About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2015
>>
[2015] ZASCA 34
|
|
South African Hang and Paragliding Association and Another v Bewick (1010/2013) [2015] ZASCA 34; 2015 (3) SA 449 (SCA); [2015] 2 All SA 581 (SCA) (25 March 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 1010/2013
In
the matter between:
THE
SOUTH AFRICAN HANG AND PARAGLIDING
ASSOCIATION
...............................................................................................
FIRST
APPELLANT
THE
SOUTH AFRICAN CIVIL AVIATION
AUTHORITY
..............................................................................................
SECOND
APPELLANT
and
DIANE
ELIZABETH BEWICK (NEE
MILLER)
................................................
RESPONDENT
Neutral
citation:
The South African Hang and
Paragliding Association v Bewick
(1010/2013)
[2015] ZASCA 34
(25 March 2015).
Coram:
Brand, Mhlantla, Leach, Saldulker
et
Mbha JJA
Heard:
9 March 2015
Delivered:
25 March 2015
Summary:
Delict – respondent injured in
paragliding accident while transported as passenger for reward –
issue whether tandem
paragliding for reward illegal – further
issue, whether in that event failure by appellants to prevent the
illegal activity
constituted wrongfulness in delict – further
issue whether appellants’ omission was causally connected to
harm suffered
by respondent.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Gamble J sitting as court of first
instance):
1 The appeal is
upheld with costs, including the costs of two counsel (in respect of
both the appellants).
2 The order of the
court a quo is set aside and replaced by the following:
‘
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.
JUDGMENT
Brand
JA
(Mhlantla, Leach, Saldulker
et
Mbha JJA concurring):
[1]
The first appellant is the South African Hang and Paragliding
Association (SAHPA) while the second appellant is the South African
Civil Aviation Authority (SACAA). I propose to refer to them jointly
as the appellants, save where distinction becomes necessary.
The
respondent is Mrs Diane Berwick, a radiographer from Tyneside in the
United Kingdom. During 2004 she spent the Easter holiday
in Cape Town
with her husband, who was then her fiancé. One evening over
dinner she expressed an interest in taking a tandem
paragliding
flight. She did so because she had had the experience in Turkey and
because she thought she would enjoy seeing the
Cape Town Waterfront
from the air. One of her friends then made the necessary arrangements
with entities that offered tandem paragliding
flights for reward.
[2]
So it happened that on Monday 12 April 2004 the respondent and her
group were picked up from their hotel in Cape Town. Contrary
to her
expectation that the flight would take her over the Cape Town
Waterfront, the group was driven out to Hermanus in a minibus.
The
respondent was paired with a very experienced paragliding pilot, Mr
Robert de Villiers-Roux. Unlike a hang-glider, a paraglider
has no
fixed frame, and is more akin to a parachute. With a tandem
paraglider the passenger is positioned in front and slightly
lower
than the pilot. The respondent and De Villiers-Roux took off from the
launch site on a hillside outside Hermanus. Just after
take-off, the
paraglider experienced a so-called wing collapse which affected its
manoeuvrability and caused it to lose height.
In consequence, De
Villiers-Roux swung the paraglider back towards the hillside in an
attempt to keep it aloft. From the position
where she was sitting,
the respondent thought that she could cushion the blow of the
impending collision by putting her feet out.
She obviously did not
realise the speed at which they were already travelling. When her
feet hit the hillside, she broke both her
legs and also her spine. In
consequence, she spent many months in hospital, first in Cape Town
and then in England. Eventually
her injuries left her paralysed in a
wheelchair.
[3]
Resulting from these tragic events, the respondent instituted action
in the Western Cape Division of the High Court in which
she claimed
damages, in the pounds sterling equivalent of about R25 million, from
six defendants. The first defendant was the pilot,
Mr De
Villiers-Roux. The second and third defendants were his employers
with whom she had contracted to take the tandem flight
for reward.
The fourth and fifth defendants were SAHPA and SACAA while the sixth
defendant was the Department of Transport. Shortly
before the
commencement of the trial, however, the respondent settled her case
against first, second and third defendants and withdrew
her claim
against the sixth. In consequence the trial proceeded before Gamble J
solely against the two appellants. At the commencement
of the hearing
and at the behest of all parties, Gamble J ordered a separation of
issues under Uniform rule 33(4) of the High Court
Rules. In terms of
the separation order, issues concerning the merits, ie those relating
to the appellants’ liability in
principle, were to be
adjudicated first while issues concerning the extent of the
respondent’s loss and the quantum of her
damages were to stand
over for later determination. At the end of the preliminary
proceedings, Gamble J held in favour of the respondent.
In the result
he found the two appellants liable, jointly and severally, for such
damages as the respondent may prove at the second
stage. The appeal
against that order is with the leave of the court a quo.
[4]
By the nature of things, the exact nature and the constituent
elements of the respondent’s claim against the appellants
will
in time become apparent in full detail. For introductory purposes it
can, however, be stated thus:
(a) Paragliding
within South Africa fell under the direction and control of the two
appellants.
(b) Tandem
paragliding for reward was illegal and the two appellants were aware
that this illegal activity was going on.
(c) The two
appellants were under a legal duty to take reasonable steps to
terminate and prevent this illegal activity, but had
negligently
failed to do so.
