On 15 November 2021, Daily Maverick published an article by me titled: “The high before the fall: Proper oversight of and insurance needed against injuries from commercial extreme sports”.
Nearly two years later, the risk to human life and limb from a popular Mother City sport and tourist attraction persists.
On 3 July 2023, tandem paragliders collided above the Sea Point Promenade in Cape Town. While one tandem paraglider with his passenger managed to land safely and both be treated for minor injuries, the second tandem paraglider and his passenger landed in the surf approximately 300m offshore. While the paraglider survived, his passenger could not be saved despite extensive CPR efforts by the NSRI and died.
He was a 58-year-old Irishman Greig Oliver, travelling in South Africa with his son Jack, who is the scrum half for the Irish U20 rugby team.
Immediately following the incident, the South African Hang and Paragliding Association (Sahpa) declared themselves the body responsible for overseeing the sports and issued a statement on their website in which the following is stated: “Sahpa is gathering evidence and witness reports and has handed the matter to the Accident and Incident Investigations Division (AIID) for further investigation.”
Louis Stanford, spokesperson for Sahpa, said that “paragliding is simultaneously a challenging and rewarding sport, however, it does have inherent risks. The sport is well-regulated and safety is always a primary consideration. As this matter has been referred for further investigation, we cannot speculate on this accident.”
He added that “we are grateful to the fellow pilots and members of the public who raced to help the pilot and his passenger and the NSRI for completing the rescue in challenging conditions. We also express our sorrow and condolences to the friends and family of the deceased.”
He also appealed to any witnesses to contact the Sahpa office.
While paragliding is a popular leisure-time activity in certain parts of the Cape Peninsula and beyond, and, notwithstanding the existence of an established oversight body, it seems that, in truth, little has been done to improve the safety of passengers in this sport since the last-known incident in 2001 where severe injuries were sustained by the passenger when the paraglider with whom she was gliding crashed into a sea wall.
Regulation, liability gaps
Lest one thinks these are the only examples of such severe injuries being sustained, they are not. In April 2004, Malcolm Lyons & Brivik Inc represented an English tourist who was rendered a paraplegic in yet another tragic incident.
She had taken off with a tandem paraglider when the paraglider experienced a “wing collapse” which affected the control and moveability of the paraglider. This forced the paraglider to swing back towards the cliff face from where our client and the pilot had just taken off. Our client was seated in the harness in front of the pilot and had pushed her legs out in front of her to cushion the blow from the collision.
The result was catastrophic injuries which left her with two broken legs and permanent paralysis from the waist down. In this matter, it was known that the pilot had taken off in circumstances which proved themselves to be unsafe. The prevailing winds were not conducive to paragliding and it was therefore negligent to have attempted the flight.
Our client sued for damages in a case that was important in calling into question the legality of tandem paragliding for a reward, a question that was ultimately determined by the Supreme Court of Appeal. With the pilot not holding any public liability cover and not owning any assets, our client ultimately had no option but to pursue a claim against, inter alia, the Sahpa and the South African Civil and Aviation Authority — which alleged then, as they still do in their statement of 3 July this year, that the industry is duly regulated.
The matter was first heard in the Western Cape high court, which held that an organ of state such as the Civil Aviation Authority (CAA) and Sahpa, which were co-defendants in the matter, are to be held to account for the failure to discharge their statutory functions adequately.
The court stated further that those statutory obligations include proper control of all forms of aviation activity which is particularly essential in a world where aviation has become an integral part of daily life. Exercising that control would have meant policing the industry and ensuring that unlicensed pilots and paragliding operations could not offer services to the unsuspecting public. It was important to the court that the purpose of such control was to ensure the safety of those being conveyed on the aircraft.
The Supreme Court of Appeal, however, viewed the matter differently.
In its judgment, the Supreme Court of Appeal made reference to the legal framework, which included Civil Aviation Regulations, Aeronautical Information Circulars, the Aviation Act, the Civil Aviation Act and, most importantly, the Air Service Licensing Act.
At the time, the Air Service Licensing Act stated that commercial flying requires a carrier licence. Operating without said licence rendered the entire operation illegal. (It should be noted that no such licence had been issued in our client’s matter). Additionally, the Air Service Licensing Act required pilots to have a tandem rating and membership, alternatively the approval, of a flight school.
Although the Supreme Court of Appeal agreed that the act of tandem paragliding was illegal, it held that it was not incumbent on the CAA or Sahpa to exercise any control or supervision over the industry such that would establish delictual liability in this case under consideration.
The court reasoned as follows: if two tandem paragliders are injured, one flying for reward and the other not, in similar circumstances, then the passenger flying for reward would be entitled to compensation as the act was illegal; while the other would not — a situation the court viewed as unjust.
Nevertheless, where pilot error or negligence is involved then, and in addition to the act of tandem paragliding being illegal, there should be no barrier to a passenger claiming relief from either the pilot or an organisation which purports to oversee the industry which allows a pilot to fly in those circumstances.
In circumstances such as these, however, the pilot or the organisations should have sufficient assets or insurance to meet the damages claims. Many precedents for this already exist in our legislative framework. For example, if a bus or tour operator requires a cross-border licence to convey passengers, it must hold public liability cover of a minimum amount.
The Supreme Court of Appeal went on to state that as our client’s claim was based on an omission by the defendants to prevent the event from taking place, it was incumbent on our client to establish that the omissions were wrongful in a delictual sense. That means that considerations of public and legal policy would dictate whether it would be reasonable to impose delictual liability on the Sahpa and the South African Civil Aviation Authority for the harm caused by their omission, i.e. lack of control over the industry.
Ultimately the Supreme Court of Appeal was swayed by the evidence of representatives of Sahpa who had argued, among other things, that reward does not increase the risk of an accident and further that there were attempts afoot at the time to legalise the industry.
Contrary to the claims and intimations made in the 3 July 2023 Sahpa statement, there is still not sufficient regulation, and certainly none requiring paragliders to have public liability cover to protect passengers from the devastating consequences of injuries that can be and, too often, are sustained. As paragliders are rewarded financially per flight, there indeed appears to exist an incentive to be in the air on as many flights as possible in a day, with less regard being given to passenger safety as a result.
Needless to say, it is unfortunate that incidents in which passengers suffer serious injury or even death continue to take place. That they do, reflects the ongoing need for tighter regulation and control — either through legislation or through the regulatory stipulations through membership of a body such as Sahpa.
As for our client, she continues to be wheelchair-bound, her career cut short as a consequence of participation in what was then an illegal activity for which she paid a fee and which she hoped would be the highlight of her visit to Cape Town. DM