All the elements discussed: voluntary assumption of risk; responsibility of the authorities; and responsibilities of the airport have to be considered in conjunction with each other.
by Dr. Ruwantissa Abeyratne
( July 15, 2017, Kingston -Jamaica, Sri Lanka Guardian) At Princess Juliana International Airport in Sint Maarten (a country on the southern part of a Caribbean island shared with Saint Martin, a French overseas collectivity) the beginning of the runway is situated just 50 meters from the fence on Maho beach, and is equidistant to the waterline. Beachgoers famously cling to the fence at this distance to watch and experience jet blast from aircraft taking off. The island of Sint Maarten is famous for planes flying extremely low over the beach before landing and people visit the beach specially to watch the spectacle and walk toward the fence to watch aircraft take off, which exposes them to jet blast from aircraft taking off. A blast from jet- engine aircraft could produce winds of up to 100 knots (190 km/h; 120 mph) to as far away as 60 meters (200 feet) behind it. It has been reported that “jet blast can be a hazard to people or other unsecured objects behind the aircraft, and is capable of flattening buildings and destroying vehicles”
On 12 July this year a 57-year-old female tourist of New Zealand nationality was clinging on to the fence when a Boeing 737 commenced take off. The powerful jet blast from the aircraft forced the woman to release her grip on the fence. The force threw her violently backward on to a concrete pavement causing damage to her head. She was taken to hospital where she was pronounced dead. This was the first death by jet blast in the island, although there have been previous instances of injury to persons and vehicles.
There was prominent signage (both in English and French) in words and graphics placed at strategic points on the beach by the authorities of the island warning persons of the grave danger of injury or death posed by jet blast – a fact that would seemingly exculpate the authorities concerned in this context. However, many issues emerge that call for a closer look at the issue.
The first issue is whether the deceased was given adequate notice of the risk involved and whether she assumed the risk voluntarily. The notices put up by the authorities concerned warned of the dangers posed by jet blast. They were both verbally and graphically explicit, bringing to bear the legal maxim volenti non fit injuria or voluntary assumption of risk. The question is whether, although the deceased had (or ought to have had) knowledge of the risk, she had actual and clear appreciation of the dangers posed by the risk. One might argue that the signage, although clear, merely mentioned the risk but did not indicate a specific location where the risk was and articulate a clear prohibition. It has been judicially recognized that if a person has complete comprehension of a risk and she encounters the risk, she assumes that risk. Comprehension inevitably involves appreciation of the risk. This would be a determination of fact and not of law. This being said, counsel for the defendant could argue on judicial precedent that if the risk was obvious, no clear notice was necessary, on the basis of a decision which held analogically that the owner of a baseball court is not liable for a ball flying over the court and injuring a spectator. This could be an argument for the airport if it is tagged on as defendant or respondent in a case instituted by the dependants of or others connected to the deceased.
The second issue involves responsibility of the airport and the authorities concerned for protecting people from the jet blast. Sint Maarten is a small island where the beach abuts the runway, separated by a fence. The death occurred on the beach – seemingly public property – for which the public authorities are responsible. It has been reported that in addition to the notices, policemen regularly patrol the beaches and warn persons on the beach of the dangers involved and urge them to keep away. The first question to ask would be whether there was local legislation that empowered authorities to take any particular action with a view to protecting those exposed to the risk. Analogically, the Canadian case of City of Vancouver v. McPhalen involved a suit brought by the plaintiff who, while walking on a sidewalk constructed by the Corporation of the City of Vancouver on a public highway within the municipal boundaries, tripped over a loose plank and in consequence suffered serious personal injuries. The city of Vancouver was empowered by statute to keep the city in good repair and the court found the city guilty of a breach of duty toward the plaintiff.
Public authorities owe the public a duty of care. Additionally, public authorities may also be exposed to private liability, for instance when employing an individual, thus exposing public authorities to both a private and public liability. In this instance the law imposes on the public authority what is called the Caparo test which would take into account foreseeability of harm suffered; proximity between the claimant and the public authority concerned’; and whether it would be fair, just and reasonable to impose a duty of care on the basis of public policy. In essence, when it determines whether to impose a duty of care, the court would be considering matters of public policy.
In the context of the airport, although it is a fact that the harm was done outside the airport, the element that caused the damage originated in the airport. The principle of strict liability at common law was established in the early case of Rylands v. Fletcher  the facts of which were that the defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a disused mine. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage. When the case went up to the House of Lords, Lord Cranworth held: “If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.
All the elements discussed: voluntary assumption of risk; responsibility of the authorities; and responsibilities of the airport have to be considered in conjunction with each other. Additionally, both in the case of the public authorities and in the instance of the airport, the Sint Maarten tragedy brings to bear the importance of enterprise governance and its critical element of predictive or anticipatory intelligence. This is a key element of corporate foresight which would call for prevention of a disaster rather than giving notice of risk.
The author is Senior Associate, Air Law and Policy at Aviation Strategies International and Former Senior Legal Officer of the International Civil Aviation Organization.