(d)
Had the appellants done so, the flight during which the respondent
sustained her injuries, would not have occurred.
[5]
The respondent’s case is therefore based on an omission or
failure to do something as opposed to positive culpable conduct.
That
brings about a different approach to the delictual element of
wrongfulness. As has by now become well established, negligent
conduct manifesting itself in the form of a positive act which causes
physical injury raises a presumption of wrongfulness. By
contrast, in
relation to liability for omission and pure economic loss,
wrongfulness is not presumed and depends on the existence
of a legal
duty. The imposition of this legal duty is a matter for judicial
determination according to criteria of public and legal
policy
consistent with constitutional norms (see eg
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
(SCA) para 12;
Country Cloud Trading CC
v MEC, Department of Infrastructure Development
2015
(1) SA 1
(CC) paras 22-25).
[6]
On occasion the same principles had been formulated somewhat
differently, namely that wrongfulness depends on whether or not
it
would be reasonable, having regard to considerations of public and
legal policy, to impose delictual liability on the defendant
for the
loss resulting from the specific omission. No objection can be raised
against this formulation, as long as it is borne
in mind that
reasonableness in the context of wrongfulness has nothing to do with
the reasonableness of the defendant’s conduct,
which is an
element of negligence, but concerns the reasonableness of imposing
liability on the defendant for the harm resulting
from his or her
omission (see eg
Le Roux & others v
Dey (Freedom of Expression Institute and Restorative Justice Centre
as amici curiae
2011 (3) SA 274
(CC)
para 122). Since wrongfulness is not presumed in the case of an
omission, a plaintiff who claims on this basis must plead
and prove
facts relied upon to support that essential allegation (see eg
Fourway Haulage SA (Pty ) Ltd v SA
National Roads Agency
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA) para 14).
[7]
The legal duty on the part of the appellants for which the respondent
contended in her pleadings, rested on two propositions:
(a) that at
the time, tandem paragliding for reward was illegal; and (b) that the
appellants were under a statutory obligation
to prevent or terminate
that illegal activity. Establishment of these facts will, of course,
give rise to the secondary enquiry
as to whether, as a matter of
public and legal policy, they justify the imposition of a legal duty
with the consequence of delictual
liability. But the antecedent
question remains whether the respondent had succeeded in proving the
factual grounds on which her
case relies. Before embarking on these
questions of fact, it is perhaps useful, however, to point out what
is not in issue. First,
the negligence of the pilot, Mr de
Villiers-Roux, is not in issue. This is so, not only because the
respondent had settled with
him and his employers, but because the
respondent’s whole approach was that it matters not, for the
determination of the
appellants’ legal duty, whether the pilot
was negligent. Secondly, the respondent does not contend that tandem
paragliding
in itself was illegal and should thus have been prevented
by the two appellants. Her proposition of illegality turned
exclusively
on the element of reward.
Illegality
of tandem paragliding for reward
[8]
In support of her thesis of illegality, the respondent set great
store in the evidence of Mr Robert Manzoni, who was at some
earlier
stage the vice-chair of SAHPA. According to his evidence, paragliding
for reward became prevalent in this country during
about 1998. From
the start, he was against it. The reason for his opposition stemmed
from his conviction that reward increased
the danger of the sport.
Once passengers are prepared to pay up to R800 for a flight, so
Manzoni believed, there is pressure on
the pilot to fly. The decision
whether to fly or not, so he maintained, becomes driven by money
instead of aviation safety. Manzoni
also believed that paragliding
for reward was illegal. He communicated his views to his fellow
members of SAHPA as well as to SACAA.
Broadly speaking, the response
to his communications was (a) general disagreement with his thesis
that reward renders tandem paragliding
more dangerous; but (b)
consensus that paragliding for reward was probably illegal. The
qualification probably resulted from the
fact that the legislative
enactments governing civil aviation were all promulgated before
paragliding became popular as a sport.
In consequence the legality or
otherwise of paragliding remained somewhat obscure.
[9]
The difference of opinion with regard to the impact of reward on
safety gave rise to a different approach to legality. While
Manzoni’s
proposal was that the illegal activity should be put to an end,
others, including SACAA, who did not share Manzoni’s
belief
that reward increased the risk inherent in tandem paragliding, were
making an effort to remove all legal impediments to
this activity. It
appears that Manzoni became increasingly isolated in his stand, which
drove him to become somewhat intransigent.
I infer this from the
length, content and number of the emails that he sent to SAHPA, SACAA
and other interested parties in his
attempt to persuade them to adopt
the course of conduct which he proposed. It is clear, however, that
his efforts met with no success.
In fact, it had the opposite effect.
The responses to his emails reveal growing irritation with his
crusade until eventually Manzoni
became ostracised by the paragliding
community. What is demonstrated by all this, as I see it, is that the
overwhelming view in
paragliding circles, which encompassed both
SAHPA and SACAA, was that reward did not render tandem paragliding
more dangerous,
ie that it did not increase the risks inherent in
tandem paragliding, and that it should therefore be legalised. These
developments,
I believe, are also revealed by the legislative
history, to which I now turn.
[10]
In her particulars of claim, the respondent pertinently alleged that
paragliding for commercial gain was illegal due to (a)
clauses 1.16
and 2.8 of SAHPA’s Operations and Procedures Manual; (2000) (b)
Part 2.25 of the Air Navigation Regulations,
1976; and (c) Parts 24,
94 and 96 of the Civil Aviation Regulations 1997, read with
Aeronautical Information Circular (AIC) 18.23.
