The Supreme Court of Appeal has turned down an appeal by seasoned road runner Christine Kalmer against an earlier order that she was liable for 30% of the damages suffered by a member of the public after Kalmer, who was competing in a road race, collided with her.
A three-judge appeal bench of the Western Cape High Court earlier awarded the estate of Yasmin Salie, who originally sued Kalmer for R718 000 in damages after the 2014 collision, just 30% of her original claim on appeal.
Salie, meanwhile, died of unrelated causes, and her estate now demanded compensation. But unhappy with the fact that she is 30% liable for the damages, Kalmer turned to the SCA.
Salie claimed Kalmer had pushed her out of the way, causing her to fall and sustain injuries to her right thigh and knee.
The incident occurred during a ladies’ race in Cape Town in 2014, on a part of the course that was open to the public. This was on the promenade in Mouille Point.
Witness Leonie Olckers, testified that while the elite athletes were running, Salie asked her to take a picture of her and her family. Salie took the picture from the opposite side of the Olckers group on the pavement, with the ocean in the background. After the picture was taken, Olckers walked to Salie to hand the camera back.
They met in the middle of the pavement and were standing still. Olckers noticed a runner (Kalmer) coming from her right who shouted, “get out of my way.” Next thing, Kalmer collided with Salie, who fell to the ground.
The pavement is six metres wide, and the unchallenged evidence was that Kalmer was the only runner in the vicinity. It was said that there was enough space for her to pass them on either side. However, Olckers said, “she did not; she was just focused on the direction that she was going".
Kalmer said that she did not stop but continued with her race because there were other people who could help Salie.
It was argued on behalf of Kalmer that Salie’s negligence was the sole cause of the collision. She saw runners passing, and she should reasonably have foreseen that she would be an obstruction to further oncoming runners by being in the middle of the pavement, which could result in injury if a runner collided with her.
The court found Salie to be 70% negligent and that her estate is entitled to recover 30% of her proven damages from Kalmer.
In turning down her appeal, Judge Anton Schippers, who wrote the judgment, said Kalmer was running in the middle of the pavement, which is six metres wide. She could simply have slowed down or run past Salie and Olckers on either side, and the collision would not have occurred.
“This part of the course was known to the appellant; she had run the race many times before,” the judge said. He added that Kalmer focused on herself, the ground in front of her, and her competitors, with no regard for other users of the pavement and oblivious to what is happening around her.
The judge said she should have adjusted her running by slowing down or taking steps to avoid a collision.
“But the appellant failed to do so because of her uncompromising approach,” he said.
Cape Times