Sunday, December 2, 2012

South Africa: Paragliding Lawsuit Highlights That Safety Protocols at Home Differ Dramatically from those Abroad

Diane Berwick, 43, of Tyneside [UK] suffered a string of serious injuries on April 12, 2004 after being hurt in a tandem paragliding collision in South Africa that left her a paraplegic and wheel-chair bound for the rest of her life.

Most recently, she returned to Cape Town as a plaintiff in a lawsuit to secure damages. In point of fact, her hearing began on Thursday (November 29).

Ms. Berwick contends in court papers that it was unsafe to fly that day and that the weather conditions posed a risk of injury.

On the defense side of the case is South Africa's Civil Aviation Authority (CAA) and the South African Hang-and Paragliding Association (SAHPA), both of which are fighting Ms. Berwick's contention in court.  
The plaintiff is seeking £1,450,000 (US$2,321,000), as well as an additional US$123,385  for medical expenses incurred in South Africa and the UK, as well as future medical expenses, pain, suffering, loss of amenities of life, and her disability and her past and future loss of earnings.
At the moment; however, the parties are arguing the merits of the case and only if it is found that the aviation authority and the association are liable, will the amount later be argued.
Berwick’s attorneys have already settled her dispute with the other defendants in the matter: paraglider Robert de Villiers-Roux, paragliding businesses Airteam and Adventure Africa CC, and the office of the minister of transport.
She maintains that the CAA and SAHPA were obliged to reduce the risk of aircraft accidents and that they should have been aware that De Villiers-Roux and the businesses were regularly conducting paragliding flights for commercial gain.
The CAA, SAHPA and their employees and agents had a duty, she argues, to people engaging in paragliding, hang gliding and power gliding activities, such as herself, to “act with due skill, care and diligence as is reasonable."
SAHPA has denied Berwick’s allegations and has taken the position that if the court found it owed a duty of care to Berwick, the association denied it had negligently breached its duties. It also argued that she was warned of the risks associated with paragliding before she went flying, but nevertheless embarked on the tandem flight. 

SAHPA also contends that their are inherent risks in paragliding such as “unexpected air turbulence," which are impossible to quantify or foresee.
The CAA similarly denied Berwick’s allegations.
COMMENT: Although we wish Ms. Berwick well in her lawsuit and hope that she prevails, litigation in foreign courts is always fraught with unpredictability, particularly given the inherent risks that para-gliders accept when they participate in a high-risk sport.

Plaintiffs litigating a lawsuit in a foreign court are particularly tenuous when one considers the disparity between paragliding comparative best-practices in the UK versus South Africa.

What is particularly difficult in this case is Ms. Berwick prevailing in what would clearly be a major precedent-setting as it relates to the CAA and the SAHPA. If she is unable to prove liability on the part of the CAA and the SAHPA, the merits of her case may well unravel.

Unfortunately for Ms. Berwick, best-practices in the para-gliding industry will be evaluated not in the context of prevailing protocols in the UK, but rather in South Africa.

If liability can be successfully argued as it relates to both the civil aviation authority and the SAHPA, it is possible that a compromise could be reached on a lesser amount than that claimed.

Personally speaking, it is clear that the inherent risks in high-risk sporting activities vary dramatically between developing and developed nations. 

That being said, the reality is that tourists and travelers always have the choice of participating or not participating in high-risk sports, particularly abroad. In this case, Ms. Berwick voluntarily accepted the risks. She also had the option of not participating in the activity.

Our readers will be provided updates on the disposition of Ms. Berwick's lawsuit as new information becomes available.