[11]
Clauses 1.16 and 2.8 of SAHPA’s Operations and Procedures
manual provide:
‘
1.16
Tandem flights
No person may fly
with a passenger without being in possession of a current TANDEM
pilot rating.
No more than two
persons may fly in a hang-glider or a paraglider.
No member may carry
tandem passengers for reward, unless they have the appropriate
carrier licence from the Civil Aviation Authority.
2.8
Licence
Privileges
Members may exercise
the privileges of a licence from the time of payment of the
prescribed fee and submission of all required documents,
to the
designated body.
Licences
issued by SAHPA are for recreational purposes, i.e. not for
commercial gain.’
[12]
The Civil Aviation Regulations (CARS) 1997, to which reference is
made in the quotation from the respondent’s pleadings,
were
issued under s 22 of the Aviation Act, 74 of 1962 (since
repealed by the
Civil Aviation Act 13 of 2009
). The Aviation Act
applied to all aircraft. Albeit of doubtful correctness, the
prevailing opinion, not only amongst the parties,
but also of those
responsible for the drafting of regulations, was that a paraglider
qualified as an aircraft. Moreover, it was
generally accepted that a
paraglider is a ‘non-type certified aircraft’, or NTCA,
as defined in the CARS. Why I find
the prevailing opinion of doubtful
correctness, is that an ‘aircraft’ is defined in the
Aviation Act as ‘any
machine that can derive support in the
atmosphere from the reactions of the air other than the reactions of
the air against the
earth’s surface’. My misgivings arise
from the fact that I do not believe that a paraglider – which
is akin to
a parachute – can be described as a ‘machine’,
a word that generally connotes an apparatus that uses mechanical
power –
Concise Oxford Dictionary
12 ed (2011). In addition, according to
Mr Manzoni’s evidence, paragliding only took root as a sport in
this country during
the late 1980s. It can therefore be accepted with
confidence that the definition of an ‘aircraft’, which
was introduced
by way of an amendment to the Aviation Act in 1969,
never had paragliders in mind. But because it was common cause
between the
parties in this case, that a paraglider is an aircraft,
the issue was never properly investigated.
[13]
The Aeronautical Information Circulars or AICs to which reference is
also made in the respondent’s pleadings, were issued
by the
Commissioner of Civil Aviation in terms of the 1997 CARS. AICs were
published to convey practices and procedures, technical
standards and
so forth. But they were also used to publish exemptions which the
Commissioner of Civil Aviation was empowered to
make in terms of
CARS. So, for example, the Commissioner was authorised to exempt any
aircraft from certain provisions of ‘document
LS/1’.
Until about November 2002 the operation of NTCAs, including
paragliders, was regulated by this document. Of significance,
for
present purposes, was paragraph 1.3 of LS1 which provided that NTCAs
‘shall not be operated for remuneration, unless
otherwise
authorised by the Commissioner’.
[14]
On 15 November 2002 the Commissioner issued AIC 18.23 to which
specific reference is made in the respondent’s particulars
of
claim. The document was entitled: (568)
‘
Publication
. . . of the full particulars of an exemption granted by the
Commissioner for Civil Aviation from the requirements of
regulation
11.04.6 of the Civil Aviation Regulations 1997.’ Under the
heading “Details of exemption’ the document
then
explained that:
‘
The
exemption will . . . withdraw Document LS/1 and impose the
requirements contained in proposed Parts 24, 94 and 96 . . . as
conditions for the operation of aircraft that do not qualify for the
issue of a certificate of airworthiness (Non-type Certificated
Aircraft)[or NTCAs].
Under
the heading ‘Background Information’ the document
proceeded:
‘
Document
LS/1 was reinstated by the CAA . . . as an interim measure to address
the lack of any regulatory requirements for non-type
certificated
aircraft. It was initially envisaged that the Document LS/1 would be
re-instated for a period of six months. This
envisaged six months
re-instatement period has stretched to over 18 months and it will
probably take another six months before
Parts 24, 94 and 96 are
promulgated.
Document LS/1,
however, does not make adequate provision for the commercial
operation of non-type certificated aircraft and is completely
silent
on the issue of operating certificates. . . . .’
Under
‘Motivation’ it further proceeded:
‘
Document
LS/1 has clearly outlived its usefulness. It is expected that it will
take approximately six months to translate Parts
24, 94 and 96 into
Zulu and obtain the Ministers approval for these Parts. As an interim
measure, the CAA motivated the granting
of this exemption to
operators of Non Type Certificated Aircraft, subject to the condition
that the requirements contained in proposed
Parts 24, 94 and 96 are
to be complied with by the operators of NTCA’
and:
‘
During
the development of parts 24, 94 and 96, extensive consultation was
undertaken and the proposed Parts were well received by
stakeholders.
Furthermore the Proposed Parts 24, 94 and 96 were published for
comments on 11 January 2002 . . . There should therefore
be no
objection from stakeholders to these Parts being introduced in this
manner and at this juncture. Indeed the commercial operators
of NTCA
should welcome the speedy introduction of the Proposed Parts, as this
will eradicate most of the impediments they currently
face. . . .’.
