Polynesian Airlines (Investments) Ltd v Kingdom of Tonga [2000] TongaLawRp 46; [2000] Tonga LR 168 (21 July 2000)

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

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

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

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

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

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

Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA)

Salmond & Spraggon (Aust) Pty Ltd v Joint Cargo Services Pty Ltd (the "New York Star") [1977] 1 Lloyd's Rep 445

Screaming Eagle Air Limited v Airport Commission of Forsyth County (387 SE 2d 1990)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Did the respondent breach its duty of care?	217
SUMMARY OF CONCLUSIONS ON THE APPEAL	229
ORDERS PROPOSED	230

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tonga Law Reports

Polynesian Airlines (Investments) Ltd v Kingdom of Tonga [2000] TongaLawRp 46; [2000] Tonga LR 168 (21 July 2000)