THE LEGAL AND INSURANCE ASPECTS ( UK) OF MAT SAFETY IN SPORTS WITH PARTICULAR REFERENCE TO MARTIAL ARTS AND JUDO.
There is an accident at the Club - is the victim going to put it down to being 'part of the game' or could others be at fault and therefore be held liable?
Generally, activity organisers are able to handle situations that do not have legal involvement, however when as a result of an injury, a lawyer is consulted, the Club and supervising staff/instructor(s) have to view the position very seriously.
We are not considering here such cases as slipping over in the showers, tripping on a stairway - these common risks can be adequately covered by a modest insurance premium. What needs to be considered is the situation when a participant is injured during activities on a mat and alleges that the mat is wholly or partly the causation of the injury(s).
There is a basic and well-established concept in law - namely the duty of care which is owed by the sponsors of any such activity. The practice of sports, martial arts in general and judo in particular is no exception. Indeed, due to the vigorous and eclectic nature of martial arts and judo, it could well be held that the duty of care particularly towards newcomers and minors is especially great. Very few novices have much idea what it is all about and may need considerable guidance. Minors have less capacity to assess risk and those responsible act in loco parentis (in place of a parent). No one taking up a new activity should be asked to run unnecessary risks and those who allow them to do so may well be held to be in breach of their duty of care.
Apart from criminal negligence which is outside the scope of this article, the risk being run by those who fail in their duty of care is that as a result, they risk being sued for negligence in civil law. Resultant damages would be assessed for pain and suffering and also the financial value of any loss due to injury sustained.
In order to be eligible for damages as a result of negligence, it is necessary to establish:
If the injured party consults a lawyer, it is likely that an action for damages will be advised if for no other reason than at least the lawyer is likely to be paid a fee even if there is no eventual action! In addition, if the complainant is granted some legal aid, his cost worries are reduced.
If you are responsible in any way for an activity involving the use of sports mats, it is unavoidable that at any moment while the mats are being used, an injury may occur as a consequence of which you could face an action for damages. The complainant will of course have to establish that something has happened outside the normally accepted risks. In judo for example, there would not be a successful action for assault or damages as a result of merely being thrown by someone of similar ability in normal practise conditions - volenti non fit injuria (the voluntary assumption of risk). If however an impact with the mat results in injury, then in a consequent litigation, there would be a point at issue as to whether the mat on which the impact occurred was suitable for the activity. The suitability of the mat(s) could also be called into question in non -impact injuries especially to the knees and feet. Rotational injuries to the knee and broken/dislocated toes are often caused or aggravated by excessive gripping of the foot on a mat that is too soft. Low friction bases have frequently been another cause of injury since they more readily allow gaps to open between individual mats.
Such accidents can be very serious indeed and in extreme cases have resulted in loss of life. In many cases broken necks, prolonged concussion, displaced vertebrae, major dislocations and severe knee derangements have caused permanent disablement and of course may well result in the injured party having to give up all activities of a sporting nature.
If you are in charge of a sports club, instruct or are in any way responsible for its activities, you will be well advised to ensure that you have insurance cover against such eventualities. If you are not so covered, then the only sensible advice that can be offered is either stop the activity immediately and permanently or obtain insurance, having suspended activity until cover is operative.
Displaying a notice disclaiming responsibility vis a vis negligence has no effect in law, does not lessen your duty of care and can be counter-productive. It proves beyond any doubt that you were aware of the dangers.
Arguably, the biggest risk an insurer takes in covering the activities (especially combat sports) of a club is facing a claim resulting from serious personal injury. In the case of a small claim caused by a minor injury involving a couple of days off work, the insurance company may well pay without being too difficult. However in the case of serious injury, the situation will be very different indeed.
If there is an allegation that sports mats were implicated in a serious injury and the claim is to be pursued through the law courts in an action for damages - what is the position?
During such an action for damages, the point is arrived at when counsel is presenting the case that incapacity has been caused or exacerbated by inadequacy of the mats provided. At this point, the attention of the court will be on the mats and their suitability for the activity.
It will not be surprising to find that the court has to hold considerable enquiries into the purpose and nature of the mats and each party will present its own expert(s).
It will be revealed in evidence that in the case of combat sports excluding judo, there has been a British Standard BS1892 Sect. 2.10 since November 1990 which has now been replaced by a re-draft currently referenced as BS1892 Sect. 4 2003. In the case of judo and other sports activities using mats, the relevant standard is now defined by the European Standard BS EN12503, 2001 and consists of 7 parts covering 12 different mat types. These British Standards often form part of the specification in a purchase contract.
It is inevitable that the court will enquire as to whether the mats conform to the relevant Standard. Many other factors of course will be taken into account such as whether the mats were acquired before the publication of the relevant Standard, whether the Club has been advised of the Standard by its National Governing Body and indeed whether it is affiliated to the National Governing Body which presumably has a duty of care to contribute to the Standard and publicise its existence. There will of course be many other questions relating to equipment such as: Were there unreasonable gaps between the mats? Was the total area of mats adequate for the numbers participating, etc? Was the accident foreseeable? This is where the relevant Standard is so critical since if the mats are known to be below requirements, then it would surely be held that resultant injury was foreseeable. Being unaware of the relevant Standard could call competence into question.
It is perhaps worth observing that very few persons in a position of responsibility would admit to being less than sufficiently competent. However how many consider that they know the correct 'density' for a mat of a given thickness? How many believe that children or beginners should use a softer mat? The answers and other commonly mis-understood issues might surprise you! They can be found in other articles to be published soon.
