Supreme Court
Action No. 124 of 1994
18th April, 2000
Shanks, J.

Mr. E. A. Marshalleck for the Plaintiff
Mr. G. Arzu for the Defendant

Damages to buildings and equipment by British Military aircraft transporting Belizean security personnel - Liability of Belizean security authorities - Extent and assessment of damages.

J U D G M E N T

1. This is a claim arising out of damage allegedly caused by the British Military Helicopters which were transporting the Belizean Police to execute a search warrant on South West Caye in the evening of 8 June, 1993. The Plaintiffs own and run a resort called Manta Reef Resort on the island. They claim that damage was done to some buildings and thatch umbrellas and an antenna by the helicopters as they descended and dropped off the police at the pier which is close to the resort.

2. Mr. Marshalleck for the Plaintiff relied first on the Civil Aviation Act, s. 19(2) which provides:-

"Where material loss or damage is caused to any… property on land… by… an aircraft… then… damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect or default of the owner of the aircraft:

Provided that where material loss or damage is caused as aforesaid in circumstances in which -

(a) damages are recoverable… by virtue only of the foregoing provisions… and

(b) a legal liability is created in some person other than the owner to pay damages in respect of the said loss or damage.

the owner shall be entitled to be indemnified by that other person in respect of the said loss or damage."

Accepting that s. 19(2) applies to military helicopters, it is perfectly clear that it gives a right of action against the owner of the helicopters and against no one else. In this case the owner was the British Government, not the Belizean Government or police force. A claim against the Attorney General cannot therefore be brought under s. 19(2) and Mr. Marshalleck must make good his case in negligence.

3. The Plaintiff does not challenge the police's operational decision to travel to South West Caye by helicopter. However, they say that there were other places on the island where they could have conveniently landed or let their personnel off which were not close to their buildings. Two particular spots were canvassed: a beach called Miami Beach which I was told by Mr. Valdez (an insurance executive who dealt with the Plaintiff's insurance claim) represented about 100 x 300 feet of clear space and another beach to the north of the caye from where Mr. Austin Young, the assistant light house keeper on the island, told me a helicopter picked up those police who had remained on the caye overnight the next day. Assistant Inspector Guzman, who was left in charge of those men, told me that they were picked up from the pier as they had been dropped off the night before and emphatically denied that hey had been picked up from the beach described by Mr. Young. I am reluctant to reject the evidence of a police officer on this point but, equally, I found Mr. Young to be a truthful witness and I could see no reason why he should wish to mislead the court. Furthermore, I note that Mr. Arzu did not challenge Mr. Young on his recollection of this. I therefore find on the balance of probabilities that a helicopter did land the next day at the beach identified by Mr. Young and, it obviously follows, this could in theory have been done the night before.

4. I was told by both the police witnesses that the pilots circled for some time using the powerful helicopter light looking at the island before coming down near the pier. It is fair to infer that the pilots were looking for somewhere to land or let people off but there was no evidence whatever as to why they chose to descend where they did and why they did not land at one of the other points which have been suggested. Although the pilots have no doubt long since returned to the U.K., these proceedings were begun in April 1994 and it would have been possible at some stage to obtain at least written statements from them explaining why they decided to descend where they did. I should say that I note in this context that the original statement of claim stated the accident occurred " on or about" 8th July, 1993 and the correct date was not clarified until an earlier trial of the matter before Nathan, J. in July, 1998. I understand Nathan, J. did not think an amendment to the statement of claim was necessary but the proposed amendment was hotly opposed by written submissions on the grounds that enquiries had been made of the police and they had said no such incident had occurred on 8 July, 1993. It seems to me that it was incumbent on the Attorney General to take further steps to investigate the matter than simply relying on what turned out to be a mistaken date and, in any event, some steps could have been taken subsequently.

5. The position is therefore that I have evidence of other places where the helicopters could have landed away from the wooden palm-roofed buildings which form the resort and no explanation as to why they were not used. It is accepted that the police, like anyone, owe a duty of care to take reasonable care in carrying out their operations to avoid damage to the property of others. The concept of reasonable care can of course take account of the exigencies of police work but, as I have said, I was given no explanation for the decision in this case. It was not challenged that the British Pilots were acting as agents of the police in flying the helicopters and I must therefore find the police responsible for the way the helicopters were flown. On the evidence I have it was negligent to come down by the buildings and the police are liable for the damage caused.

6. Mr. Arzu challenged the extent of the damages claimed. Mr. Young (and indeed Mr. Guzman) gave evidence that the following morning they saw one cabana seriously damaged by a fallen coconut tree. It must be a fair inference that the coconut tree had been blown over by the helicopters' down draft. I also note that in a statement signed by Mr. Young and dated 27 August, 1993 prepared for insurers which he tendered in evidence before me, he described damage to the roof of the restaurant, damage to an antenna and that three umbrella type cabanas had been blown over. This damage was all confirmed by Mr. Valdez who visited the island on 23 July, 1993 and took photos which I was shown. He also confirmed that the damage looked consistent with the action of rotor blades causing a down draft. The Plaintiff made a claim on insurers to repair this damage which was paid and which came to a total of $19,325.00 and $3,500.00 for transportation of thatch and roofing materials. I am satisfied that that was a reasonable settlement which represent the Plaintiffs' loss.

7. There shall accordingly be judgment in the sum of $22,825.00 with interest from June 1993 at 12%, giving a total award of $41,541.00.