Interview with Slater and Gordon Solicitors Barrie Wollacott and Arushan Pillay conducted by
Walt Missingham (President Martial Arts Industry Association)
WM: Barrie, in terms of just some general background on who you are and the firm Slater & Gordon.
BW: Slater & Gordon are a plaintiff law firm who represent plaintiffs in a wide variety of areas, and in particular in the area of public liability to the area where people are injured in circumstances arising out of some other party’s negligence. Myself, I am an accredited Personal Injuries Specialist with the Law Institute of Victoria, I am a partner with the firm, I have been practising as a lawyer for about 17 years, doing personal injuries work almost exclusively and am currently the Partner in Charge of the Public Liability Department.
WM: Barrie you were also involved in a recent highly publicised case involving a wrestler, in which substantial damages were awarded against a particular person involved, can you just give us a bit of background on that case and how you feel it could impact on the Martial Arts industry?
BW: That case concerned a man in his early twenties by the name of Colin Foscolos, who was a fairly fit young man and he had developed an interest in Greco Roman Wrestling, and had joined up with a local suburban wrestling club. And he had been doing it for some months but not yet a year … the classes consisted of various exercises and throwing techniques and some sparring as well. The coach there, Sam Parker is a recognised expert in the area of Greco Roman Wrestling and is indeed ex – and might still be – national coach and on the Olympic Committee for Greco Roman Wrestling, so a very experienced coach with much experience in Australia. And he was responsible for this particular club, on this particular occasion, Colin had been paired up with a fellow student, and he previously had been paired up with this young fellow who was a 16 year old boy, who was I think… he was sort of Oceanic Champion, or something like that within his weight and age group, which by all accounts is not necessarily a huge reflection on his wrestling capabilities, because it’s a fairly small pool, but essentially he was a fairly good wrestler and in that sense whilst we were fairly well matched in terms of our weights, the fact is that our level of experience was greatly less than our opponent, so we were… it was arranged that we would have a sparring session and what would normally happen with the sparring sessions were that around the gym at various spots there might be practices, various groups practising moves, holds going through exercises and warm ups, etc.; and then in the middle of the gymnasium, there was a competition mat complete with development and regulation circles for wrestling purposes, and when a spar was taking place in the circle, then the coach would sit to one side, time the bout, and presumably at the end of each bout give some direction as to what the combatants were doing wrong or right. So on this occasion we were involved in a bout with our opponent and half way through the bout we were picked up in a bear-hug manoeuvre, which according to the evidence that was heard in Court, was a pretty sure fire sign that a move was about to take place and that move was the ‘Suplex’, which is a move whereby the aggressor picks his opponent up face-to-face in a bear-hug, and the aggressor then throws himself backwards with the… I will say the victim, for want of a better word, so the victim is then sort of carried over the top of the aggressor’s head in a forward movement and as the aggressor is in mid air heading towards to mat with his back, they then twist around causing the victim to be pinned under the aggressor in what is regarded as a pretty effective winning throw and hold. Xxx that this particular manoeuvre is regarded as a very advanced one, it has been outlawed in college wrestling in America, for the reason that they had a number of injuries and it is regarded as being only suitable for the very experienced wrestlers. The fellow that did… that threw us was experienced up to a point, but the evidence was that, from the coach that this was a manoeuvre that would never be accepted as being part and parcel of sparring in this gym, however indeed we said that that was the manoeuvre that was attempted on us and indeed the nature of our injury, which was a compression fractures of the cervical spine leading to a complete quadriplegia, can only have been caused by that manoeuvre having been done which effectively causes the victim to be pile-driven head first into the mat, and we are talking boys about 80 to 85 kilograms, so pretty big boys and certainly a lot of force goes into that.
We said that at the time the coach had taken his eye off the bout, and the evidence that was ultimately accepted by the Court was that at the critical moment, the coach had become distracted from the bout, indeed he was talking to the parent of the aggressor in this particular bout, and in that sense had become distracted from what was happening and when he said that had he not become distracted, and had he been watching the bout, he would have seen the bear-hug manoeuvre, which was the step 1 of the ‘Suplex Throw’ and would have stepped into it indeed. The coach gave evidence that had he seen that bear-hug, he would have immediately stepped in.
