acknowledged in evidence that he was the person responsible on behalf of the plaintiff during the aircraft turnaround. As Tonga station manager with the plaintiff he was also its security manager. The formal statement of the duties of that position is in a document entitled the “Polynesian Airlines Aviation Security Programme, April 1991”. I put aside for the moment any legal duties. The plaintiffs’ security programme recognised two levels of security: ‘Standard’ and ‘Raised Level of Alert’. Clearly, the standard level was appropriate for the night with which this case is concerned. The manual produced in evidence specified basic security measures for Faleolo International Airport but no others, so I presume those measures were standard for other similar airports such as Fua’amotu. At the other end of the scale were the security measures provided for the domestic airports on Savaii. For the international airports, the manual stated:

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:

(a) ...

(b) ...

(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.

(e) ...

(f) ...

(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. ...

The level of security prescribed as standard for the domestic airports on Savaii was different:

Pilot-in-command to use his judgment regarding appropriate security action, dependant upon prevailing circumstances.

In the manual, the duties of the security manager included:

(1) ...

(2) ...

(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 250 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.

(12) ...

In evidence Mr Karalus said that most of the responsibilities of the security manager were delegated to and performed by the airport authority, and the plaintiff 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. As an example, he mentioned a meeting of the Airport Facilitation Committee (the security liaison committee of administrators and users of Fua’amotu). It was he who had raised an issue about a gate, which several times had not been manned by the civil aviation authority, even though this was a security point in the civil aviation authority’s own security plan. I must say in passing, lest it later be overlooked, that this action seems to me not to have been an example of delegation of his responsibility. Rather, it seems to have been a direct action taken under responsibility (3) above, whereby the security manager was responsible to ensure that airport access points were guarded — in this case by the appropriate people, the airport security officers. That impression is reinforced by Mr Karalus’ further answer, that in that instance the standing orders of the civil aviation authorities were not being carried out.

Mr Karalus was strong in cross-examination and re-examination, almost insistent, in stating that the plaintiff relied upon the civil aviation authority to provide security. I take him to mean the physical ways of ensuring security, such as fences and guards. He stated in particular in that context, that the plaintiffs’ concern at the time in question had been about people on the air-side of the terminal without identification.

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 during the turn-around of an Air New Zealand aircraft. This incident occurred in daylight. Two youths were lingering at the end of the line of boarding passengers, and when observed by the Air New Zealand station manager, Mr Lui ‘Aho, they ran to the wheel well and one climbed up into the starboard well. The other was about to follow when the ground staff stopped him. The youths were said by Mr ‘Aho to be drunk. In a report to the Director of Civil Aviation on 15 August 1994, Mr ‘Aho pointed out the potential for fatalities 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, Mr S Patolo, notified 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.

In that memorandum, Mr Patolo went on to note that the procedure provides for three separate points of defence, which should be manned while an international flight was being processed; these were the domestic departure access, the cargo make-up area and, significantly, the apron. He himself found no fault with the security procedures, only with the deployment of the staff on duty at that time. The director disagreed to a point, and wrote to one of the then principal civil aviation officers (Mr Sitafooti ‘Aho, now Assistant Director) that the failure had been by the officer on duty at the entrance to the departure hall. His 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 he 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 the present event, which was to occur within the thirty-day period.

As Mr Karalus noted in evidence, he was present when that event had been discussed at the next meeting of the Airport Facilitation Committee on 9 September, and the written minute of that discussion is worth noting. It commenced with a commendation by the civil aviation representative of the airline ground staff “for the efficient manner in which they met their security obligations ... by preventing two youths, who had penetrated the airport security defence and reached the aircraft while passengers were boarding.”

That is significant, and it is appropriate now to pause and note the provisions in the International Civil Aviation Organisation (“ICAO”) security manual (about which more in detail below), for surveillance and guarding of commercial aircraft, because they were relevant in both those boarding instances. The particular provisions are clauses 4.7.3 to 4.7.27, at pages 1-4-30 to 1-4-32. It is the plaintiffs’ case to raise the ICAO documents and to plead that the defendant was in breach of its duties to them by failure to meet ICAO standards. The security manual provides, at 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 manual thereafter provides, at cl 4.7.21, that the “[b]asic responsibility for the security of aircraft rests with the operator, whose plans should take into account the airport security programme so that there may be co-ordination of effort and response”.

So, by ICAO provision at least, there was a clear security onus on Air New Zealand ground staff in the first incident and, in the second, on the plaintiffs. However, I think it is important at this point to note that it was only the civil aviation authority that provided security surveillance. The plaintiffs did not and by no security programme were they expected to. And while this seems self-evident in the terminal building, it is valid also in respect of access via the perimeters of the airport. It was not part of the plaintiffs’ security programme to provide security staff at the land-side/air-side boundary and thus ensure a safe airport. Nonetheless, by the documents so far seen, the plaintiffs did have their own (“basic”) responsibility to provide vigilant ground-handling staff and a safe turn-around.

It is appropriate now to turn to the formal security responsibilities of the defendant. My concern at present is with security on the apron. I shall turn to the perimeter shortly. Again, I put legal duties aside for the moment. Those formal responsibilities were rather more extensive than those of the plaintiffs, and are set out in:

(a) two documents of the International Civil Aviation Organisation, (“ICAO”), ie the 7 December 1944 Convention on International Civil Aviation (“the Chicago Convention”), particularly Annex 17, and the Security Manual of the International Civil Aviation Organisation (“the ICAO Security Manual”), and

(b) the defendant’s own aviation security programmes. These latter included at the time the Draft Tonga National AVSEC [Aviation Security] Programme, and, subordinate to that, the Aerodrome Security Program for Fua’amotu International Airport. There are as well more specific documents, in particular the Fua’amotu aviation security service Local Unit Orders.

An expert witness who gave evidence for the defendant, Mr RM Armstrong, stated, and I accept, that the Draft Tonga National Aviation Security Programme focussed on policy directives rather than on operational details. I accept also his statement that the methods by which the national policy statements are implemented are contained in such documents as the defendant’s aerodrome security programme and the security programmes of the user airlines. I accept also his statement that the local unit orders are considered (by the Tongan authorities) to be reasonable security instructions for the circumstances of Tonga.

The AVSEC Programme had been presented to the airport users, including the plaintiffs, at the airport facilitation committee meeting on 9 September 1994, mentioned above, which was only a few days before the present incident. The minutes of that meeting record the defendant’s stated objective in the programme, which is to enable it to meet to the maximum extent its (ICAO) obligation to safeguard international civil aviation against acts of unlawful interference. The Chief Airport Supervisor Mr Patolo, who has done a lot of work on the draft, said in evidence that it describes Tonga’s methods of compliance with the standards and recommended practices of Annex 17 (Appendix A) to the ICAO Convention. I have no doubt, and detected no dispute, that this programme, together with the Aerodrome Security Programme, arise from acceptance by the defendant of the safety and security protocols set out in the international documents. As pointed out by Counsel for the plaintiffs in opening, the defendant 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 are of the airport.” It undertook also to “[p]rovide adequate security lighting of aircraft parking and adjacent areas.”

At cl 3.3 that document noted that 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.”

In cl 7.1 of that document, “physical security measures” are defined, and “constant vigilance” 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”. There was considerable argument about the standard of care that was created by the international and the local documents, which I shall address later.

I turn now to the evidence of the events. The sequence of what occurred emerges particularly from the evidence given by the plaintiffs’ station manager, Mr Karalus, who was on the ground, and from that of the flight crew, Capt. TW Gilfillan and First Officer GM Dragicevich. The aircraft arrived and taxied to its blocks on Gate 2. That is the central position of three, on the open concrete apron. The apron is centrally situated in front of the terminal building. The aircraft was on an angle, perhaps 45 degrees to the terminal building, pointing towards the right hand end of the terminal (looking from the aircraft) and presenting to the terminal — and to the apron lights — its left hand side. There are four tall light towers for the apron, in a line on the terminal edge of the apron. Two only of those towers were lit for this turnaround, ie, the two central. Accepting the evidence of Mr Patolo, the chief airport supervisor, these two carry halogen lamps with a total output of 8,400 watts. The aircraft was on its blocks at 1:54am. Passengers descended the aircraft steps on the left side of the aircraft, the side nearer the terminal and the lights, and walked across the apron into the terminal. The captain also went into the terminal, then about 10 or 15 minutes after arrival, began his routine pre-flight exterior inspection of the aircraft.

He started in the left main wheel well, by turning on the switch to 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 wheels, tyres, wings, engines and the fuselage generally. He completed his walk-around by returning to the right-hand well, where he made similar checks and then turned off the switch, which is inside the well. He then went up the steps to the flight deck, joining the first officer who had not left the aircraft. After that, by 2:15am, 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 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.

By 2:22am 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 2:25am start up procedures commenced and at 2:29am 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 and approaching that the aircraft, as described above, slowed to about 5 knots, veered right, circled left and without slowing below 5 knots rolled down the runway towards its takeoff. It cleared the ground at 2:32am.

The Chief Airport Supervisor, Mr S Patolo, gave evidence that the apron lighting towers are 18 meters high. He said that, to meet ICAO requirements, the two outer masts carry four sets each of quartz halogen lamps totalling 2,800 watts and the centre two, six sets each, totalling 4,200 watts. They are all on the terminal edge of the apron. The apron is 70 meters wide and 120 meters 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 towers. Mr Karalus noted that the nearest of these was at least 35 meters from the aircraft, and that the far side of the aircraft, the starboard side where refuelling took place, was shadowed. He called it a deep shadow. He gave evidence 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 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 that covered much of the airport at that time grew to 20 meters from the edge of the apron. The aircraft captain also said that the shadow was a deep shadow.

It needs be noted at this point that the scrub and grass just mentioned was continuous at the western and northern sides of the runway. It grew from a 30 meter line parallel with the runway out to the perimeter fence and along the perimeter fence to within a short distance — said by Mr Karalus to be as little as 20 meters — from the apron. Because of the aircraft’s parking angle, it was closest to the right rear part of the aircraft, which was furthest from the terminal.

Speculating during re-examination about the time required for the stowaway to enter the starboard wheel-well, Mr Karalus referred back to his evidence about the timings. It does no harm to revisit in this context the details of the timing. Mr Karalus timed the aircraft on blocks at 1:45am. Passenger disembarkation began at about 1:55am, and re-embarkation began when the activities around the aircraft were mostly complete, ie, at 2:15am. The rear cargo hold door was closed at about that time. After this, the only security officer whom Mr Karalus recalled seeing 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, and the baggage was found in the forward hold. At about 2:22am 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 2:25am, and he made his visual check of the front and rear cargo hold doors and the fuel display panels. The aircraft left the blocks at about 2:29am. He suggested that the only times when a stowaway could have approached would have been (i) the period of about 3 minutes when the ground staff including himself were gathered at the forward hold searching for baggage ie, from about 2:15am, plus (ii) the following 7 or so minutes until 2:25am when he visually checked the hold doors and fuel display panels.

Capt Gilfillan speculated a longer period, ie, from the time he finished his walk-around until taxi. Mr Karalus was actually on the ground and in charge of the ground arrangements. His timing estimate is based on better knowledge, but there is not much in it. The period is in any event about the same, and the little extra time suggested by Capt Gilfillan is that part of the time during which the passengers were boarding before the search in the forward hold. On the longer view, it is still a period of no more than about 12 minutes. That is the period of time on which the plaintiffs’ claim (vis-à-vis the apron) focusses. This evidence of the plaintiffs’ witnesses is important, because it defines the time during which the defendant’s surveillance at the apron was, in the plaintiffs’ claim, negligent.

Throughout all this time the fire tender had been parked on the apron, with the crew on board. Mr Karalus differed from the fire officer and security guards who gave evidence, and said that from where the fire truck was placed, the crew inside could not have had good visibility. I however have not been able to see how it could be that their view of the aircraft and the people on the apron was not good, from either position.

Then there was the lighting. The plaintiffs’ witnesses gave evidence about deep shadow on the unlit (right) side of the aircraft. I have considered carefully what they said. I am satisfied that there was shadow, but there was sufficient light for the ground crews to do their routine work on the unlit side. Some witnesses agreed with Mr Karalus’ evidence of difficulty arising when one looked toward the far side of the apron, describing it as a “halo” effect. There was evidence that there had not been, and there never has been, complaint by the plaintiffs or anybody else that the ground staff had insufficient light for moving about on the right side, or for refuelling, or for external cargo and baggage handling, or for checking the closure of the cargo hold doors before giving the clearance to move. The evidence suggests that there has never been complaint that there was insufficient light for the captain’s exterior check of the aircraft, or for any of the other work which the plaintiffs’ employees were there to do. The lighting towers are permanent and are all on the terminal side of the apron. They seem to have been thought sufficient till now. The two closest towers were said by Mr Karalus to be at least 35 meters from the aircraft. The photographs show that they shine downwards from the edge of the apron, and although only the middle two were in use on 13 September 1994, there was no complaint in the evidence that the light cast was insufficient for any normal purpose associated with the turn-around. I have difficulty accepting the suggestion that there was deep shadow that made significantly easier a clandestine approach from the scrub at the rear — said by Mr Karalus to be only 20 meters from the edge of the apron — to the underside of the aircraft.

During the entire turn-around, Mr Karalus said, 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 is no dispute that the fire officers were on the apron and on duty.

The evidence of Mr Karalus is important for the security issues, because the safety of the aircraft was among his personal responsibilities. He was aware that not only the airport authorities but also 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 he impressed as being experienced and aware, both of the environment and of his responsibilities during the turnaround. He was off and on the apron constantly during the turn-around. Although for a time he was in and about the terminal, and for a 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 check, he checked the cargo doors and fuel display panels. Certainly in my estimate of this witness’s evidence, so long as he was on the apron, a heavily clad man on the apron carrying on his person a machete was bound to be seen.

