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Vakasama v President of Fiji Swimming [2023] FJHC 324; HBC336.2022 (24 May 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


Civil Jurisdiction no. HBC 336 of 2022


BETWEEN:
TAICHI VAKASAMA of Dratabu Road, Qeleloa, Nadi, Republic of Fiji, Students and Fiji Swimming
Representative.
First Plaintiff


A N D:
MARLENE VUNIWAQA of 31 Jhalil Road, Martintar, Nadi, Republic of Fiji, Businesswoman and Swim
Coach.
Second Plaintiff


A N D:
PRESIDENT OF FIJI SWIMMING c/- P O Box 2285, Government Buildings, Suva, Republic of Fiji.
First Defendant


A N D:
SECRETARY OF FIJI SWIMMING c/- P O Box 2285, Government Buildings, Suva, Republic of Fiji.
Second Defendant


A N D:
FIJI SWIMMING c/- P O Box 2285, Government Buildings, Suva, Republic of Fiji.
Third Defendant


Appearances:Ms T. Draunidalo for the Plaintiffs
Mr. D. Naidu for the Defendants


Date of Hearing: 18 May 2023
Date of Ruling: 24 May 2023


R U L I N G

INTRODUCTION


  1. Mr. Taichi Vakasama, the first plaintiff, is undoubtedly one of the most accomplished swimmers that Fiji has ever produced. He has represented Fiji at many international swimming competitions including the Olympic Games, the Commonwealth Games, and the World Championships. He is coached by Ms. Marlene Vuniwaqa, the second plaintiff.
  2. On 05 November 2022, the Secretary of Fiji Swimming (“Secretary”) personally served Vakasama a letter signed by the President of Fiji Swimming (“President”) for and on behalf of Fiji Swimming.
  3. The said letter documented, and conveyed to Vakasama, a decision by Fiji Swimming, to suspend Vakasama from all local and international swimming competitions, pending proof that Vakasama is mentally fit to resume those competitions.
  4. A little over a month later, on 08 December 2022, Vakasama and Vuniwaqa filed a Writ of Summons and Statement of Claim naming the President, the Secretary and also Fiji Swimming as first, second and third defendants respectively.
  5. At this point, suffice to say that there is a pending application by Munro Leys for and on behalf of the defendants to strike out the Writ of Summons and Statement of Claim on the ground that Fiji Swimming is an unincorporated association and as such, is not a legal person capable of suing or being sued.
  6. At this time, what is before me is an Inter Partes Summons filed by the plaintiffs on 08 May 2023 seeking the following Orders:
    1. That until further Orders, the Court immediately lift the suspension imposed by the defendants and/or third defendant on the plaintiff from all international representative swimming competitions through their letter dated 04 November 2022 signed by the first defendant for the third defendant.
    2. That until further Orders, the Court immediately lift the suspension imposed by the defendants and/or third defendant on the first plaintiff from all international representative swimming competitions through their letter dated 04 November , 2022 signed by the first defendant for the third defendant – without prejudice to the continuation of hearing of the plaintiffs’ and defendants’ Summons before the Court on 16 June 2023.
  7. The Summons is supported by an affidavit sworn by Vakasama on 08 May 2023 (see below).

THE BASIS OF THE DECISION TO SUSPEND VAKASAMA


  1. It appears that the events or facts which led Fiji Swimming to the decision to suspend Vakasama happened a few months earlier in July 2022 during the Commonwealth Games which was held in Birmingham, England.
  2. In the statement of claim, the plaintiffs plead that during the Commonwealth Games, Vakasama was feeling immense stress and was sick. As a result of these, he was not in any position to compete in his scheduled events at the Games. After consulting the Secretary, and other Fiji Swimmers at the Games, Vakasama then made the decision to withdraw from his events.
  3. The competition rules for the sport of swimming stipulate inter alia that any competitor who withdraws from any event for which his or her name has been entered, shall pay without excuse a certain penalty fee. I gather that the penalty may be borne by the national swimming body of the country which the swimmer is representing at the Games.
  4. I gather also that this fee may be waived if the withdrawal is due to medical reasons which are verified and supported by a report from a Medical practitioner.
  5. According to Vakasama, before the decision to withdraw was conveyed to the Games officials, he (Vakasama) and the Secretary of Fiji Swimming did visit a Medical Practitioner at the Polyclinic in Birmingham who recommended in writing (“Birmingham Medical Report”) that Vakasama withdraw from his Commonwealth Games swim events as he was “mentally unwell”.
  6. As it turned out, four (4) months later, back in Fiji, Fiji Swimming would make the decision to suspend Vakasama from all local and international swimming competitions, pending proof that Vakasama is mentally fit to resume those competitions. As is clear from the affidavits filed thus far by Fiji Swimming, the decision to suspend Vakasama was based on the Birmingham Medical Report.