[15]
As it turned out, parts 24, 94 and 96 of CARS eventually only came
into operation six years later, during 2008. But at the
trial all
parties accepted that, as at 12 April 2004 when the respondent’s
accident occurred, paragliding operations were
governed, pursuant to
AIC 18.23, by the proposed parts 24, 94 and 96 of the 1997 CARS.
Likewise it was common cause at the trial
that Part 24 was not of any
direct concern in this case. The provisions of Part 94 relied upon by
the respondent appeared in subparagraph
94(4), which provided that
‘non-type certificated aircraft operated in terms of this Part
are prohibited to carry passengers
or cargo for reward’. But a
debate arose with regard to what Part 96 provided at the time. The
reason for the debate appears
from what follows. As finally
promulgated in 2008 regulation 96.01.1 – included in Part 96 –
contained, inter alia,
subparagraphs (2) and (6) which read as
follows:
‘
(2)
No non-type certificated aircraft shall be used in commercial air
transport operations unless the operator is the holder of
the
appropriate air service licence issued in terms of the Air Services
Licensing Act, 1990 (Act 115 of 1990) . . .
(6)
For the purposes of sub-regulation (2), tandem operations with
hang-gliders, paragliders or parachutes, even if carried out
for
remuneration or reward, shall not considered to be the providing of
an air service as defined in the Air Services Licensing
Act, 1990
[Act 115 of1990] . . . nor to be a commercial air transport
operation, as defined in Part 1 of these Regulations.’
[16]
The respondent’s case is clearly supported by subparagraph (2),
because it is common cause that no paraglider operator
in this
country – including the operator in this case – had at
the time been issued with a licence in terms of the
Air Services
Licensing Act, 1990. At the same time it is clear that, for
hang-gliders, paragliders and parachutes, the effect of
subparagraph
(2) is cancelled out by (6). In fact, on the face of it, the latter
subparagraph clearly proclaimed tandem paragliding
for reward to be a
legal activity. The debate arose, however, because the respondent
relied on a version of regulation 96.01.1,
published on 11 January
2002, which contained no subparagraph (6). The appellants, on the
other hand, were unable to produce a
published version of 96.01.1
which supported their case, ie which included subparagraph (6). What
they relied on was a minute of
a SAHPA committee meeting on 25
November 2002 which reads:
‘
Commercial
Tandem Issue
: The law currently removes
the requirement to register in terms of the air licences act and the
law says that for the purpose of
sub regulation 2.. Tandem operations
for HG, PG or parachutes even if carried out for remuneration or for
reward it shall not be
considered to be the providing of an air
service nor to be a commercial operation.’
[17]
In the event, the court a quo held that SAHPA had failed to show that
subparagraph (6) was incorporated in the Commissioner’s
exemption under AIC 18.23. After that judgment was handed down and
pending this appeal, the appellants continued their search for
the
document that could have given rise to the SAHPA minutes of 25
November 2002. That search remained unsuccessful. Yet, the search
produced a completely different document, AIC 18.30, which was
published by the Commissioner on 3 November 2003, that is, a year
subsequent to the minuted SAHPA meeting but prior to the respondent’s
accident on 12 April 2004. This document is entitled
‘Amendments
to proposed parts 24, 94 and 96’. In paragraph 1 it provided
‘AIC 18.23 dated 02-11-15 refers’.
Even more
significantly, annexed to the document was a version of Part 96 which
included sub-paragraph (6).
[18]
The appellants brought an application to introduce AIC 18.30,
together with its important annexure, in evidence on appeal.
Despite
earnest opposition to this application by the respondent, I believe
we should receive the further evidence. First of all,
I think the
failure to produce AIC 18.30 at the trial was as much the fault of
the respondent as that of the appellants. Perhaps
even more so, since
the onus to establish the facts surrounding the illegality or
otherwise of tandem paragliding for reward, was
on the respondent,
not on the appellant as the court a quo seems to have thought.
Secondly, I would be left with a feeling of unease
if we were
compelled to decide the question of legality on a statutory basis we
now know to be outdated. In the light of this new
evidence the clear
inference, as I see it, is that prior to the accident, the
Commissioner of Civil Aviation intended to legalise
tandem
paragliding for reward by introducing subparagraph (6).
[19]
Yet, the respondent raised another argument as to why, despite the
Commissioner’s efforts, the activity remained illegal.
This
argument went along the following lines. Even if the exemption in
subparagraph (6) of regulation 96.01.1, on its own terms,
legalised
tandem paragliding for gain, it was not competent for the
Commissioner to exempt these operators from the provisions
of the Air
Services Licencing Act, 1990 in the purported exercise of an
authority conferred by regulations promulgated under different
legislation, ie the Aviation Act. The stipulation by the Air Services
Licensing Act, that commercial flying requires a carrier
licence, so
the respondent’s argument concluded, therefore remained in
place – hence the continued illegality of commercial
tandem
operations. The appellants’ response to this line of argument
was, in the main, that the respondent had not previously
placed any
reliance on non-compliance with the Air Licencing Act. She had not,
so they pointed out, referred to this Act in her
pleadings and had
never contended at any stage during the trial that tandem flying for
gain was illegal, due to non-compliance
with this Act. In consequence
the factual basis for this argument was never properly considered.