Apart from issues of competence, overcrowding, poor supervision etc, it will either be shown that the mats themselves were in conformity with the relevant Standard (or at least were acquired with reasonable assurance that the mats were so) or it will be revealed that the mats did not accord with the relevant Standard.
In the case of the latter and if the medical evidence indicated that the injury was wholly or partly associated with the mat conditions, the almost inescapable conclusion is that the court will award at least a percentage of the claim against any defendant. Even a nominal or a relatively small percentage of a claim awarded for damages could be a sobering experience. In recent times, serious injuries to young people have given rise to claims of several million pounds. Just 10% of a modest claim of say, £100,000 would be £10,000 and added to this, it must not be forgotten that the costs could well be as much again or even more. A claim of say, £20,000 made against an insurance company will not find them amused. If liability and continuing cover is accepted, the next premium will be unfriendly and in any event, cover may be suspended until the mat arrangements meet the appropriate requirements.
It must be mentioned here that failure to conform to a British Standard does not of itself constitute an action for negligence. In litigation however, you may have to explain why your choice of mats in effect ignored the established scientific requirements.
How many insurance companies know that there are recognised standards for the particular equipment that the insured party is using? Probably not many - that is however, until a substantial claim is made when the existence of the relevant Standard will quickly come to their attention. A glance through the small print of an insurance policy will surely reveal reference to the effect that ' ... the insured shall take all reasonable precautions to avoid claimable injuries....'
In such a situation and if the mats are not to the relevant Standard, it is certain that the insurance company will seek to refuse the claim leaving the organisation and possibly the instructor, financially liable. If the insurer's decision was disputed by the defendant(s), further legal fees would need to be spent pursuing the claim with regard to the meaning and intent of the insurance contract with little chance of success and certain further costs.
A legally aided plaintiff could afford to pursue the case way beyond his own means and in any event a party injured in the above circumstances will certainly find a lawyer to take the case on a contingency basis (i.e. the fee being a percentage of any damages awarded). T.V. adverts abound....
Just as alarming for a defendant are the rapidly escalating amounts which the courts are prepared to award in such cases.
Defences to an action of the type above include but are not limited to:
If you are responsible in any way for the provision or supervision of matted sports facilities and if you are not sure whether or not your existing mats conform to the current and appropriate physical Standard(s), then ask the company which supplied the mats. If you do not receive adequate assurance or have no idea of the equipments' origin, advise your insurance company of the situation (sample letters below). This is regarded as disclosure of a material fact and is required by any insurance policy. This is no time to mince words - state that the mats do not conform or may not conform to the current appropriate Standard. Invite the company's representative in writing (keep a copy!) to inspect the mats at the premises. This should be followed by correspondence from the insurance company acknowledging the type & condition of the mats and confirming nevertheless that you will be indemnified under the terms of the policy in the event of any aspect of a claim involving the mats. You may well find that you have to pay an additional premium - if so, pay it and remember to ask for a rebate when the mats are upgraded to the relevant Standard. If your insurer will not co-operate by giving such an undertaking, then consider insuring elsewhere with a company which is not so reticent.
Finally and for what it is worth, obtain a disclaimer covering normal practise conditions (suitably worded by your legal adviser) signed by every adult and parent/guardian of minors.
Disclaimer This article is not written by a Member of the legal profession, is presented in good faith and is the understanding of the author. It is not intended to be an authoritative statement of the Law. Specific cases should be referred to professional counsellors.
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The Judo & Combat Club
XYZ Insurance Co. Date:
Anywhere AX2 1ZZ
* delete as appropriate
Policy no. ABC/12345
The above policy is current with your Company.
While reviewing our liability insurance recently, it occurred to us that the mats on which our Club practise do not conform / may not conform* to the current relevant Standard as specified by the British Standards Institution.
The relevant reference is BS EN 12503 published 2001( judo only ) / BS 1892 Sect. 4 2003 (combat sports excluding judo)*
Notwithstanding any shortcomings regarding the above Standard(s), will you please send us a written endorsement confirming that our insurance cover is in no way adversely affected.
You are welcome to visit the premises for an assessment of the mats during our normal practise times which are indicated in the enclosed brochure.
Thank you for your attention. Yours etc encl.
THE REPLY YOU DO WANT
Dear Club Organiser/Instructor,
Policy no. ABC/12345
Thank you for your letter of dd/mm/yy.
We have noted on your file the above information as a material disclosure and we are nonetheless pleased to inform you that we are holding you fully covered against claims for negligence under the terms of the above policy notwithstanding that your sports mats may not conform with the current British Standard(s).
We may wish to visit the premises some time in the near future. Please inform us if your practise times change.
THE REPLY YOU DO NOT WANT
Dear Club Organiser/Instructor,
Policy no. ABC/12345
Thank you for your letter of dd/mm/yy.
We have noted on your file the above information as a material disclosure but we are not able to comment in any specific way regarding the mats which seem to have been satisfactory to date since you have not yet made any claims on your policy. A claim alleging injury caused or aggravated by your mats would be a hypothetical situation and any award made would depend on many factors.
If our glossary of definitions and the policy conditions are not entirely clear to you, then you are strongly recommended to obtain legal advice.
C.J.Nash (Author), email:
Ex-British International - 4th Dan Judo
Ex-Executive Member of the National Governing Body - Judo
Member of the British Standards Institution, Technical Committee on Sports Mats
UK representative to C.E.N. (European) Technical Committee on Sports Mats