So the case was really about whether there was adequate supervision on the part of the coach and whether that was… well, whether he was watching is really what the supervision is about. There was a lot of evidence given about whether or not this manoeuvre had ever been attempted before by the young man who was the aggressor on this bout, ultimately that didn’t really have much relevance in the finding but, essentially the judge said that at the critical moment the coach was, had taken his eye off a bout in circumstances where it was something that he should have been eagle eyed and vigilant about, because it was a bout where full blown throws were going to be attempted as opposed to just doing some sparring and that was the critical factor which led to the injury occurring. He found against the coach on the basis that he had been negligent in his supervision of the bout.
WM:The point of supervision seems to be a fairly critical one, and what you have just described there with that wrestling case, could have, in terms of the construction of the class, could have just as easily been describing a martial arts class, where the aggression is a form of martial arts, I am talking more in terms of the Karate, Tai Kwon Doo style martial arts classes. Lessons to be learnt from the martial arts community from that case, what would you think?
BW: I think there is probably a lot of lessons to be learned, because what was a real feature of this gymnasium generally and I suspect this is probably mirrored in a lot of martial arts classes is that, if you have got a large group of people, well it doesn’t even have to be too large, but if you have got a group of people then you simply can’t be everywhere at once and you need to structure your, the way that classes are conducted in such a way as that any… for example in this case, the bout was a ‘fair-dinkum bout’ as opposed to just practising the movement and that sort of thing, so if you are going to have full on sparring and that is what you ought to be doing as a solitary coach, or instructor is to say well there is only going to be one ‘fair-dinkum sparring session’ at a time and that is the one I will be supervising closely and watching vigilantly and whilst that is going on, the other members of the class will be doing other exercises, so that they are doing those exercises in circumstances where it is highly unlikely that they can come to any harm. That probably means that you would have to structure and plan your class very carefully in terms of what every group is supposed to be doing whilst you were supervising that one, but I think the idea of having perhaps, you know a whole lot of different sparring sessions going on at once, just means that the coach cannot be everywhere, and will not see everything and will not be able to pick up the signs of a sparring bout going wrong and things not going the way they should go.
WM: So simply put you are saying that where sparring sessions are occurring in a class the legal responsibility of the instructor is to ensure that he/she must individually supervise each bout or to put it another way multiple sparring sessions supervised by one instructor are out.
WM: We were speaking earlier about some parallels between the Go-Kart industry and the Martial Arts industry and how certain individuals in the Go-Kart industry used litigation as a means of rectifying quality in that industry, would you perhaps give some comments on that? Some parallels or some comparisons.
BW: Yeah, back in the mid 90’s we found ourselves representing a significant number of people who suffered very serious physical injuries as a result of recreational Go-Karting accidents and what we found was a common theme was that a lot of those Go-Kart outfits were being run with scamp regard for basic safety protocols such as crash helmet, clothing, safety belts, guarding generally, a whole range of things, and it was clear that the industry had a number of cowboys who were operating for the sole purpose of making a decent buck without having to spend too much on the infrastructure and safety features. The result being that people were being injured as a result of that inattention to detail particularly in terms of safety. As lawyers representing those people, what we did was we issued a number of writs, seeking compensation and what we found was that many of those people in the industry were insured with, or insured by the same insurer and the experience we had was, within about 2 or 3 years, the industry had cleaned up its act considerably by introducing standards of practice and basic protocols and basic mandatory requirements in terms of what safety features ought to be employed at Go-Kart tracks and the effect of that is that we see very very few Go-Kart injuries these days and indeed within about 3 or 4 years, the numbers have dwindled down to perhaps, you know, 1 or 2 a year. So as a result of the pressure of the litigation process, combined with the insurance companies starting to take a much closer involvement in risk management features of their insured business, the industry was cleaned up, the cowboys were weeded out and what you’re left with is probably a core group of pretty responsible Go-Kart centres where people can have a good time and do so in safety.
WM: The significance, Barrie, of the industry association endorsed Code of Practice, I’ve heard it said that ‘oh this Code of Practice if you’re not a signatory to it, it doesn’t affect you’, I’m interested in your view on that.
