In 2004, a UK tourist went on a tandem paragliding flight near Hermanus in the Western Cape, which left her paralysed after the paraglider lost height and manoeuvrability, resulting in a collision with the nearby mountain. The paralysed passenger then claimed R25 million in damages against The South African Hang and Paragliding Association (SAHPA) and The South African Civil Aviation Authority (SACAA). At the time, tandem paragliding for reward was illegal and both the SAHPA and SACAA were aware that this illegal activity was being conducted by various paragliding companies.
The Western Cape High Court found that the SAHPA and SACAA had a legal duty to take reasonable steps to prevent the illegal activity and that they had been negligent in failing to do so. The plaintiff was therefore successful. The SAHPA and SACAA then appealed to the Supreme Court of Appeal (SCA) where the question of wrongfulness in the case of negligent omissions (or the failure to act) was addressed.
Under our law of delict, if negligent conduct in the form of a positive act results in harm (like physical injury or damages), then wrongfulness is presumed. On the other hand, if the harm is as a result of a negligent omission, then wrongfulness is not presumed and liability depends on the existence of a legal duty. Whether or not a legal duty exists is a matter for judicial determination and is dependent on public policy and constitutional norms.
The SAHPA and SACAA argued that the payment of a reward did not influence the safety of the passenger and that it would not be reasonable to impose liability on them for an omission that did not relate to aviation safety. The SCA handed down judgment earlier this year and decided that although the SAHPA and SACAA had a statutory duty to take steps to prevent an illegal activity, their failure to do so was not wrongful in the delictual sense, especially since the activity was in the process of being legalised.
This judgment reiterates that wrongfulness is not presumed in the case of a negligent omission and that the failure to act in accordance with a statutory duty may not be sufficient to claim liability. Ultimately, wrongfulness in these cases will depend on whether it is reasonable in the circumstances to compensate the plaintiff for a breach of his legal right and this, in turn, is dependent on public policy.
Read the judgment here: http://www.saflii.org/za/cases/ZASCA/2015/34.html
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