Foscolos v Footscray Youth Club [2002] VSC 148

5. On 22 July 1999 Mr Foscolos issued proceedings in this Court claiming damages against the Footscray Youth Club Inc and Mr Samuel Parker, a wrestling coach who conducted a wrestling gymnasium at the youth club. By his statement of claim the plaintiff made various allegations against the youth club and Parker claiming that his injury had been caused by the negligence of one or other or both of them. The defendants denied that they were negligent and each instituted cross-proceedings against the other claiming indemnity or contribution in respect of the plaintiff's claim pursuant to the Wrongs Act 1958. No affirmative defences were raised.

8. The trial commenced on 18 March 2002. On the sixth day of the trial the plaintiff discontinued his action against the first defendant, Footscray Youth Club Inc, and each of the defendants discontinued their cross-claims against each other thus reducing the issues to whether Mr Parker's negligence was a cause of the plaintiff's injury and if so, at what sum should his damages be assessed. Further appropriate concessions both of law and fact made by Mr Parker have resulted in the final determination of this case requiring the consideration of an extremely limited area of the evidence.

11. Constantinos Foscolos, the second of three sons of Greek migrant parents, left school at the age of 15 in 1994 and became an apprentice motor mechanic. He pursued this apprenticeship, finishing all the practical hours he needed to complete in order to qualify. However, his real interests lay initially in boxing and subsequently in wrestling. In 1995 he took up boxing at the Footscray Youth Club and pursued it for a couple of years. In July 1997 he commenced wrestling under the guidance of the second defendant Samuel Parker, a very experienced and talented wrestling coach who had been associated with many wrestlers who achieved success at the highest levels of the sport over many years. Mr Parker had an arrangement with the youth club whereby he conducted a wrestling gymnasium in one portion of the youth club premises, paying the youth club an occupation fee for doing so. He operated the gymnasium between about 5.30 pm to 7.00 pm on week days and 10.00 am and noon on Sundays.

14. During the latter half of 1997 the plaintiff attended Mr Parker's gymnasium about three times a week, missing only a short period of 5 or 6 weeks when he had a hand injury. His enthusiasm for the activity can be gauged from the fact that he drove from his home in Prahran to Footscray to undertake it.

17. A normal gym session for the plaintiff commenced with warm up exercises. These would progress to "take downs" and sometimes there would be a practice wrestling bout with one of the other participants. These bouts would be conducted under the supervision of Mr Parker who might, himself, suggest a particular match between two wrestlers. He gave instructions, supervised and timed these bouts which were of 3 minutes duration. He did this from a chair situated to one side of the wrestling mat which was a large, soft, coloured mat made of some synthetic material. Its markings, of concentric coloured rings, designated the various areas within which those engaged in wrestling bouts should remain.

20. On Sunday 8 February 1998 Mr Foscolos went to the Footscray Youth Club as usual for a wrestling training session. Mr Parker was there. So was one Hardip Bassi, an 18-year old wrestler, who, despite his age, was more experienced at wrestling than Mr Foscolos. He had been wrestling for some years and in 1997 had been the Australian junior champion. After Mr Foscolos' accident he went on to become the Australian junior champion again in 1998. He engaged not only in free style wrestling but also in the form of wrestling known as Greco-Roman. This form of wrestling differs from free style wrestling in that all holds must be effected above the waist.

23. Upon arrival at the club Mr Foscolos went through a warm up session following which Mr Parker or Hardip Bassi suggested that he and Bassi have a 3-minute bout. Foscolos agreed and the bout commenced. In his evidence the plaintiff described it thus:

"We started the bout and we started grappling for position and just feeling each other out and we moved to one side of the ring and Hardip Bassi then grabbed me around my torso in a bear hug hold and proceeded to - he lifted me up first and then . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . My feet were off the ground, maybe my toes were touching, but that's about it. I didn't have my feet ..."

27. He described Bassi as having grabbed him around his chest area. He then went on:

"He'd taken a few steps back and threw me over himself on a - over his head and then I landed on my head."