BW: Well if you say it doesn’t apply to you then you probably do so at your peril for the reason that once you have an industry Code of Practice set up, which is subscribed to by, you know, a reasonable significant number of organisations, then that starts to… if it’s a good code of practice and it’s clearly a code of practice which has the effect of reducing injuries, reducing claims and those sorts of things, then it’s only a short jump for plenty of lawyers for example to be holding that up as the… as the minimum standard that would be required, so if you’re not a signatory to the Code of Practice when you think that it doesn’t apply to you, then you’re probably going to be faced with the Code of Practice as a yardstick by which you’ll be measured and if you don’t at least have those minimum practices employed at your school/gym, then what you’re going to find is that you would be regarded as falling short of the relevant duty of care that would be applied to the reasonable operator of a martial arts school.
AP: My name is Arushan Pillay, I’m a Solicitor with the Public Liability Department at Slater & Gordon in Melbourne, I’ve been conducting personal injuries cases exclusively for the last 6 years, and I’ve had several dealings with cases involving sporting and to a large extent martial arts cases in that time.
WM: Just to move into that last point you made, Arushan, regarding martial arts cases, we had some involvement in a case not so long ago, could you give us your view on some of the problems in terms of mismatching and perhaps in terms of failing to provide equipment or even not giving instruction in the proper use of equipment in martial arts classes, as potential areas of legal risk?
AP: Perhaps I could start by giving a little background to the matter that we dealt with, well, it was case… it was a karate class, involved a gentleman who we represented, who at the time was a black belt, sorry brown belt, and he was sparred with a green belt. The green belt was the aggressor in this instance, and the green belt further had had quite a history of experimenting outside the rules known to be laid down by the instructor and for being particularly aggressive. Unfortunately, in pairing the plaintiff and our client with the green belt, the instructor failed to advise of the aggressive and somewhat inventive nature of the green belt, hence leaving the plaintiff, our client, in quite a vulnerable position because as the green belt began to experiment and use techniques outside of that which was to be expected, he caught our client unawares and resulted in quite a significant injury to him. I think in terms of what lessons we can draw from that, the first is the mismatching. While our client was several grades higher in terms of the experience, he was not expecting nor was he instructed of what the green belt was going to do, or likely to do. So the first point is, in terms of matching partners together, the instructor needs to make very clear to the class and to the pair in particular exactly what is going to occur so that both parties know what to expect. The second thing is that the instructor cannot simply try to delegate their duty to a more experienced student without informing them the fact, and in this case, it might very well have been what the instructor was thinking – here I am faced with a student who is a bit aggressive, a bit inventive, I can’t be everywhere at once, so I’ll pair him up with someone who is a bit more experienced. The instructor can’t simply make his problems go away by doing that, he has to either supervise that pairing extremely closely or spar with that person individually and that is how the instructor really needs to deal with a situation which is slightly out of the norm. I mean, I think the other thing which you mentioned, Walt, which is very important is the first thing the instructor has to do is turn their mind to exactly who they are matching with who in terms of age, experience, weight, for each particular exercise, and especially one where there is going to be contact.
WM: Arushan I was also across a matter, again with your firm, regarding a student in a karate class who was injured after being asked to hold some equipment (kick Shield) and an injury followed on after this person was kicked while holding the kick shield, the person was not instructed in what to expect and the person was not instructed as to how to use the equipment properly. Could you perhaps comment on that in general terms, without of course referring to the specifics of that case.
AP: An instructor has to go back to the very first principles when dealing with a class, that is that people come to them for instruction in a very specialised art, and an instructor should remember that throughout the entire class. When it comes to dealing with equipment, an instructor must one, ensure to have the appropriate equipment available, two, to make sure it is used when it is required, and it doesn’t allow an instructor to rely on a student, saying ‘I don’t think I need it’ or ‘I don’t think it’s appropriate’, it is for the instructor to make that decision and thirdly, the instructor must make sure the equipment is used for a dedicated task and in its appropriate way. They are all duties which an instructor must discharge if they are to meet their duty of care.
WM: So an instructor then could not presume that a student would know how to use a piece of equipment without having first shown him how to use that equipment. He could not say, ‘Oh, there’s a kick shield, go and pick it up and use it’ without having first shown them how to use it?
