Salie v Western Province Athletics

In resolving a claim by a spectator against an athlete involving a collision during a race the high court decided that knowing that a race was underway it could reasonably have been anticipated that the spectator would keep a ‘proper lookout and would not simply disregard her own safety as well as that of the race participants, by stepping into the path some had just travelled in the middle of the pavement and where others would no doubt shortly follow suit’.

Essence

Athlete spectator collision and decision means that spectators must keep looking out for the athletes who are likely to be approaching at speed and cannot take avoiding action.

Decision

(WCC 7599/2015) [2021] ZAWCHC 52 [2021] JOL 49936 (HC) (19 March 2021)

Order:

Refused to grant relief with appropriate orders as to costs, including third parties.

Judges

JI Cloete J.

Heard: 1, 2, 7 and 8 December 2020; supplementary notes delivered 19 January 2021, 22 January 2021 and 2 February 2021
Delivered electronically: 19 March 2021

Reasons

‘[65] The evidence also established that, even had WPA equipped the marshal concerned with a whistle it is unlikely that, by using it to sound a warning when Kalmer approached, the incident would not have occurred.

Kalmer was running her race as she was entitled to do; it could not have been reasonably expected of her to foresee that the plaintiff would ignore the probability of another participant such as her approaching at speed, and nonetheless move into the ‘danger zone’ of which she must already have been aware; and in any event Kalmer did attempt avoiding action when confronted with the obstacle moving into her designated path of travel in the form of the plaintiff by shouting out the word ‘watch’.

[66] I am therefore compelled to the conclusion that neither defendant would have foreseen the reasonable possibility that a failure to sound an earlier warning to the plaintiff would cause her injury. This being so, it was not incumbent on either defendant to take steps other than those which they did to guard against such an occurrence in the particular circumstances of the matter.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

Introduction

[1] This is a delictual action for damages in which the plaintiff seeks to hold the defendants jointly and severally liable for payment of R718 000 plus interest and costs, arising from an incident which occurred during a Spar Ladies 10km road race on 6 April 2014 at the Promenade, Mouille Point, Cape Town.

[2] The first defendant (“WPA”) was the race/event organiser which consisted of the 10km road race as well as a 5km fun walk. The second defendant (“Kalmer”) was the athlete participant who collided with the plaintiff (a member of the public), thereby allegedly injuring her. In turn, WPA and Kalmer joined each other as third parties in the event of the court finding that either or both were negligent.

[3] At the commencement of the trial an order was granted by agreement separating merits and quantum and the trial proceeded on the merits only.

[4] The plaintiff, who was present during the trial, did not testify but called one witness, Ms Leoni Olckers. The WPA called Mr Willie Jacobs, and Kalmer herself testified.

The pleadings

[5] In her amended particulars of claim the plaintiff pleaded that at the time of the incident she was a stationary pedestrian on the pavement at the Promenade when she was pushed out of the way by Kalmer, causing her to fall and sustain injuries to her right femur and knee.

[6] She alleged that WPA, as race organiser, owed her a duty of care but was negligent in one or more of the following respects:

  • (a) it was obliged to demarcate or cordon off the area used by race participants to separate members of the public from them but failed to do so;
  • (b) it had the duty to ensure ‘the presence of adequate, experienced and sufficient people as marshals at the event, but failed to do so as the marshals who were there did not perform their duties adequately’ to protect the plaintiff; and
  • (c) it bore the duty to warn members of the public of the dangers of utilising space demarcated for the race but failed to do so.

[7] The allegation in (a) above was abandoned during closing argument.

In relation to (b), the reliance on an insufficient number of marshals was also abandoned.

As to (c) Mr Tredoux, who appeared with Mr Du Plessis for the plaintiff, clarified that WPA’s alleged duty was to ensure that ‘its’ marshals warned members of the public accordingly.

