Kristine Kalmer v Gaironisa Davids NO (in her capacity as the Executor in the Estate: late Yasmin Salie) and Another

During a ladies' race in Cape Town in 2014, the appellant, an elite runner, collided with Ms Yasmin Salie (now deceased), a member of the public, on a section of the promenade route that was open to the public and not cordoned off. Ms Salie was standing stationary in the middle of the six-metre wide pavement with Ms Olckers after taking a photograph, when the appellant ran into her while shouting "get out of my way". The appellant did not stop after the collision and continued running. The appellant testified that she focused only on the ground in front of her, herself, and other competitors during races, and did not look at pedestrians or other users of the pavement. Ms Salie sustained injuries and instituted action for damages against the appellant and Western Province Athletics (WPA), the race organiser. The High Court dismissed the claim. On appeal to a Full Bench, Ms Salie succeeded and the appellant was held 30% liable, with the claim against WPA dismissed. The appellant was granted special leave to appeal to the Supreme Court of Appeal.

• Whether the particulars of claim sustained a cause of action that the appellant was negligent in failing to keep a proper lookout
• Whether the appellant was negligent in her conduct during the race
• Whether the English 'duty of care' doctrine applies in South African delictual law
• The distinction between wrongfulness and negligence in South African law
• The applicable standard of care owed by a race participant to members of the public on an uncordoned route
• Whether contributory negligence was properly attributed to the deceased

1. The appeal is dismissed with costs. 2. There is no order as to costs in relation to the second respondent's (WPA's) participation in the appeal.

A participant in a sporting event conducted on public infrastructure (such as a pavement or promenade) not closed to public access owes a duty to keep a proper lookout and exercise reasonable care to avoid causing harm to members of the public lawfully present. The duty to take reasonable care cannot be displaced by an athlete's desire to focus exclusively on competitive performance. Where a runner knows: (a) the route is open to the public; (b) encountering pedestrians is foreseeable; (c) a collision could cause serious harm; and (d) there is adequate space to avoid collision, yet fails to keep a proper lookout and maintain awareness of other users, such conduct constitutes negligence. A reasonable person in the position of such a runner would foresee the possibility of harm and take steps to guard against it by maintaining awareness of surroundings and taking evasive action when necessary.

The Court made non-binding observations regarding the confusion created by the English 'duty of care' doctrine in South African delictual law. Schippers JA noted approvingly the academic view of Neethling and Potgieter that the duty of care doctrine "is an unnecessary and roundabout way of establishing what may be established directly by means of the reasonable person test for negligence", but expressly stated it was not necessary to decide this issue in the absence of full argument. The Court also observed that the duty of care doctrine has created confusion between the test for wrongfulness and the test for negligence, citing McIntosh v Premier, KwaZulu-Natal regarding how "duty of care" in English law "straddles both elements of wrongfulness and negligence" in South African law. While not deciding the matter, the judgment suggests sympathy for a simpler approach based purely on Roman-Dutch principles.

This case clarifies important principles in South African delictual law regarding negligence in sporting contexts where events take place in public spaces. It reinforces the distinction between wrongfulness and negligence in South African law, rejecting confusion with the English 'duty of care' doctrine. The judgment emphasizes that participants in sporting events held in public spaces (not controlled venues) owe a duty to keep a proper lookout and take reasonable care to avoid harm to members of the public lawfully present. It establishes that an athlete's focus on winning and competitive performance does not excuse failure to exercise reasonable care for others' safety where the event occurs in a shared public space. The case also provides guidance on pleading requirements for negligence claims and the interpretation of particulars of claim in delictual matters.