Civil Liability - Being Sued.

Mark Dawes - Thursday, February 07, 2013

"This is a true and honest account of the events of me nearly being the victim of the so-called “litigation culture.” I have created this so that friends and peers in the Martial Arts community may learn from my experience, both positive and negative. I am currently studying the BTEC level three unit in The Law and Risk Management as it Relates to Reasonable Force under NFPS and it was this work that inspired me to create this account.

When this occurred, some five years ago now, I had been running my Martial Arts class for four years. As is often the case we are an amateur not-for-profit club run for the benefit of our members. We are a part of an international Martial Arts group based in England. Of course I am Dan graded (in multiple styles) and of course always train and teach in what I believe to be a safe manner that promotes a positive environment. Also, I am a health care professional and was then (and still am) working in the field of emergency care. I also held (and still do a first aid certificate.) We rent one badminton court in a sports centre and put down mats for falling on.

We had a family of four, a mother and three children training with us. Two of the children had been training for nearly a year and the mother and oldest child some four months. They were committed, pleasant, polite and hard-working students who were a part of the social aspect of the club as well as the classes. I was vaguely aware that the husband had a history of bringing legal actions but that was the past. If only I knew…

The incident that lead to the attempted legal action was an alleged injury that occurred during sparring one evening in our adults’ class. We were engaged in a combat method not unlike MMA, but semi-contact. One individual was permanently watching the mat and the rest of the students rotated such that there was also a second person off the mat resting and observing for safety. The student, being an individual of advancing years compared to the rest of the class and being a lady relatively new to the activity was clearly and repeatedly advised that she could cease the activity at any point if she because uncomfortable, e.g. as the sparring progressed from strikes-only to standing grappling, to throws and so on. All students know to respect all of their fellows and possible limitations e.g. age, sex, grade, size. The student apparently received an awkward throw in which their leg was reaped at an atypical angle. We stopped the mat, made sure everything was safe and I assessed the injury, which was to the student’s knee. I could find nothing significantly wrong. The student was aided onto a chair and given ice to put on the injury. Of note is that a first aider for my club and the sports centre staff completed accident forms as is the policy for both. More interestingly the injured party didn’t want accident forms completing but we did anyway, as is policy and all for good reason. At the end of class the student helped us put the mats away despite being asked to elevate her leg and keep ice on it. At the end of class we also advised that should the knee be as painful or more so the following day, then the student should report to A&E and then contact me. This is our organisation’s policy in order that insurance claims be as simple as possible and also that information is recorded in a timely manner.

Over the coming weeks the story of the injury changed slowly but significantly. Firstly, the student chose to ignore our advice and request to attend A&E and instead saw her GP. This slowed diagnosis of the injury. She did not immediately contact me. The injury progressed from being a knee sprain to a fracture to a fracture affecting circulation and therefore her ability to work and maintain the household. Alongside this were publicly made allegations against the student (who is a club instructor) with whom she was sparring. She claims that the leg was done dangerously and with intent to harm. Interestingly, although her injury was now a fracture with implications to her circulation she was still observed driving her 4x4 and wearing heeled boots! Her three children continued coming to class and she expressed no issue with her “attacker” teaching them!

With these public allegations being made and in discussion with the head of the organisation, I contacted the student and asked her to not return to class, nor bring her students. I informed her that we had concerns about the accuracy of her account of the incident and of the injury. We were sorry that an accident had occurred at all. However, these things do happen and she had consented to a contact activity. I advised her that since she was claiming that her income was affected by the injury then she was welcome to make an insurance claim and we would make our documentation (first aid forms) available to this end. I sent insurance claim forms via recorded delivery.

It is at this point that I think I did the best thing I could have done. I obtained statements from everyone that was involved. This is born out of my profession in that everything has to be documented thoroughly and contemporaneously. If the reader of this account takes nothing else away from here, please take this away: investing five minutes in documentation as things happen could save you hours of working things out later on and so much worry. The leisure centre manager refused to write us a statement as he didn’t wish to get involved. There’s a lesson: don’t rely on anyone else or trust anyone to do the right thing.

It should come as no surprise that I received a solicitor’s letter within a few weeks.

