When it boils down to it, negligence occurs when:
- An individual, business or public body (a defendant) owes a duty of care to another (a plaintiff) to act in a way that is reasonable
- The defendant fails to act in a way that is reasonable and so breaches the duty of care
- As a result of the defendant’s actions (or failure to act) the plaintiff suffers loss
- The plaintiff’s loss can be reasonably attributed to the defendant’s actions
Here we look at what’s involved in establishing negligence, using as an illustration a 2020 Privy Council case where the Bahamian Airport Authority was found to be negligent following the theft of an aircraft from the Lynden Pindling International Airport at Nassau.
At ParrisWhittaker in the Bahamas our award-winning lawyers regularly handle all kinds of negligence claims for both claimants and defendants.
Types Of Negligence Claim
Negligence is, in legal jargon, a ‘tort’. That’s to say it’s a civil (as opposed to a criminal) wrong that causes loss to a claimant. The person responsible for the tort has a legal liability to the claimant. By way of illustration, other examples of torts are nuisance and trespass.
Negligence actions arise commonly in claims for personal injury, professional negligence and employer negligence. But the situations in which negligence may arise are extremely wide, as we’ll see.
The Airport Authority v Western Air (2020)
The concept of negligence was exhaustively examined in a Bahamian context in the long-running case of The Airport Authority v Western Air Ltd (The Bahamas). The Privy Council reached a final decision in the case at the end of 2020. The incident that gave rise to the case – outlined below – occurred as far back as 2007.
In April 2007, a plane owned by Western Air, parked in its designated stand, was stolen from Nassau airport. The theft occurred in the early hours of the morning. The plane’s location at the time of the theft was inside the airport’s designated restricted zone. Access to and from this zone was controlled by an established system. Evidence presented at the initial trial of the case indicated that:
- No one had tried to gain entry to the aircraft’s designated spot using the controlled system of entry and exit
- A security officer heard the plane start up saw it move away from its parking space. (Aircraft lights had not been illuminated.)
- This security officer informed a supervisor who reported the matter to a more senior manager
- That senior manager didn’t take any action because in the past Western Air aeroplanes had embarked on late night flights and she assumed that this was just another instance of that
- No action was taken to stop the plane departing
- The subsequent police investigation established that gaps in the airport’s perimeter fence could have enabled intruders to gain access to the restricted zone without going past the booths manned by security guards
- The identity of the person who stole the plane was never established
On the basis of these facts the judge at trial found that there had been negligence on the part of the Airport Authority (the Authority). Despite appeals by the Authority –first to the Court of Appeal and then to the Privy Council this decision was upheld.
How Did Western Air Prove Negligence?
At the trial there was a significant amount of debate over whether or not the Authority was solely responsible for airport security. If it wasn’t, the Authority’s lawyers argued, it could not be held responsible for the loss of the aircraft.
Having heard the evidence the trial judge found that the Authority was solely responsible for security. The Privy Council, reluctant to interfere with the factual findings of a trial judge who had heard the evidence first-hand, found too that the Authority had exclusive responsibility for securing aircraft at the airport. The Privy Council also agreed with the trial judge’s rationale for finding that the test for establishing negligence had been met:
Because the Authority was responsible for security at the airport there was a sufficiently close relationship between it and Western Air, a company that was wholly dependent on the Authority to safeguard its plane.
Harm to Western Air’s aircraft was foreseeable: The perimeter fence, restricted access to the airfield and the provision of patrols – all precautions to minimise loss and damage to aircraft – showed that some kind of harm was forseeable
It was fair and reasonable that the Authority be held liable. The theft of the aircraft illustrated that the security system was deficient. The Authority was uniquely placed to provide the necessary protections and did not permit owners of aircraft to provide private security
For completeness sake it’s worth pointing out that Western Air had initially argued that the Authority had also failed to satisfy a duty imposed by Bahamian legislation (its statutory duty). Such a finding would have strengthened Western Air’s claim. . When the relevant legislation was examined however (The Airport Authority Act 2000) it was clear that there was no specific statutory duty to safeguard aircraft so any claim based on a breach of statutory duty was likely to fail. This finding however did not in any way detract from the unquestioned position that the Authority was responsible for the overall security of the airfield.
`The term negligence is frequently and casually mentioned by lawyers and clients alike. Many cases focus on establishing whether or not certain actions amount to negligence. The Western Air case demonstrates the intricacies involved in proving all the elements of a claim and how even cases where there are a very clear set of facts can end up taking many years – and great expense – to resolve.