Since 1997
Legal Matters
by DAN Legal Team on June 23rd, 2016

​Despite advances in dive training and equipment technology, scuba diving is not without risks. As such, participants must understand the potential for injury that accompanies all adventure sports – including scuba diving. In addition, there are various parties involved who either share the risk or may be affected by it: the dive school, dive club, instructor, dive leader, buddy, or the owner of the dive resort or boat you charter are all potentially at risk in case of an injury.

As far as adventure sports go, scuba diving is surprisingly safe. Entry-level dive training has a good track record in general. Most programmes share the common features of classroom training and swimming pool instruction to comply with the minimum requirements of the particular training organisation. Certification courses teach divers about the risks of diving. Instructors and instruction manuals focus on how to recognise, avoid and prevent these risks and therefore no diver completes a certification course without recognising the inherent dangers of the sport. Most, if not all, achieve a reasonable degree of mental and physical preparedness. Then, upon certification, there are some additional safeguards: dive shops do not permit a diver to rent equipment without a valid certification card, and a professional dive boat permit will also not allow such a diver to board. However, all these measures limit entry to the sport by the uncertified; they do not really address the implications or legalities if things go wrong for those who are already certified.
​Indemnities 

Once you are qualified, the ocean wonderland calls you and you cannot wait to blow bubbles. You often travel far distances to get wet. You are briefed about the diving plans and anticipation runs high. Then, sooner or later, an indemnity is placed in front of you and you sign without delay. But did you actually read it? In most cases, I am sure you did not. Yet, it can have serious legal implications. You are basically eliminating all liability from everybody who is mentioned therein. In South African law, the courts have had this to say about
indemnities: “At law the word ‘waiver’ denotes the declining to take advantage of a legal right whereby such legal right becomes lost”.
 
It amounts to a renunciation of a right and such renunciation cannot be inferred except from clear evidence [1]. Wow, what a mouthful; but what did the judge actually say? Simply this: If something would happen to you whilst diving or underway to the dive site on a boat and this incident is indeed covered by the wording strictly interpreted from the indemnity that you signed, then you would have no claim for liability against the owner of the boat. Oh yes, remember when you started your training at your dive school? You also signed such a document! Therefore, even whilst in training, the same principle is applicable. Perhaps you recall the fine print when paying entrance fees at a dive site or registration at a dive resort? Jip, you guessed it, you signed the same type of document there! Again, the same principle applies.
As in any potentially hazardous sport, indemnities are integrally part of diving. They are usually worded both specifically and broadly to exonerate every person or entity involved in the scuba diving venture. What needs to be mentioned is that our courts have adopted the approach of strictly interpreting indemnities. This means that your rights are interpreted liberally. In layman’s terms, our courts will look widely at the prospect that you did not waive your rights, given prevailing public policy, morals and the circumstances of the case.

As an American jurist put it: “To participate in a certification course or a course on techniques for specialty dives, such as wreck dives and night dives, students typically are required to sign a release (as they know it) that exonerates the instructor, the dive shop or resort sponsoring the class, and the organisation certifying the diver. A typical diving-excursion release (‘indemnity’) exonerates all participating dive shops and the ship owner, captain and crew. Depending on the wording of the release, the jurisdiction and applicable law, the release may preclude an injured diver from any recovery (of any damages)”. Interestingly, it seems as if the Americans have a stricter application of indemnities than we have under South African law.
 
Diving After Drinking 

I pondered on this subject for a while and did not know how to address it. However, after recent experiences within our own region, I have realised that this subject is very topical. It seems as if diving charters generally have a zero tolerance approach towards drinking alcoholic beverages before diving. How many hours constitute “before” is another matter, of course. As for alcohol itself: whilst it is common knowledge that alcohol has a narcotic effect, the question is, how the consumption thereof (whether little or a lot) will affect sub sequent diving performance and safety? What is to be done when a diver has an obvious hangover and yet has paid for the dive, signed the indemnity and then climbs onto your boat after a night of serious partying? The purists amongst the readers will immediately stop any further discussion and say: “No diving after drinking, full stop!”. But, hey, let us be “real” about this. There are those that abstain totally, but there are also those that just enjoy a “little R&R at the local pup”. In addition to the conservative quantity many plan to consume, it is extremely common for divers (present company included) to undergo various alcohol-related initiation ceremonies, not to mention paying the odd alcoholic penalty for calling a fin a flipper, being late on the mat or forgetting the weight belt. However, if zero tolerance is to be the acceptable approach, how are you going to measure this in practical terms? How are you going to ensure that you implement what you advocate? More specifically, how do you indemnify yourself against legal recourse in the event of an alcohol related incident if these measures were not imposed?