The plaintiff said at the time he was thrown by Bassi, Bassi had arched his back to enable the throw to occur. He described his head hitting the ground after he was thrown:

"My head hit the ground and I continued in that with the momentum and that took me over on to my back, flat out onto my back."

33. The throw described by the plaintiff was, it appears from the evidence, a throw known as a "suplex" throw. Although a recognised wrestling manoeuvre used at the highest levels of the sport it is regarded as extremely dangerous in the hands of those who are unskilled or inexperienced. Performed properly, it enables one wrestler to effect a winning throw on his opponent thus winning the match in a single stroke. The danger inherent in its execution however arises from the fact that unless both parties are skilled the wrestler being thrown can strike the mat head first with his body either perpendicular or almost perpendicular. It is a throw used particularly in Greco-Roman wrestling.

36. Mr Parker, the second defendant, conceded, both through his counsel and in his evidence that the exercise of reasonable care on his part in discharge of the duty which he admitted he owed to the plaintiff would have required him to stop the bout immediately if Bassi had attempted a suplex throw on Foscolos. He referred to the suplex throw as follows:

"It's dangerous - I teach the throw but mainly to teach the people how to protect themselves against it and what it can do to them and also the actual teaching of the manoeuvre with the dummy is another exercise that gives them excellent back strength and neck strength."

40. Mr Parker said that insofar as he taught the suplex throw he did so with a dummy. He considered it too dangerous to be practiced by two wrestlers in his gym. He was emphatic that if he had seen Bassi applying a bear hug to the plaintiff shortly prior to the plaintiff's accident he would have ordered him to stop as he would have recognised that manoeuvre as a preliminary to a suplex throw; a throw which he would never have permitted.

43. Mr Parker described the events leading up to the plaintiff's accident in these terms:

"Well, they were basically sparring and trying to get a grip of one another. There is nothing that you could put in a wrestling move to describe it other than just sparring, there was no holds on, nothing."

"Pulling and pushing and watching where their legs go with their-looking for the opportunity to grab their leg or if he happens to drop his head, you could say, just things like that, just trying to force them open."

"What happened then was- as I said, it wasn't a wrestling hold, it was just a flummox and they both fell, and they fell very hard."

51. He described Bassi as turning as he went down because he appeared to lose his balance. He said he twisted in mid-air because it is instinctive for a wrestler to turn and face the mat if he is falling from his feet. If he doesn't he is likely to be pinned by his opponent in a losing position. Mr Parker said that as he fell:

" ... he's flung Con in front of him and basically I think Con must have hit the-hit the ground first because I was in a situation where I ... ".

55. When asked to say what part of the plaintiff's body first hit the mat Mr Parker said:

"Well, where I was I thought that he went down on his back but I realised he must have went down on his head but I wasn't in a position where I could see whether his head hit, it must have hit to get that injury but where I can see was just four pairs of legs."

59. The plaintiff described his fall as having occurred on a blue area of the wrestling mat designated as an "out of bounds" area. He also described Mr Parker as having been seated in his chair next to Hardip Bassi's father adjacent to the eastern wall of the gymnasium. Mr Parker placed the plaintiff's fall considerably closer to the centre of the mat and insisted that he was situated with Mr Bassi senior adjacent to the northern wall of the gymnasium from where he had a good view of the plaintiff's and Bassi's bout. Although much was made of the discrepancy between Parker and the plaintiff as to these matters there appears no need for me to make any definitive finding in respect of them, having regard to the conclusion I have reached.

62. Hardip Bassi himself gave evidence of the tragic event in these terms:

"We began wrestling. We grappled, and, well-like you wrestle as you would normally wrestle, so you'd be trying to gain the better grip and then we - we got into an underarm, one over, one under-and like-he was pushing me back, and then I was trying to push him back, and I ... I'm trying to push and he's trying to push me and we slipped-I-I slipped, I should say , and-my leg-well, the other leg, the one-the outside leg, I should say, slipped inwards and we fell to the side, and as we were falling to the side, well-he must have hit the -the ground pretty hard."

