The Nature of Liability & Diving

In this Blog, we take a look at the foundational legal principles in relation to scuba diving on which any civil claim would be adjudicated: inherent risk, negligence and duty to take care.
 
The recent creation of a legal network for DAN members continues to generate interest and discussion. Many divers and diving businesses have already told us that they are delighted to be able to forward us the really tough questions they never knew who to ask before.

Still, some keep asking us to explain what the actual purpose of DAN Legal Net is. To understand this answer, we must start from the perspective of DAN itself and its role in the diving industry. DAN fulfils a very unique and multi-faceted function in the community it serves: it raises awareness of both the pleasure and the potential hazards of diving, it serves individual divers and diving businesses, and it addresses the needs of the injured as well as those with a duty to serve them. However, DAN is not a statutory or enforcing agency. Therefore, the primary objective of DAN is offering the most accurate, constructive and relevant advice and assistance, irrespective of the circumstances, within the mandate of its mission. Sometimes the assistance may take on the form of transport to a recompression facility. At other times, it might be providing advice on how to best manage the consequences of a diving accident. As such, the goal of DAN’s Legal Net is to provide precautionary and preparatory information on how to stay out of trouble, as a diver and as a diving business, so as to establish a wholesome culture of safety consciousness and shared responsibility, and to provide information on what to do if things do go wrong, so as to encourage fairness and honesty. In summary, the objective of DAN Legal Net is to provide assistance and information of a legal nature in matters related to diving and hence to try to reduce the unnecessary anguish or anxiety that often follows legal issues. The rest is up to the respective parties involved.

DAN Legal Net is intended as a complimentary advisory service to DAN members, whether they are recreational, professional or even business members, to provide the initial guidance or advice as to whether the member is in need of appointed legal counsel. If the DAN legal team advises you to get legal counsel, they will also be able to provide some recommendations (referrals) should you need this.

Who carries the can?
 
As we pointed out in the spring 2013 edition of the Alert Diver, even being a dive buddy has potential legal implications. So, to bump this up a notch, what about the diver training organisations themselves? Where do they stand? How do they relate to South African law? Are they all considered the same under our legal system in spite of the differences in organisational structures and training programmes? How does this affect their respective instructors and trainee divers from a legal perspective? These are not exactly simple questions.

It is certainly true that the respective training organisations differ in a number of ways. However, this does not imply that there are necessarily differential legal implications for each of them. In fact, under South African law, the legal principles are common in all matters. Therefore, if you suffer a loss and you (or your estate in the case of a fatality) wish to recover damages, the legal principles would be applied commonly; whether you are driving or diving.

Although not a frequent occurrence, there have been quite a number of law suits associated with diving injuries and damages in South Africa. This is not surprising, as the occurrence of law suits is really a function of “numbers”. As training increases, so do the chances of injuries and, with it, the chances of legal recourse.

So, it remains wise to insure yourself, your equipment or your business in a proper and effective way. But before getting back to the potential differences amongst the training agencies, let’s first explore the foundational legal principles on which any civil claim would be adjudicated: inherent risk, negligence and duty to take care.

Inherent dangers & assumption of risk 

As an adventure sport, scuba diving is remarkably safe. Given all the possibilities for injury, it is truly amazing how few injuries and fatalities actually occur. However, the lull of statistics fades when your own life or business is at stake. Then the odds suddenly jump to 100%. So, what can and should you do to mitigate or manage the inherent risks?

For starters, make sure your life insurance and other long-term insurance do not exclude scuba diving. Other than the injury or accident itself, there is nothing worse than finding out that the life or disability insurance you were counting on excludes coverage for diving. That is not the time to discover the deficiencies in your coverage. Consult your policy or broker about this and, if necessary, complete the documentation necessary to include the type of scuba diving you do in your policy. Sometimes insurance policies are devised without any knowledge of scuba diving. As a result, the policy language and terms may impose contradictory or completely impractical restrictions on diving. Don’t assume, ask! Make sure all your equipment is serviced and up to date. This is especially important if your equipment is used by others, as it would be for a diving business. The same is true for boats, compressors and all other components associated with diving, such as:

• Practice (training)
• Preserve (servicing and licensing)
• Protect (insurance)

Another important perspective to have on recreational diving is that it is just that: recreation! So, in terms of civil liability, it means that the participant is taking on a voluntary, purposeful risk.