Although I share the appellants’
aversion to litigation by
ambush, the respondent’s argument leaves one with the niggling
disquiet that it may be a good one;
that despite the publication of
Part 96.01.1(6) of CARS by the Commissioner, tandem paragliding for
gain without a commercial operating
licence had, after all, remained
illegal under the Air Services Licencing Act.
[20]
The other legislative provision on which the respondent relied in her
pleadings was the Air Navigation Regulations, 1976. SACAA’s
answer to this allegation in its plea was simply that these
regulations never applied to paragliders. As far as I can determine,
the issue thus arising was never properly canvassed at the trial. In
fact, it was clear at the hearing of the appeal that counsel
for both
appellants were under the firm impression that the respondent no
longer relied on these regulations. However, it became
apparent
during the argument on behalf of the respondent that she indeed still
relied on the proposition that these regulations
found application
and that they had been contravened. Her arguments in support of this
contention started out from the premise
that, at the time of the
accident, Part 62 of the 1997 CARS, which provided for the issuing of
pilot licences for recreational
aircraft, had not yet been brought
into operation. Pilot licences were therefore still regulated by the
Air Navigation Regulations
of 1976. Broadly stated, private licences
issued under these regulations did not allow flying an aircraft for
reward – what
was required for this purpose, was a commercial
pilot’s licence. Although these regulations predated
paragliders, it did
pertain, so the respondent’s argument went,
to an ‘aircraft’ as defined, which definition included
paragliders.
Since the pilot in this case had no commercial licence,
so the respondent contended, he acted in contravention of these
regulations
when he undertook the tandem flight for gain. Again, this
argument leaves one with the niggling sense of unease that, although
its factual basis had not been properly explored, it may just be
correct. In the end my overall impression of the legal position
is
therefore that the Commissioner of Civil Aviation intended to
legalise paragliding for reward and perhaps thought that he had
succeeded in doing so. Nonetheless there could have been other
statutory provisions in this maze of enactments which still required
co-ordination so as to harmonise the position. The result may be
that, albeit unintended, tandem paragliding for reward remained
illegal at the time of the accident. My further deliberation thus
proceeds on the assumption that this was so.
The
appellants’ statutory obligations to terminate and prevent
tandem paragliding for reward
[21]
On the assumption that there were statutory provisions which rendered
the impugned activity illegal, the next question arising
is –
why were the appellants responsible for the enforcement of these
statutory provisions? With regard to SACAA, the respondent’s
case rested on the Civil Aviation Authority Act 40 of 1998, which
provided SACAA with its statutory origin. With reference to the
provisions of this Act, the respondent relied primarily on s 3
and s 4. In terms of s 3, the objects of the SACAA
are,
amongst other things, to control, regulate and provide civil aviation
safety and security. Section 4 renders SACAA responsible
for the
administration of the laws referred to in the section, which include
the Aviation Act and, by implication, the regulations
promulgated
under that Act. In the light of these provisions, I agree with the
court a quo’s finding that the ultimate responsibility
for the
enforcement of civil aviation safety vested with SACAA. I also agree
with the court’s further conclusion that:
‘
Through
its various functionaries, including an inspectorate and licencing
office, it is responsible for the licencing of all civilian
aircraft,
the testing, rating and licensing of civilian pilots and the
enforcement of the myriad safety measures which are such
an integral
part of the broader civil aviation sector.’
[22]
The statutory position of SAHPA is somewhat more obscure. In terms of
a memorandum of agreement between SACAA and an entity
called the
Aeroclub of South Africa – an association incorporated not for
gain – SACAA delegated some of its powers
and functions with
regard to sporting aviation activities, to the latter, as it was
authorised to do in terms of regulation 149
of the 1997 CARS. One of
its powers so designated was ‘the issuing of paragliding pilot
certificates’. Yet, by some
or other means unknown, SAHPA –
and not the Aeroclub – assumed the power to issue and suspend
paragliding pilots’
licences. In the same way as the court a
quo, I shall assume, in favour of the respondent and without any
evidence to that effect,
that this power must have been delegated to
SAHPA by the Aeroclub pursuant to its authority to do so in terms of
clause 10 of the
memorandum of agreement between it and SACAA.
Starting out from this premise, the respondent contended that SAHPA
was statutorily
obliged to suspend the licences or to refuse the
annual renewal of the licences of paragliding pilots who acted in
contravention
of statutory provisions and of SAHPA’s own
Operations and Procedural Manual, by partaking in tandem paragliding
for gain.
For the sake of argument I shall assume in favour of the
respondent that all this holds true.