I turn now to the evidence on this topic from the defendant’s witnesses, which was given by the refueller, the Chief Airport Supervisor, a number of the security officers and one of the fire officers. There was as well the independent expert Mr Armstrong. The refueller in reexamination stated that the period between the end of the pilot’s walk-around till departure was 10 to 15 minutes. In cross-examination, he 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 as the last thing he did before leaving the apron, and then he saw Mr Karalus waiting on the grass to signal the all-clear to the aircraft. In evidence-in-chief he stated there was a security guard walking around the apron, but did not specify when. Neither did he specify how long he had worked as a refueller, but he stated that from the years when he had done so, until his employment was terminated for unsatisfactory behaviour, he finds it impossible to accept that anyone could gain unauthorised access to the right-hand main landing gear wheel well without being detected, because there are lights in the compartment which enable him to see clearly any person who may have got in there. This statement must of course in the present case be read with the captain’s evidence that he turned off the wheel well light at the end of his inspection, ie, at the beginning of the period which I accept is the only time that access could have occurred.

The chief airport supervisor, Soane Patolo, was acting as airport manager at this time. What I have stated above about the lighting is his evidence. Further to that, he stated that the apron is well lit during night turn-arounds, and he said it is quite wrong to suggest that there is normally deep shadow on the apron and/or near the aircraft. He responded to the Air New Zealand incident of 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 others (identity card enforcement and more rigid enforcement by duty staff). He directed verbally 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 Mr Patolo described as a procedure, and he said the procedure had been in place since that time. He said that observance of it by the officer in charge had been required since then. On 11 September 1994 the officer in charge had been Falanisese Fiva.

Mr Fiva gave evidence that in 1994 he was a shift supervisor. On 13 September as shift supervisor he was in charge of the shift and there were twelve security guards on duty at the terminal. Ten of them had assigned security 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 airside 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, ie, on the land-side. Mr Fiva was 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 ensured the other guards were at their posts and performing their duties and, 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. He said he did this since about four years before 14 September 1994, and that he did it on 14 September. He said as well, that on that night, the fire truck followed the aircraft onto the apron as usual and, as usual, parked behind it at a spot indicated in evidence by one of the fire crew (below). All of this evidence was disputed by Mr Karalus (above), who added that he had very rarely seen people on the starboard side of the aircraft including security officers.

Also on duty was the assistant security officer Mr T Moeaki. Mr Moeaki, after finishing the screening of out-going passengers, had the duty of patrolling to check that other guards were in position. 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 and had a good view of the apron.

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, maintained the airport duty officer’s diary of all movements and events during the shift. He said that the nature of his job was that it was mobile, patrolling the airport terminal mainly on the airside. Like Mr Fiva, he supervised the other officers at the ten security positions, and he supervised Mr Fiva who was also on patrol. He said he remembered that on the night in question he did random checks on the other officers and 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, then went to the apron. He said he went around the aircraft at least twice, and then continued circulating to check the security officers at the other posts. He said he remembered seeing one of the flight crew walking around the aircraft. He said he remembered 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 said he saw no unauthorised person during the time he was on the apron. He mentioned the lighting, saying that though there was a shadow cast by the aircraft on one side, visibility was still very good.

The defendant’s aerodrome security programme stated that the:

“prime objective of the aviation security service is to prevent acts of unlawful interference against aviation by carrying out ... foot and mobile patrols for protection of civil aviation facilities, aircraft and equipment in the security area of the airport for the detection and apprehension of intruders or any occurrence which may be a threat to security and safety of aircraft operations” (cl 3.3.1).

Some of the defendant’s witnesses, in particular Messrs Patolo, Holi and Fiva, agreed that this called for security guard presence on the apron during a turn-around. They all said that this requirement in fact was met. 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. He pointed to the local unit orders of the security service, which did not require an apron guard, and the evidence of Messrs Karalus, Mokofisi, Gilfillan, Berking and Church. He examined the conflict of evidence in detail, but it needs to be said that, Mr Karalus and Capt Gilfillan excepted, these witnesses did not see the events of 14 September 1994. My conclusion after considering all of the relevant evidence is that the conflict does not establish the plaintiff’s contentions.

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. It is only the argument of the plaintiffs that they allowed an intruder to enter the aircraft wheel well that raises an inference that there were not enough of them there, or if there were they were not keeping a proper lookout. Against that, the facts presented to me for evaluation are that, of the twelve security guards overall, at least three had positions outside the terminal on the airside. There they were enabled to conduct general surveillance of the apron, one of them, however, for only the latter part of the turnaround; and that in addition two supervising officers patrolled the apron.

Of the fire service personnel on duty, one gave evidence, he was Tupou Fakatou. He drove the fire truck. His evidence of where the fire truck stood was disputed by Mr Karalus, but it 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 remembered the refueller’s actions. He said the refueller had parked on the starboard side, close to the wing and the wheel well. He said there was one guard patrolling the apron around the aeroplane, and three in front of the terminal. He said he saw Mr Fiva patrolling on the apron. He saw also the baggage handlers moving back and forth between the terminal and the cargo holds, which were on the same side of the aircraft as the refuelling. He said he saw Mr Karalus. In cross-examination he was adamant that he saw both Mr Fiva and another security guard, he did not know which one but he had been on the apron when Mr Fakatou came in the fire truck.

He said the apron was well lit, and he clearly identified the two operating light towers as the two that were central, ie, closest to the aircraft which was on the central parking stand. He said that 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.

There was other evidence about the security and surveillance at the apron in addition to what I have set out, and I have it all in mind when assessing my overall impressions. I have made assessments of the credibility of each of the relevant witnesses, and about the extent to which the evidence of each is acceptable in forming an overall picture of what occurred on the apron that night. I have kept those assessments out of the narrative till now, and they emerge in what follows.

One needs I think to try to imagine what is said by the plaintiffs to have occurred. Their claim is that the stowaway came from the scrub 20 meters or so from the edge of the apron at the rear or rear right of the aircraft, onto the apron, alongside the aircraft, one assumes on the far (right) side, until he reached the wing root between the fuselage and an engine. Once there he put his upper body into the wheel well and pulled himself up, and disappeared. Thereupon he found himself a position where he would be clear of the retracting wheels. The photographs show that the fuselage masks the body of an adjacent person from about the waist up. If there was nobody able to see, or nobody at the time looking, alongside the right side of the aircraft, the only persons with any chance at all of seeing this intrusive movement were those on the left of the aircraft centre line. However, the closer they were to the aircraft, the less likely they were to catch sight of the movement. 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.

The defendant, with some support from the evidence, contends strongly that the stowaway had opportunity at the threshold to watch unobserved and choose his moment, but he equally had opportunity at the apron, if he went there. Clearly he had had both opportunities for as long as he had been on the airport. I shall discuss under the next heading, below, the evidence about the time of entry to the airport. I can state here that there is no evidence that he was inside the perimeter for more than several hours, but I accept that in the time he was there he had had time to consider what he might do. If he were to board an aircraft he could choose the aircraft and how to board it. For boarding, he could choose the better place, and the best moment. At the apron he had the advantage of clear visibility and the leisure to pick his moment. He also had there the advantage of reflected light within the wheel well. It is inescapable that he needed light, to assist him find hand holds and a resting place (about which more later). Whatever light he had at the apron from the lighting towers, I conjecture that it must have been better than the reflected aircraft runway lights available at the threshold.

On that topic, the evidence about the range of the apron lights is not precise, but the evidence is clear that the lights were to ICAO standard. The impression I have formed is 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 lit distance therefore for the stowaway to cover to the wheel well, if he boarded at the apron, was not great. The evidence of one of the plaintiffs’ witnesses (Mr PP Knight, below) is that a person like the stowaway would have taken at the threshold about 16.5 seconds to run 80 meters. The distance at the apron must have been less, so that, if he ran, the time he needed to run up to the wheel well at the apron must be measured in seconds, and fewer than 16.5. But what evidence is there about that? There is only a conjecture, that running on the apron should have been unlikely, as that movement would have been so unusual as to attract attention. Perhaps one should postulate a rapid walk, but either way the time needed must have been measured in seconds.

I now state my conclusions of fact, which are based on all the considerations above and my assessments of the witnesses whom I found material:

(1) The security of the aircraft while it was on the apron was a joint responsibility undertaken and shared by the plaintiffs and the defendant. Each had adopted their own separate security programmes which were not in conflict, each being designed to ensure the safety of the aircraft and the people using it, during the time it was on the apron.

(2) The primary responsibility for physically ensuring that the aircraft was secure was undertaken by the defendant. It was the defendant that specifically intended to provide a safe environment, and provided a purpose-trained body of security guards. These employees of the defendant were the only people present who were at the apron, and elsewhere on the airport, for the purpose of keeping the aircraft and its people secure, who devoted their whole attention to the security of the aircraft on the apron. The employees of the plaintiffs at the apron and elsewhere in 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 at (g) above, were defined (above) as being to “be alert”, “make periodic checks”, etc.

(3) Nonetheless, the responsibility for security was shared, and the plaintiffs, on the facts, are not able to establish that security was the responsibility of the defendant alone. They had themselves assumed, in their own security programme, the (ICAO) basic responsibility for the security of the aircraft.

(4) The duties of the defendant’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 only of the shift supervisor and the senior security officer, 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 to me in the evidence.

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

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

(7) Present constantly throughout on the apron were the two fire officers, who remained in their truck. Present for most of the turn-around time there was at least one of the plaintiffs’ ground staff, but it is not possible to be more precise than that.

(8) The crucial time, during which the boarding by the stowaway must have occurred if 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.

(9) 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 and went up the steps into the aircraft. The refueller went up to the flight deck and returned to his equipment on the starboard side, then left. Mr Karalus and others came to the forward cargo hold, and were engaged in a search in that hold for baggage, then those concerned returned to the terminal. Mr Karalus went up the steps and returned. The first officer looked out of the cockpit window on the right side, on two occasions. The baggage trolley under one wing was taken away. Mr Karalus checked the exterior of the aircraft and signalled that it was ready. After that, any opportunity had gone.

(10) The number of people present around the aircraft at any one time during that period, except during boarding, was relatively small, each was there for an assigned task and 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 plaintiffs, all of whom had a duty to be alert for unauthorised persons on the apron.

(11) The stowaway at the time of boarding the aircraft was conspicuously dressed, wearing construction boots, many layers of clothing and a parka-like jacket over all, and he was carrying a machete. There was no evidence about the appearance of the machete, but that it was conspicuous in an airport is not disputed.

(12) For any person wishing to approach undetected the central parking position on which the aircraft stood at the time in question, cover was available up to the edge of the light cast by the halogen lamps. This cover was provided first by the darkness, which, outside the range of the halogen lights, was complete, especially to those looking towards it. It was provided also by the growth itself, which was sufficient to conceal a person up to a point 20 meters from the apron. The range of the lights is not stated in the evidence, but there is no evidence that the light reached the scrub.

From these conclusions of fact, and others yet to be drawn from the evidence about boarding at the threshold, I must reach a conclusion about whether the undetected boarding occurred during the final 12 or so minutes that the aircraft was stationary on the apron. At this point after considering these conclusions, I am able to say with confidence that boarding during that time is established in my mind by the evidence as a factual possibility, and has not been excluded by the evidence.

3. The Whole Question of Boarding by the Stowaway, and ‘the Threshold Theory’

In respect of access to the aircraft, the range of negligence allegations that are potentially causal shrinks if the stowaway actually boarded at the threshold, and lighting, security etc at the apron becomes irrelevant. The court therefore has either,

(a) to find that the stowaway boarded at the airport apron and decide whether the defendant was negligent for that to occur or,

(b) to find that the stowaway boarded at the runway threshold and decide whether the defendant was negligent for that to occur or,

(c) if it is not possible to determine where the stowaway boarded, to decide whether the defendant was negligent in not taking reasonable precautions to prevent it wherever it occurred.

As for the threshold, it is common ground that the aircraft was in continuous motion, turning 180 degrees for take-off without coming to a stop. The evidence of the two pilots was that the speed of the aircraft during this continuous manoeuvre did not drop below 5 knots.

The threshold theory was advanced by the defendant before the hearing and the plaintiffs called expert evidence to counter it. This evidence is essential, but by and large I shall avoid turning this judgment into a discussion on the boarding of moving jet aircraft.

The first of the plaintiffs’ independent expert witnesses on this topic was Mr PP Knight. Mr Knight was an impressive witness, but his qualifications were questioned by counsel for the defendant. His expertise and his experience are broad, and in the areas of electrical and electronic engineering, and instrumentation engineering. He has been self-employed in these fields since 1991. He holds a qualification in telecommunications engineering. I am bound to say that I accept the submission of counsel for the defendant that his evidence is closer in nature to argument than it is to expert evidence. Having said that, I found his evidence, both in chief and under cross-examination to be coherent, cohesive and authoritative in the areas which it traversed.

Mr Knight examined in great detail the evidence about the aircraft’s movements from the time it left the apron, and particularly while it was turning at the threshold. To this evidence he applied a scientific method and made what are essentially simple calculations that are easy for a lay person to follow. He drew certain conclusions about the threshold theory, which were fully reasoned and were well-illustrated by diagrams and photographs. These were his conclusions: first, approaching the aircraft from the rear was the only feasible option for the stowaway, and second, approaching the aircraft from the rear is theoretically possible, but would be extremely difficult.

