The Aftermath of Diving Incidents
As per the words of the owner of an overseas dive charter. “When someone dies in a diving accident, the aftermath can even embroil those who were only doing their best to help.” He continues: “Because I had been involved in the failed rescue, it seemed as if I was fair game, as were others. It still rankles that, in trying to do my best, I got caught up in the legal repercussions.”
In this edition of the DAN-SA LegalNet, two diving-related incidents and their cases are discussed in order to explain their legal implications on the diving fraternity, including all divers, dive clubs and charters. The first incident describes the Tallman case, when in 2008, Mr Tallman drowned in a diving-related incident in Kleinbaai, near Gansbaai. In December 2014, six years later, the Western Cape High Court finally handed down a civil judgement.
The second case became news when, in June 2014, two technical divers, namely Peter Timm and his dive buddy, Adele Stegen, had died off the coast of Umkomaas, KwaZulu-Natal. A police spokesman confirmed that the post-mortem findings attributed their deaths to decompression illness. The police investigation continues and two inquest dockets have been opened by the Umkomaas Police Station.
Have you ever wondered what follows in the wake of unnatural deaths like these? A good point of reference is the well-known trial of Oscar Pistorius which was held in the High Court of Pretoria. Its intensive interrogation gives you a good idea of what a criminal trial is like. Imagine the added chaos if the crime scene had been in a dive shop, on a diving boat or at a dive site, where all the facts, including the photographs and testimonies, were diving related. Now imagine if you were one of the people who were involved in the incident or that you had assisted in the attempted rescue or recovery of the deceased diver. All of these factors make it very difficult to piece together an event that took place six years earlier (as with the Tallman case) and giving a detailed eye-witness account even more so. This is why keeping good records of incidents is essential: take photographs, make voice recordings and, as your memories start surfacing a day or two after the incident, write them down in precise detail. At best, our human memory span is quite limited and it fades over time. It is commonly said that the faintest ink is more powerful than the strongest memory, so make comprehensive notes as soon as possible after an incident has happened.
You are also welcome to contact the DAN-SA LegalNet for assistance with writing a statement. Once this statement is properly commissioned, it becomes a sworn affidavit. It is then considered as evidence and is a binding version of your recollection of events. You may then opt to hand it over to the investigating officer or to a legal representative. Sometimes this is all the evidence that is required of you. Occasionally, you may also be called upon in person to elaborate on your testimony, which indicates that more information may be required. The skipper’s log, the pre-dive plan and briefing, and even your personal dive log book may become admissible. These then become real and documentary pieces of evidence to be used in a court of law as they all contribute toward the explanation of what had occurred.
Case law precedent
Case law sets precedent in the South African legal system. This means that the law is established by the outcomes of former cases. In certain instances, depending on which court delivers the judgement, the interpretation of the law is also binding on inferior courts. This is why legal writers often quote from case law in their writing – what happens once may be argued more readily the next time. With this in mind, let us consider the two cases in our introduction. Both of these incidents have had (and may still have) consequences for the diving industry. This is one of the reasons why the DAN-SA LegalNet is there to assist and equip you with the necessary knowledge and skills. Our greatest passion remains to promote safe and responsible diving.
In a recent DAN-SA roadshow, we referred to the Tallman case in the LegalNet presentations. It has become a due diligence benchmark in as far as the court upheld a requirement for due diligence from those who were involved in the incident . Without commenting on the decision itself, certain remarks in the report deserve special mention because they are starting to narrow the legal definition of what safe diving practices are meant to be. Follow the link under the references section for access to the complete official report online.
The facts of the event are as follows: On 13 April 2008, Mr Tallman drowned in a diving-related incident in Kleinbaai, near Gansbaai. At 07:30, the vessel set out to sea on a shark-viewing expedition with 10 tourists on board. About two hours after their departure and while at anchor (with a videographer in the shark cage) the vessel was struck by a large wave that caused it to capsize, resulting in the drowning of three tourists on board, including Mr Tallman, the husband of the plaintiff.
Subsequently, the plaintiff instituted action against the vessel, the skipper of the vessel on that day and the owner of the vessel. The court case lasted a number of days and many witnesses were asked to testify. Even people from other vessels who answered the distress call were obliged to testify. Various specialists on the marine environment and weather conditions were also questioned.
Several issues came under intensive scrutiny, including the applicable law, the foreseeable consequences of a breaking wave when at anchor, what swell size would have indicated danger, the swell conditions before the capsize, not keeping a proper lookout, failure to depart, failure to check the depth in front of the vessel and the relative sizes of vessels and their wave tolerances. Then, after evaluating all the evidence, the learned AJ Freund made several comments that had a direct bearing on all the owners of dive charters and dive businesses, dive leaders and divers in general. He comments (paragraph 187 of the official report):
In the Court’s view the skipper and crew had become used to operating in quite large swells, and they therefore paid little attention to the swells on the day in question. They (and other skippers and crew of similar vessels who regularly visited the Geldsteen) had, in the Court’s view become complacent. It was just bad luck on the part of the Shark Team and good luck on the part of the other vessels that the only vessel struck by the wave which broke was Shark Team.