I understand that the solicitors operate on a “no-win-no-fee” system. The letter from them states that the club instructor did cause serious injury to the student. Frankly I’m amazed that they are able to make this unequivocal statement but my knowledge and understanding of law was, at this point, almost non-existent. They state that (among other things) I am liable for the following reasons:

 -     The instructor wasn’t correctly trained in the activity. He held a Dan grade and instructor’s diploma from our organisation

 -      We failed to risk assess the activity. I’ll revisit this

 -      We failed to monitor the activity. As stated above, this is not correct

 -      I failed to assess the competence of the student for the activity. I’ll revisit this

Furthermore, I am vicariously liable for the actions of the instructor because he was guilty of

 -      Not taking care whilst sparring. I’m not sure how you prove or disprove this

 -   Not taking care so as to reduce the risk of injury. Again, I don’t know how you prove or disprove this

They also demanded release of several documents. I’ll revisit this.

Having never encountered anything like this, I panicked! Was I going to lose the house that I hadn’t even got a mortgage for yet? Was I going to have to close down the club? I bears stating at this point that, through the insistence of the organisation (indeed it’s mandatory under their policy) I had public liability and professional indemnity insurance cover. The worst case scenario would be that, if I was found to be liable, that the student would receive an insurance pay out. There would be no repercussions on me.

Ultimately a solicitor representing the organisation visited my home ostensibly to understand what happened. What he actually did was go down the list of reasons I was at fault and the documents demanded by the student’s solicitors. This is what I produced, with ease I hasten to add:

 -      Mine and the other instructor’s Black Belt certificates and instructor diplomas

 - The organisation’s risk assessments. Now, interestingly, I take a folder of official organisation-produced documents to every class. I’ve never read some of them. Since we conform to an official international syllabus the risk assessment was done for us. I’ve read it since!

 -     The grading mark sheet for the student. Now, I feel that I could have faked this document after the incident, but I hadn’t. The mark sheet, which I had created, showed that I had deemed the student capable of breakfalling

 -   First aid book entry. This is one thing we got right. We insisted on one being completed. Indeed, two were completed and they matched up!

 -      RIDDOR report. What is this? Actually it’s the form that I would have filled out the day after the incident, had she attended A&E and informed me. For my organisation we know this as a “part two accident form” and it gets sent to headquarters. On reflection, although in the end it didn’t matter, this is one thing that we should have done but didn’t.

 -      Other communications between the student and myself. Almost everything had been done by e-mail and so I printed these. There’s a lesson – e-mails and letters are far better than telephone calls and face-to-face conversation for obvious reasons

 -     Also other documents related to various aspects of the Management of Health and Safety at Work Regulations 1992. I had none of this. I don’t know if I should have done, but it didn’t matter.

In departing my home, our solicitor said the following to me. Nearly five years on, I can still quote him as they were some of the most reassuring words I have heard before or since:

“In my experience roughly 2% of claims like this succeed. I’ve never seen an individual, organisation or club as well documented as you. You have no problem.”

Indeed the case was dropped very quickly and I’ve heard nothing since.

So, what did we get right?

 -      I documented everything

 -      We did our best to maintain safety at all times

 -      I documented everything

 -       We gave the option to opt out of the activity

 -      I documented everything

 -      We insisted on accident forms being written

 -      I documented everything

 -      We communicated via recorded media

 -      I documented everything

 -      We were insured

 -      And finally: I documented everything

What did I get wrong?

 -      I didn’t have the knowledge of aspects of law that I now wish I did

 -      I wasn’t familiar with much of our documentation

The legacy and a sobering thought: the husband of the student has, we believe, received hundreds of thousands of pounds in compensation from various legal actions. If my google search is to be believed, this includes actions against the police force whist working as police officer, the Royal Navy, an ongoing action against the Church of England and two actions against a clergy magazine. We succeeded where bigger organisations had failed (or maybe not tried.) There are things we could have done better but I’m very proud that we won this case.

My hope is that someone somewhere reads this and learns from my story so that they are able to not be a victim of the litigation culture."

With grateful thanks to Peter Jones for sharing this with us all.

Trevor Kendrick commented on 07-Nov-2013 11:11 AM
A very useful and sobering article and one that should be periodically circulated to all in this field. Thanks very much to Peter for sharing.
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