Monday, 23 September 2013

Tourist Wins Rights to Payout Over SA Paragliding Disaster

Leila Samodien– Leila.samodien@inl.co.za

What started off as a “bit of a walk on the wild side” ended  in a paragliding  crash  paraplegia  and a court  battle for a British tourist, who has  now won the  right to  damages.
A holiday in Cape Town led Diane Bewick 44 of Middlesborough to Hermanus on April 12, 2004 for tandem paragliding.

But her fateful flight  was  short-lived. Just after  take- off  she and the  experienced  paraglider  with  whom she  was  flying hit a cliff,  breaking her  legs and  leaving  her permanently  paralysed  from the waist  down.

Bewick’scase hinged on the contention that tandem paragliding for reward was illegal. She had not known this.

In a Western Cape High Court  judgment  delivered on Friday  Judge  Pat Gamble  found that  the  Civil Aviation  Authority ( CAA)  and the  South African  Hang and Paragliding  Association  were  jointly liable  for Bewick’s  damages.

While Bewick is attempting to claim £1.45 million (R22.96m) the amount she is to be awarded has yet to be decided.

Judge Gamble found that at the time of the accident tandem paragliding for commercial gain was illegal. He came to the conclusion that in this case one had to  adopt a “common sense approach” and ask the  following question:  had the association and the CAA  done what they  should  with regard to  the  prevalence  of tandem paragliding for reward, would Bewick  have flown with paraglider  Robert de Villiers- Roux  that day?

“The answer must be  an unequivocal no,” he found.
Bewick’s  legal team  the  judgment read, had  argued  that even  now the practice remained illegal where a  proper  exemption  had not  been  granted  under the Air Services Act.

Judge Gamble did not make a clear pronouncement  on this point. However, he found the law did not enable the CAA commissioner to grant exemptions to commercial operators.

He said the evidence before the court  showed that the CAA had been aware  as far back as  1998 that commercial tandem paragliding was rife and of the potential danger  it posed to  passengers.

Apart from warnings  it issued from time to time, no positive  steps had been  taken to put an end to the practice.

“In my  view, the  legal convictions of the community in which  we live demand that the  failure  by the CAA to take such reasonable steps  to  prevent the occurrence of an illegal activity  such as  commercial tandem paragliding  of which  it was manifestly aware and which illegal  activity could and ultimately did, result in serious injury to an unsuspecting member of the public, should  be considered to be unlawful ”wrote Judge Gamble.

He found the association had “failed  hopelessly” to discharge its duty of care to Bewick.

Bewick was “delighted”, her attorney Tzvi Brivik, said.