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Cape Town -
A UK tourist whose holiday went awry when she was injured in a paragliding crash, which left her wheelchair bound, is suing for millions.
Diane Berwick, 43, of Tyneside, suffered a string of injuries – including a spine fracture that resulted in paraplegia – when she was on a tandem flight on a paraglider that hit a mountain slope in Hermanus.
The incident occurred on April 12, 2004.
More than eight years later, she has returned to Cape Town for her case to be heard in the Western Cape High Court. The hearing began before Judge Patrick Gamble on Thursday.
Berwick contends in court papers that it was unsafe to fly that day and that the weather conditions posed a risk of injury.
At the receiving end are the Civil Aviation Authority (CAA) and the South African Hang- and Paragliding Association (SAHPA), both of which are fighting the claim.
She wants damages to the tune of £1 450 000 (presently just over R20 million), as well as an additional R1.1m for medical expenses incurred in South Africa and the UK, as well as future medical expenses, general damages – such as pain, suffering, loss of amenities of life and her disability – and her past and future loss of earnings.
For now, 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 legal team has 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… in the circumstances”.
In papers submitted to the court, SAHPA denied Berwick’s allegations against it and said that if the court found it owed a duty of care to Berwick, the association denied it had negligently breached its duties.
It argued that she was warned of the risks associated with paragliding before she went flying, but nevertheless embarked on the tandem flight.
The association also contended that the incident was as a result of the inherent risks in paragliding and that it had occurred, in particular, because of “unexpected air turbulence”.
The CAA similarly denied Berwick’s allegations.
If it was found that the authority had a duty to her, it maintained that the agreement between her, De Villiers-Roux and the businesses were “remotely” connected to the authority’s duties and functions and that there was “no legal or policy consideration” which justified them being held liable for Berwick’s injuries and damages.