Wrongfulness
[23]
Even on the assumption that the appellants had failed to perform a
duty imposed upon them by statute, the question remains
whether their
omissions were wrongful in the delictual sense. To the uninitiated it
may sound contradictory to say that omissions
to comply with
statutory obligations are not wrongful. But that impression loses
sight of the special meaning attributed to the
element of
wrongfulness in the context of delictual liability. As I have said by
way of introduction, wrongfulness in this context
means that, in
accordance with judicial determination, considerations of public and
legal policy dictate that it is reasonable
to impose delictual
liability on the defendant for the harm caused by the omission
involved. The proper approach to the question,
whether an omission to
comply with a statutory obligation gives rise to delictual liability,
appears from the following statement
by Cameron JA in
Olitzki
Property Holdings v State Tender Board & Another
2001 (3) SA
1247
(SCA) para 12:
‘
Where
the legal duty the plaintiff invokes derives from breach of a
statutory provision, the jurisprudence of this Court has developed
a
supple test. The focal question remains one of statutory
interpretations, since the statute may on a proper construction by
implication itself confer a right of action, or alternatively provide
the basis for inferring that a legal duty exists at common
law. The
process in either case requires a consideration of the statute as a
whole, . . . But where a common law duty is
at issue, the
answer now depends less on the application of formulaic approaches to
statutory construction than on a broad assessment
by the court
whether it is ‘just and reasonable’ that a civil claim
for damages should be accorded. The conduct is
wrongful, not because
of the breach of the statutory duty
per
se
, but because it is reasonable in the
circumstances to compensate the plaintiff for the infringement of his
legal right. The determination
of reasonableness here in turn depends
on whether affording the plaintiff a remedy is congruent with the
court’s appreciation
of the sense of justice of the community.
This appreciation must unavoidably include the application of broad
considerations of
public policy determined also in the light of the
Constitution and the impact upon them that the grant or refusal of
the remedy
the plaintiff seeks will entail.’
[24]
In this case the respondent did not contend that the statutory
provisions upon which she relied, in themselves, conferred an
action
for damages on her. Instead her claim rested on a common law legal
duty. So, as explained in
Olitzki
,
the question of wrongfulness depends on whether, in all the
circumstances, it would be reasonable to impose legal liability on
the appellants. The court a quo held that it would. What weighed
heavily with the court in arriving at that conclusion, was the
principle deriving from the concept of State accountability which is
formulated thus by Nugent JA in
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 21:
‘
Where the
conduct of the State, as represented by the persons who perform
functions on its behalf, is in conflict with its constitutional
duty
to protect rights in the Bill of Rights in my view the norm of
accountability must necessarily assume an important role in
determining whether a legal duty ought to be recognised in any
particular case.’
But
as Nugent JA immediately added:
‘
The norm of
accountability, however, need not always translate constitutional
duties into private law duties enforceable by an action
for damages .
. .’
[25]
Accountability is therefore just one of the considerations which
should, among others, be taken into account. My concern immediately
arising from the conclusion arrived at by the court a quo can be
illustrated by the following example: Passenger A goes on a tandem
paragliding flight for reward, while passenger B also goes on a
tandem flight, but for free. Both are involved in an accident in
exactly the same circumstances, which did not entail any negligence
on the part of the pilot. Both accidents constituted what could
be
described in the parlance of insurance law as an act of God.
Nonetheless, passenger A has a delictual claim against the appellants
while passenger B has none. Can that really represent the sense of
justice of the community?
[26]
I think what lies at the heart of my difficulty, is that, in the
preponderance of cases, payment of a reward would have nothing
to do
with the occurrence of the harm causing accident. I know Manzoni
thought differently, but his was clearly a lone voice crying
in the
wilderness. The vast majority of those involved in paragliding
circles, including SACAA, obviously thought otherwise. They
clearly
believed that there is no correlation between the payment of reward,
on the one hand, and the inherent dangers of tandem
paragliding, on
the other. Otherwise stated, they clearly believed that reward does
not increase the risk of an accident. I say
that because, around the
time of the accident, the clear majority of those involved in
paragliding, including SACAA, were doing
their level best to legalise
the impugned activity by changing the regulations. In addition, the
respondent’s case was not
that those advocating these changes
were irresponsible or that the changes would render tandem
paragliding more dangerous. On the
contrary, her case was simply that
unless and until the regulations were amended, the activity was
unlawful. The only conclusion
dictated by logic, is an acceptance by
most, including the respondent, that the illegality had nothing to do
with the safety of
the passenger.
[27]
Stated somewhat differently: if the appellants’ underlying
statutory obligations stemmed from their obligation to ensure
and
promote the safety of civil aviation, why would it be reasonable to
impose liability upon them for an omission which had no
direct impact
on aviation safety. Closely linked to this consideration is that,
from the appellants’ perspective, virtually
everybody involved
in the sport of paragliding was of the view that tandem paragliding
for gain should be legalised. They probably
also realised that after
the publication of subparagraph (6) of Part 96 by the Commissioner of
Civil Aviation, legalisation of
this activity was merely a matter of
dotting the i’s and crossing the t’s, so to speak. In
addition, they were aware,
because it appears from their exchange of
emails with Mr Manzoni, that tandem paragliding for reward had by
then become a popular
tourist attraction and that some paragliding
pilots had started to make a living out of this activity. The
rhetorical question
arising from all this is – why would the
appellants, in these circumstances, take steps to stop an activity
which was about
to be legalised and did not constitute a safety
hazard? This, of course, gives rise to the further rhetorical
question –
why would it, in the circumstances, be considered
reasonable to impose legal liability upon them for not doing so?
[28]
Another question that presents itself in considering the picture as a
whole is – what were the appellants expected to
do? As to both
the appellants, the respondent’s first answer to this question
is that they should have informed paragliders
that the activity was
illegal, which presupposes, of course, that paragliders did not know
that. As to SAHPA, the respondent’s
further contention was that
it should have refused to renew or suspend the pilot licences of
offending pilots. With reference to
SACAA the respondent proposed
that it should have withdrawn SAHPA’s authority to issue
pilots’ licences and then suspend
or refuse to renew the
licences of offending pilots. In addition, so I understood the
argument, SACAA should have taken legal steps
to stop this illegal
activity, eg by approaching the court for an interdict against the
offending pilots or by reporting them to
the police. What the
exercise of these policing functions presupposes, of course, is that
the offending pilots have been identified.