In his opinion there was a very narrow window of opportunity during the turning manoeuvre, during which a person approaching from the rear must time his run. There were many difficulties which he postulated from the evidence about the movement of the aircraft. He stated that a person must withstand the jet blast and run very fast, or sprint, for 80 meters, (if able to run at 5 meters per second), following a critical trajectory in order to keep behind the aircraft as it turns, intercept it, then hoist himself into a moving wheel well in darkness, using unknown and very limited secure hand-holds. With only narrow ledges available, and hindered by equipment, pipes and hoses, he must find in the dark a secure place to rest in the middle, between the two open bays on top of a hydraulic reservoir and pump, and the pump motor. This would be after running 80 meters in 16.5 seconds. He would have at most 12 seconds from then to find a place and secure himself before application of take-off thrust, from the time he arrived under the open wheel bay. For the last part at least of his run he would have to run crouching because the fuselage at this point is the height of a person’s midriff above the runway.

The next independent expert witness called by the plaintiffs was Mr GA Oldfield. This witness was well qualified for opinions on this topic, being a pilot of over 8,000 flying hours, 24 years’ service in the RNZAF including 6 years as an aircraft accident investigator, and 19 years with Air New Zealand as a flight safety officer, safety manager and manager, safety and environment. While with Air New Zealand, he obtained qualifications in aviation safety and aircraft accident investigation. He is a published author on all aspects of aviation safety. He put before the court, and was cross-examined on, a coherent body of technical information about an aircraft of this precise type, fitted with engines of the same type as the aircraft in this case, the engines and the jet wash from the engines. He explained the intake danger area forward of each engine on this aircraft. He explained what jet wash is, what its components are, and what were its characteristics on this aircraft. He spoke about the thrust from a jet engine, at idle and under power. He set out in detail the velocities and temperatures of the jet wash from this aircraft at the different power settings mentioned by the flight crew in their evidence, and at different places behind the engines.

Mr Oldfield expressed his opinions with detailed reasons, supported by diagrams and tables. He stated that it is extremely unlikely that a person could physically approach the main undercarriage of the aircraft in this case and climb into the main wheel well during the 20 seconds which he calculated it took for the aircraft to turn at the threshold of the runway. Mr Oldfield agreed with Capt Gilfillan’s evidence that the time from slowing for the turn and increasing power for take-off was between 20 and 30 seconds, and that during this time the forward speed of the aircraft was 5-8 knots. Before application of full power, with the engines at or near idle, the jet blast behind them was approximately 110 kilometers per hour. As the aircraft lined up at the end of its turn, the increase to full power created two jet wash plumes, which effectively joined at the rear of the aircraft. The velocity of the plumes 29 meters behind the engines and 15 meters behind the aircraft was approximately 113 kph and at that distance the temperature was approximately 40 degrees Celsius. The lower edge of the wheel well he said was about 1 meter above the ground. Having run through the jet wash, a person would then have to get down to enter the wheel well, then pull himself into the well. He would then have to take a crouched, kneeling or sitting position on the keel beam among or on the equipment there, between the spaces to be occupied by the wheels. Further, he stated that the position of a person within the wheel well is very important and that, since the pilot did not become aware of his presence there, the stowaway in this case had positioned himself carefully on the keel of the aircraft between the two bays. In Mr Oldfield’s opinion, he would not have had time for that if he had entered during the turn at the threshold. To a lesser degree Mr Oldfield relied also on the facts noted by the pathologist Dr Potoi in her evidence. He said he was supported in his opinion that boarding in the present case did not occur at the threshold by the circumstances that there was minimal physical injury, and that the clothing was not tom or ripped and had no immediately apparent smell or other sign of contamination from fuel exhaust or exhaust sediment. One must remember as well that the stowaway carried with him into the wheel well a machete. A witness (Capt Berking) said it was found on the sill of the right wheel well after the body was removed.

I have assessed these two witnesses while they gave their evidence, while they were cross-examined, and while considering subsequently their oral and documentary evidence. I have no difficulty holding that their opinions are well substantiated by the reasons which they explained to the court, and I do so hold.

Nonetheless, it is I who have to make the decision.

To assist me balance the opinions I have just evaluated, I have the evidence of an independent expert called on behalf of the defendant. This was Mr RM Armstrong, a person who is also impressively qualified in matters of aviation security. Mr Armstrong did not specifically commit himself to a decision about where the stowaway boarded, but he was clearly against the apron theory. He commented (not correctly, but he had not heard the evidence), that the next place the aircraft halted its forward movement was at the threshold. He pointed out what he thought were relevant considerations. First, he said that from his own observations of another aircraft turn-around in January 1998, he had concluded that it would have been impossible for anybody to gain access to the aircraft during the turn-around, ie, on the apron. This was because of the lighting which was being used on that occasion, and because of the fact that all people whom he saw on the airport were wearing identifiable uniforms. He pointed out, and seemed strengthened in his opinions by this observation, that so far as the night in September 1994 is concerned, the persons on duty had all said they saw nobody, and that the captain had seen nobody in the wheel well during his walk-around.

I turn to consider the evidence. There is no dispute about the evidence of the captain and the first officer; the aircraft taxied via the taxiway from the apron and back-tracked on the runway to the threshold at about 30 knots. There it slowed, veered right then made a sweeping circular left turn at about and not less than 5 knots until it was lined up on the takeoff runway, then it continued without pausing to gain speed until it left the ground. It was relatively light, and left the ground relatively quickly. There can be no doubt from the evidence that if access occurred here, the stowaway performed an unusual and difficult feat. He was wearing several layers of clothing including boots, trousers and jeans. He had with him a machete, the dimensions and condition of which were not disclosed by the evidence. The aircraft was moving at speeds which did not fall lower than 5 knots, though one may walk for a time at that speed. The wheel well itself was in darkness. Access to it was not so low that a person might jump into it, rather it obliged any person entering to pull on handholds inside. The handholds were the fixed pieces of operating equipment with which the wheel recess was cluttered. A resting place inside was not readily available and had to be selected with care, in advance of retraction, in a position between the resting places of the retracted main wheels. The stowaway found such a place and avoided injury by the wheels when they retracted.

The aircraft was showing powerful lights to the front, and access to the wheel well could not have occurred frontally without risk of detection by the pilots, and without great and obvious danger of ingestion into an engine; access from behind the wings is prima facie more likely. Behind the wings were engine emissions. These were noisy, hot and forceful at any of the positions through which a person had to pass during that turning and lining-up manoeuvre. Whatever contaminants those emissions may contain, there was no trace of contaminants detectable by smell or the naked eye on the body or clothing of the stowaway at the time his clothing was removed, which Dr Potoi’s report shows was shortly after 11am local time in Samoa, five hours after the landing.

Mr Knight and Mr Oldfield addressed these facts in great detail. They wholly agreed in the opinion that threshold access was challenging, difficult and dangerous. At this point I can conclude that it is, in principle, less likely than access while the aircraft was stationary.

I have to take into account also the evidence of Mr Fangupo, and of Mr Pringle (about whom more below). The stowaway had been seen in the forest of Tupou College the day before the event, and on the day after it, a person-sized hole was discovered, cut in the airport perimeter fence near that spot and about opposite the end of the runway where the aircraft had turned. About six weeks later, a hideaway was discovered in the scrub on the airport. This was opposite the turning point, and just inside the heavy growth which grew to a line 30 meters from the runway’s edge. The photographs produced by both parties make it clear that the part of the perimeter fence where the hole was cut, and the part which ran from there towards the apron, are in a parallel clearing, about a vehicle width either side of the fence. The fence itself at the time was in a cleared line in scrub grass and trees about the height of a human being. On the inside, that clear space was the perimeter road. There is nothing about these facts which directly links the hole and the hideaway to the stowaway and there is nothing in the evidence which precludes the possibility of a person’s moving from that region of the airport to the apron area, particularly in the darkness of the night in question.

This perhaps favours the threshold theory. However, for either theory there is mostly inference, and really very little evidence. The evidence, as counsel for the defendant pointed out in submissions, is the evidence of the hole in the fence and of the hideaway, and the evidence of considerable activity on the apron in the few minutes after the captain’s walk-around inspection.

Against the theory, there is the evidence that favours the apron theory, discussed above. Against it as well are the opinions of Mr Knight and Mr Oldfield. Counsel for the defendant submitted, in detail, that these opinions do not stand up to scrutiny. I agree with what he said about Mr Knight’s evidence being more an argument than an exposition by an expert, but the argument was advanced on known facts and empirical principles. I do not accept his submission that Mr Oldfield’s opinions had no admissible basis in the evidence, and were of no value whatever. In assessing the likelihood of a threshold boarding, Mr Oldfield was guided to a considerable extent by the largely undisputed evidence of the flight crew and by his personal experience. It is true that he relied to a great extent as well on data supplied by the manufacturer of the aircraft which he could not substantiate himself. However nothing put to Mr Oldfield during his evidence created a basis for me to think that the manufacturer’s information about its products, some of it in its maintenance manuals, was unreliable. To the contrary, from what other source would he get reliable basic information about the aircraft?

Those factors lead in my view to the conclusion that threshold boarding is, ipso facto, not an attractive proposition. It cannot be ruled out as a complete impossibility, but it has much against it. If the apron is available on the evidence, then it clearly is to be preferred. If however the apron is, on the balance of probabilities, ruled out, then the parties accept that by inference the threshold is the only likely place. There is no room for any third conclusion. Neither is there room for making no finding. I have to make the best I can of the evidence.

About the apron theory, I adopt what I said above, where I reached a conclusion that boarding at the apron is established in my mind by the evidence as a factual possibility, which has not been excluded by the evidence.

After considering each option, I am forced to the conclusion that boarding at the apron is the inference that is favoured by the balance of probabilities. It seems unlikely, particularly in view of the impressive list of events that occurred during the relevant time, (which counsel addressed in closing submission, and most of which I have set out above). However, it is the more likely of the two, and no alternatives were allowed by the evidence which I heard.

After considering the evidence, I cannot bring myself to think it even probable that the heavily-clad man wearing construction boots and carrying a machete described in evidence got into the wheel well while the aircraft was making its 180-degree turn and/or during the subsequent rolling start. I first found it could have been the apron. After considering the alternative, I find it must have been the apron. So I conclude it was the apron.

Having come to that conclusion, I am bound to say that, as the plaintiff claims, it may not matter for present purposes where the stowaway boarded.

4. Security around the Airport Perimeter

A great deal was said about this in evidence and in submissions. It is good that it was so, because the thorough exploration of this topic led me to a clear state of mind about it.

First, the facts of the topic must be approached only in the light of the factual circumstances in the present case. It is not for this court to make factual pronouncements about security at airport perimeters generally. Second, the topic should be discussed only insofar as is necessary to decide the factual and legal issues raised by the plaintiffs in the pleadings, about whether the defendant negligently allowed this stowaway to board.

My deliberations are about whether the defendant had a duty of care to the plaintiffs to prevent the boarding that occurred. All of the ICAO protocols and the defendant’s security programmes that were mentioned in the pleadings, the evidence and the submissions must all be judged in the light of the reasonable likelihood of an event of this nature at this airport. From what I have heard and read, I am satisfied that nothing in those documents can create for the defendant, as defendant in the present action, any obligation to the plaintiffs in tort or otherwise to guard against an event not reasonably foreseeable. In other words, they cannot create any greater duty for the defendant than the law already provides for it as occupier of this particular international airport.

There was comment adverse to the defendant by witnesses for the plaintiffs about the condition of the perimeter fence. Some said it clearly did not meet the ICAO standard for such fencing. Among the witnesses, the expert witness Mr Anderson emphasised that the wire and post portion was far short of ICAO standards. He said that portion reduced the delay and detection capabilities of the fence, and by itself reduced to nil its deterrent capability.

The question I have to decide is, were the defendant’s actions or inaction in the matter of guarding the airport, as proved in the evidence of this case, reasonable and sufficient to meet the reasonable threat of the particular event that gave rise to the claim I am deciding? In particular, in respect of the fence, did the defendant negligently omit to do something which, if done, would have prevented the person concerned from entering the airport through a hole cut in a portion of the fence that was constructed to ICAO recommended standards?

I turn now to recount briefly the facts about the security that was provided by the defendant at the airport perimeter. I include here all my consideration of the topics that relate to this, ie, the fence itself, the patrols of the fence, the existence of scrub and grass inside the fence and outside. In doing this I have in mind the plaintiffs’ claims that the airport perimeter fencing was inadequate, that there were inadequate patrols of the perimeter, that there was unacceptable overgrown scrub on the airport, that there were risks from these facts including a risk of intruders on the airport, and, that the previous month there had been a serious breach of access to the controlled part of the airport, because of the inattentiveness of the defendant’s security staff.

The chief witnesses for the plaintiffs who gave evidence about this were Mr Karalus, Mr ‘Aho, Mr Tevita Fangupo, Mr Molisoni ‘Otukolo and the expert witness, Mr Anderson. Mr Karalus is very familiar with the airport. He said that the perimeter security fence is not complete, and that most of the south side and parts of the east side have no security fencing at all. From the evidence of defence witnesses, particularly Mr Patolo, the unfenced portion is 5.2 kilometers. The overall perimeter is 12 kilometers. As well, he said that in 1994 there was unmown undergrowth at the western end, particularly its north frontage, with the exception of a narrow strip adjacent to portions of the security fence. For most of the year, he said, the saafa grass and shrubs in that area were permitted to grow higher than the shoulder height of a person, except in the June-July dormant season, and could easily hide an animal or person from casual observation. These conditions were shown in photographs.

Mr ‘Aho’s evidence on this topic was about patrols. He said, as Mr Karalus had said, that sometimes he had seen an aviation security vehicle drive down the runway and back at about 50 or 60 kilometers per hour. Mr ‘Aho said this was required before every take-off and landing, by statute.

