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  • kendo lawsuit

    Here's what recently reported in a Hong Kong newspaper :

    A lawyer injured when he was hit on the head by a sword wielded by the president of the Hong Kong Kendo Association during a class was awarded HK$260,000 (US$33,000) in damages. Wai Yip-hin said he suffered a neck injury after Wong Po-kit struck his helmet with the bamboo weapon while he was conducting a demonstration on April 13, 2004.

    Here is judgement from the court :

    http://legalref.judiciary.gov.hk/lrs...769&currpage=T

    This is absolute BS from a greedy lawyer and a stupid jugde. The main argument is the plantiff said he was not warned of potential injury and he was unprepared for being hit on the men. If he is not prepared he shouldn't be there in the first place.

    I am interested in what other dojos do on their disclaimer and protection against BS lawsuit like this.

  • #2
    Here's the waiver I've drafted, adapted from the standard waiver of my undergrad club sports program:

    I, the undersigned, agree to be listed as a member of Orange Kendo and understand that information given here will be accessible to elected officers of Orange Kendo and the Syracuse University Recreation Services Department. I understand kendo and related activities may be physically demanding contact sports and have been briefed on the associated risks. I further agree not to hold Orange Kendo or Syracuse University liable for any injuries suffered related to club practice, training, seminars, and tournaments.

    Comment


    • #3
      Originally posted by iluv4 View Post
      This is absolute BS from a greedy lawyer and a stupid jugde.
      Q: The tooth fairy, an honest lawyer and an expensive dishonest lawyer are in the same room. There is $500 in cash on a table in the room. When they leave the money is gone. Who took it?
      A: Since there is no such thing as the tooth fairy or an honest lawyer, the answer is obvious.

      Q: How do you greet a lawyer with an IQ of 50?
      A: Good morning, your honour.

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      • #4
        I thought that's why you have insurance...

        Comment


        • #5
          Originally posted by iluv4 View Post
          Here's what recently reported in a Hong Kong newspaper :

          A lawyer injured when he was hit on the head by a sword wielded by the president of the Hong Kong Kendo Association during a class was awarded HK$260,000 (US$33,000) in damages. Wai Yip-hin said he suffered a neck injury after Wong Po-kit struck his helmet with the bamboo weapon while he was conducting a demonstration on April 13, 2004.

          Here is judgement from the court :

          http://legalref.judiciary.gov.hk/lrs...769&currpage=T

          This is absolute BS from a greedy lawyer and a stupid jugde. The main argument is the plantiff said he was not warned of potential injury and he was unprepared for being hit on the men. If he is not prepared he shouldn't be there in the first place.

          I am interested in what other dojos do on their disclaimer and protection against BS lawsuit like this.
          Nope, this is certainly not a standard negligence case. Something smells.

          If you read that case carefully you can somewhat interpret that either the court had something against the instructor or was "more willing" to find for the alleged injured solicitor.

          The judge even wrote in his findings when this solicitor found it hard to sit down after class because of his head injury "This led the defendant to shout to him Sit down, big lawyer. Or when the instructor "changed his evidence" when he gave an estimation about how many time the solicitor was hit on the head. Well, who can estimate how many times you get his on the head in a normal practice. It depends.

          In any event, this case stinks of smelliness. Since it was considered "recklessness or gross negligence" there is no waiver to sign that would allow you to escape this. As we know, you cannot waive recklessness or gross negligence.

          Wow... avoid those courts for sure

          Alex M

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          • #6
            If he had a preexisting degenerating of the cervical vertebrae he would have been aware of some neck discomfort/pain, and shouldn't have been doing kendo in the first place without being cleared by a doctor, or at least disclosing this to the instructor. The instructor couldn't have caused a pre-existing injury only exacerbated it. Reckon his insurance company need to get a better lawyer, this one doesn't seem to be worth his pay packet.

            Comment


            • #7
              I don't know / have never heard of the teacher but what a shame.

              Serves as a good reminder for all instructors out there to be correctly & fully insured against 3rd part injury... maybe paying the extra 10 a year to get legal expenses in there too!

              Comment


              • #8
                From the court's opinion, the plaintiff raised 2 alternative claims: negligence, or trespass to a person (battery being the closest thing here in the states).

                As is the case with most trials, it usually comes down to who is more believable. In this case, the judge found the plaintiff to be more believable - I wonder if it's because the plaintiff is a solicitor (which makes me wonder if they practice before courts often or if they're never in court). Either way, they're probably a bit more polished before a judge than your local 6 dan volunteering and running the local dojo and kendo federation.

                Also interesting is that, on the negligence aspect, a 'high duty of care' was required exclusively based on the student-teacher relationship. The merits of that can certainly be debated. Does that make the kendo instructor liable for the actions of the other beginners who are heavy handed? this leads into a causation question in that, does the kendo instructor only possess this high duty of care when they themselves strike your men?

