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created relevant precedent to the aeronautical context. In Palsgraf, a person carrying a parcel of .reworks was being assisted to a train by a porter, when the parcel accidently escaped from the defendant’s custody and landed on the railroad tracks beneath, exploding and injuring a passerby. The court held that the defendant owed no duty of care to the plaintiff since the plaintiff was beyond the range of the defendant’s foreseeability.
There is also the issue of proximity in the law of negligence which would apply in an instance of damage by foreign aircraft caused to third parties on the surface. Proximity involves three elements: legal closeness; factual closeness; and broad policy factors. Legal closeness relates to the extent to which the proposed duty is related to the concept of duty of care in conventional negligence. In tort law, scholars and legislators have called for a more rigorous evaluation of proximity between plaintiff and defendant, aligned to enforcing liability on a more liberal basis than is practiced at present.193
Factual closeness relates to the nature of the relationship between the plaintiff and defendant. Policy considerations, often referred to as residual policy factors, are macro-considerations concerning the overall needs and interests of a community which is at risk of damage. A moder-nized Rome Convention would therefore have to involve and consider all three factors: foreseeability; proximity; and policy in the principles of negligence that are envisioned under the scope of the operator’s liability.
The exemption given to the operator in instances of the plaintiff’s contributory negligence affords the operator an opportunity to prove that the plaintiff failed to take reasonable care for his own safety. Contributory negligence can arise in three scenarios. Firstly, the plaintiff could be the cause of the accident and the damage suffered must be directly linked to the negligence which contributes to such damage. In Cork v. Kirby Maclean Ltd.,194
the court held that a person suffering from epilepsy could not claim that his employer was liable for his fall from his workstation after suffering from an epileptic attack as the employer was not advised by the plaintiff of his illness. The worker was presumed to have known, or ought to
191[1978] A.C. 728 (H.L.), 751–752. See also the decision of Neilson v. Kamloops (City of), [1984]
2.S.C.R. 2 handed down by the Supreme Court of Canada which adopted the principle enunciated
by Lord Wilberforce and adopted it consistently from 1984 to 2001.
192162 N.E. 99 (N.Y. 1928).
193Osborne
(2003,
p.
68).
194[1952] 2 All.E.R. 402 (C.A.).
C. The Rome Convention of 1952
have known the consequences of his working in a high place. Secondly, a person cannot allege liability of a person successfully if he willingly and knowingly puts himself in a position of foreseeable harm. For instance, a person cannot enforce liability on an inebriated driver who offers her a lift, if she knows prior to accepting the ride of the driver’s condition. Thirdly, a person cannot avoid being found responsible for contributory negligence if she does not take protective measures in the face of foreseeable danger, such as not harnessing the seat belt in a fast moving vehicle.195
Of particular relevance to an accident whereby an aircraft injures persons on the surface is the “agony of the moment” principle which allows some leeway for a person’s actions which might not be rational due to the stress of the moment. In the 1969 case of Walls v Mussens Ltd.,196
The court refused to recognize the conduct of the defendant as being guilty of contributory negligence even though he had not used a conventional .re extinguisher which he had ready access, to douse a .re but chose to throw heaps of snow at a fuel ignited .re in his business premises.
Article 5 of the draft Convention provides that, in the instance of disruption to insurance coverage of operators caused by acts of unlawful interference,197
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