Mr Fangupo was a person who had encountered the person who was later to become stowaway, whom he knew, while that person was on the land of Tupou College, which is adjacent to the security fence. Mr Fangupo’s evidence was given orally at the hearing, from a statement which he had signed on 20 March 1998. Some other factual remarks by him are contained in another statement made on 27 March 1998 that was put in by the defendant as one of its witness statements. This witness was called actually by the plaintiffs, and the defendant did not raise any further facts from this other statement in cross-examination. Although this later statement was not referred to by either party during the witness’ evidence, I have referred to it to see if it might help without causing prejudice. In the later statement he gave the date of this encounter as 12 September 1994, while he was patrolling the plantation area of the college, where he was a student. After meeting and talking with the stowaway, he and his two companions went into the bushes from which the stowaway had come, which were near the airport perimeter fence. There they found a cooked pig, a cane knife, a bicycle and a cleared area which had a fireplace. In the later statement he added a fact not in his oral evidence, that when seen, the stowaway was wearing a pair of long camouflage trousers, and a light blue T-shirt over which was a long-sleeved light blue jacket and outside that a sleeveless greenish jacket. He subsequently heard of the aircraft incident, and the next day after that incident he went to look at the security fence near the place where he had spoken to the stowaway, and found a hole in the fence. This hole was shown in photographs. Those photographs showed grass growing on the airport side of the fence to about head height, but this witness said that at the time it had not been so high. He said he had patrolled the college land daily at that time and had never seen any foot patrols by the airport security officers.

Mr ‘Otukolo, an employee of the plaintiffs, said he had inspected the security fence in or about November 1997, on the north side of the runway which is the area described by the previous witness. He said it was in an area where the forest on the north side of the runway came right up to the fence, except for the track immediately outside the fence on which he was driving. From the evidence of the previous witness and of Mr Patolo I conclude that this was the forest or plantation of Tupou College. At a place in the northern perimeter fence, about 500 meters from the western end of the fence, he found a hole in the mesh that had been repaired with new or different wire, and ascertained from the previous witness that it was the hole that he had found in 1994.

Some factual evidence on this topic was given also by Mr Anderson, the plaintiffs’ expert witness. Mr Anderson confirmed that the defendant is a contracting state to the Chicago Convention, and has not given notice to ICAO of any differences between its practices and those international standards established by the Chicago Convention. He stated that a contracting state may depart from those standards only by giving such notice. The purpose of notice is to enable ICAO to notify other states and thus international operators, of those differences. He described the methods of compliance with the standards in the Chicago Convention and its Annexes as being “not exclusive, and contracting states may adopt other equally appropriate methods of compliance”. From the evidence of other witnesses, and the Convention document itself, I take his terms to mean that the standards are in fact recommended standards.

Mr Anderson gave a useful summary of some of the relevant procedures and measures which are set out in Annex 17, and which were discussed by other witnesses. He said that they include the establishment of security restricted areas at international aerodromes which are delineated by barriers sufficient to prevent inadvertent access and deter premeditated access. The barriers should, inter alia, define the areas to be protected, create a physical and psychological deterrent to persons attempting or contemplating unauthorised entry, and delay intrusion, enabling operating personnel to detect, interrogate and if necessary apprehend intruders. The emphases supplied are mine, because these key words became the subject of differences. It was the opinion of Mr Anderson, and the submission of the plaintiffs, that the defendant had failed to meet those standards as a matter of fact. It was the opinion of Mr Patolo and other defence witnesses, and the submission of the defendant, that they had in fact been met.

The defendant called a number of witnesses who gave evidence about what the defendant actually did about security at the perimeter. It called the independent expert mentioned above, Mr RM Armstrong, who gave evidence (inter alia) on the topics of the security fence or airport perimeter fencing. This witness pointed out the recommendation in the ICAO security manual, at page 1.4.44, paragraph 4.10.26 about security fencing:

“Where this cannot be achieved, priority should be given to fencing vulnerable points, working outwards until the perimeter protection is complete as called for in Annex 14 of the Chicago Convention.”

In the vicinity of that recommendation in the manual one may encounter many related provisions, such as 4.10.6, the prevent, deter and delay provision mentioned by Mr Anderson, above. As well there is, eg, 4.10.10 which recommends that obstructions such as trees should be cleared away from 3 meters within the fence line and for 3 meters without, wherever possible; and 4.10.11 which recommends that only metal fences be installed. There is an illustration of a recommended fence which seems similar to the one shown in the photographs of Fua’amotu airport. The evidence of this witness and of others made it clear to me that these provisions are indeed recommendations as they say, and that paragraphs 4.10.26, 4.10.10 and 4.10.11 (and others) were met to a not inconsiderable degree at Fua’amotu airport in September 1994. In particular, construction was of metal and according to an ICAO-recommended pattern, and was proceeding outward from the most-used area of the airport.

Among the other defence witnesses the more substantial were Mr Va’inga Palu the Secretary of Civil Aviation, Ms Fekita ‘Utoikamanu, Deputy National Authorising Officer in the Ministry of Foreign Affairs, and Mr Patolo (above). In addition, a brief of evidence (in reality a report written on 5 October 1994) was read on behalf of its author Mr Alister Pringle. It was Mr Pringle who, on 5 October 1994 while employed by the defendant, discovered within the airport, not far from the hole in the security fence, a “hide”, “where a person had obviously spent several hours in hiding”. It was in the long grass adjacent to the turning bay at the threshold of the runway which the aircraft had used on 13 September. It is not disputed that, as stated by Mr Pringle, the stowaway, if it were he, would have had from there undetected excellent observation of the turning bay; and that to travel from the hide to the turning bay he would have had to cover only “the minimum distance from the long grass at the western end of the runway”. If Mr Patolo’s evidence is accepted, that was a distance of 30 meters. It was Mr Pringle’s opinion, stated in the report, that it “appear[ed] certain that the stowaway ... [had] ... entered the undercarriage area at the turning bay on the western end of the runway prior to roll and take off and during the hours of darkness”. I respect that eye-witness opinion, but confess that on the evidence before me I cannot be so certain.

Ms ‘Utoikamanu gave detailed evidence of the financial and policy background to the security services the defendant provides at the airport. All capital projects in Tonga, including the upgrading of facilities at Fua’amotu airport, were at all relevant times financed by development funds. Development funds at the time came almost entirely from overseas, in the forms of loans and grants, and, she said, for such projects the Kingdom of Tonga is heavily dependant on the financial assistance of overseas governments and multinational aid agencies. She said that all the major capital installations at the airport have been funded by overseas government aid or other bilateral aid programmes. She gave details of the funding arrangements that had been entered into from time to time so that the perimeter fencing at the airport could be upgraded. She showed how, while the construction of the fencing had commenced in 1991, completion of the fencing could not have been possible by September 1994. She said that there has in fact been a contract signed in March 1998 for completion of the fence.

This evidence was expanded by Mr Palu, who went on to be the first of several witnesses to give evidence of security staff training.

It was Mr Patolo who gave the defendant’s detailed evidence about the security work actually done at the airport in 1994. He had day-to-day responsibility for the airport security services. He addressed in detail the security at the runways, the apron lighting, the scrub on the airport, the perimeter fence and security at the boundary, mobile patrols and the defendant’s detailed programmes for security over the whole of the airport.

About the runways, he said that threshold surveillance during take-offs was not provided. He did not think it reasonably necessary to guard aircraft at the threshold, because in the absence of terrorist threat, which has never existed in Tonga, the only threat to guard against was the possibility that a person might attempt to board the aircraft, at that point. Before the present incident he regarded that, he said, as a most unlikely event. About the scrub on the airport he said, with reference to photographs, that there were, and had been since he started in 1974, clear areas of mown grass on both sides of all movement areas including runways in accordance with ICAO specifications for non-precision approach, international operations. Beyond that — the main runway had 30 meters clear on each side — there was long grass, saafa and scrub. The scrub and saafa grass grow rapidly, and since a time before September 1994 the defendant has conducted controlled burning of the scrub on the southern side to ensure good visibility for the control tower towards the western threshold. He said that the security concern in funding applications had been the fencing and the scrub. As well as the ICAO clear areas, the defendant has maintained clear strips along the boundary fence and at both ends of the runway.

About the boundary fence, he said that it is 12 kilometers overall. The airport is roughly rectangular with the short sides being the eastern and western boundaries. Outside the fence on the eastern side there is a military camp and a public road. The southern boundary is bordered by farming land, producing yams, squash and other vegetables. The western boundary, the shortest, and about one kilometer of the northern boundary are bordered by the grounds of Tupou College, which are farmed and forested. The rest of the northern boundary faces one of the royal estates. The history of the fence is that construction to ICAO recommended standards was commenced in the late 1980’s, at the place where the need was greatest and in accordance with development funds made available for that purpose. That was around the then terminal building. The fence is of metal chain link (diagonal pattern) supported by steel posts. It is over two meters high, and along the top there are three strands of barbed wire, angled toward the land-side. After the present terminal building was constructed in the early 1990’s, funding for the airport was sought in respect of several projects, of which fencing was one. The funds were provided by the European Union, but that part allocated to fencing was not enough to complete the unfinished perimeter. There remained a 5.2 kilometer section on the southern and eastern boundaries, which Mr Patolo said is maintained by the defendant as stock-proof fencing, as and when the budget allows. More than a kilometer of this fence was upgraded as stock-proof fence, from two barbed-wire strands to four, in 1993 and 1994. It is the evidence of this witness and of Ms ‘Utoikamanu and of Mr Armstrong that shows me clearly that the recommendation in paragraph 4.10.26 of the security manual (above) is being met.

In 1994, he said, patrols were carried out around the boundary fence and elsewhere when the security officers were not in position for flights. The purpose intended for the fence by the defendant, he said, is to define the extent of the airport, to keep out wandering stock and to warn and deter people from entering. It is not able to prevent unauthorised entry by a determined person, much less a determined group of persons. The fence is relatively easy to breach, even though it is of ICAO recommended standard. It can be cut and climbed. In his opinion, even a regular patrol of the fence would not prevent entry to the airport.

There were patrols of the perimeter fence in 1994. A Land-Rover vehicle, funded by the European Union, patrolled the fence on a track just inside the fence. There were other patrols as well, particularly full aerodrome inspections on days of operations, when checks were made of the crash gates in the perimeter fence. The runway inspections mentioned by Mr ‘Aho were carried out before landings and take-offs, as well as by daily routine, but these were not security inspections.

In 1991, a New Zealand aviation security expert had recommended in a periodic review that once the EU vehicle became available, there should be security patrols of the airport including the perimeter roads every two hours. Mr Patolo said he had considered and rejected that recommendation as not warranted by the level of risk, or as a use of the limited budget available. However, he said, there were regular patrols, and he agreed in cross-examination that a form was completed by the security officers every time a patrol was done. He could not explain the defendant’s production in evidence of a file containing only 29 such report forms for the 290 days preceding 14 September 1994, except to say that it was a file that a lot of people handled.

It is Mr Patolo’s opinion that the level of security threat to civil aviation in Tonga is very low, but that the defendant should and does take all proper security measures appropriate to Tonga’s situation. I am required to comment on those opinions, and shall do so a little later. Among the measures factually taken by the defendant, he mentioned acceptance of the standards and recommendations for international civil aviation set out in Annex 17 to the Chicago Convention, particularly the recommendation that there should be a national civil aviation security programme, an airport security programme and contingency plans. He said that in July 1994 the Ministry of Civil Aviation had completed a written draft security programme in compliance with Annex 17. This is the document which was seen by Mr Karalus at the airport facilitation committee on 9 September 1994, the document referred to above as the AVSEC programme. It sets out the defendant’s security obligations and objectives. It describes the defendant’s compliance with the standards and recommended practices of Annex 17. The document has been developed and now awaits the approval of the Minister.

In order to implement the AVSEC programme, Mr Patolo said, the defendant has developed an aerodrome security programme for Fua’amotu international airport and, although not yet in operation it sets out, he said, what in reality happens at the airport and, presumably, what he would say was happening in September 1994.

Further to that, there are local unit orders, and in 1994 the edition in use was that issued in 1990. These set out the duties of aviation security staff in detail. There is also a document called Emergency Orders, which aims to ensure a co-ordinated and orderly response to any foreseeable emergency situation.

Mr Patolo pointed out a basic fact, that the defendant does operate Fua’amotu as an international airport, and does so by means of capital contributions from the international community, and does so in the knowledge that it has not yet had the funds to comply with all of its ICAO-recommended security obligations in respect of a fully-enclosing security fence. He said that the then Director of Civil Aviation was aware of that in 1994, but had no choice other than to continue operating the airport pending procurement of funding for full compliance with ICAO recommendations. From the documents referred to by Ms ‘Utoikamanu, it is clear that the Director was actively involved in acquiring those funds. Mr Patolo then made detailed factual responses to the detailed allegations of negligence made by the plaintiffs. Because they are factual, I refer to them here briefly as part of my summary of his evidence.

He saw the negligence alleged as falling under three heads: (i) insufficient measures to make the air-side/land-side boundary a deterrent to unauthorised access, (ii) insufficient measures to detect the presence of unauthorised persons on the air-side, and (iii) insufficient measures to make the apron more secure. About the first claim, his detailed comment amounted to this: the defendant has acted diligently and reasonably in its efforts to establish a security fence to the recommended international standards, those standards requiring for all airports world-wide only a fence which deters, not one which prevents. So far as the perimeter was in 1994 as yet unfenced to that standard, the fence was still reasonable for the purpose of deterrence, in that it was in place where most needed and was maintained, and was the best deterrent that could be built with the money then available. In respect of increased patrols, he thought that more patrols were a counsel of perfection, claimed by the plaintiffs in hindsight, and unrealistic as against the known level of risk. He noted that no specific function for the patrols had been mooted by the plaintiffs. If it were thought that they would be an added deterrent, he commented that there had been, until September 1994 no known attempt to breach the perimeter fence, other than by occasional stray animals at the stock fence.

