Summer vacation has begun and then there are all kinds of activities to entertain our children such as hut building, supping or going to camp.
My daughter very much wants to go to pony camp. A whole week among the ponies; a dream for every horse girl, but not for me... Her request immediately raises all sorts of questions for me as a personal injury lawyer. What could happen, is it responsible to let her go, who is liable for both material and immaterial damages, do I still need to take out insurance for her? In this blog, I explain liability for personal injury caused by animals and provide tips for parents with children going to (pony) camp.
Exclusion clause
The registration form for my daughter's pony camp states:
“Pony camp, training week and entering the equestrian center is entirely at your own risk. You and your child are familiar with the risks of dealing with horses and/or horseback riding. The management cannot be held liable for damage to persons and/or property..”
Such an exclusion clause is not unusual for equestrian centers. Often the general terms and conditions include a clause excluding liability for damages. In principle, an exoneration clause is valid, because in the Netherlands we have freedom of contract. However, in consumer contracts, an exemption clause is usually unreasonably onerous under Article 6:237 sub f of the Dutch Civil Code (BW). In those cases, the question must still be answered whether the riding school is liable for the resulting (personal injury) damages.
Animal liability
It follows from Article 6:179 BW that the owner of the pony is in principle (at risk) liable. This article reads:
“The possessor of an animal shall be liable for the damage caused by the animal, unless liability under the preceding section would have been lacking if he had been in control of the conduct of the animal which caused the damage.”.
In principle, therefore, the possessor is liable for any damage caused by an animal (strict liability). The condition for this is that the injury was caused by an animal's ‘own energy. There must be natural and unpredictable behavior (the unpredictable element).
Liability of the equestrian center
In equestrian centers, ponies and horses are by no means always owned by the center itself. Even in those cases, the riding school can usually be held liable for any personal injury caused by these animals. This is because Article 6:181 of the Dutch Civil Code regulates that if an animal is used in the course of a business, such as a pony camp or riding lesson, the responsibility for the animal rests with the person conducting this business and thus not with the legal owner of the animal. Through this article, a transfer of risk occurs from possessor to the equestrian center.
Own fault in sports and game situations
Once liability has been established, it must be determined how much compensation someone will receive. When determining the amount of someone's damages, the share of ‘own fault’ is an important factor that must be taken into account (Article 6:101 of the Civil Code). After all, when participating in sports, certain dangerous behaviors can be expected and by participating in the sport, the associated risks are also accepted.
Specifically for horseback riding, the court often weighs in the damages award that the rider voluntarily got on the horse and that it is common knowledge that horseback riding involves risks. For example, if someone has been injured during a horseback riding lesson, a certain percentage of fault almost always applies. Typically with horseback riding, this comes down to as much as 50%. This can therefore result in the injury not being fully compensated and some of the damage being at the rider's (or parents') own risk. Especially with serious injuries, this can be a problem for the injury victim.
Tips for parents
Of course, I hope that every pony camp goes off without any accidents and it is a fun time for everyone involved. To make sure that as a parent you don't have any unpleasant (financial) surprises afterwards, I have a few tips:
- Check about insurance. Has the equestrian center taken out insurance? And, if so, what insurance policies are in place? Can you access the policy to check what is covered? Can you take out additional insurance for your child yourself?
- Do not simply be fobbed off with the message that participation in the (pony) camp is at your own risk. If your child is injured during a pony camp and the riding school invokes an exemption clause in the general terms and conditions, appeal to article 6:237 sub f of the Dutch Civil Code and annul the clause on that basis.
If you have questions about this blog, please contact the author, Suzanne Buurkes.