Introduction
This analysis will examine whether a passenger, the claimant, has a viable case in the tort of negligence against an airline, GK860, for the loss of cash and bank cards stolen from a carry-on backpack. The incident occurred during a flight, with the bag stored in the overhead cabin compartment. To succeed in a negligence claim, the claimant must establish on the balance of probabilities that the airline owed them a duty of care, that the airline breached this duty, and that this breach caused the claimant to suffer a loss that was not too remote. This response will analyse each of these elements in turn before considering potential defences and concluding on the likely success of the claim. It will be argued that while a duty of care likely exists, the claimant will face significant, and likely insurmountable, difficulties in proving that the airline breached its duty and that any such breach caused the loss.
Duty of Care
The first hurdle for the claimant is to establish that the airline owed them a duty of care to prevent the loss of their property from theft. The modern test for establishing a duty of care in novel situations was set out by the House of Lords in Caparo Industries plc v Dickman [1990] UKHL 2. This requires the court to consider three questions: firstly, was the harm reasonably foreseeable; secondly, was there a relationship of proximity between the claimant and defendant; and thirdly, is it fair, just, and reasonable to impose a duty?
Applying this test to the current facts, it is reasonably foreseeable that if an airline does not take care to supervise the passenger cabin, items may be stolen from passengers’ bags. Thefts on public transport are a known risk. Therefore, the foreseeability requirement is likely to be met.
Secondly, there is a clear relationship of proximity between the passenger and the airline. The airline has accepted the passenger for carriage under a contract and has control over the environment (the aircraft cabin) for the duration of the flight. This creates a special relationship between the carrier and the passenger, which is a classic example of proximity. The passenger is, to an extent, dependent on the airline for their safety and the security of their belongings during the flight.
The third stage, whether it is fair, just, and reasonable to impose a duty, is the most contentious. Airlines would argue that imposing a duty to protect carry-on luggage from theft by fellow passengers would be excessively burdensome. It would effectively make them insurers of all property, valuable or otherwise, that passengers choose to bring on board. Courts are often reluctant to impose duties on defendants to protect claimants from the criminal acts of third parties (see Smith v Littlewoods Organisation Ltd [1987] UKHL 18). However, it is also arguable that the duty is not a duty to prevent all theft, but rather a duty to take reasonable steps to provide a secure environment. Given the airline's control over the cabin, it seems fair, just, and reasonable to impose such a limited duty. Therefore, it is likely that a court would find the airline owes a duty of care to its passengers to take reasonable care to safeguard their property in the cabin.
Breach of Duty
Assuming a duty of care is established, the claimant must then prove that the airline breached that duty. The standard of care is that of the 'reasonable man', as established in Blyth v Birmingham Waterworks Co (1856) 11 Ex Ch 781. In this context, the airline must act as a 'reasonable airline operator'. The claimant must show that the airline’s conduct fell below the standard expected of such an operator.
To establish a breach, the claimant would need to provide evidence of what the airline did or failed to do. For example, were cabin crew absent from the cabin for an unusually long time? Did the airline fail to make announcements warning passengers about securing their valuables? Were there any specific security measures that a reasonable airline would have taken which GK860 did not? The burden of proof lies on the claimant to establish these facts.
The airline would likely argue that it met the required standard of care. They might point to regular crew patrols through the cabin and pre-flight announcements warning passengers to keep valuables on their person. They would also argue that passengers must take primary responsibility for items they choose to store in overhead lockers, which are not designed as secure storage. The fact that a theft occurred does not, in itself, prove negligence. The legal principle of res ipsa loquitur (the thing speaks for itself) is unlikely to apply here, as the airline did not have exclusive control over the backpack; other passengers had access to the overhead compartment. Without specific evidence of a failure on the airline’s part, it will be very difficult for the claimant to prove a breach of duty.
Causation and Remoteness
Even if the claimant could prove a breach, they must also prove that this breach caused their loss. This involves two stages: factual causation and legal causation.
Factual causation is determined by the 'but for' test: but for the defendant's breach, would the loss have occurred? (Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428). The claimant would have to show that, on the balance of probabilities, had the airline acted reasonably (e.g., by having more crew patrols), the theft would have been prevented. This is speculative. A determined and discreet thief might have succeeded even if the crew had been more vigilant. Proving that the airline's specific failure was the decisive cause of the theft would be a significant challenge.
Furthermore, the issue of legal causation presents a major obstacle. The direct cause of the loss was the criminal act of a third party (the thief). Generally, a free, deliberate, and informed act of a third party will be considered a novus actus interveniens (a new intervening act) that breaks the chain of causation between the defendant’s breach and the claimant's loss (Lamb v Camden LBC [1981] QB 625). An exception exists where the very duty of the defendant is to guard against the actions of the third party. As discussed in the duty of care section, it is arguable that the airline’s duty included taking reasonable steps to prevent theft. If a court accepts this, the theft itself might not break the chain of causation. However, given the general reluctance of courts to make defendants liable for the crimes of others, it is a strong argument for the airline that the thief's action severs any causal link to their alleged breach.
Finally, the loss must not be too remote. The test from The Wagon Mound (No 1) [1961] AC 388 is whether the type of damage was reasonably foreseeable. Here, the type of damage is property loss due to theft. This is a foreseeable consequence of a failure to provide adequate cabin security. Therefore, the loss would likely not be considered too remote.
Defences
If the claimant were to succeed in establishing all elements of negligence, the airline would almost certainly raise the defence of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. The airline would argue that the claimant failed to take reasonable care for their own property by leaving valuables such as cash and bank cards in a backpack in an unlocked overhead compartment, rather than keeping them in a more secure location, such as on their person. This is a very strong argument. A reasonable person is generally expected to keep high-value items like cash and cards close. It is highly likely that a court would find the claimant was contributorily negligent and would reduce any damages awarded, possibly by a very large percentage.
Conclusion
In conclusion, while a passenger on a flight is owed a duty of care by the airline, a successful claim in negligence for the theft of property from a carry-on bag is unlikely. The claimant would probably be able to establish that a duty of care existed. However, the claim would likely fail on the elements of breach and causation. It would be very difficult to prove that the airline’s conduct fell below the standard of a reasonable airline operator without specific evidence of a failure on their part. Moreover, the claimant would struggle to show that 'but for' the airline’s breach the theft would not have happened, and they would face the powerful argument that the thief’s criminal act broke the chain of causation. Finally, even in the unlikely event of success, any damages awarded would almost certainly be heavily reduced for the claimant’s own contributory negligence. Therefore, there is not a strong case of negligence against the airline.
References
Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.
Blyth v Birmingham Waterworks Co (1856) 11 Ex Ch 781.
Caparo Industries plc v Dickman [1990] UKHL 2.
Donoghue v Stevenson [1932] AC 562.
Lamb v Camden LBC [1981] QB 625.
Law Reform (Contributory Negligence) Act 1945.
Smith v Littlewoods Organisation Ltd [1987] UKHL 18.
The Wagon Mound (No 1) [1961] AC 388.