On the topic of ICAO standards, it will do no harm to refer here again to the surveillance and guarding provisions in the ICAO security manual, which I mentioned under heading 2 above:

“4.7.11 One of the methods utilized to deter or detect individuals trying to obtain illegal access to aircraft is the use of frequent, irregularly timed patrols by security staff ... The use of patrol dogs can significantly increase the effectiveness of security patrols.

“4.7.17 Aircraft on runways and taxiways. Aircraft may be subject to attack while on runways and taxiways. Attackers could be positioned either outside the airport perimeter or they may have penetrated the perimeter and be positioned on the airport itself.

“4.7.18 to protect against such an incident and for general security purposed, security staff should patrol the entire airport and its environs on a frequent but irregular basis ...”

Two points arise for emphasis — first, the recommendation is for patrols that are irregular, and second, he recommendations must be read in the context of local conditions. Not everything in the ICAO security manual will apply. Aircraft under attack from outside the perimeter is not a likelihood for which the Fua’amotu security service has prepared itself, I understand. On the evidence that is not a departure from a reasonable standard.

In respect of the second and third claims, Mr Patolo mentioned his earlier evidence about the scrub and grass on the airport, and commented that until the present time, removal of that growth had got no further than being a desirable project, to be accomplished when funds were available. The funds available in the Ministry’s budget had been prioritised, and there had till September 1994 been nothing to suggest that removal was an urgent priority. He suggested that, even with the airport fully cleared, the incident in question could have occurred, with a person waiting in the growth plentifully available outside the perimeter fence until darkness covered him; whereupon he could have cut or scaled the security fence when the aircraft arrived and advanced to the apron. So far as the apron is concerned, he made the comments which I have noted above, and described it as well lit during night turn-arounds. He said it is quite wrong to suggest that there is normally deep shadow. He claimed that the normal provisions for security surveillance of the apron, as shown by the evidence, were adequate and reasonable, and that the arrangements actually in force on the night in question, as shown by the evidence and referred to elsewhere, were sufficient to preclude any reasonably foreseeable risk.

In respect of security guard training, he noted that no specified allegations of inadequacies had been made, and he relied on the extensive evidence, both in documents and by the defendant’s witnesses about the training, in order to say that it was reasonable and adequate.

There was much other evidence, both oral and documentary, about the security and surveillance around the airport perimeter in addition to what I have set out, and I have it all in mind when assessing my overall impressions. The documents are to be read at face value, in the context shown for them by the oral evidence. I have made assessments of the credibility of each of the relevant witnesses, and about the extent to which the evidence of each is acceptable in forming an overall picture of the part played by perimeter security in the incident which occurred on the airport that night. I have kept those assessments out of the narrative till now, and they emerge in what follows. My conclusions of fact, based on those assessments, are these:

(1) The perimeter fence was in September 1994 in the course of construction in accordance with a clear policy and in accordance with ICAO recommendations and as funds became available.

(2) In September 1994 the perimeter fence did not prevent access by people over the airport boundary, because it did not completely enclose the airport, but in the places where it was, it was as effective a deterrent as the ICAO recommendations intended it to be.

(3) In September 1994 the aviation security service frequently conducted a surveillance patrol of the perimeter fence by Land-Rover, around the track or road in the air-side of the fence. This patrol is not shown by the evidence to have been conducted daily, or by any regular standing order.

(4) At some time before the early hours of 14 September 1994, the stowaway gained access to the airport without authority. Somebody at about this time, and before 15 September, had cut a hole in the ICAO-standard perimeter fence near where the stowaway had previously been living, on the land of Tupou College which adjoins the airport. The aviation security service had no knowledge of his being in the vicinity, or reason to suspect that he would enter the airport. No sign was seen by any patrol, or by any person on the airport, of the stowaway. The hole which was cut in the perimeter fence was never seen by any regular patrol.

(5) There is no evidence for any decisive conclusion about when the hole was made in the fence. There is however evidence about a ‘hide’ later found within the airport nearby. The person who found it and saw it thought it had been occupied for several hours, and there is no other evidence about how long it had been there, only evidence that the stowaway was seen on nearby property the day before the night in question by Mr Fangupo. About when it was made, that may have been at any time around the time he was seen on 12 September, but from the evidence all I can conclude is that it was made before 15 September, when it was first seen. If it was made by the stowaway, it was made at least several hours before the departure of the plaintiffs’ aircraft at 2:32am on 14 September. There is no evidence by which to be more precise.

(6) Those being the probable facts, the questions whether the perimeter fence was or should have been completed to a state where it was an effective physical and psychological deterrent to persons attempting or contemplating unauthorised entry, or sufficient to delay intrusion, and whether there were sufficient security patrols of the fence, are not strongly material questions in the facts of the present case.

5. The part played by Scrub and Long Grass

There was comment adverse to the defendant by witnesses for the plaintiffs about the condition of the non-operational areas of the airport. The scrub and saafa grass clearly created a hazard in September 1994, and this was pointed out by the Secretary of Civil Aviation to the Minister in October. As I shall shortly mention, he wrote a memorandum and project proposal for removal of the heavy growth. It clearly was a cause for concern, for at least four good reasons such as fire risk which the Secretary set out. The defendant’s expert witness Mr RM Armstrong, stated that there is nothing in the ICAO guidance material that refers to the clearance of scrub on airports. Among the plaintiffs’ expert witnesses, Mr Anderson emphasised that the unmown vegetation created a fire risk and offered a habitat to birds which increased the risk of bird strikes, as well as offering concealment to a human being. These comments may be true, but I am not required to decide whether they are.

The question I have to decide is, were the defendant’s actions or inaction in the matter of guarding the airport, as proved in the evidence of this case, reasonable and sufficient to meet the reasonable threat of the particular event that gave rise to the claim I am deciding?

Mr Armstrong told in evidence of seven other airports in the south-west Pacific, including Manila and Singapore. Among the departures from ICAO recommendations at those airports he mentioned lack of national aviation security programmes at some, incomplete fences at others and in some places scrub and jungle growing up to and within the boundary.

The evidence about this which impresses me most is that of Mr Karalus and Mr Patolo, but several other witnesses gave relevant evidence. I accept the evidence of Mr Patolo, and am satisfied that there were clear areas of mown grass on either side of all movement areas including aprons, taxi-ways and runways in accordance with ICAO specifications for non-precision approach, international operations. I accept his evidence that this was a strip 30 meters wide. I find nonetheless that a large part of the airport on the night in question was covered by growth that was high enough to shield from sight a human being who chose to go inside it. This growth extended from the perimeter track inside the security fence at the point where Mr Fangupo found a hole in the metal chain link mesh to a point near the western end of the runway, adjacent to the turning bay at the western threshold. It contained within it near the threshold a ‘hide’ in which a person had stayed for more than a fleeting time. I have no reason to dispute the unchallenged evidence of Mr Pringle that it appeared “a person” had “spent several hours” in the ‘hide’, although I have wondered about the significance, if any, of the items found within it and listed by Mr Pringle. These included a watermelon, some used drinking coconuts, a jacket and a woven mat wrapped in plastic, which may indicate more than one visit to the hide, or more than one person, and perhaps an intention to stay, or to return some time. However, that is conjecture, and I prefer to find what solid ground there is in the unchallenged conclusion of Mr Pringle who saw and assessed the scene. The stowaway, if it was he, stayed only several hours. The time between the onset of darkness and the arrival of the plaintiffs’ aircraft at about 1:50am was several hours.

It is however necessary to point out, as counsel for the plaintiffs did in his closing submissions, that there is no evidence showing who occupied the ‘hide’. It was discovered only on 5 October 1994, and it was mostly the events of 14 September that suggested a link between it and the stowaway. Other circumstantial evidence was provided by Mr Fangupo’s sighting and the hole cut in the fence near the place of that sighting.

I am satisfied that this high growth was to be seen near the apron, stopping about 20 meters from it. It probably stretched unbroken between the fence the threshold and the apron, but I do not see great relevance in that for the present proceedings. It was available to the stowaway for cover should he have chosen to use it, and I accept he must have done so for getting to and staying in the ‘hide’, if it was he who used the ‘hide’. The growth was available to him also as cover for travelling, for example, from the hole in the chain mesh to the apron, simply by walking on the perimeter track. It would have been available to him also as cover should he have chosen to take cover in it near the apron. However, there is no evidence that he did use it for cover in these latter ways, or that he needed to do so. Had he been in that vicinity at the time in question he surely had adequate cover from the darkness itself, outside the range of the halogen lights. As cover, it seems to me that it may have been useful to the stowaway in the act of cutting a hole in the fence, if he did, and in keeping him hidden while he waited for the movements of aircraft turning for take-off at the western threshold. It may possibly have served his purpose as an intruder also by keeping the hole in the fence from general view, and thus from detection by the defendant.

However, it is not clear from the evidence when the hole was made. If it was made in the darkness of night on 13/14 September, the high growth has no relevance as cover, it was not needed. Neither is there any relevance in the frequency or thoroughness of perimeter patrols, which neither reason nor the evidence suggest should have taken place in darkness. Neither can I accept as reasonable the submission of the plaintiffs that the growth should have been patrolled, particularly near the threshold. What until 14 September suggested that to be a reasonable precaution? There was no known threat there, and according to the evidence there never had been. As for the ‘hide’, the only direct evidence given about how long anybody had occupied it suggests it had been occupied only a matter of hours. There is other, indirect evidence. It was Mr Fangupo who met the stowaway near the hole in the perimeter fence, ie near the ‘hide’, and in the unread statement he gave the date, 12 September. This witness found evidence of a lifestyle on the Tupou College side of the perimeter fence, a cooked pig etc. On the other hand, Mr Pringle later found items in the ‘hide’ on the airport side of the fence that apparently were not seen by Mr Fangupo. Perhaps they were already in the ‘hide’ on 12 September. Perhaps they were brought by other people. One cannot know on the evidence available.

As well, there was the clothing worn by the stowaway. When seen on 12 September, he was wearing what Mr Fangupo described, above. When found in the wheel well of the aircraft two days later, he was wearing clothes that were seen, at least as to the outer layer, by Capt ME Berking, and described by him in evidence. They were seen also, but not described in evidence, by the pathologist Dr Potoi and probably by the Polynesian Airlines’ Chief Executive Officer and General Manager Mr Gates. They are shown in two photographs which were taken under Mr Gates’ direction, and identified from those photographs by Dr Potoi. The stowaway was then wearing a blue denim jacket and outside that a green jacket, which fits the description given by Mr Fangupo, but the trousers that were shown being worn on the outside were not the camouflage trousers that he saw. Those trousers may have been acquired after the sighting by Mr Fangupo, or may have been already stored in the ‘hide’ if it existed then. There is no way of telling. The evidence does not lead to any firm conclusion. The only indicative suggestion, albeit three weeks after the event, is that of the eye-witness Mr Pringle, who thought the ‘hide’ had been occupied for several hours.

The evidence about the ‘hide’ being so inconclusive, it is difficult to see any relevance in the scrub and long grass for the purposes of the present action.. On the balance of probabilities, which is as far as the evidence goes, the events giving rise to the present action occurred largely or wholly under cover of darkness and not under cover of the growth on the airport. That is my conclusion under this head, and I so hold.

Before departing from this topic I must refer to some of the evidence of the Secretary for Civil Aviation, Mr Palu, about this topic and to documents that he wrote about it in October 1994. It is clear that within weeks of the incident in question the defendant was taking serious steps at high level to eradicate the growth of bush, scrub and saafa grass on the airport. In a memorandum to the Minister, the Secretary stated that “[t]he clearing of this growth is now of paramount importance, as it was recently used as a ‘hide’ by the person who later lost his life and who placed the safety of a Polynesian Airlines B737 and its passengers in great jeopardy, by stowing away in the aircraft’s wheel bay. It has now been proven beyond reasonable doubt that the person involved hid for a period in the tall grasses and also used it to mask his approach to the aircraft as it turned for takeoff at the end of the runway.” The Secretary then gave four further good reasons for having the growth eliminated, including fire and bird risks, and recommended that money be appropriated for the purpose. A project proposal was prepared, in which the first justification for the expenditure was stated to be the safety of aircraft and people using the airport and the obligations of the defendant that arise from the various Annexes to the ICAO Convention. The latter were said to address, inter alia, the acceptable standards for safe flight operations. The same four further matters were raised, in detail, as further justifications.

In forming my conclusions of fact, I had to give these admissions a primary place. They were in accord with the preliminary views of more than one other. Capt Gilfillan had much earlier suggested a threshold boarding. During the de-briefing held at Faleolo airport shortly after the landing (which was recorded), Capt Gilfillan recalled that he lined up the aircraft for take-off, he said “it was a rolling start so we didn’t actually stop — which might have given somebody time to hop into the wheel well”. Mr Pringle also, on 5 October after finding the ‘hide’, thought it had been used for a threshold boarding. These statements have all demanded of me a careful approach to a contrary conclusion. In the end I concluded that they are not evidence of fact, but opinions of fact on an issue that I have been charged with settling. I had for consideration a great deal more evidence than was available to any of the authors of the above words. After I had considered all the evidence which the parties marshalled before me at the trial, including those statements, I found that the conclusions to which I was driven were contrary to those early opinions.