Paragliders, so it appears
from the evidence, can take off from an untold number of places.
Unlike aircraft, properly so called,
they are not confined to an
airfield. Identification of offending pilots would therefore require
widespread control and investigation
by inspectors appointed by the
appellants. As to SAHPA, no evidence was presented with regard to its
available resources, but the
inherent probabilities seem to indicate
that it would not be able to afford these extensive measures of
control.
[29]
By contrast, SACAA would probably be able to impose the necessary
control by various measures at its disposal, including its
inspectorate. But as the court a quo rightly pointed out, SACAA is
responsible for a myriad of safety measures which are inherent
to the
broader civil aviation sector. I also agree with the court’s
sentiment that civil aviation safety, for which the SACAA
holds
overall responsibility, has become an integral part of daily life for
most South Africans. Not only to passengers, but also
to those living
close to airports. ‘No doubt’, so the court said, ‘the
public would want to be assured that such
aircraft flights were safe,
both in respect of aircraft airworthiness and pilot qualifications’.
This is undoubtedly so,
but in these circumstances it could hardly be
expected of SACAA, in its determination of priorities, to allocate
substantial resources
to prevent tandem paragliding for gain which
was considered not to increase the risk of harm in any way and at a
time when this
activity was about to be legalised. That, as I see it,
presents another reason why it would not be reasonable to impose
legal liability
on the appellants for omitting to terminate or
prevent this activity.
[30]
Apart from these considerations, application of general principles
that have become crystallised in the jurisprudence of this
court (see
eg
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA) para 21) also seem to point away from the
imposition of legal liability on the appellants. First amongst these
is the general
point of departure that appears from the following
statement by Grosskopf AJA in
Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A) at 504D-H:
‘
However, the
approach of English law seems to me to be different from ours . . .
English law adopts a liberal approach to the extension
of a duty of
care . . . South African law approaches the matter in a more cautious
way, as I have indicated, and does not extend
the scope of the
Aquilian action to new situations unless there are positive policy
considerations which favour such an extension.’
[31]
Another principle, aligned to this conservative approach, was
formulated thus by Harms JA in
Telematrix (Pty) Ltd v Advertising
Standards Authority SA
2006 (1) SA 461
(SCA) para 12:
‘
The first
principle of the law of delict, which is so easily forgotten and
hardly appears in any local text on the subject, is,
as the Dutch
author
Asser
points out, that everyone has to bear the loss he
or she suffers. The Afrikaans aphorism is ‘dat skade rus waar
dit val’.
Aquilian liability provides for an exception to the
rule and, in order to be liable for the loss of someone else, the act
or omission
of the defendant must have been wrongful and negligent
and have caused the loss. But the fact that the act is negligent does
not
make it wrongful . . .’
[32]
A further policy consideration which always looms large in deciding
whether or not to extend delictual liability to a situation
not
previously recognised, is the apprehension of boundless liability
(see eg
Fourway Haulage
para 24). In the course of its
judgment the court a quo gave various examples of situations in which
SAHPA would in its view be
held liable. Included amongst these was
liability to:
‘
. . . [T]hose
who take their daily stroll with their dogs in many of the public
spaces below Lion’s Head or Signal Hill .
. . would be entitled
to assume that it is safe to do so and that they are not likely to be
exposed to harm when an errant paraglider
decides (or is forced) to
land in those spaces.’
In
addition, the court proceeded to extend the liability of the
appellants to other situations which it described as tandem ‘flips’
by a pilot not properly qualified; tandem flights that took off from
dangerous places; and so forth. If all this is true, it would
to me
be the cause of great concern about indeterminate liability.
[33]
Then there is also the consideration which has become known in the
context of wrongfulness as the plaintiff’s vulnerability
to
risk. As developed in our law, vulnerability to risk signifies that
the plaintiff would have no alternative remedy or could
not avoid the
risk of harm by other means (see eg
Cape Empowerment Trust v
Fisher Hoffman Sithole
2013 (5) SA 183
(SCA) para 28). As we know
in this case, the respondent did indeed have another remedy: she
could and did sue the pilot and his
employer. It is true of course,
that this remedy would only be available if the pilot was negligent.
But if he was not, there seems
to be good reason to revert to the
default position in law of delict, namely, that everyone has to bear
the loss that he or she
suffers. Although one obviously has great
sympathy for the respondent in her plight that, in itself, cannot
justify the extension
of delictual liability where it would not be
reasonable to do so. It follows that, in my view, the court a quo had
erred in deciding
the issue of wrongfulness in favour of the
respondent.
Causation
[34]
My finding against the respondent with regard to the essential
element of wrongfulness in reality tolls the death knell of
her case.
But I also find myself in disagreement with the court a quo’s
finding in her favour on the issue of causation.