                Another interesting aspect is that, one, this was his first practice in bogu, and second, he had help putting on his tenegui and men by other 'instructors' - be they sensei or sempai. Imagine if you've got another helpful person who has been in kendo for just a little longer helping out the new guy but ties the men improperly? And for that matter, if the men was presumably tied on correctly, why is the manufacturer NOT included in this lawsuit? surely there's a product liability theory to be pursued here!

                And finally, because I find this opinion absolutely silly and I'm not going to keep reading further , here's the key finding of fact from the Court.

                By 13 April 2004 the plaintiff had attended classes for about 6 months. In that time he had practised hitting instructors on the men with his shinai. He had, however, prior to that day never put on the men and had never been hit by the shinai on the men. He must have realized that when hit on the unprotected parts of the bogu there was a risk of injury. However, the bogu appeared to provide good protection from injury on the protected parts of the body as was accepted by the defendant. This provided the plaintiff with a false sense of security and safety. Unless he was told that it could be very painful when hit on the men for the first time with feelings of dizziness, vibration and discomfort, the plaintiff would not have known this. The defendant accepted that he did not tell the plaintiff this or any risk of injury when being hit for the first time on the men. He did, however, say that even if he did not tell him about this many other instructors would have told him this during the lessons prior to 13 April 2004. However, there is no evidence of this whatsoever and this was never put to the plaintiff when he was giving evidence. I reject any suggestion that others would have told him that there was a risk of injury. I find as a fact that the risk of injury was not obvious.

                It makes sense from an evidentiary standpoint, but if the judge was a good judge or the defense attorney had been a good attorney, there would have been some inquiry about habbit in instructing folks who are about to go into bogu that getting hit on the head with a bamboo stick, even with a not-yet-molded-and-therefore-not-perfectly-fitting piece of protective gear consisting of milimeters of cotton between my head and another beginner's right hand chop, might just hurt a touch.

                Here's the real kicker though: causation.

                77. I am satisfied that the injuries that the plaintiff received in the class were caused by the defendant.

                huh wha?
                Last edited by Gideon; 14th October 2008, 07:09 PM.

                Comment


                • #9
                  "hit 60-70 times on the head"

                  so..... about 3 kirikaeshi(without blocking) then? It's quite sketchy on details so we have don't have the full story. At least the judge dismissed the trespass on a person claim. Just shows how careful you have to be as an instructor

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                  • #10
                    Perhaps Mingshi knows of this guy?

                    Comment


                    • #12
                      Lawsuits and Kendo my expereince...

                      I had a different Kendo and lawsuit related experience. I once attended a Kendo school that was wasn't part of the International Kendo Federation or another other real organization with a history and who instructors have self appointed themselves 10th and 5th Dan respectively. After having some very dangerous events involving bokken happen in class a few times and independent confirmation that my school wasn't teaching Zen Nihon Kendo Renmei techniques I stop coming to class and told the instructors that I have quit. I later found out that my old Kendo school was trying to sue me because I have quite attending class/tests and stopped paying my monthly membership fees and any testing fees. The whole thing went on for a few additional months until I had a lawyer send them an official looking letter saying that if they sue me for braking the unlawful "contract" that I would counter sue them and their collection company for the abuse, endangerment, and harassment that I have sustained at their unofficial and unsafe "dojo". This very helpful letter cause them to back down and haven't herd anything else from them and then school closed down. What I have learned from this little experience is to always question and do you home work as they are always people out there (like the lawyer/student) that are trying to make a quick buck even with something as good and honorable as Kendo. Take care and train hard.

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                      • #13
                        I have a lot of difficulty reconciling with the level of care required in this instance. In a way, I accept the argument that the plaintiff wouldn't have known how it would have felt being hit on the men. Then again, it's a contact sport, and it is an accepted fact that protective equipments do not protect 100%.

                        Off topic: why would an instructor pick a noob to demonstrate on?

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                        • #14
                          Originally posted by Andoru View Post
                          Off topic: why would an instructor pick a noob to demonstrate on?
                          Noobs=Cannon fodders=target practice
                          It's quite common for a noob to be a target of abuse. Noobs clean the dojo after practice, too. The question really should be: why would someone be standing in dojo wearing full gear not expecting to get hit?

                          personally, I don't think getting hit on the head with the shinai on a normal demonstration would hurt my neck. I wonder if this instructor did something extra forceful...

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                          • #15
                            This is a disgrace how someone could go to one of those type of classes and then say that they were unprepared and unexpecting to be hit.

                            This is just a typical thing that is happening nowadays and its rubbish that a judge would pay out for something like this and just goes to show that if we don't like it we can sue >.<

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