I feel bound to make one other material observation. I have considered separately the state of the airport with its considerable area of unmown growth, to assess whether, on the assumption that the stowaway were present as a trespasser in daylight, it amounted to a breach of the defendant’s duties as an occupier, as pleaded. There were clearly unsatisfactory consequences arising from the presence of the growth, eg the hazard of fire, but those are not relevant to the facts of this case. The question for me is whether the growth was an act or omission of negligence that contributed to or caused, as a reasonably foreseeable consequence, the undetected boarding by the stowaway. The conclusion appeals to me very strongly that it did not, because the topic of reasonable expectation of what occurred was explored thoroughly, particularly in cross-examination of the witness Mr Armstrong. With that assistance and from subsequent consideration of the rest of the evidence, I feel sure that the concealed presence on the airport of a trespasser intending or likely to cause harm to persons or property was not something that the defendant had any reason to suspect or expect until it occurred.

For consistency and convenience, I re-state my relevant conclusion under this head, as follows. It is a conclusion of fact. On the balance of probabilities, which is as far as the evidence goes, the events giving rise to the plaintiffs’ claims which occurred in the vicinity of the perimeter fence and of the runway threshold, occurred largely or wholly under cover of darkness, outside the scope of mobile patrols, and not under cover of the growth on the airport. Under this head also, I hold that the growth on the airport of scrub and saafa grass were not a material contributing cause, for the same reasons.

6. Was Security Guard Training a Factor?

For the plaintiffs, the claim was made that training of the defendant’s security officers was inadequate, and that this contributed to the defendant’s failure in duty towards the plaintiffs. Of particular importance to the plaintiffs’ case is the evidence of Mr RC Anderson, an independent expert. As well as being impressively qualified in the field of airline security, Mr Anderson is an experienced presenter at aviation security seminars. Counsel for the plaintiff relied also on cross-examination of many of the defendant’s witnesses especially those directly responsible for the day-to-day airport security.

In Mr Anderson’s opinion, the officers in the aviation security service at Fua’amotu airport on 13 September 1994 were inadequately trained, in that the training that each had done before that date did not comply with the standards of Annex 17 to the Chicago Convention. He had considered the training record of each of these officers in turn. He illustrated his conclusion by reference to the lack of any increase in security surveillance after the Air New Zealand boarding incident of 13 August 1994, even though Mr Patolo had admitted in internal correspondence that the security service had been at fault.

On the other hand, the independent expert who gave evidence on behalf of the defendant Mr RM Armstrong, also assessed the training that had been received by the security officers before September 1994. He based himself on the training courses shown in evidence to have taken place, and which I shall shortly mention. In his opinion the degree of training that had been given was reasonable.

I noted that neither party isolated this topic for special emphasis in closing submissions. In my opinion, rightly so. There was not much in it. I have studied the folder of material on the topic of training which was put in by counsel for the defendant, which indicates and gives some details about what the defendant has done in this area since 1991. I have considered the answers of the various witnesses to questions designed to explore this topic. It appears to me that in 1991, when a security review was conducted by an aviation security consultant from New Zealand, there was a demonstrated need for more discipline and training in the airport security force. This was addressed by a basic training course held in conjunction with the review made in September of that year. The need for basic training of all officers before commencing duty was emphasised in the report, and plainly the standard of performance reflected in the review needed improvement.

A refresher course for the aviation security service was given in August 1993 by another New Zealand consultant. It had the object of better enabling the security personnel to take preventative measures in accordance with local approved programmes, a healthy emphasis in my view. In October 1993 two representatives from Tonga attended an aviation security seminar in Nadi Fiji which was addressed by the aviation security expert Mr Anderson. In November 1993 there was one individual attendance by the Ministry’s principal civil aviation officer at an ICAO aviation security seminar in Auckland New Zealand. In January 1994 Mr Patolo and one other attended a national civil aviation security workshop in Penang.

I feel bound to conclude that I cannot see in the evidence any conspicuous failure to meet training standards that are reasonable in the circumstances of this airport, and the 1991 and 1993 training courses show that by September 1994 there had been a realistic attempt to rise to ICAO standards in respect of training. I certainly see in the evidence no failure in training that has been shown in the evidence or in the submissions to have contributed to, or to have caused, in any definable material way the boarding by the stowaway which occurred on 13 September 1994.

The Law

1. The Duty of Care

The plaintiffs claim that, as occupier of the airport, the defendant owed a duty of care which included a duty to provide reasonable security and protection to all users of the airport, including the plaintiffs. They rely primarily on the general duty, both at common law and under the Occupiers’ Liability Act, to take care to prevent damage from danger about which the occupier knows or should know. This duty is admitted by the defendant, but the defendant pleads that, neither as occupier under the 1957 Act nor at common law nor at all, did it owe any duty to take steps to prevent damage to the property of its invitees or licensees (including aircraft operators like the plaintiffs) by lawful or unlawful acts of a third party.

The plaintiffs submit that this general duty of care included a duty to provide reasonable security and protection to users of the airport, particularly taking into account the Convention on International Aviation of 7 December 1944 (“The Chicago Convention”), s 2(2) of the Occupiers’ Liability Act 1957 (UK) and Pt V of the Civil Aviation Act 1990. Reasonable security in the present case, they contend, was airport security as described in the Chicago Convention and in the defendant’s own aviation security programmes. A failure by an airport occupier to provide that sort of security, in their submission, presents a self-evident and foreseeable risk of damage to aircraft, persons and property.

In particular, the plaintiffs’ claims of negligence are that (1) the land-side/airside boundary was inadequate, in that the perimeter was not fully fenced with fencing of ICAO standard, there was inside the airport from close to the fence considerable scrub and long grass, and there were inadequate patrols; and that (2) the security at the airport apron was inadequate.

The defendant contends that to establish liability in negligence, the plaintiffs must show that it owed them a duty to avoid causing the type of loss alleged, that it was in breach of that duty and that the breach of duty was the cause of the loss that is alleged. It acknowledges a duty to all visitors to the airport, to take such care as in all the circumstances of the case was reasonable to see that the visitor would be reasonably safe in using the premises for the purposes of their invitation or permission to be there. However, it pleads that it had no duty to take steps to prevent damage caused to such persons by a third party. It submits that the governing principle in both England and Tonga is that:

“In addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it just, fair and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other” (per Lord Bridge in Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC 605; [1990] 1 All ER 568).

This dictum is at pp 617-8 of the reported judgement, and it is as well to pause here to continue the citation. His Lordship continued:

“But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes.”

In counsel’s submission, under the law of occupiers’ liability as under the law of negligence generally, an occupier owes no duty to take care to prevent third parties from causing damage, unless they come within certain identified situations. In the defendant’s submission none of those situations arose in the present case. For the proposition that there is no recognised duty to prevent third parties from causing damage, the defendant relies upon Smith v Littlewoods Organisation Ltd [1987] UKHL 3; [1987] AC 241; [1987] 1 All ER 710, reasoning further on that authority that this is because the common law does not normally impose liability for pure omissions, and/or because it is not easy to conclude in such cases that the damage was reasonably foreseeable, ie, was “the very kind of thing that is likely to happen” (from Lord Mackay at p 260A-261G).

The crux of the defence, as stated in counsel’s opening statement, is that the defendant was obliged to take reasonable precautions, to preclude foreseeable risks. It could not however be held liable for the failure pleaded in some detail by the plaintiffs, ie, for not preventing the act of the stowaway, because he was an independent third party using its premises for a rare and unreasonable purpose. It could not be held liable, in counsel’s submission, unless the plaintiffs were to show that the stowaway’s act was “the very thing that [was] likely to happen”.

In the defendant’s submission, the relevant duty would be owed only if a reasonable person in the position of the defendant was bound to anticipate, as “the very kind of thing that was likely to happen”, that a stowaway might enter a wheel well of an aircraft in transit and thus cause a malfunction of the landing gear. Counsel for the defendant submits that the Chicago Convention itself, upon which the plaintiffs rely, adopts the same standard as the common law when it states, at paragraph 4.1.5 of Annex 17 (below) that:

“Each Contracting State shall establish measures to safeguard aircraft on the ground when a well founded suspicion exists that aircraft may be attacked while on the ground ... “

The plaintiffs in their submissions, referred to below, do not disagree with that statement by the defendant of the law, but they submit it applies to the acts of third parties. They say it entirely fits the facts of this case. They point to the evidence of an attempt at stowing away only one month previously, and the evidence of the defendant’s reaction to that by ordering additional security measures. Nonetheless, they go further and contend for a wider duty of care, distinguishing the Littlewoods case on five grounds, which I have set out above, ie, the acknowledgement by the defendant of a duty of care, the plaintiffs’ reliance upon the defendant’s undertakings and performance of security services, the fact that a fee was charged, the obviousness of the risk in the circumstances and the defendant’s actual knowledge of certain security inadequacies.

In respect of damage by third parties, the plaintiffs submit that both a government and a private citizen may be held liable for damage for injury caused by the criminal act of a third party in the circumstances of the present case. They claim that the defendant had a duty to take such care as in the circumstances was reasonable to prevent actions by others which were likely to cause damage to the plaintiffs. They rely upon Home Office v Dorset Yacht Co Ltd [1970] UKHL 2; [1970] AC 1004; [1970] 2 All ER 294, in which the Home Office was held liable for damage caused by detainees who had escaped from detention. It was held (per Lord Morris, at p 1039A-B) that the duty of care owed by the Home Office “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 other party]”. All that is required for the duty in the present case, as counsel submitted in his closing address, is the reasonableness of foreseeing damage to users of the airport, such as the plaintiffs, by persons trespassing on the airport.

Accordingly, the plaintiffs argue that the defendant’s duty to prevent damage by third parties extended to provision of secure premises. In this argument, they come close to adopting the statement of the duty of care for which the defendant contends. Citing a number of interesting cases from Canada, Australia and England, counsel for the plaintiffs noted that liability to provide security for premises had been imposed by the Courts upon the occupier despite the fact that the injury complained of had been caused directly by a third party or an animal.

The cases relied on for this point included Stansbie v Troman [1948] 2 KB 48; [1948] 1 All ER 599 (CA). This was a case of a duty of care owed by an invitee to an occupier, which was held to arise in their contractual relationship. It is thus not on all fours but it does illustrate, in a neat judgement, that a person may negligently give occasion for mischievous activity by a stranger and still avoid liability for injury by the stranger to another; but not in the facts of a case where “the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that happened”(Tucker LJ, at p 52). Counsel for the plaintiffs pointed out that in this, and in the other cases which he cited, the conduct of the mischievous third party/animal was not a novus actus which excused a liable party, but rather was the very thing that the occupier had had a duty to guard against. He cited Lord Reid in Home Office v Dorset Yacht Co Ltd (above) at p 1030:

“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”.

On behalf of the defendant, counsel characterised the distinction between the parties’ positions by distinguishing Littlewoods and the present case from Dorset Yachts. In the latter, in his submission, the taking of the yacht by the boys upon their escape was a foreseeable event, and with it the risk of damage; in the present case, as in Littlewoods, the risk of a stowaway in a wheel well, as with the risk of a fire set by intruders, was in counsel’s words ‘seriously implausible’.

From the authorities cited to me by both parties, 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 duty in respect of third parties is thus narrower than the general duty of guarding against reasonably foreseeable injury or damage to visitors.

It is the plaintiffs’ case that the defendant had been obliged by legal principle (reasonableness and foreseeability), and had failed, to provide as security measures, (a) a land-side/air-side boundary of a certain standard, (b) patrols at that boundary of a certain standard, and (c) patrols at the apron of a certain standard. This obligation arose in their submission because, from a failure by an airport occupier to provide reasonable security a clear risk of damage to aircraft and to property and injury to persons is ‘self-evident and foreseeable’.

Both parties, in the addresses of counsel, emphasised foreseeability in arguing for and against the plaintiffs’ claims. The difference between the parties, as identified by counsel for the plaintiffs in his closing address, is that the defendant focussed on the foreseeability of the stowing-away that actually occurred while the plaintiffs focussed on the foreseeability of damage or injury in general.

The defendant asked, what else could it have done, and argued that the act of the stowaway was wildly unpredictable. The plaintiffs replied that not only was it predictable; it had in a way been predicted by a recent similar event which had been acknowledged by the defendant at the time, by additional security measures.

Both parties in their submissions addressed the evidence for all the various considerations, some of which I have referred to above, eg the opinions of the expert witnesses about the foreseeability of what occurred. They addressed also some matters which I have not yet mentioned, eg, the incidence of stowing-away on international aircraft, and of stowing-away in wheel wells in particular. On that topic, there was what counsel for the plaintiffs called some anecdotal evidence from four witnesses about earlier stowings-away in Tonga, perhaps during the 60’s; I did not think that amounted to much. In addition, he pointed to the 13 August incident. He pointed too, to some interesting pages from the Internet which counsel had put in, about recent stowaway cases. He reminded me of the defendant’s expert witness 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 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.”

He relied also on his cross-examination of Mr Armstrong as establishing that fertile grounds exist in Tonga, encouraging young Tongans to stow away in order to gain overseas opportunities. I should comment now, in case it is later overlooked, that none of this evidence and none of the submissions 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. Since the hearing, I have considered carefully all of those submissions and that evidence, and I have not changed my mind.

Counsel for the defendant relied on the evidence of the plaintiffs, who themselves gave no evidence of foreseeing what occurred as the very kind of thing that was likely to happen. The evidence which they did give on this topic, in his submission, indicates that they, and indeed other aircraft operators using Fua’amotu airport, had neither noted such a risk nor sought any precautions against it.

2. Breach of Statutory Duty

As I noted at the outset, counsel for both parties in argument dealt with the common law duties and the statutory duties as being in law the same. The plaintiff acknowledges that the distinction is not marked, although the common law claim is wider in scope.