EXISTING INTERIM ORDERS


  1. On 16 January 2023, I did grant the following interim Orders upon the plaintiffs’ counsel’s application:
(i)
that the President, the Secretary and Fiji Swimming are to furnish the plaintiffs within twenty-four (24) hours with a copy of the Medical Report from Birmingham and a list of local medical practitioners approved by Fiji Swimming
(ii)
that Vakasama shall then select a Medical Practitioner (“local practitioner”) from the list provided and present himself to the said Practitioner for medical assessment and review within seven (7) days thereafter, that is, by 23 January 2023.
(iii)
that Vakasama shall then file a supplementary affidavit within seven (7) days thereafter, that is by 30 January 2023, annexing the medical report from the local practitioner (“Local Medical Report”)
(iv)
that, as from 16 January 2023, Vakasama shall be allowed to train under the strict supervision of Vuniwaqa and on the understanding that the said training sessions are not sanctioned by Fiji Swimming and that Fiji Swimming shall be absolved from any liability for any injury or medical issue which may arise during and/or as a result of these training sessions.

  1. On 10 February 2023, I did grant an Order by consent that Vakasama is allowed to participate in local competitions including directions on the filing of affidavits in relation to the defendants’ striking out application. I do note that the plaintiffs’ have not taken steps to seal these Orders. I do take judicial notice, based on some recent sports coverage in the media, that Vakasama is indeed taking part in some local competitions organized by Fiji Swimming.

THE BIRMINGHAM MEDICAL REPORT


  1. A copy of the Birmingham Medical Report dated 31 July 2022 is attached to the affidavit of Vakasama sworn on 08 May 2023. Below I reproduce the said Report in full:

Taichi Vakasama

Acc No: 00033754

TEAM FIJI

SPORT: Swimming


:DOCTORS NOTE (GP POLYCLINIC)

COMMONWEALTH GAMES, BIRMINGHAM, 2022


:SEEN AND ASSESSED ON 31/7/22 BY OR TABISH SHAH

(GMC 7408913)


:NOT FIT FOR COMPETITION FOR THE REMAINDER

OF THE GAMES DUE TO MENTAL HEALTH DETERIORATION: STRESS, LOW MOOD, ANXIETY


(Signed)

DR TABISH SHAH

7408913

31/7/22


THE LOCAL MEDICAL REPORT


  1. A Report dated 30 January 2023 by Dr. Myrelle Allen, MD, FCAPPI and Dr. Afia Zahin Khan, MBBS is attached to the Vakasama’s affidavit.
  2. The said Report sets out in full the identifying information, the referral and service information, the sources of information, the relevant history, the background history to the case, the current clinical presentation/behavioral observations and the conclusions and recommendations.
  3. In their concluding observations, the Doctors wrote as follows:

Based on integrated data from the medical certificate issued by a doctor in Birmingham, clinical history, mental status examinations and behavioral observations, it is my opinion that, at the time of examinations, Mr. Taichi Vakasama did not fulfil any diagnostic criteria for depression and/or anxiety disorders.


The observations noted by the physician in Birmingham in September 2022 have resolved and are no longer experienced by Mr. T. Vakasama. Various factors could have contributed to his overall state of health at that time. The types of food consumed and scheduled meal times affected his physical health in terms of his weight loss, gastritis, and constipation. These experiences had significant impact on his mental status, sleep patterns, energy, mood, motivation, and self-confidence.