[8] The plaintiff’s pleaded case against WPA thus crystallised into the alleged breach of two so-called duties of care:

  • first, the failure on the part of the marshals present to perform their duties ‘adequately’ to protect the plaintiff; and
  • second, its failure to ensure that ‘its’ marshals warned members of the public of the inherent dangers.

However as the evidence progressed this narrowed even further, and closing argument centred around the failure of one single marshal in close proximity to where the incident occurred to sound a warning to the plaintiff as Kalmer approached.

Much was also made of the terms of a permit granted by the City of Cape Town to WPA in order to advance support for the averment that WPA owed, but breached, its duty of care towards the plaintiff. I will deal with this later.

[9] There was also an eleventh hour attempt by the plaintiff, in a supplementary note on argument, to impute liability for the omission of the marshal concerned to WPA on the basis of vicarious liability. However, as pointed out by Mr Mauritz who appeared for WPA, this was not the plaintiff’s pleaded case.

She did not allege that the marshals were employees of WPA; nor did she plead the scope of their duties at the relevant time (save for oblique references to their failure to ‘adequately’ protect the plaintiff and warn her and other members of the public of the dangers concerned as amplified in her trial particulars).

In any event vicarious liability was not established on the only evidence led on the issue, namely that of Mr Jacobs. I will also deal with this hereunder.

[10] As far as Kalmer is concerned, the plaintiff alleged that she bore the duty to take effective and reasonable steps to safeguard the plaintiff from sustaining ‘undue physical harm’, and to protect and preserve her bodily integrity and dignity, by not pushing her out of the way.

It was pleaded that Kalmer failed to ‘recognise’ this duty when by the exercise of reasonable care she could and should have done so.

[11] In its plea, WPA alleged that it did, in fact, arrange the presence of adequate, experienced and sufficient marshals for the event in question.

In pleading sole negligence, alternatively contributory negligence on the plaintiff’s part, WPA alleged that she:

  • (a) failed to keep a proper lookout;
  • (b) failed to notice Kalmer approaching her, alternatively to move out of her way; and
  • (c) failed to avoid the incident when by the exercise of reasonable care she could and should have done so.

[12] Similar averments were made against Kalmer in the further alternative; and reliance was also placed, as yet a further alternative, on the conduct of the plaintiff and/or Kalmer at the time of the incident constituting a novus actus interveniens such as to relieve WPA of any liability.

[13] In her amended plea Kalmer alleged that the plaintiff stepped into her path while she was running at approximately 20km per hour and Kalmer shouted the word ‘watch’ before raising both arms to brace for the impact. The two thereupon collided and the plaintiff fell to the ground as Kalmer was forced to a standstill, but thereupon continued with the race.

[14] She pleaded that the incident was due to the sole negligence of the plaintiff who:

  • (a) failed to keep a proper lookout for athletes who participated; and
  • (b) stepped into ‘the road’ while the race was in progress as the second group of runners (one of whom was Kalmer) were fast approaching, in order to take a photograph of a group of participants in the (5km) fun walk.

[15] Kalmer denied that she had any duty of care towards the plaintiff, but admitted that WPA bore the duties pleaded by the plaintiff against it.

Consequential averments were made in the alternative in relation to the breach of those duties of care in order to support a defence of contributory negligence.

The relevant evidence

. . . . .

Discussion

[50] To sum up, the plaintiff ultimately relied on two omissions and one act (commission) in seeking to hold the defendants liable. The act complained of, i.e. that Kalmer allegedly pushed her, was simply not established on a balance of probabilities for the reasons already given in my evaluation of the evidence.

[51] In order to succeed with her claims the plaintiff must therefore have shown that the defendants were guilty of conduct (in the form of an omission) which was negligent, wrongful and the cause of her injuries.

[52] The starting point is the dictum of Harms JA in Telematrix (Pty) Ltd v Advertising Standards Authority SA :

‘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 that “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 an act is negligent does not make it wrongful …’

[53] The test for negligence is to be found in [the SCA] Kruger v Coetzee :

‘For the purposes of liability culpa arises if –

(a) A diligens paterfamilias in the position of the defendant –
(i) Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) Would take reasonable steps to guard against such occurrence; and
(b) The defendant failed to take such steps.