3. The Standard of Care

The plaintiffs’ contention is that the standard of the defendant’s obligation to provide reasonable security and protection is the standard set out in the Chicago Convention, particularly Annex 17 of the Convention, and in the International Civil Aviation Organisation (ICAO) Security Manual, Volume III, pp l029 et seq. In their submission, the defendant’s aviation security programmes purported to acknowledge this standard of care. They highlight certain parts of the Aerodrome Security Service Programme for Fua’amotu, International Airport and the Draft National Aviation Security (AVSEC) Programme.

In advancing this as the standard, counsel submits that the relevant environment for assessing the appropriate standard is the importance of security to international aviation and the significant damage which might be caused by a breach of the duty of care. They rely as well on the fact that the defendant itself has purported to adopt and apply the safety and security protocols which, they submit, are accepted internationally as the standard of care for international airport operators.

In acting as it had, counsel for the plaintiffs submits, the defendant had put itself in the same position as the landlord in Allison v Rank City Wall Canada Ltd (1984) 6 DLR (4th) 144; (1984) 29 CCLT 50, in which a plaintiff had been attacked and injured in her apartment carpark after the occupier had assured her that it was a safe carpark. The court in that case held that the occupier should have taken steps to prevent the assault, which had been reasonably foreseeable. Instead, the plaintiff had received no more than certain assurances which she had accepted and upon which she had acted. The court there held that in the circumstances a high obligation had become fixed on the landlord.

Responding to a definition of the Security Manual term “unlawful interference” which was proposed in evidence by the defendant’s expert witness Mr Armstrong, counsel for the plaintiff argued that it included the effect exerted by the body of the stowaway in the present case. In his submission, the interference caused to the aircraft by the body was no different from interference with the landing gear caused in any other way by the stowaway in the course of his illegal act. In this way, he argued that the ICAO standard was the one to apply, and that the defendant was in breach of it.

Much of the evidence of the plaintiffs’ expert witness Mr Anderson, was directed towards establishing that, as a matter of fact, the standards of security at Fua’amotu airport were lower than the standards of the ICAO documents. The plaintiffs’ case throughout is that this factual failure to meet those standards is a legal failure to meet the standards of the law of negligence, and thus a breach of duty to the plaintiffs.

In response, counsel for the defendant submits that the duty of care is not an absolute duty to prevent harm, but a duty to take reasonable precautions against foreseeable harm. The defendant contends that the plaintiffs are wrong in pleading that the defendant was in breach of a duty in “failing to prevent” what occurred, and in “failing to detect” the trespasser. The defendant’s duty in its submission, was a duty to take reasonable precautions. It contends that the court must be concerned with what were the reasonable precautions required in the circumstances of this airport, to prevent damage of the type claimed, and in what respects if any the defendant failed to take those precautions. To that it adds that the court must further be concerned to enquire whether a failure by the defendant was a cause of the damages claimed.

The defendant next, through counsel, contends that the standard, ie what are reasonable security precautions, must be assessed against the level of the security threat. The key criterion, counsel submits, is reasonableness in all of the circumstances, so that the plaintiffs must show that the defendant failed to take some precaution which any ordinary competent airport operator would have taken in the circumstances of Fua’amotu airport. Counsel suggests that the level of threat at, eg London Heathrow makes it reasonable to adopt there a higher standard of security precautions than at, eg Fua’amotu. He submitted, by reference to the evidence, that this principle is illustrated all over the Pacific, where airports both international and domestic operate without full ICAO perimeter fencing and/or patrols, without any suggestion that their security is, in their circumstances, not reasonably adequate. By contrast he submits, security at that level at major international airports would clearly be inadequate. He points to the evidence that the security threat at Fua’amotu is low. By reference to Clerk & Lindsell 17^th ed, # 17-135 & 136, he submits that the evidence of common practice at airports of low security risk may be evidence of the required standard of care, and that standards by professional and/or international bodies may also be evidence of the standard. However, he submits, promulgated standards as evidence may become equivocal if there is also evidence of common non-compliance. Thus, in the defendant’s contention, the ICAO standards cannot be the decider of what was a reasonable standard of security for the defendant to adopt at Fua’amotu.

Instead, so the submission goes, reasonableness must be a relevant factor in the standard. Reasonableness, that is, in the situation of Tonga, but taking account also of the broader scene around Tonga. Counsel pointed to the evidence of the security threat at South Pacific airports generally, and of the level of security measures taken at those airports. Common practice in similar situations must he submits be a factor. The degree of foreseeability must in his submission also be a factor. International standards are not to be left out either, in his submission, but in applying the law of negligence, the standards of the ICAO recommendations cannot be an absolute as the plaintiffs contend. In the defendant’s contention, those ICAO standards can be no more than one relevant factor, the key criterion being the factor of reasonableness. Counsel cited Lord Dunedin in Fardon v Harcourt-Rivington (1932) 146 LT 391, as quoted in Clerk & Lindsell (above) at #7-127:

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

In summary then; for foreseeability, the plaintiffs rely upon three earlier incidents of unauthorised intrusion onto the air-side of Tongan airports, one of which resulted in damage to private property on the air-side. Two of these were said to have occurred in early 1994, but apart from an internal memorandum to the officers in charge of the Kingdom’s three main aerodromes there was no evidence about them and no evidence of what occurred. The third was only a month before the present incident, and had included an attempt to enter a wheel well of a passenger aircraft. They submit that unauthorised access as a result of inadequate security at the airport, with damage caused by the intruder, was reasonably foreseeable. Not only that, they rely upon a document in which the then director of civil aviation, after the third incident, graphically foresaw some of the consequences of a wheel well stowaway.

For causation, the plaintiffs rely upon the defendant’s alleged negligence in allowing the stowaway to enter the airport, and to board the aircraft, wherever these occurred. The plaintiffs have undertaken to prove that. They claim in particular that there was inadequate perimeter and air-side security, inadequate security presence at the apron, and/or an inadequate lookout by the security personnel on the apron.

The defendant says that the damage claimed is unintentional damage caused involuntarily by the stowaway. It says it took all reasonable precautions for the plaintiffs, and that it did not owe a duty to the plaintiffs to prevent what occurred. It would have had the claimed duty, it says, only if a reasonable person in its position was bound to anticipate such an event and such consequences as probable, ie as being the very kind of thing which was likely to happen. It says that the prescience of the then director of civil aviation, about the consequences for a stowaway, did not show that it was reasonable for the defendant to anticipate a stowing away and a consequent wheel malfunction.

4. Causation and 5. Damages

In closing submissions, counsel for the plaintiffs submitted that the stowaway was able to access the air-side undetected, remain undetected on the airside for at least several hours, access the apron undetected, and access the wheel well undetected. This in his submission was a natural and probable result of the defendant’s failure to have any security measure in force which could have detected the stowaway at any of those points. Accordingly, he submitted, the defendant’s negligence was the direct and legal cause of the plaintiffs damages. The defendant’s position on this is, I think, clearly set out above.

The Decision

It needs be said that the preparation and presentation of this case by counsel for both parties, and by the people assisting them, has left nothing out. All witness statements, documents and copies of authorities relied upon have been supplied to me, most of them indexed and tabulated. Nothing remained for the court but to consider the evidence, the exhaustive range of documents, the submissions and the authorities, all of which have been provided. Presentation of both cases was succinct and the issues are made admirably clear. I was given an impressive array of information, both factual and legal. As I think is already apparent, I have not found it necessary to set out everything which counsel put before me, but all has been considered in the decision of what to omit.

The defendant’s expert witness Mr RM Armstrong expressed the view that, taking into consideration the security standards of international airports in the Pacific, Fua’amotu, airport has a reasonable standard of security infrastructure and control. In his opinion, the security precautions taken generally at Fua’amotu airport are adequate, his judgement being made by the standard of the ordinary competent airport operator in the same circumstances as Tonga. It is for me to reach my own opinion; however he has pointed to the test I have to apply, as counsel for the plaintiffs agreed in his closing submissions when he addressed the topic “Regionalism”.

It has seemed to me throughout, and what I have heard during this trial has, after consideration, confirmed my view, that 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.

1. MY Factual Conclusions

So far as the facts are concerned, the plaintiffs’ case is that the stowaway boarded the aircraft as a result of the defendant’s failure to provide proper security. I make the following finding. 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.

I can begin with a summary of my major findings of fact. I have decided:

(1) that the state of the perimeter fence was not a contributing cause to the boarding by the stowaway, and was thus for the purposes of this action, not material. For completeness, that it was in any event reasonable compliance with the ICAO recommended standards, in that it was being constructed according to those standards and developed as resources allowed in accordance with ICAO guidelines.

(2) that the patrols of the perimeter fence were not a contributing cause to the boarding by the stowaway, and were thus for the purposes of this action, not material. For completeness, that they were in any event carried out frequently as part of general surveillance of the airport without clear evidence of how often.

(3) that the state of the growth on the airport was not a contributing cause to the boarding by the stowaway, except inasmuch as it may have allowed him to shelter in a ‘hide’, but the evidence about that is inconclusive. In any event, most probably the stowaway did not use the ‘hide’ or the growth for concealment in aid of his boarding the aircraft, because he was acting under cover of darkness.

(4) that no deficiency in training is shown to have contributed in any material way or caused the boarding by the stowaway. For completeness, that the training of the security officers up to September 1994 was in the circumstances reasonable.

(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 defendant 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 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.

2. The Duty of Care, Breach of Statutory Duty, and The Standard of Care

The principles for the claim of breach of statutory duty are included in what I shall say about the duty of care, and for the present purposes, the standard of care is included here as well.

From the time that the hearing of this action finished, I have given the issues, particularly the claims and submissions about the duty of care, careful consideration. On the topics of the duty of care and the standard of care I have read counsels’ submissions and many of the authorities upon which each party relies, many times.

The outcome of the legal argument advanced by the parties is governed by the authorities to which counsel referred me. I remind myself that negligence in the law of torts and in cases under the Occupiers’ Liability Act 1957 has three elements: duty, breach and resultant loss. The law in relation to negligence is a growing body of principle, not a fixed and mathematical rule. For that reason alone, it is necessary that one read not merely the dicta cited as authoritative principles, but the whole context of those dicta.

The parties distinguish and rely severally upon Smith v Littlewoods Organisation Ltd [1987] UKHL 3; [1987] AC 241; [1987] 1 All ER 710 and Home Office v Dorset Yacht Co Ltd [1970] UKHL 2; [1970] AC 1004; [1970] 2 All ER 294, (inter alia). Yet it should be said that these two cases are part of the attempt by the Courts to develop one unified body of law. It is the facts that cause the differences. As invited by counsels’ submissions, by reference to the authorities which they cited, I have traced the recent utterances by the relevant courts of high authority that bear upon the facts of the present case. There is much that could be said, from and about those dicta, but for present purposes it can, I hope, be reduced. From among the cases referred to by counsel, it seems to me that the developing line of authority that governs this case might commence with the judgments of the House of Lords in Bolton v Stone [1951] UKHL 2; [1951] AC 850; [1951] 1 All ER 1078. That is the case where a cricket ball was hit out of a cricket ground and severely injured a person standing on the roadway. In that case Lord Reid said (at pp 864-5) that statements of the law of negligence must be read in the light of the facts of the particular case. He also said:

“This case therefore sharply raises the question what is the nature and extent of the duty of a person who promotes on his land operations which may cause damage to persons on an adjoining highway? Is it that he must not carry out or permit an operation which he knows or ought to know clearly can cause such damage, however improbable that result may be, or is it that he is only bound to take into account the possibility of such damage if such damage is a likely or probable consequence of what he does or permits, or if the risk of damage is such that a reasonable man; careful of the safety of his neighbour, would regard that risk as material?

... I think that reasonable men do in fact take into account the degree of risk and do not act on a bare possibility as they would if the risk were more substantial ...

And at p 866:

... Once a ball has been driven onto a road ... there is clearly a risk that another will follow ... (and) that someone may be injured. On the theory that it is foreseeability alone that matters it would be irrelevant to consider how often a ball might be expected to land in the road and it would not matter whether the road was the busiest street, or the, quietest country lane; the only difference between these cases is in the degree of risk.

And at p 867:

... In my judgment the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger.

In considering that matter I think it would be right to take into account not only how remote is the chance that a person might be struck, but also how serious the consequences are likely to be if a person is struck; but I do not think that it would be right to take into account the difficulty of remedial measures ...”

Sixteen years later, the Privy Council decided Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1; [1967] 1 AC 617; [1966] 2 All ER 709 (PC). That was a case where oil was ignited when that was known to be an extremely unlikely thing, shown however by the events to be not impossible. Lord Reid had occasion to comment upon the Bolton case. There is much in the judgment of Lord Reid that is of interest for the present case, but I restrict myself. About Bolton, he said (at pp 642-3):

“What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”

He then went on to say, in the circumstances of the case being decided, (at pp 643-4), that:

“If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage and required no expense.”

And at p 644:

“If it is clear that the reasonable man would have realised or foreseen and prevented the risk, then it must follow that the appellant is liable in damages.”

Three years later, Lord Reid again commented on this topic in Home Office v Dorset Yacht Co Ltd [1970] UKHL 2; [1970] AC 1004; [1970] 2 All ER 294. In that case, borstal trainees escaped from their mentors and caused damage to the respondents’ yacht. The judgment was on a preliminary issue of whether the Home Office or its Borstal officers owed any duty of care to the respondents which was capable of giving rise to a liability in damages. Lord Reid mentioned, at p 1026-7, the steady trend in the previous years towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should not ask whether it is covered by authority but whether recognised principles apply to it. This is the approach that I have adopted. Lord Reid said further at p 1027:

“... here the ground of liability is not responsibility for the acts of [others who were not the appellant’s servants or persons acting on its behalf]; it is liability for damage caused by the carelessness of [the appellant’s] 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 ...