To illustrate this, let us use a more extreme example, namely rugby. Part of rugby involves being tackled by your opponent. Although there are rules and restrictions on how this may be done within the context of the game, the reality is still that when two 100 kg objects collide, injuries will happen sooner or later. Yet rugby players would not consider suing the player who tackled them, the coach who trained them for the match or the opponent’s coach who instructed the opponent on how to bring them down. It is part of the voluntary nature of participating in the sport.

Think about cricket: Brick-hard balls hurtling towards you at 130 km/h will bring risks. An even more extreme example is boxing or wrestling, in which you allow yourself wilfully to be hammered or thrown to the ground! These are all voluntary. Of course, there are boundaries in terms of the rules of the sport, but rules do not negate the potential effects of fists or gravity.

As a result, a purely mechanical application of the fundamental “delictual” principles would lead to absurd results. Basically “delictual” principles are those principles that are talked about at nauseam in courts of law. To have a successful claim in court, these are the things your lawyer or advocate needs to prove to the magistrate or judge. The point is this: When a voluntary risk leads to an involuntary injury (by means of an accident, incident, mishap or mistake) there must be evidence of someone either doing what they shouldn’t have (i.e. negligence) or not doing what they should have (i.e. dereliction of duty to take care) before there can be a successful claim. So, this is where things get interesting and more complicated.

Before we get to these two components, let’s quickly deal with a possible objection forming in your mind. Some of you may be asking: “Okay, so what? I am not a lawyer. So, if I need legal advice or legal services, I will find a lawyer just like I would find a doctor to deal with the injury!” That is true; however, the problem is this: by the time you need a lawyer, the damage is already done, the accident or incident has already happened and you are either hurt or being blamed. Now your legal team has to do “damage control”. By way of analogy: Rather than dressing warmly when you should have, you now go looking for a remedy for your runny nose. Remember the old saying? Ignorance of the law is no excuse. And that is exactly why DAN is publishing articles such as these; to assist you, the diver, in preventing the problem rather than having to deal with the consequences that could have been avoided.

So, let’s get back to the earlier “involuntary injury” due to a mishap or mistake. For a mishap or a mistake to result in legal consequences, there needs to be either negligence or dereliction or non-compliance with a duty to take care.

Negligence 

This is the “do” component in the legal equation. In other words, this is when one person causes an injury or damage to another person or their property and the damage is linked directly to that person. If this happens, the person responsible is potentially liable. To break this down a little more: If you can reasonably foresee that your actions could harm your dive buddy, and yet continue with those actions and you do not desist (stop), and your dive buddy is eventually injured or suffers damages, then he/she can hold you liable for compensation.

So, for example, divers are taught not to leave a diving cylinder standing upright. This is a universal rule no matter who trained you. If you mistakenly (i.e. negligently) leave your cylinder upright and the cylinder accidentally topples over and crushes my expensive dive computer, I can hold you liable for the damage and the costs of fixing or replacing it. However, if I was the one who bumped your cylinder over, you would not be liable because there is no direct link between you and the damage the cylinder caused (I bumped your cylinder over). As another example: if I drop my weight belt on your foot and your foot is injured and in need of extensive surgical repair, you can insist on me compensating you for the medical costs. No rocket science there. The same applies in traffic: If you don’t stop at an intersection controlled by a stop sign and accidentally ram my 4 x 4 (though a cheap one, it takes me to those same remote diving spots yours does), you are going to have to pay for it to be fixed.
 
Dereliction of duty to take care  

This is the “not do” component. It is also somewhat harder to define. After all, who determines the duty to care and the non-compliance thereto in unique emergency situations? Still, this component is more likely to lead to a recovery of damages. Put differently, when you are under a legal duty to take reasonable care and you do not do it, then you could be held liable for damages that are directly caused by the breach of that duty. The key elements are “reasonable care” and “directly caused”.

Let’s break that down, starting with directly caused. This means that the damages are linked directly to the failure to perform the reasonable duty. This is called a causal connection. In other words, there must be a connection between the duty not complied with and the damages.
 