Mr. Taichi Vakasama recognized his limitations at that time and had good insight into seeking help to withdraw the competition, knowing that he was not in such a state to perform at his best. It is also quite possible that traditional perceptions around psychological distress and mental health in sport are often stigmatizing and this could have discouraged him from seeking help sooner.


Upon his return to Fiji in August, his physical health improved. He was fit and he has resumed his trainings with his coach and medical studies. He competed successfully in September and October swimming events, where he won and broke records. He also passed all his units in medical school.


He continues to enjoy his interests, performs efficiently and can maintain good social relationships.


Mr. Taichi Vakasama has a very impressive swimming record and if he is given the required support to avoid those factors that made him feel unfit (in July 2022), there may not be any barriers to his future successes in competing both locally and internationally.


Mr. Vakasama and the other athletes like him will benefit from connections with sports psychologists, individually or as group so that issues such as anxiety, self-confidence, and motivation.


VAKASAMA’S AFFIDAVIT IN SUPPORT


  1. I summarise below the key facts which Vakasama deposes in his affidavit in support of the current application:
(i)
there is a World Championship to be held in Fukuoka (“Fukuoka Championship”), Japan in July 2023
(ii)
Fiji Swimming will finalise selection at the end of May 2023
(iii)
Vakasama currently has the highest World Aquatic ranking out of Fiji
(iv)
the only barrier to Vakasama’s participation at the Fukuoka Championship is the suspension imposed by Fiji Swimming
(v)
Vakasama’s lawyer (Ms. Draunidalo) has been in contact with Fiji Swimming’s lawyers (Mr. Apted and Mr. D. Naidu) about the Fukuoka Championship – in particular – to request that Fiji Swimming consider Vakasama for the said event.
(vi)
Fiji Swimming however insists that Vakasama undergoes another psychiatric assessment
(vii)
the psychiatric assessment required by Fiji Swimming in unreasonable considering: (a) that Vakasama has already presented himself before a local practitioner earlier this year pursuant to the Orders of this Court (b) the said local practitioner has given Vakasama the all clearance (c) only a general or a specialist medical practitioner or a social worker can make such a referral and state clearly the reason for the referral (d) none of the Officials at Fiji Swimming who are insisting on a second medical referral – is a general or a specialist medical practitioner or a social worker
(viii)
Vakasama is training to become a doctor. A psychiatric assessment may carry a long-lasting mental health related stigma which has potential to devalue Vakasama in the eyes of society and in particular, in his chosen field of medicine.



  1. Vakasama has filed an affidavit in reply dated 17 May 2023 which I will not set out here.

LUCY ERASITO’S AFFIDAVIT IN OPPOSITION


  1. Ms. Erasito is the Treasurer of Fiji Swimming. I summarise below the key facts which Erasito deposes in her affidavit in opposition sworn which she swore on 16 May 2023:
(a)
the Fukuoka Championship is set to run from 14 to 30 July 2023
(b)
Fiji Swimming will recommend its swimmers for the Championship to the executives between 30 May to 03 June 2023.
(c)
Fiji Swimming will appoint and inform successful swimmers on 06 June 2023
(d)
Vakasama has achieved the highest World Aquatics points in Fiji in the 200 meters breaststroke
(e)
Vakasama was forced to withdraw from the 2022 Commonwealth Games after the Birmingham assessment
(f)
Dr. Allen’s and Dr. Khan’s Report did not clear Vakasama unconditionally to swim in international competition. The Report states that:

“....if [Vakasama] is given the required support to avoid those factors that made him feel unfit (in July 2022), there may not be any barriers to his future successes in competing both locally and internationally”
(g)
Vakasama has “idiosyncratic” concerns.
(h)
Fiji Swimming cannot guarantee that it can meet every such preference because of financial constraints and because these preferences (meals, accommodation etc.) are out of Fiji Swimming’s control
(i)
it was Vakasama’s idiosyncratic requirements, and Fiji Swimming’s inability to cater to these, which led to his “mental health deterioration” in Birmingham.
(j)
the same could happen in Fukuoka
(k)
to be eligible for selection, the Selection Criteria stipulates at paragraph 5(iv)(e) that an Athlete must agree and sign and abide by (1) a Team Fiji Athlete Agreement (2) Fiji Swimming Athlete Agreement and (3) Competitor’s Declaration confirming eligibility (4) attend a Fiji Swimming Medical and be certified as medically fit (physically, mentally and emotionally) by a clinical professional (5) fulfill “Team Commitments”
(l)
Vakasama has, to date, expressed an unwillingness to sign an Athlete Agreement or Declaration which is required under the Selection Criteria.
(m)
the Court does not have the power to lift the suspension
(n)
Fiji Swimming has been trying to find a way forward since the suspension
(o)
if Fiji Swimming can be assured of Vakasama’s safety going forward – Fiji Swimming would lift the suspension immediately.
(p)
Vakasama’s concerns about how another psychiatric assessment is “serious and consequential” are ill-founded.
(q)
as it is, the current medical evidence tends to confirm (a) that Vakasama did in fact suffer from a “mental health deterioration” and (b) that this may be triggered when his idiosyncratic needs are not met
(r)
Fiji Swimming is willing to cover the costs of a further psychiatric assessment
(s)
the Medical Report is part of the Selection Criteria which all swimmers must comply with before they can compete in Fukuoka
(t)
in the past, Fiji Swimming has supported at least one other swimmer dealing with mental health issues. That swimmer cooperated with Fiji Swimming by providing a mental health certification from a psychiatrist. That certification gave Fiji Swimming the confidence that the swimmer was fit to compete.
(u)
Fiji Swimming wishes to support Vakasama in a similar way “to swim in Fukuoka”. Fiji Swimming intends to return Vakasama to competitive swimming once it is confident that it is safe to do so.
(v)
Fiji Swimming requires a medical certificate for the following reasons:

  1. to protect Vakasama’s mental health

  1. avoid damage to Fiji Swimming’s reputation and embarrassment if he should again withdraw from events

  1. avoid inquiries, fines and scrutiny from World Aquatics, FASANOC and Fiji Sports Council

  1. avoid loss of opportunity to other athletes (happens when he withdraws)

  1. avoid loss of opportunity to win medals (happens when he withdraws)

  1. avoid liability for potential breach of duties to Vakasama

ANALYSIS


  1. Vakasama wishes to compete internationally. It appears to me that Fiji Swimming wants the same thing. All that Fiji Swimming requires is that Vakasama complies with the stipulations for the Selection Criteria which includes inter alia that Vaksama attend a Fiji Swimming Medical and be certified as medically fit (physically, mentally and emotionally) by a clinical professional and that he fulfills the “Team Commitments”.
  2. Once these are complied with, then the indication in Erasito’s affidavit is that Fiji Swimming will be only too happy to lift the suspension and consider Vakasama for the upcoming Fukuoka Championship.
  3. I do not think it would be appropriate for me at this interlocutory point to consider the veracity and the evidential value of the Birmingham Medical Report or the Local Medical Report which I set out above.
  4. Suffice it to say that, from where I sit, the Selection Criteria which Fiji Swimming is adhering to - are not at all “arbitrary conditions” designed to specifically target Vakasama. Rather, they apply to all swimmers who wish to compete for Fiji at the Fukuoka Championship.
  5. While I note that Vakasama is anxious that a further psychiatric assessment might result in a stigma which may be hard to erase and overcome in years to come, I do not see how completing one as part of the Selection Criteria can have that effect. I say this on the belief that other swimmers hopeful for a spot in Team Fiji will be subject to the same requirements.
  6. It appears to me that all that Fiji Swimming is saying to Vakasama is –

“you fulfill the Selection Criteria, and we will lift the suspension and consider you for the Fukuoka Championship”


CONCLUSION


  1. In the final, I must refuse the orders sought. Parties to bear their own costs. As a side note, I should think that the best option open to the parties is to resolve their impasse through mediation.

..............................

Anare Tuilevuka

JUDGE

24 May 2023

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