… Requirement (a)(ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case…’

[54] In Za v Smith and Another Brand JA, referring to the test for factual causation, said:

‘What it essentially lays down is the enquiry – in the case of an omission – as to whether, but for the defendant’s wrongful and negligent failure to take reasonable steps, the plaintiff’s loss would not have ensued. In this regard this court has said on more than one occasion that the application of the “but-for test” is not based on mathematics, pure science or philosophy.

It is a matter of common sense, based on the practical way in which the minds of ordinary people work, against the background of everyday-life experiences. In applying this common-sense, practical test, a plaintiff therefore has to establish that it is more likely than not that, but for the defendant’s wrongful and negligent conduct, his or her harm would not have ensued. The plaintiff is not required to establish this causal link with certainty.’

[55] As to wrongfulness, in Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another Scott JA said:

‘If the omission which causes the damage or harm is without fault, that is the end of the matter. If there is fault, whether in the form of dolus or culpa, the question that has to be answered is whether in all the circumstances the omission can be said to have been wrongful…To find the answer the Court is obliged to make what in effect is a value judgment based, inter alia, on its perceptions of the legal convictions of the community and on considerations of policy.’

[56] This was dealt with as follows in Za v Smith :

‘Reverting to the enquiry into wrongfulness – properly understood – in this case, it will be remembered that prior to the watershed decision of this court in Minister van Polisie v Ewels 1975 (3) SA 590 (A), liability for omissions was confined to certain stereotypes.

One of these was referred to as relating to those in control of dangerous property, who were said to be under a duty to render the property reasonably safe for those who could be expected to visit that property.

After Ewels, those stereotypes did not become entirely irrelevant. They still afford guidance in answering the question whether or not policy considerations dictate that it would be reasonable to impose delictual liability on the defendant in a particular case, although these stereotypes no longer constitute the straitjackets that they were before Ewels….’

[57] In H v Fetal Assessment Centre it was said [by the consitutional court per Johan Froneman J] that:

‘[51] Our pre-constitutional law of delict is not couched in terms of a duty to protect fundamental rights. It is clear, however, that many interests and rights protected under the common law quite easily translate into what we now recognise as fundamental rights under the Constitution…

[67] In addition to the general normative framework of constitutional values and fundamental rights, our law has developed an explicitly normative approach to determining the wrongfulness element in our law of delict.

It allows courts to question the reasonableness of imposing liability, even on an assumption that all the other elements of delictual liability – harm, causative negligence and damages – have been met, on grounds rooted in the Constitution, policy and legal convictions of the community…’

[58] In Le Roux and Others v Dey the Constitutional Court also pointed out that:

‘Incidentally, to avoid confusion it should be borne in mind that, what is meant by reasonableness in the context of wrongfulness has nothing to do with the reasonableness of the defendant’s conduct, but it concerns the reasonableness of imposing liability on the defendant for the harm resulting from that conduct.’

[59] In MTO Forestry (Pty) Ltd v Swart N.O. the Supreme Court of Appeal [per Leach JA] cleared up the previous confusion about whether foreseeability should be taken into account for purposes of both negligence and wrongfulness:

‘It is potentially confusing to take foreseeability into account as a factor common to the inquiry in regard to the presence of both wrongfulness and negligence. Such confusion will have the effect of the two being conflated and lead to wrongfulness losing its important attribute as a measure of control over liability.

Accordingly, I think the time has now come to specifically recognise that foreseeability of harm should not be taken into account in respect of the determination of wrongfulness, and that its role may be safely confined to the rubrics of negligence and causation.’

[60] Mr Combrinck SC, who appeared for Kalmer, also placed reliance on Clark and Another v Welsh, a case which dealt with delict in the context of spectators and participants in sporting events. The learned Judge reviewed a number of decisions (including those in England) on the topic, and ultimately concluded that, as far as spectators are concerned, the same principles apply as those set out in Kruger v Coetzee.