66. He described himself as having been going backwards immediately before he fell and trying to turn so that he would end up on top of Foscolos. He said that the two wrestlers finished side by side on the mat facing each other.

69. Mr Bassi's description does not suggest that Foscolos went over the top of his head as Foscolos said he did in the suplex throw. However, in a statement which Hardip Bassi had made to an investigator who had interviewed him in May 1998, some three months after the accident, he described the plaintiff as having come over the top of him and landing on his (the plaintiff's) neck.

72. Neither the defendant nor Mr Bassi could offer any explanation as to how the plaintiff received the horrific injury which he did in what, on their descriptions, must have been a relatively ordinary wrestling incident. It is only Mr Foscolos' description of the event which is consistent with his having suffered a serious fracture of a cervical vertebra.

75. Two experienced neuro-surgeons called by the plaintiff, Mr Geoffrey Klug and Mr James Cummins considered that the compression injury to the plaintiff's fourth cervical vertebra was an axial compression injury; that is to say that the force which caused it was applied along the long axis of the spine. They were unanimous that such an injury was consistent with the plaintiff having been the subject of a suplex throw as depicted in a serious of photographs showing a wrestler and a dummy tendered in evidence. Despite Mr Gillies' cross-examination demonstrating some differences between the opinions of Mr Klug and Mr Cummins, particularly as to whether it might have been possible for the plaintiff's injury to have been produced even if his body was not perpendicular to the mat at the time he fell, my interpretation of their evidence is that they were clearly of the view that the mechanism of injury was probably that of the plaintiff falling on his head when he was perpendicular, or nearly perpendicular to the mat. No medical opinion was called by the defendants to contradict Mr Klug and Mr Cummins.

78. At the time of the plaintiff's accident the defendant was seated beside Hardip Bassi's father, probably adjacent to the northern wall of the room although, as I have noted, the plaintiff's evidence was that they were seated adjacent to the eastern wall. There was also present in the room one Lila Ristevska, another wrestler, who attended to the plaintiff immediately after the accident. Neither of these people, who might well have been eye witnesses to the events leading up to the plaintiff's injury, were called as witnesses in this trial. So far as Hardip Bassi's father is concerned it would be reasonable to draw the inference that if he was to be called he would be called by the defendant not only because of his relationship to one of the protagonists in the injury causing event but also because of his apparent association with Mr Parker. Lialia Ristevska was in fact opened as a witness by Mr Gillies but, without explanation, not called.

81. The absence of these two witnesses and any medical evidence contradicting the opinions of Mr Klug and Mr Cummins enables me to more comfortably accept the evidence of the plaintiff that his injury was caused by a suplex throw effected by his opponent, Hardip Bassi, and, accordingly, I so find.

84. In the course of opening the defendant's case Mr Gillies said:

" ... we willingly embrace the proposition that we have a duty to exercise reasonable care to prevent a suplex throw being executed. In terms of the duty to control the wrestlers, we have a duty to observe what was going on and to spring into action if a situation of danger was detected."

88. It was, of course, the defendant's case that no suplex throw in fact occurred. Having found that issue against the defendant, however, it remains to consider why he did not stop Hardip Bassi from continuing with the dangerous manoeuvre when he applied the bear hug to Constantinos Foscolos' upper body. Perhaps he was momentarily distracted. Perhaps he was talking to Hardip Bassi's father and not paying full attention to what was occurring on the mat. Whatever the explanation it is clear that his failure to stop the bout at the point at which Bassi commenced the suplex throw was a cause of the injury which the plaintiff suffered. He failed to supervise the wrestling contest adequately. He was, accordingly, in breach of the duty of care which he conceded he owed to Mr Foscolos at the time of this accident as the person in effective control of the wrestling bout in which Foscolos was injured.

91. In light of my above finding it is unnecessary to consider an alternative allegation that the defendant was negligent in mis-matching the plaintiff and Bassi having regard to their respective experience and competence.