His Lordship then considered to what extent the law regards the acts of another person as breaking the chain of causation, and concluded, at p 1030:

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 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, ... 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.

... in the present case ... there would in my view be no novus actus when the trainees damaged the respondents’ property and I 2200 would therefore hold that damage to have been caused by the Borstal officers’ negligence.”

After holding that the carelessness of the officers was the cause of the respondents’ loss, Lord Reid went on to reject all the arguments that had been raised in attempts to justify a view that they had had no duty to take care.

In 1987, the House of Lords decided Smith v Littlewoods Organisation Ltd [1987] UKHL 3; [1987] AC 241; [1987] 1 All ER 710. In this case, the respondent was the new owner of a cinema building which was vacant, not inspected, not fully secure and intended for demolition. Vandals entered the building and set a fire which burned down the building and seriously damaged neighbouring buildings. From among the cases cited to me, the speeches in this case, together with the opinions of their Lordships (particularly Lord Bridge of Harwich) in Caparo Industries Plc v Dickman [1990] UKHL 2; [1990] 2 AC 605; [1990] 1 All ER 568, express the developed state of the law about the duty of care as it applies to the present case. In the former case, the two leading speeches are those of Lord Mackay of Clashfern and Lord Goff of Chieveley. They are rich in concepts useful for the present case. Dicta to cite from all the speeches are plentiful, the difficulty is deciding what to omit. However, among those which are influential for me, I commence with the succinct comments of Lord Brandon of Oakbrook (at p 249):

“[I]t is axiomatic that the question of whether there has been negligence in any particular case must depend on the particular circumstances of that case. That being so, I do not think that these appeals can be determined by reference to other reported cases in which the particular circumstances were different, even though some degree of analogy between such other cases and the present one can legitimately be drawn. Nor do I think that it is possible, however helpful it might otherwise be, to lay down any general principle designed to apply to all cases in which the negligence alleged against a person involves the unauthorised acts of independent third parties on premises owned or occupied by that person.”

Lord Brandon then went on to suggest that there were only two questions which determined the appeals. First, what was the general duty owed by the cinema owners to the owners or occupiers of nearby buildings, and second, whether that general duty encompassed a specific duty to exercise reasonable care to prevent the events that had occurred. On the facts, Littlewoods did not know of the activities of the vandals, and in his opinion the events that occurred were not reasonably foreseeable by Littlewoods. He concluded that therefore the general duty of care owed by Littlewoods to the appellants did not encompass the specific duty claimed.

Lord Griffiths also was succinct. He saw the appeals as an application of a well established duty and standard of care to the particular facts of the case. The duty of care, in his opinion, was to take reasonable care that the condition of the occupied premises was not a source of danger to neighbouring property. The standard of care had been stated generally and more particularly in previous opinions of the House of Lords. He concluded with the following words:

“I doubt myself if any search will reveal a touchstone that can be applied as a universal test to decide when an occupier is to be held liable for a danger created on his property by the act of a trespasser for whom he is not responsible. 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.”

Relevantly, for present purposes, Lord Mackay of Cashfern said (at pp 257-8):

“A duty of care to prevent this damage is the only duty alleged to be incumbent upon Littlewoods relevant to this case. From this it follows that unless Littlewoods were bound reasonably to anticipate and guard against this danger, they had no duty of care, relevant to this case, requiring them to inspect their premises. Unless, therefore, Littlewoods, on taking control of these premises without any knowledge of the subsequent history of the property after they assumed control, ought reasonably to have anticipated that they would be set on fire and thus or otherwise create a substantial risk of damage to neighbouring properties if they did not take precautions, the claims must fail.”

Lord Mackay continued from there to say (at p 258) that the question whether a reasonable person in the position of Littlewoods was bound to anticipate as probable, if he took no action to keep the premises locked, the event which occurred, was a question of fact. He went on to say that while such a consequence may be a possibility, the extent to which it is probable must depend on the circumstances of the case.

He pointed out (at pp 258-9) what he called a telling point in favour of Littlewoods, that no one had made any protest to them about the state of the premises, or indicated to them any concern that, unless they took some action, neighbouring premises were at risk. He said that, if in the light of common knowledge in the neighbourhood it had been anticipated that the cinema might be set on fire, he would have thought that the persons concerned with the safety of the adjoining premises would have communicated their anxieties to Littlewoods.

What he had said to that point was sufficient in Lord Mackay’s view to determine the appeals. There is much more besides in his speech and in that of Lord Goff to which I would have resort, but, for the sake of brevity only, I will not cite further. It is sufficient in my view to take the opinions he expressed to that point and apply them to the present case, because they show the way to the proper determination of the case.

Before doing so however, I pause to refer to the speech of Lord Bridge in Caparo Industries Plc v Dickman (above). I have set out above, among counsels’ submissions, a passage relied upon by counsel for the defendant, and the passage that followed it. There is much more that is relevant for present purposes, particularly that part of His Lordship’s speech on pages 616-623, where he traces a history of the law’s efforts in “determining the existence and scope of the duty of care which one person may owe to another in the infinitely varied circumstances of human relationships” (p 616). It should be borne in mind throughout that the case before the House involved economic loss, and much that was said outside that history was specific to economic loss. However, for present purposes, the following general comment (at p 627) seems apposite:

“It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless. ‘The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it’: see Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 60 ALR 1 at 48; [1985] HCA 41; 59 ALJR 564, per Brennan L”

I turn now to decide the legal issue. The cause of the plaintiffs’ losses, as summarised in counsel’s closing address, was the boarding by the stowaway which, in the plaintiffs’ submission, was a natural and probable result of the defendant’s complacent and inadequate attitude to security. In my concluded view, those claims of breach of duty and of causation are difficult to sustain.

First, I put aside for now the ICAO Convention and its associated documents. They were not relied upon for the primary contention that there was a duty of care, and, in my opinion, correctly so, for they do not bear upon that question.

Second, I must ask what is the actual nature of the damage suffered, because it is a duty to prevent that damage which the plaintiffs must establish. That is easily answered, the damage which is identified by the plaintiffs, under four headings, I have summarised at the beginning, under the topic “The Claimed Heads of Damage”.

Next, I must isolate factually how it is that the plaintiffs claim that the defendant failed in its duty of care. They suffered losses. These occurred because the right engine of their aircraft was damaged. The cause of the damage was a landing on that engine after the right main landing gear failed to extend. The cause of that was the presence in the wheel well of a dead human body which obstructed the movement of the wheel. The cause of that was lack of oxygen at high altitudes, which caused hypoxia in the stowaway, and his death. The cause of that was the stowaway’s action in positioning himself in the wheel well, which lacked proper breathing air, for it was not intended for carriage of passengers. What caused him to do that is unknown, and his intention is a matter of conjecture only. However, what enabled him to do it was that he evaded the defendant’s security cordon round the aircraft. In particular, he entered the airport without being detected, he remained on the airport without being detected after that until the time when, again without being detected, he entered the wheel well.

In what way is the defendant said to have caused the plaintiffs’ losses? It is said (by Counsel in opening) that, as the occupier of the airport, the defendant owed a duty of care to all visitors to the airport including the plaintiffs. The plaintiffs claim that the defendant had an obligation to provide reasonable security and protection to all users of the airport, which arose (1) under a common law rule that a visitor is entitled to expect that an occupier will use reasonable care to prevent damage from danger of which the occupier knows or should know, which rule was reinforced by the ICAO Convention, and (2) under s 2(2) of the Occupiers’ Liability Act 1957 (UK), and (3) under Pt V of the Civil Aviation Act 1990. All three sources are acknowledged as the same in principle, for present purposes.

So, what is the common law principle that applies to the facts that I have found? It exists in the cases, including those I have referred to above. It once was foreseeability, but now it is reasonable foreseeability, of the particular damage that the plaintiffs claim they suffered. I have considered all of the major cases to which counsel referred me, and I have read another which with the knowledge of both parties was sent to me after the hearing. This latter case was heard and decided after the present hearing finished, Jolley v Sutton London Borough Council [1998] EWCA Civ 1049; [1998] 1 WLR 1546; [1998] 3 All ER 559 (CA). I have not relied upon this case, and thus have not found it necessary to trouble counsel for further submissions upon it. There are distinctions between that case and the present, and the authority relied on by the Court of Appeal was Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837; [1963] 1 All ER 705, which was an authority not prominent in the argument before me. Indeed the judgment of Lord Woolf MR comments once again that other cases which can provide illustrations of what the court has decided in other particular circumstances have a limited contribution. Nonetheless, I should say in passing that the principle applied seems to be the one that I have determined must be applied in the present case. The damage claimed was horrendous physical injury, and was not questioned. Consequently the question which the court in that case held it must ask was, was the accident that caused the damage one of a different type and kind from anything that a defendant could have foreseen?

In the present case also, the damage claimed needs little consideration. It can be taken at face value as pleaded. Subject to what might be said about causation and remoteness, it is in general terms financial loss said to have been suffered by the plaintiffs in their commercial operation. It was in the course of the commercial operation that the incident occurred.

What was the cause of that financial loss in the present case? It was a damaged engine. What caused that? The contact between engine and runway when the aircraft slid along the runway at Faleolo on that engine. In passing, it needs be said that the landing itself was, by the evidence and in the opinion of at least one of the expert witnesses, an example of very skilful flying and a credit to both pilots, particularly to the pilot in command. The defendant was at pains to show, in respect of quantum of damages, that the engine itself suffered less damage than might in the circumstances be expected, and in my view from the evidence that is correct.

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 defendant, who submitted that this was not a reasonably foreseeable danger against which the defendant 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. A dead body that somehow descends and jams the wheel as the photographs showed 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 duty of care that required the defendant to take preventative action against them.

But I must go further. What caused the stowaway’s death? It was his presence in the wheel well at high altitude. The central question posed by the plaintiffs’ pleadings is whether that fact was something that the defendant had a duty to prevent.

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? I think the answer to that is no. First, should the defendant reasonably have foreseen that a person who had gained unauthorised access to the airport might get into the wheel well of the plaintiffs’ aircraft during turn-around? Second, should the defendant reasonably have foreseen that damage such as the losses claimed could result to the plaintiffs if it allowed such a thing to happen?

As to the first, the facts produced in evidence about the incidence of stowing-way were relied upon by each party to show that stowing away in a wheel well was (a) common enough to have put the defendant reasonably on notice that it could occur at Fua’amotu, and (b) so rare that, particularly in Tonga, it was too small a risk to guard against. I am bound to say that, on the evidence before me, I find it factually was too unlikely an event for the defendant, as operator of the airport at Fua’amotu, to foresee reasonably as a probable event at Fua’amotu. Apart from that, it cannot be said on the evidence that I heard that the defendant had any reason to expect that any unauthorised person would get into the wheel well of the plaintiffs’ 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 plaintiffs’ 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 defendant 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, on the evidence adduced, 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. Beyond that engine damage, the further types and kinds of damage which the plaintiffs claim to have suffered seem to me to be even more remote from contemplation by a reasonable and prudent airport operator.

I am required to go further. The plaintiffs plead that the defendant was in breach of its general duty of care to them by not having the perimeter fence completed. I have dealt with the factual aspects of this claim. Dealing briefly with the legal aspect, it should be said that the plaintiffs and the defendant were in a special relationship, both being subscribers to the ICAO concepts for secure operations during aircraft turn-arounds. There thus might be room for argument that the defendant may have had to the plaintiffs for that reason, a duty of care that included a duty to comply with ICAO recommendations. I do not believe that argument could establish the claimed duty in the present case. This is primarily because the ICAO documents do not impose on any party to them a duty or obligation to another party to them of full and complete compliance. The perimeter fence, so far as ICAO recommendations are concerned, has always been a matter for compliance by the defendant, as resources permit, so long as construction spreads out from the areas of greatest use. The overriding duty, in my opinion, is 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 defendant’s position. The ICAO perimeter fence is only one means to that end.

The same may be said of patrols, and of static security guards. At common law and under the statutes upon which the plaintiffs rely, these are only preventative measures which the defendant takes 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.

About the scrub on the airport, I have held that the circumstances inferable from what evidence there is, were that the stowaway came onto the airport and moved about the airport by night. For those purposes the scrub was not helpful to him. Clearly if it was he who used the ‘hide’, it was some help to him in giving him cover near the threshold, but there is no evidence how long he was there except conjecture by the person who discovered the ‘hide’. If he did leave from there to board (which is not established), it seems he moved under cover of night, and without help from the scrub.

Putting all the findings aside however, was the presence of the scrub a neglect by the defendant of its duty of care to the plaintiffs? Remembering Lord Mackay’s ‘telling point’ in Smith v Littlewoods (above), I note at the outset that if the plaintiffs had foreseen that the scrub might provide concealment for a person who might attempt to stow away on one of their aircraft, they had not conveyed that to the defendant. Certainly, the scrub was a potential hiding place for a person on the airport without authority, but it was perceived as a risk rather for fires and for bird strikes. The possibility of a stowaway hiding in the scrub was not foreseen at all by any person, so far as the evidence reveals, even after the attempt on 13 August 1994. It was not raised after the events in question on 13/14 September until the defendant raised it, after the ‘hide’ was discovered.

3. Conclusion

I may perhaps conclude with the words of Lord Radcliffe in Bolton v Stone (above). 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 [defendant has] been guilty of any culpable act or omission in this case.”

It. remains for me now to state that, for the reasons I have given, the plaintiffs’ action is dismissed. For full determination of all issues I should discuss and determine causation and damages, but to go into those matters, while it may prove helpful, is not necessary. It seems to me that the judgment should issue now so that the outcome is not further delayed. I invite counsel to settle costs if they can, otherwise costs are to be taxed.