[61] With reference to the English authorities referred to in Clark, the following considerations apply to an alleged omission:

  • 61.1 Regard must be had to the nature of the event in which Kalmer participated, the special circumstances of the occasion, and the rules applicable to her;
  • 61.2 The matter must be considered both from the point of view of the reasonable spectator as well as the reasonable participant, because what a reasonable spectator would expect a participant to do without regarding it as blameworthy is as relevant to “reasonable care” as what a reasonable participant would think was blameworthy conduct in herself;
  • 61.3 A reasonable spectator knows and presumably desires that a reasonable participant will concentrate her attention on winning, and if the game or competition is a fast moving one, will have to exercise her judgement and attempt to exert her skill in what, in the analogous context of contributory negligence, is sometimes called ‘the agony of the moment’. If the participant does so, whether any mistake she makes amounts to a breach of a duty to take reasonable care must take account of those circumstances; and
  • 61.4 The participant is entitled to expect the spectator to have such knowledge of the activities, and such vigilance for her own safety, as might reasonably be expected to be possessed by a person who chooses to watch the event.

[62] Given the absence of any evidence as to how the plaintiff came to be standing against the guard rail while a race was in progress when Olckers first spotted her that morning, the Court must assume that, at least by that stage, she was to all intents and purposes a spectator.

[63] The evidence established that the plaintiff must have been aware

  • that a race was under way;
  • that the athletes involved were running at speed;
  • that someone who was presumably a marshal (bearing a red flag) stood just less than 12 metres away from her; and
  • she must reasonably have anticipated that other runners would soon be approaching at similar speed.

[64] In these circumstances both WPA and Kalmer could reasonably have anticipated that the plaintiff would keep a proper lookout and would not simply disregard her own safety as well as that of the race participants, by stepping into the path some had just travelled in the middle of the pavement and where others would no doubt shortly follow suit.

[65] The evidence also established that, even had WPA equipped the marshal concerned with a whistle it is unlikely that, by using it to sound a warning when Kalmer approached, the incident would not have occurred.

Kalmer was running her race as she was entitled to do; it could not have been reasonably expected of her to foresee that the plaintiff would ignore the probability of another participant such as her approaching at speed, and nonetheless move into the ‘danger zone’ of which she must already have been aware; and in any event Kalmer did attempt avoiding action when confronted with the obstacle moving into her designated path of travel in the form of the plaintiff by shouting out the word ‘watch’.

[66] I am therefore compelled to the conclusion that neither defendant would have foreseen the reasonable possibility that a failure to sound an earlier warning to the plaintiff would cause her injury. This being so, it was not incumbent on either defendant to take steps other than those which they did to guard against such an occurrence in the particular circumstances of the matter.

The plaintiff has thus failed to discharge the onus which she bears that either were negligent.

Considerations of wrongfulness therefore do not arise because they only come into play when causative negligence has been established.

Costs

[67] In a supplementary note filed on behalf of WPA it was made clear that it would not seek costs against Kalmer in respect of its third party proceedings against her should the plaintiff’s claim be dismissed. In heads of argument filed on behalf of Kalmer she abandoned any reliance on her third party claim against WPA.

It therefore seems reasonable to order that, in respect of the third party proceedings, each defendant should bear their own costs.

Other than that, there is no reason why costs should not follow the result. I wish to add, for purposes of taxation, that the employment of senior counsel to represent Kalmer, given the importance of the matter to the parties and the implications for her personally, was in my view warranted.

[68] The following order is made:

1. The plaintiff’s claim against the first and second defendants is dismissed with costs on the party and party scale as taxed or agreed (including, in the case of the second defendant, the costs of senior counsel employed by her) and including any reserved costs orders, but excluding the costs referred to in paragraph 2 below.
2. In respect of the third party proceedings instituted by the first and second defendants against each other, each defendant shall pay their own costs.

Court summary