Davids NO v Western Province Athletics and Another (A 205/2021) [2022] ZAWCHC 217 (1 November 2022)

Davids NO v Western Province Athletics and Another (A 205/2021) [2022] ZAWCHC 217 (1 November 2022)

The court found that Ms. Kalmer, as an elite athlete participating in a public race, owed a duty of care to keep a proper lookout for pedestrians, given the foreseeability of encountering non-runners on the route. Her failure to do so, running with a blinkered focus and not attempting evasive action despite having...

Source-derived case information.

Citation
[2022] ZAWCHC 217
Parties
Appellant: Gaironesa Davids NO (in her capacity as the Executor in the estate: Late Jasmin Salie); Respondent: Western Province Athletics; Respondent: Kristine Kalmer
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 November 2022
Case Number
A 205/2021
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment; Trial Court Dismissed Claim, Leave to Appeal Refused, Supreme Court of Appeal Granted Leave, Appeal Heard and Decided
Outcome
Appeal against WPA dismissed with costs; appeal against Ms. Kalmer upheld with costs; trial court order set aside and replaced.
Judges
E. Baartman, P.A.L. Gamble, N. Mangcu-Lockwood
Legal Topics
Contributory Negligence, Apportionment of Damages Act, Duty of Care, Personal Injury, Volenti Non Fit Injuria, Liability of Event Organisers
Delict Civil Procedure Contributory Negligence Apportionment of Damages Act Duty of Care Personal Injury Volenti Non Fit Injuria Liability of Event Organisers

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Parties

Gaironesa Davids NO (in her capacity as the Executor in the estate: Late Jasmin Salie)

Appellant

Western Province Athletics

Respondent

Kristine Kalmer

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment; Trial Court Dismissed Claim, Leave to Appeal Refused, Supreme Court of Appeal Granted Leave, Appeal Heard and Decided

Legal Issues

  1. 1 Was the second respondent (Ms. Kalmer) negligent in colliding with the plaintiff and liable for damages?
  2. 2 Was the first respondent (WPA) negligent in its organisation and management of the race, thereby incurring liability?
  3. 3 What is the extent of the plaintiff's contributory negligence and how should damages be apportioned?

Ratio Decidendi

The court found that Ms. Kalmer, as an elite athlete participating in a public race, owed a duty of care to keep a proper lookout for pedestrians, given the foreseeability of encountering non-runners on the route. Her failure to do so, running with a blinkered focus and not attempting evasive action despite having sufficient time, constituted negligence causally connected to the plaintiff's injuries. The WPA was not negligent, as there was no evidence that its marshall could have reasonably foreseen or prevented the collision. The plaintiff, Ms. Salie, was found to be 70% contributorily negligent for failing to keep a proper lookout and moving into the path of the runner. The defences of...

Court Disposition

Appeal against WPA dismissed with costs; appeal against Ms. Kalmer upheld with costs; trial court order set aside and replaced.

Orders

  • The appeal as against the first respondent (WPA) is dismissed with costs.
  • The appeal as against the second respondent (Ms. Kalmer) is upheld with costs.