94. In the circumstances, the plaintiff is entitled to an award of damages.

98. Language fails when one seeks to describe in adequate terms the catastrophic injury suffered by this plaintiff. He is paralysed from his neck downwards. Not only is he thus deprived of all mobility in his body but he also lacks the capacity to perform every voluntary bodily movement of which human beings are ordinarily capable other than those which can be performed by his mouth. There is no prospect of his condition improving. He will be thus paralysed for the rest of his life, which, on the evidence, may be a few years shorter than if he had not been injured. As well as his physical injuries he has an ongoing (and completely understandable) psychological consequence of his injury; continuing depression. The video of the plaintiff tendered in evidence demonstrates his plight in a graphic way.

101. As the parties to this litigation have largely agreed on the components of an award of damages in the event that the court determined the issue of liability in the plaintiff's favour it is not necessary for me to engage in any determinations in respect of the issue of damages except for lost earning capacity and pain and suffering, loss of amenity, and loss of enjoyment of life, each within very narrow limits. It is also, accordingly, unnecessary to detail the plaintiff's injuries or their effects any more than I have already done.

105. There is no suggestion that the plaintiff is other than totally and permanently incapacitated from working in paid employment.

108. As I have already noted, the plaintiff left school and undertook an apprenticeship as a motor mechanic. He did not complete this apprenticeship despite having worked in the trade for about four years. He subsequently did some part time work, window cleaning and as a security guard, but at the time he was injured he was essentially unemployed, although he had the ambition of returning to school and acquiring his Victorian Certificate of Education. His real ambitions, however, were connected with the sport in which he was injured.

111. The plaintiff's claim in respect of lost earning capacity is quantified at $513,570 being the capitalised sum which represents a loss into the future of 75% of average Australian ordinary time earnings after tax, less 15% for contingencies and vicissitudes. The weekly rate which yields the figure referred to is $530.

114. The defendant submits that the use of a base rate of $530 a week for the plaintiff's loss represents a considerable over-estimate of that loss having regard to his demonstrated pre-accident employment capacity. The defendant would use a base rate of no more than $400 per week.

117. Such assessment as I was able to make of the plaintiff as he gave his evidence and sat in court was that he was an articulate young man who was not lacking in intelligence. It may well be that he would have realised his ambition of completing his secondary schooling and undertaking some employment commensurate with having done so. It is not irrelevant that his older brother has achieved employment as a health inspector with a municipal authority.

120. The assessment of damage for lost earning capacity is not capable of mathematical calculation. In the final analysis there is a degree of intuition involved in arriving at an appropriate figure. I assess damages under this head at $460,000.

124. The only other head of loss in respect of which there is any dispute between the parties is that of pain and suffering, loss of enjoyment of life, loss of amenity etc; often loosely referred to as general damages.

127. Mr Galbally has submitted that the appropriate sum to be awarded under this head is $500,000. Mr Gillies has put $450,000 as the appropriate figure.

130. I do not need to elaborate on the general statement I have made above as to the extent of the plaintiff's injuries. I would regard anything less than $500,000 as being inadequate. That sum will be awarded.

134. All of the following have been agreed between the parties and will be awarded at the amounts agreed:

4. Care provided by members of the plaintiff's family

139. All of the plaintiff's claims in respect of the future have been agreed (other than in lost future earning capacity referred to above) or have not been contested by the defendant. They will be assessed as follow:

5. Loss referrable to future superannuation entitlement

148. There will be judgment for the plaintiff in the sum of $5,744,244.31.

151. This proceeding was listed for trial on 18 March 2002 with a duration estimate of 30 hearing days. In fact, because of the entirely appropriate co-operation of all counsel involved in narrowing the issues to be decided and resolving most of the matters going to the issue of damages the case was able to be concluded in 6 days. I take the unusual step of noting this procedural efficiency in this judgment to encourage emulation of it. The sensible reduction of litigation to those contentions between the parties which are clearly arguable does no damage to any party's case whilst effecting considerable savings in time and costs.