The South African Hang and Paragliding Association v Bewick (Née Miller)

On 12 April 2004, the respondent, Diane Bewick, a British tourist, sustained catastrophic injuries during a tandem paragliding flight in Hermanus, South Africa. She was a passenger on a commercial tandem paragliding flight for reward when the paraglider experienced a wing collapse shortly after take-off. The respondent broke both legs and her spine, resulting in permanent paralysis. The respondent sued six defendants. She settled with the pilot (first defendant) and his employers (second and third defendants), withdrew her claim against the Department of Transport (sixth defendant), and proceeded to trial only against SAHPA (first appellant, the regulatory body for hang and paragliding) and SACAA (second appellant, the Civil Aviation Authority). Her claim against the appellants was based on their alleged omission to prevent illegal tandem paragliding for reward, which she contended they were statutorily obliged to do.

• Whether tandem paragliding for reward was illegal at the time of the accident
• Whether the appellants had a statutory duty to prevent tandem paragliding for reward
• Whether the appellants' alleged omission to prevent the activity constituted wrongfulness in delict
• Whether the appellants' omission was causally connected (factual and legal causation) to the harm suffered by the respondent
• Whether it would be reasonable as a matter of public and legal policy to impose delictual liability on the appellants for their omission

1. The appeal was upheld with costs, including costs of two counsel for both appellants. 2. The order of the court a quo was set aside and replaced with: 'The plaintiff's claim against the fourth and fifth defendants is dismissed with costs, including the costs of two counsel in respect of both these defendants.'

Where a claim is based on an omission, wrongfulness is not presumed and depends on whether it would be reasonable, having regard to considerations of public and legal policy consistent with constitutional norms, to impose delictual liability on the defendant. Breach of a statutory duty does not per se give rise to delictual liability; the court must determine whether affording a remedy is congruent with the sense of justice of the community. In applying the 'but-for' test for factual causation, the hypothetical lawful conduct that mentally replaces the wrongful conduct must be properly identified. Where the wrongful omission is a failure to prevent an illegal activity that does not increase the risk of the harm that occurred, both factual and legal causation will ordinarily fail. South African law adopts a cautious, conservative approach to extending delictual liability to new situations and will only do so where there are positive policy considerations favouring such extension.

The court expressed doubt about whether a paraglider qualifies as an 'aircraft' under the Aviation Act definition, which requires 'a machine that can derive support in the atmosphere from the reactions of the air'. The court noted that a paraglider, being akin to a parachute, may not constitute a 'machine' which generally connotes mechanical power, and that the definition predated paragliding as a sport. However, this was not investigated as it was common cause between parties. The court also noted the confused state of aviation regulations at the time, with multiple overlapping statutory schemes. The court expressed sympathy for the respondent's tragic circumstances but emphasised that sympathy alone cannot justify extension of delictual liability where it would not be reasonable to do so. The court distinguished the principle of state accountability derived from Van Duivenboden, noting that while accountability is an important consideration, it does not automatically translate constitutional duties into private law duties enforceable by damages.

This case is significant in South African delictual law for its authoritative treatment of liability for omissions, particularly by regulatory bodies. It reinforces that: (1) wrongfulness is not presumed in cases of omission and must be established by the plaintiff based on considerations of public and legal policy; (2) breach of a statutory duty does not automatically give rise to delictual liability – the court must determine whether it would be reasonable to impose such liability; (3) the conservative approach of South African law to extending delictual liability remains applicable; (4) the principle that 'loss lies where it falls' unless there are positive policy reasons to shift it; (5) factual causation using the 'but-for' test requires proper identification of the hypothetical lawful conduct that should replace the wrongful conduct; (6) legal causation serves as a policy-based control mechanism even where other elements of delict are present. The case is particularly important for regulatory bodies, clarifying the limits of their delictual liability for failure to enforce regulations, especially where the breach has no connection to the harm suffered.