AP: That’s exactly right. It’s not enough for the instructor to say, you’re a student in a class who has seen this piece of equipment being used before, therefore go and use it. They must have specific instructions, especially in a situation like martial arts where there is going to be contact and often a heavy contact with that equipment, because the students had to be told how to hold their body to cushion against those forces or deflect those blows, and failure to comply with those instructions or to understand those things can lead to very significant injury.
WM: Flowing from that of course, the importance of having clear written guidelines and class rules, code of conduct, call it what you will, how significant is that from a legal perspective in the safe and proper running of the class?
AP: One of the things we noticed in our case was that there were no such rules and once again, if we go back to the principle that students attend at a certain venue to gain instruction, there is nothing more important than having very clear instructions about what behaviour is appropriate and required within the class or within the hall. And we think one of the big failures is to actually have a set of guiding rules when people enter a class, so that they know exactly what to expect and what not to do.
WM: And flowing from that of course, then appropriate waivers or condition of understanding forms should also be in place. I have been involved recently in a couple of matters where there had not even been any form signed at all, people just coming off the street, they don’t sign anything, let alone a proper legally drafted waiver. Could you give us a view on that please?
AP: Well the waiver or the initial documents that a client might sign are extremely important for not just legal reasons but in terms of informing someone of what to expect when they begin classes. One of the things we’ve talked about is that term ‘semi contact’ and what does that really mean. Often time with martial arts you will have children under the age of 18 attending and their parents will be required or must sign certain forms. Now those forms are very important for the parents because they actually dictate what is going to occur in the class and what they are expecting their child to participate in. So, from a legal point of view, it’s very important that those forms are accurate and correct as to what is going to occur in the class and what sort of responsibility someone who comes to the class you’re going to assume, so they must be clear and they must be quite detailed.
WM: Certainly not something that should be drafted by the instructor himself or herself, something that they should seek advice from a professional association or a legal firm do you think?
AP: Certainly, we would say that their organising association would have a key role in that because it should be a standard document, we believe.
WM: So any other points you’re wanting to make flowing from that matter that we discussed?
AP: Well really I think… I might have touched on these and please stop me if I’m just repeating myself, we had a very difficult situation or our client had a very difficult situation to deal with when faced with another student who was relatively aggressive, relatively large but quite inexperienced. And it’s very important for instructors to deal with those situations collectively because we believe that too often, instructors put these people into the ‘too hard’ basket and it’s when you have that sort of rogue element within a class that you are going to experience problems over and over again and it’s very important that instructors kind of deal with those people proactively, isolate them, give them extra instructions but certainly don’t expose them to the innocent people within the class, don’t ignore them but try!
One of the things I wanted to mention which is when we actually appointed you, Walt, when you first did that report for us, were the qualifications standards of the instructor and you would note it that, you know, the qualifications might not have been appropriate and in fact had expired.
WM: You are talking now about accreditation?
AP: Yeah, and I just think that’s incredibly important. To understand why it’s important that an instructor be accredited in those areas other than his martial arts training as we had discussed in that report.
We find it, while we have many instructors who have experience of martial arts and who are very good exponents of the art, the accreditation is more than just about saying ‘Good at your sport or art’, is about being able to care for a student from the time they enter to the time they leave. And it goes towards such things as the supervision of the class, dealing with difficult situations, use of equipment and also sometimes first aid, which is a very basic thing but very necessary. And that’s why I think it’s such a good thing that your association certainly promotes an accreditation with duty to all of those areas.
WM: Yes, there are sound reasons for that, we do it to protect our industry because we take the view that every time a martial arts instructor screws up and ends up looking at you guys across the table in a Courtroom, it impacts on every other martial arts instructor out there in terms of our insurability as an industry and the premium that we pay, and that’s something that we’re trying to rectify.
WM: The significance of having an industry body and when that body provides an opinion in a Court case, could you expand upon that. I mean, I know we gave you an opinion for this last matter and no doubt we’ll give you opinions on other matters as well, as time goes on. What impact does that have in a legal sense in a Courtroom situation?
AP: Where an industry body or someone from high within that industry body provides that report it carries great weight and great authority because the Court perceives and generally the Jury perceives as well, that the organisation has set the standards for the entire industry and to fall foul of those standards and to fall foul of your association is something which is looked upon with great concern by the Court and juries.
WM: Arushan – Barrie thank you for you time it has been most informative.