In the
circumstances, I propose to formulate my reasons for this view with
as little elaboration as practicable. The well-established
test for
factual causation is the ‘but-for’ test which is
formulated by Corbett JA as follows in
International Shipping Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700F-G:
‘
[T]he
so-called “but-for” test, . . . is designed to determine
whether a postulated cause can be identified as a
causa sine qua
non
of the loss in question. In order to apply this test one must
make a hypothetical enquiry as to what probably would have happened
but-for the wrongful conduct of the defendant. This enquiry may
involve the mental elimination of the wrongful conduct and the
substitution of a hypothetical course of lawful conduct and the
posing of the question as to whether upon such an hypothesis the
plaintiff’s loss would have ensued or not. If it would in any
event have ensued, then the wrongful conduct was not the cause
of the
plaintiff’s loss;
aliter,
if it would not so have
ensued.’
[35]
In applying this test, the court a quo’s reasoning went as
follows:
‘
Common sense
tells one that had these two bodies [ie the two appellants] taken the
necessary steps to stop the activity, the opportunity
for the
Plaintiff’s “walk on the wild side” [ie the tandem
paragliding flight for reward] would simply not have
arisen.’
My
dilemma with this approach can be illustrated by the following
example:
A, who is the owner
of a motor vehicle, allows B, who to the knowledge of A, is unable to
drive a vehicle, the use of his vehicle.
A’s conduct is clearly
both wrongful and negligent. But B then has a collision with C which
had nothing to do with B’s
incompetence as a driver. It was all
C’s fault. Applying the but-for test in the way of the court a
quo, the conclusion will
be that A’s failure to prevent the
incompetent driver from driving was the cause of the accident:
but-for the fact that A
had allowed B to drive the vehicle, the
accident would not have occurred because the vehicle would not have
been on the road. The
result is self-evidently untenable.
[36]
As I see it, the flaw in the court a quo’s reasoning,
illustrated by this example, lies in the wrong answer to the
antecedent
question which precedes the application of the but-for
test, namely, what hypothetical lawful conduct should mentally
replace the
wrongful conduct of A? In my view, the answer is to allow
a competent driver to drive his vehicle. It is not to prevent anybody
from driving the vehicle at all. Applying the but-for test in this
way, the enquiry will be: if A had allowed a competent driver,
would
the accident still have occurred? Since, in the given example, the
answer is clearly ‘yes’, A’s wrongful
conduct was
not the cause of the accident. In my view the same holds true for the
facts of this case. The supposition, for present
purposes, is that
the appellants acted wrongfully by allowing tandem paragliding for
reward. Allowing tandem paragliding without
charge would be lawful.
In applying the but-for test, one should therefore mentally replace
the wrongful conduct with: allowing
tandem paragliding for free. The
question is therefore: had the respondent been conveyed for free,
would the accident still have
occurred? Since the answer is clearly
‘yes’, the conclusion is that factual causation had not
been established. Of
course, one can postulate a situation where
payment of a reward could be the cause of the accident, for instance,
because the pilot
would otherwise not have undertaken the flight. But
those are not the facts of this case.
[37]
For the sake of completeness I may add that, had I arrived at a
different conclusion on the but-for test, I believe the respondent
would in any event have been unsuccessful, for failure to establish
the element of legal causation. The issue of legal causation,
or
remoteness, is determined by considerations of policy. It is a
measure of control. It serves as a ‘long stop’ where
right-minded people, including judges, will regard the imposition of
liability in a particular case as untenable, despite the presence
of
all other elements of delictual liability (see eg
mCubed
International (Pty) Ltd & another v Singer NNO & others
2009
(4) SA 471
(SCA) para 27). I say this because, even if the court a
quo’s application of the but-for test were to be accepted, the
position
would still remain that, what the appellants wrongfully
omitted to prevent did not increase the risk of the accident which
resulted
in the respondent’s injuries in any way. In this
sense, the situation is therefore reminiscent of the following
illustration
by Lord Hoffman in
South Australia Asset Management
Corp v York Montague Ltd
[1996] UKHL 10
;
[1996] 3 All ER 365
(HL) at 371(
j
):
‘
A mountaineer
about to undertake a difficult climb is concerned about the fitness
of his knee. He goes to a doctor who negligently
makes a superficial
examination and pronounces the knee fit. The climber goes on the
expedition, which he would not have undertaken
if the doctor had told
him the true state of his knee. He suffers an injury which is an
entirely foreseeable consequence of mountaineering,
but has nothing
to do with his knee.’
At
382
e
-
g
Lord Hoffman then concluded:
‘
Your
Lordships might, I would suggest, think that there was something
wrong with a principle which, in the example which I have
given,
produced the result that the doctor was liable . . . There seems no
reason of policy which requires that the negligence
of the doctor
should require the transfer to him of all the foreseeable risks of
the expedition.’
[38]
For these reasons:
1 The appeal is
upheld with costs, including the costs of two counsel (in respect of
both the appellants).
2 The order of the
court a quo is set aside and replaced by the following:
‘
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.’
F
D J Brand
Judge
of Appeal
APPEARANCES:
For
the First Appellant: S Bekker S C and I P Green SC
Instructed by:
Savage Jooste &
Adams
Pretoria
c/o Webbers,
Bloemfontein
For the Second
Appellant: P L Mokoena SC and B Lecoge
Werksmans Attorneys
Johannesburg
c/o Symington en De
Kok, Bloemfontein
For
the Respondent: S P Rosenburg SC and P A Corbett
Instructed by:
Malcolm Lyons &
Brivik Inc
Cape Town
c/o Matsepes,
Bloemfontein