Reasonable care is explained as follows: A standard of care that is considered reasonably required in a given situation. In other words, reasonable care is that which is reasonable to expect, given the prevailing circumstances, the diving conditions, your diving experience, your training, your diving qualifications, etc. So, in layman’s terms, the law imposes a duty of care upon those individuals who are presumed to possess “common sense” to perceive the potential dangers inherent in a particular set of circumstances and in a given situation and exercise the same degree of caution as any other individual (a reasonable qualified diver) would. The standard is not one of perfection and it makes allowance for mistakes and errors in judgement. However, the reasonable diver is cautious by nature and, even though they may take calculated risks, they are also more alert to what they are than a non-diver would be. Therefore, in determining a standard of care, our courts take an objective approach,
including the person’s specific knowledge or experience (or lack thereof). However, this cannot be used as an excuse for failure to meet a standard. For example, if an untrained individual were to represent him/herself as a scuba diving instructor (i.e. as having the necessary skills and training to teach scuba diving) and an incident were to occur in which the individual is required to respond, this person would be held to the standard of care expected from an average-skilled instructor in that area, even though he/she was not qualified as such. In other words, he/she will be expected to “measure up” to the standard of the level of practitioner he/she professed him/herself to be whether or not he/she actually possessed the necessary skills.
 
To apply this to the buddy system, consider the following: You are accountable towards your buddy for his/her safety. All diver training organisations teach this, so there would be no basis on which to claim that there is no reasonable duty to take care of a buddy in trouble.

Using this line of logic, some individuals have even gone as far as to say that they prefer solo scuba diving as this releases them from the legal implications or risks associated with buddy diving. Although one might argue this on the basis of experience and sophistication of safety equipment in the case of an expert solo diver who is largely self-sufficient, there remains a possibility of unforeseen loss of consciousness from which a solo diver is unlikely to recover. As they say in the Alps: “The avalanche doesn’t know you are an expert.” Conversely, one might argue that certain types of extreme and deep diving are so hazardous that it may well be better to only jeopardise the life of one individual rather than two. That is, of course, as long as no one is put at risk during the subsequent body recovery or rescue efforts! Well, as a qualified instructor and dive leader, I shall continue to teach and advocate the buddy system. I do not like the idea of diving alone anyway. I prefer to share the joys of diving with someone able to share the memories of the dive. To me, diving is, and remains, a team sport. Which introduces another consideration: How would the principle of duty to take care be applied to children who dive? Training agencies impose age and depth restrictions on children who enter the sport before the age of 14. Depending on the age and diving course, a child may be required to dive with an instructor or at least another adult dive buddy. If the adult were to get into trouble, the child would not be expected to meet the duty of care of another adult. He/she would be held to an age appropriate standard.

What about all those waivers? As mentioned in the previous article, waivers define the boundaries of the self-imposed risk divers are willing to take by requiring that they acknowledge them. Waivers do not remove all the potential claims for negligence and non-compliance with a duty of care. As such, it is left to our courts to ultimately interpret the content of a waiver within the actual context of damage or injury.

Conclusion

So, is there a difference between the respective diver training organisations from a legal perspective? In a nutshell, it is my opinion that each diver training organisation would be judged according to well-established prevailing legal principles. All diver training organisations are very well established and their training procedures are well documented and substantiated. As such, it would be improbable that one diver training organisation would be judged on issues of negligence or duty to take care using the standards, policies or procedures of another organisation. The rules of an organisation would be measured against those prevailing legal principles discussed above. However, there may be differences in the chain of liability between instructors and the organisation, depending on the nature of the relationship. These would simply be measured against delictual principles to measure their compliance therewith. For instance, some organisations have assistant instructors who work under the responsibility of an instructor or instructors may serve under the responsibility of an instructor-trainer. These may add additional dimensions of liability in a legal case. However, and perhaps most importantly, in terms of the core principles of diving safety and training, there is actually relatively little difference between the diver training organisations. Most qualified divers achieve very similar communication, diving and emergency training. There is also a surprisingly high level of compatibility between divers from different agencies when compared to most other adventure sports. It is important to understand, and to avoid, what would constitute negligence; to determine what the duty to take care is and to prepare for it; to identify what resources are available to mitigate and protect against risk; and to prepare in advance what to do if things go wrong.

As always, this article does not constitute specific legal advice. Please feel free to post any comments or enquiries on the DAN website. Note, however, that the web discussions only represent the opinions of those who post them. Neither these discussions nor this article should be interpreted as formal legal counsel or be interpreted as representing the official position of DAN; it is published purely in the interest promoting safe diving.