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Polynesian Airlines (Investments) Ltd v Kingdom of Tonga [1998] TongaLawRp 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.