By NICO SCAVELLA
Tribune Staff Reporter
THE Airport Authority has been granted leave to pursue its legal challenge of the Court of Appeal's previous decision that it was negligent over the 2007 theft of a Western Air plane.
Appellate Justices Stella Crane-Scott, Milton Evans (acting), and Acting Chief Justice Stephens Isaacs granted the government-owned Airport Authority final leave to appeal to the London-based Privy Council over the appellate court's 2014 decision.
Roshar Brown, appearing on behalf of Western Air, the respondents in the matter, said her client has no objection to the application.
In 2014, the appellate court agreed with the Supreme Court that the Airport Authority's failure to provide "proper security" at the Lynden Pindling International Airport (LPIA) led to the plane's theft.
However, the court rejected Western Air's counter-claim that damages be increased from $2.634 million to $3.335 million, finding that the airline and its principals had failed to prove the plane's theft cost them $2.401 million in annual revenue.
According to the ruling, then-appellate Justice Stanley John said Western Air's metro III aircraft, CG-SAQ, was "parked at its designated spot" at LPIA on April 26, 2007, when it was stolen.
Surveillance photos showed the plane was present in its proper place at 8pm on April 25, only for it to be stolen at 1.13am the following morning.
Entry to the area where the plane was parked was controlled by a manned security booth, which only allowed access to Western Air and Bahamasair personnel once the correct ID was produced.
Tamara Winder-Sears and Marcus Blatch, the two security officers working the shift when the plane was taken, both said during trial they could not recall allowing anyone through the security gate.
Delistine Rolle, the desk security officer on duty, also testified during trial that she did not note the incident, although she had been trained to do so.
Nonetheless, the Supreme Court judgment said the last Western Air employees with access to the stolen plane were Captain Darryl Bartlett, Dominique Bannister and a mechanic, Damian Kikivarakis.
Western Air's operations manager, Captain Wolffgang Seyfert, testified that "anyone with a little mechanical knowledge could open the aircraft."
Police Sergeant Paul Lewis, the investigating officer, "pointed to what he considered negligence on the part of the three employees at the control tower at the airport, who must not have been on the alert for the airplane to take off without their knowledge," the court said.
"He also expressed a negative view of the surveillance. Of note, there was no photograph at the estimated time that the aircraft was stolen."
Then-Supreme Court Justice Neville Adderley ultimately found that as the Airport Authority had responsibility for providing security at LPIA, the theft "could not have occurred without negligence" by the authority or its employees.
Attorney for the Airport Authority, Sir Cyril Fountain, had argued that his client had no duty of care towards Western Air given the circumstances surrounding the case.
However, the appellate court agreed with then-Justice Adderley that there was "little doubt" that as Sir Cyril's client was responsible for providing security at LPIA, it owed a duty of care to the airline.
The appellate court further found that the Airport Authority's obligations "extended to not causing or contributing to the very act that occurred, that is the theft of the airplane by an unknown or unauthorised person."
"The appellant provided security which included a security booth manned by a security officer," Justice John ruled in 2014. "There was ample evidence from security personnel for the trial judge to conclude that, but for the failure of the appellant's security, the theft would not have occurred."
Justice John further concluded that Justice Adderley's ruling on the liability and negligence was "just and reasonable."
Western Air, meanwhile, in its re-amended statement of claim, had alleged the theft had cost it $2.401 million in lost revenue, calculated at $7,000 per day for 343 days.
The airline also claimed the incident saw its five-year insurance premium increase by $769,000, while also generating an $83,000 'interest on bank loss' charge.
The latter payments were required to cover a bank loan secured on the stolen plane until insurance money arrived.
At the Supreme Court trial, Western Air's principal, Rex Rolle, said he was unable to provide documents proving the airline's economic loss because the records were destroyed in a fire at its San Andros headquarters.
"This statement shows that he anticipated that there might be a shortage of documentary back-up for his claims," then-Justice Adderley said.
The Court of Appeal ultimately backed Justice Adderley's findings, ruling that he was correct to disallow the $2.401 million loss of revenue claim.