Waivers and welfares

[munenmuso]

Before you joined your kendo club, did you sign any waiver stating that whatever happened to you in the course of your training in the dojo, ie. injured or suffered accidents, the club shall not be held liable for such incidents and no one can claim for damages against the club or individual in particular?

It is mandatory in our club to sign with consent these waivers even before you are required to hold a shinai and such waivers are duly notarized by a lawyer.

What's your opinion regarding this matter?

[ben]

I've never had to sign such a waiver, although as an instructor I've had to become more informed on matters relating to personal, public and professional liability. In Australia recently there have been a number of ludicrous cases of athletes suing their coaches for injuries sustained during the normal course of the game. This has led to an insurance crisis where some sporting clubs have had to close down because public liability premiums have risen by, in some cases, 4000%.

Because I teach at a University, which has its own mandatory insurance scheme, and am also a member of my local kendo renmei, which has a very similar mandatory insurance scheme, I am double-insured most of the time. However in the event of a claim I cannot double-claim. We used to be a country that was not litigious. People believed in taking some degree of personal responsibility for their lives. Now we are just like the US was 10 or 15 years ago. It really pisses me off. That and John Howard's arse-licking over Iraq. wrbw tre`983*&%(#^%#(**)&^!!!! > > > > >

Sorry. Lost control for a moment. Where was I? Oh yeah... I'm sure it varies around the world but in most countries I imagine there would be statutory rights that cannot be waived by signing such indemnity forms, i.e. even if you sign something saying the sensei/dojo is not responsible, you could still sue them in certain cases because the law holds that such rights are inherent and can't be waived.

b

[nodachi]

In America, those kinds of waivers are signed all the time. In high school sports, college clubs, amusement parks for the scary super bungy rides, etc.

They simply mean that you cannot sue for something that happens to you and injures you in a normal way. They seem to be meant to deter people from sueing mindlessly to earn a fast buck.

It may go to court, but as long as the extent of the injury is just something that normally happens, it'll get thrown out.

However, those pieces of paper don't mean anything if you can prove that the club/sensei/whatever is grossly negligent.

I think of it as more of an agreement to not be ridiculous and sue unless the club/sensei/whatever is truly retarded and did something unsafe and abnormal.

[Old Warrior]

Finally, a subject that I can chime in on, as a 7th Dan, although a Kendo beginner. After 30 years of practicing law, this is a subject to which I actually can present a learned opinion.

Sports activity, in general, involves something called "Assumption of Risk". If you are hurt in the ordinary playing of a sport - there is no recourse. Applying this to Kendo, if your wrist is broken on an attack while sparring there is no one to sue.

On the other hand, if you are charged with supervising youngsters and there is no adult present, and the kids get feisty, and one strikes another in horseplay - the school and the instructor is probably liable. No Release signed by a parent will avoid suit.

As an adult, I doubt whether a Release will protect the school or staff from improvident activity. In other words, if your hand position was corrected by a shinai strike that broke your wrist - the Release is useless. If you are putting on Hogoo and a fellow student hits you on the head unintentionally while feigning a real strike, the student and perhaps even the school would be liable.

A Release is no guaranty of lack of liability. My advice is to have a rteasonable form Release signed, buy insurance, lots of it, and maintain good discipline.

[Paburo]

Originally posted by munenmuso
It is mandatory in our club to sign with consent these waivers even before you are required to hold a shinai and such waivers are duly notarized by a lawyer.

What's your opinion regarding this matter?

Here in spain they don't make us sign any of that. But we do must buy an annual license federation booklet that includes an insurance against all injuries. This is the system the dojo uses to watch their back against sues.

it gives me the creeps though, it has a list of the amount you get for stuff, like:

tetrapoplexy..........18.000euros

scary.

[ben]

Thanks OW. Now I know who to PM for legal advice!

The really tricky area I think is new beginners. They have the least control, the least "loyalty" to the art and they're not wearing armour. As a lawyer friend of mine pointed out, it would go to court and the opposing counsel would ask, "Is kendo full-contact?" Yes. "Do you have armour?" Yes. "Why weren't these people wearing it?" Er, they're not good enough to. "Shouldn't that be the reason they wear it?" Er... check and mate in four moves.

b

[Old Warrior]

Let's just say - nothing is that easy. First, beginners, myself included, don't have armour (mine is on order). Second, everyone knows and it is expected that beginners hit too hard. So, not having armour is not necessarily a big deal and hitting too hard, if done under supervision, against someone who is armoured, isn't likely to give a lawyer a big payday.

The real question is what is the standard of care that the misdoer is being held to and did they meet it. Is it reasonable for the person to have been allowed to do what he did and was the injury forseeable? My initial post dealt with situations that should never have been allowed to occur; which is why I concluded that a Release may not protect the school or the instructor.

[aru-ma]

Originally posted by Old Warrior
Finally, a subject that I can chime in on, as a 7th Dan, although a Kendo beginner. After 30 years of practicing law, this is a subject to which I actually can present a learned opinion.

I was a bit confused here, 7th Dan in law practice? care to explain? if thats what you're refering to its a funny way of putting it

[Old Warrior]

"7th Dan... After 30 years of practicing law"

I was being facetious, and engaging in an attempt at humor. My participation in this forum is as a rank beginner in Kumdo (4 mos.) But, in this subject I am an expert.

[munenmuso]

Is the sensei equally liable if there is one erring student who hits so hard on a regular basis and injured someone thru this kind of practice? Granting that the sensei is already aware of the student's carelessness and his potential to put somebody at risk and danger is just waiting in the corner, and worst the sensei never reprimanded or refrained that particular student from doing such and his means and errors were not corrected or at least warned by the sensei that it can caused damage against another fellow. Will he be liable to serious physical injuries due wrecklessness and negligence if it arises? What are the scopes if there are any?

[Old Warrior]

"Granting that the sensei is already aware of the student's carelessness and his potential to put somebody at risk and danger is just waiting in the corner"

I think you understood my point and know the answer. If harm is reasonably forseeable and the Sensei has a duty to control the class so as to protect the participants from forseen harm - I believe he/she is on the hook if a known "wildman" is allowed to practice.

We had this exact problem in my fencing Salle. A wild teenager (16) who was known to be over the top with his fencing and horsing around injured a 12 year old at a summer fencing camp. This kid was so bad, once, I actually hit him in the groin (a legal target) on purpose, because he kept coming forward like a bull without concern for form, technique or even good manners. It was the only way I could stop this hormonal freight train from turning the elegant sport of fencing into a street brawl. The matter of the injured 12 year old was turned over to our insurance company and I lost track of the precise result. But I know, the 16 year old was capable of inflicting serious physical injury and needed to be watched or banned from the Salle.