Introduction
South Africa boasts a vibrant running culture, with a wide array of organised races held throughout the year. The organisation of these events varies significantly; some races ensure that runners are shielded from spectators and the public, while others allow for potential interaction between runners and the public. The recent Supreme Court of Appeal judgement in Kalmer v Davids NO highlights the legal implications of such interactions, particularly the importance of runners maintaining a proper lookout to avoid potential liability.
Facts of the Case
The case of Kalmer v Davids NO arose from an incident during a ladies' race in Cape Town in 2014. Kalmer, an elite runner, collided with Salie, a member of the public, on a part of the racecourse that was open to the public. Salie, who was taking a photo for a fellow participant, was stationary on the promenade (pavement) when the collision occurred. As a result of the injuries sustained, Salie instituted an action for damages against Kalmer and Western Province Athletics (WPA), the race organiser.
The High Court initially dismissed Salie's claim, but a full bench of the High Court later found Kalmer liable for 30% of the damages, dismissing the claim against WPA. Dissatisfied with this outcome, Kalmer appealed to the Supreme Court of Appeal (SCA).
Discussion on the Elements of Delict and the Supreme Court of
Appeal's Finding
Delictual liability is established through the presence of five
elements: conduct, wrongfulness, fault (negligence or intent),
causation, and harm.
Conduct and Wrongfulness
The court examined whether Kalmer's conduct was wrongful. Wrongfulness in delict involves a breach of a legal duty not to cause harm. The court noted that the race was held on a public promenade, not a controlled environment, where the organisers are usually responsible for the safety of spectators. Therefore, Kalmer bore a duty of care to take reasonable steps to avoid causing harm to members of the public.
Negligence
Negligence is determined by whether a reasonable person in the defendant's position would have foreseen the possibility of harm and taken steps to prevent it. Kalmer admitted that she focused solely on the ground in front of her and her competitors, without regard for other users of the promenade. The court found that a reasonable runner would have kept a proper lookout, especially in a public space where the presence of pedestrians was foreseeable.
Causation and Harm
The court concluded that Kalmer's failure to keep a proper lookout directly caused the collision and the resultant harm to Salie. The evidence showed that Kalmer could have easily avoided the collision by adjusting her path or slowing down.
Supreme Court of Appeal's Finding
The SCA upheld the full bench's finding that Kalmer was negligent and thus liable for 30% of the damages. The court emphasised that runners in public races must be aware of their surroundings and take reasonable steps to avoid collisions with members of the public.
Conclusion
The Kalmer v Davids NO judgement underscores the critical importance of runners maintaining a proper lookout during races, particularly those held in public spaces. Failure to do so can result in significant legal liability. This case also highlights the importance of event liability insurance for businesses involved in organising, sponsoring, or hosting running events, particularly in controlled environments where it is expected of those businesses to control access. As the running culture in South Africa continues to thrive, both runners and organisers must navigate the track with caution to avoid legal liability.
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