Liability Tournament Leaders of a Karting Race
Court of Appeal of The Hague 19 January 2010, LJN
BL0046
This judgment of the Court of Appeal of The Hague of 19 January
2010 emphasizes that sports organizers cannot escape liability just
like that by using an exemption clause. In addition, organizers of
sports contests and sports trainings will have to take sufficient
safety measures when organizing such
events.
Summary
During a karting race in the framework of the Dutch karting
championship, the claimant in these proceedings had an accident. As
a result of a defect brake system, the kart of a participant ended
up in a different lane via the verge between the lanes, where
another participant, the claimant, was. Next, the two participants
collided. In these proceedings the claimant claims the personal
injury incurred by him as a consequence of the karting accident
from the tournament leaders of the karting race. The Court of
Appeal ruled that the tournament leaders had acted negligently by
having the race take place on a track for which the KNAF (the Dutch
National Motor Sport Federation) had withheld a license and that
had some unsafe areas. The spot where the participant had shot over
the verge and had collided with the claimant had also been labeled
unsafe.
Prior to the karting race the claimant had signed an exemption
clause stipulating that the tournament leaders could not be held
liable. The Court of Appeal, however, ruled that the tournament
leaders' reliance on this clause was unacceptable according to
the standards of reasonableness and fairness. What also played a
role with regard to this opinion was that the tournament leaders
were the persons with end responsibility for complying with the
standards and the safety requirements for organizing the karting
races, as set out by the KNAF, and that they had not checked
whether a license had been granted to the track. Also in view of
the circumstances that karting is a dangerous sport and that with
regard to safety the participants depend on the tournament leaders,
the tournament leaders can be seriously blamed for their actions,
according to the Court of Appeal.
Subsequently, the Court of Appeal ruled that the tournament
leaders will have to pay the damage incurred by the
claimant.
In Perspective
According to the Court of Appeal, the tournament leaders had
acted negligently and were liable for the damage suffered by the
participant in the race. When can participants in sports contests
hold the organizers thereof rightfully liable?
It has been assumed in case law that the question of whether a
sportsman has acted negligently towards another sportsman must be
answered in the positive less quickly than if this behavior would
not have occurred within the scope of the practising of sports. A
correctly performed push during a scrum of a rugby game will lead
to liability less quickly than a similar push given in a
supermarket.
However, this case law does not apply to sports organizers. In
my opinion, when answering the question of whether the sports
organizer is liable for the damage incurred by the sportsman, the
fact must be taken into account that the accident took place when
practicing a sport. After all, the sports organizer is only liable
for the damage if the sports organizer has acted negligently. In
order to be able to assess this, the so-called Kelderluik
criteria are important: (1) the nature of the behavior, (2) the
nature and scope of the damage feared, (3) the degree of likelihood
that this damage will occur as a consequence of certain behavior,
and (4) the degree of cumbersomeness of the safety measures to be
taken. In principle, if a sports organizer has not acted
negligently, he is also not liable for the damage the sportsman has
suffered.
According to the Court of Appeal, the tournament leaders of the
karting race had acted negligently. The fact that they had not
complied with the rules set out by the sport association played an
important role. The Court of Appeal thought that this behavior was
so serious that the exemption clause could also not be relied
on.
Incidentally, in the event of personal injury courts more often
deem a reliance on an exemption clause to be unacceptable and
unreasonably onerous according to the standards of reasonableness
and fairness. It seems that the seriousness of the blame and the
question of whether the risk could have been insured, inter
alia, seems to play a role. The Court of Appeal ruled in the
Skeeler judgment (HR 25 November 2005, NJ 2007, 141), for
instance, that a reliance on the exemption used by the sports
organizer Eurosportief was unacceptable according to the
standards of reasonableness and fairness, since (1) the extremely
serious consequences of the accident, (2) the nature and
seriousness of Eurosportief's blame, (3) the circumstance that
Eurosportief was covered by insurance against liability, and (4)
the fact that the exemption clause that was drafted unilaterally by
Eurosportief was unclear, because it did not appear from this
clause that it was also meant for serious types of damage.
According to its judgment dated 27 January 2000 (S&S 2002, 68)
the Court of Rotterdam deemed a reliance on an exemption clause
used by a sports organizer in the event of personal injury incurred
during a paragliding course to be possible, also in view of the
uninsurability of such damage.