He continues to claim that (paragraph 188):
The swell conditions on the day in issue may not have been as large as they sometimes get, but they were large enough to serve as a warning of danger to a prudent skipper. The point has been made above that a prudent skipper leaves a margin of safety and does not flirt with risk.
The court found that in this case, the swell conditions were sufficiently large and threatening that the skipper should have foreseen that a wave breaking over their vessel was a reasonable possibility. It found the skipper to have been negligent and his negligence to be causally connected to the capsize, which caused the death. Although the court only refers to the skipper, it goes without saying that under appropriate circumstances the word “skipper” could have been substituted with “dive buddy”, “dive leader”, “dive master” or The bottom line is that we should not become complacent and that we should treat every dive outing with the necessary respect and due diligence. When diving, proper planning and record keeping are normative and therefore legally required.
Other aspects of the aftermath of such an incident are the potential inquests. In the case of a fatal incident, divers should not tamper with any of the deceased diver’s equipment; the Inquests Act, 1959 (Act No. 58 of 1959) specifically prohibits this. The integrity of the scene is very important and that of the diving equipment even more so. In terms of the act, an incident “in relation to a death” is defined as “the occurrences during which an injury which gave rise to the death was sustained or during which other occurrences which directly gave rise to the death occurred”. In the case of Peter Timm and Adele Stegen, Section two of the act makes it imperative for anyone who has reason to believe that any other person has died and that the death was due to something other than natural causes (whether a diving or a motor vehicle accident), to report it accordingly and as soon as possible to a policeman, unless he or she has reason to believe that a report has been, or will be made, by any other person. DAN-SA assures its members that, once notified of such an event, it will be reported to the local police.
Section four of the act is also important: “The policeman investigating the circumstances of the death or alleged death of any person shall submit a report thereon, together with all relevant statements, documents and information, to the public prosecutor, who may, if he deems necessary, call for any additional information regarding the death.” If it seems self-evident that an offence has been committed (for example murder or culpable homicide), a summons will be issued to get the accused in court. Section five states that “if criminal proceedings are not instituted in connection with the death, or alleged death, the prosecutor shall submit those statements, documents and information submitted to him to the magistrate of the district concerned”. If it appears to the magistrate that the death was due to unnatural causes, “he shall take such steps as are necessary to ensure that an inquest as to the circumstances and cause of the death is held. Any person who has a substantial and peculiar interest can be subpoenaed to give oral evidence or to produce any document or thing at such an inquest”. This includes, amongst other things, your dive log book and your dive computer. You may also require representation by an attorney or an advocate.
Then, if at any stage evidence is found that supports a different conclusion, an inquest can be re-opened if it is in the interests of justice. Any person who has a substantial and peculiar interest and has previously testified in the original inquest can be re-subpoenaed to testify and produce any document or relevant object (as mentioned in the previous paragraph). If it then seems that an offence has been committed, criminal charges may be imposed.
In the case of a missing diver, Section 16 continues by stating that, in the event that the body of the person concerned is alleged to have been destroyed or no body is found or recovered (as is not uncommon in diving fatalities) and the evidence proves beyond reasonable doubt that a death has occurred, the judicial officer holding that inquest shall record a finding upon the inquest as to:
- The identity of the deceased;
- The cause or likely cause of death;
- The date of death; and
- Whether the death was brought about by any act or omission prima facie, involving or amounting to an offence on the part of any person.
Civil claims for injury, loss or damage
All losses or deaths may not necessarily involve a crime. They may still be wrongful, however, to the extent that those who suffered the loss may make a civil claim against those who are allegedly responsible. As such, whether damaged, lost, injured or dead, a civil claim might be instituted to recover monetary damages with compensation. The South African legal system is based on the principle that it is the onus of the accuser to provide evidence. This is why people may be called upon to testify years after an event, and as with the Tallman case, the court must then apply legal principles (delictual principles) to the proven facts.
The DAN-SA LegalNet, in operation for the past two years, has been welcomed by our DAN-SA members and we have thus far received a remarkable number of enquiries. As such, DAN-SA is considering the inclusion of essential legal support services under the DAN-SA Group Policy, such as legal costs in the case of a diving accident or incident where our recreational diver members or dive buddies (excluding professional dive leaders) are exposed to civil liability, so keep an eye open for new things to come. Also, please contact us and feel free to comment on the content of this article or ask questions. We welcome all constructive criticism – contact DAN-SA at [email protected]
Are we reaching the point where each diver needs to get their buddy to sign a release specifying the terms and limitations of responsibility of both parties when buddy diving? Particularly since buddy diving has such a wide range of practices, some according to the certifying agency, others not, but nevertheless in common use.