I venture to say that there is no proper formula. It remains the judgement call of the skipper, owner, instructor or dive leader on largely subjective grounds. My research has found no useful legal or medical foundation to control drinking prior to scuba diving other than by complete abstention. This is typically impractical and often contrary to the economic wellbeing of the dive resort itself. As a result, in the absence of zero tolerance, diver refusals on the basis of sobriety are extremely haphazard.

In South African law, there is an approach accepted by our courts for policing drinking and driving. Without getting too technical, we all know that the policeman stops you and lets you “blow”. This is done on a screening device called a Lion SD 2 Alcometer device. It has no evidential value in court. It purely indicates that you did consume alcohol and gives a rough estimation of how much alcohol you consumed. Together with the officer’s subjective judgement of your condition, he can then elect to arrest you in terms of prevailing legislation and then has to go through the exact, scrutinisable process of obtaining a blood sample for prosecuting purposes.

 “Well then, sir, you who made that call! I paid for my dive and you are now refusing me to board your boat!” Hmm...On what basis do we determine that someone is a diving risk because of drinking alcohol? I must, at this stage, pause and ponder some of the research that I (as non-medical practitioner) encountered on the possible physiological and psychological effects of diving after drinking. Most research addresses the diving “after the party the night before”. Comments were diverse, general and actually purely based on opinion. Most comments concerned themselves with the dehydration factor and the potential increased risk for decompression sickness. Further comments revolved around the mental and psychological state of a hungover person and how it would interfere with their capacity to avoid, identify or respond to a hazardous situation. However, if the argument is to be made on the basis of the ability to handle hazardous situations, a drunk, experienced diver may still be less hazardous than a sober novice. If it is made on the basis of dehydration, then diarrhoea may be more risky and yet it is not treated with the same concern. Clearly the medical arguments are not enforceable and so this topic may require a much more specialised review.

Perhaps the legislation regarding zero tolerance for driving will produce additional legal boundaries. For now, we are left with no diving after drinking — whatever that means!
 
Trained in First Aid: Take Charge? 

A last subject that might be interesting to consider is the conduct of the trained and qualified first aider who elects to take charge of an accident scene.

Part of every dive briefing includes emergency situations and preparedness. Typically someone is assigned or asked to volunteer for the role of co-ordinating the emergency plan – whether on or offshore. This is not a trivial responsibility, however. In 2004, the Supreme Court of Appeal had to pronounce on such a situation. The court, in Minister of Safety and Security and Another v Rudman and Another 2005 (2) SA 16 (SCA) pronounced itself and plastered this principle securely into law. In short, young Roald Rudman fell into the swimming pool at home and eventually suffered from severe hypoxic brain damage as a result of which he is now a spastic tetraplegic with an epileptic tendency. During the unfortunate unfolding of events of resuscitation, a certain policeman arrived at the house, brushing everybody aside and eventually made the call to stop resuscitation and pronounced Roald dead. During the trial, it was established that the policeman did have first aid training, but not specifically mouth-to-mouth resuscitation training. The court concluded that a reasonable person, in the circumstances such as that of the policeman, having taken charge, would not have given the instruction he did to stop CPR. The policeman was held liable.

What is then to be learned from this decision? When you are qualified as a first aider, the test to be applied is that of the reasonable first aider with the same or similar qualification. Be aware that to accept the role of the person taking charge, your legal requirement test for negligence is therefore higher than that of the average diver. I venture to say that (in my view) no general indemnity is going to cover negligence if you are at fault, unless you specifically indemnify yourself as first aider in advance. Then the above mentioned principles of the indemnity will apply. My advice would be to get appropriate public liability insurance cover.
 
In Closing 

This is the first article of its kind in Alert Diver. If you have found it useful, please let us know so we can do this again! Opinions expressed are purely that of the author and should not be seen as binding legal principles or advice on law. This is written under the auspices of DAN in the interests of safe, sensible and more enjoyable diving.
 
Legal Queries

For further enquiries, please note our DAN website for Frequently Asked Questions or email legaladvice@dansa.co.za We shall attempt to assist with input more specifically on any questions regarding the legal implications of diving, generally, should you wish to pose them.
 
References 

1. Van Ryall, S. 5 SC 153. 1887.


Posted in Alert Diver Spring 2013    Tagged with no tags


1 Comments

Hendrik Jordaan - September 21st, 2016 at 5:49 AM
This is a very interesting article and I would like to see more similar topics.
Thank you.
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