However, on 20 May 2014, the Court of ‘s-Hertogenbosch, rendered a decision from which it follows that invoking an exemption clause is not always successful; especially not when the organizing committee has failed to comply with applicable national and international regulations of the Royal Dutch Equestrian Federation (hereinafter called ‘KNHS’) and the Fédération Equestre Internationale (hereinafter called ‘FEI’).
The case was as follows:
Organizing committee X organized an eventing competition back in October 2010 under the auspices of the KNHS. An eventing competition consists of (1) a dressage test, (2) a show jumping class and (3) a cross-country. The cross-country takes place in a natural environment, such as forests and meadows. During a predetermined route rider and horse must jump various obstacles such as ramparts, water passages, ditches, structures with tree trunks and such kind of objects; but also so-called mobile obstacles. The cross country was built by very experienced course designer Y who held a KNHS license.
Competitor Z registered for this competition and accepted in this framework among others the applicability of an exemption clause. After competitor Z successfully finished the dressage test and the show jumping class, he started the concluding part of the competition; the cross-country. When riding to the final obstacle, the horse did not jump high enough and it came into contact with the obstacle. As a result of this, Z and his horse both fell. The horse was so badly injured that it had to be euthanized on the spot by a veterinarian and Z suffered injuries to his ribs.
The final obstacle was a so-called mobile obstacle in the form of a farm house.
This obstacle was put in place by a tractor and pushed from above into the ground. The obstacle, however, was not propped nor attached to the ground with any anchoring. After the collision with horse and rider, the obstacle tilted in the direction of the horse and rider and fell over.
In the applicable terms it was listed (1) that the competition would be held according to the rules and guidelines for the eventing competitions, held under the auspices of the KNHS, and (2) that the organizing committee, nor any other person concerning the competition, could be held liable or responsible regarding any damage to persons, horses and / or material. Both participants and visitors participated and / or were present at their own risk.
Rider Z started a legal procedure against organizing committee X and course designer Y, in which he claimed compensation for the damage he suffered. Organizing committee X and course designer Y defended themselves by invoking the exemption clause. Both the Court of first instance and the Court of Appeal judged that the exemption clause could not be invoked.
In Dutch law principles of reasonableness and fairness can prevent that one can invoke a contractual term.
Whether these principles are to be applied in a particular case depends, according to existing jurisprudence, on all relevant circumstances of the case, including the nature and the further content of the agreement in which the contractual term appears, the social position and relationship between all parties, the manner in which the contractual is established, the extent to which the other party has been aware of the scope of the contractual term and, with exemption clauses, the degree of fault in relation to the cause of the damage, also in connection with the nature and severity of the involved interests. An exemption clause should remain inapplicable if the damage is caused by intent or conscious recklessness of the party held liable.
In the opinion of the Court of first instance and the Court of Appeal organizing committee X and course designer Y made a serious mistake by not securing the obstacle causing rider Z and his horse to fall down, so that due to the principles of reasonableness and fairness the exemption clause could not be invoked.
The Court of Appeal motivated its decision as follows:
1) According to applicable national and international regulations of the KNHS and FEI, it is of the highest importance that all mobile obstacles will not fall down when touched by rider and horse. Even if from those regulations it cannot be inferred that the obstacle must always be anchored to the ground, the regulations say that knocking down an obstacle must be avoided at all time. This can possibly also be achieved with a sufficiently solid strut but this also was not the case.
2) For the organizing committee X and course designer Y it was not difficult to take precautions, such as anchoring the obstacle to the ground or strutting it with heavy beams.
3) When building loose obstacles, one must take into account that serious injuries and financial losses can be caused.
4) Rider Z did not have to be aware that the obstacle was loose.
5) Besides all above, both organizing committee X and course designer Y were insured against liability.
The Court of first instance sentenced organizing committee X and course designer Y to compensate all damages to the rider Z and the Court of Appeal confirmed this decision during the appeal.
However, this does not mean that organizing committees can never invoke an exemption clause. Every time, all relevant circumstances of the case are decisive. However, if the applicable national and international regulations of the KNHS and the FEI are not respected, then in most cases an organizing committee cannot invoke an exemption clause due to the principles of reasonableness and fairness.
The whole decision can be read on www.rechtspraak.nl and then by searching on: ECLI:NL:GHSHE:2014:1426. For more information about this subject please contact Mr. V. Zitman of Schelstraete Advocaten through email email@example.com or +31 13 511 4420.