Waivers, Children & Solo Diving

In the unlikely event of incurring a diving injury, know your rights with regard to waivers, children and diving, and solo diving.
 
Previous Alert Diver articles have deliberately presented possible (and real) scenarios to invite thoughts and provoke a response from our readers. Yet, I have been surprised by your self-restraint or, perhaps, your tacit agreement or disagreement. Please do feel free to write to us. The goal is to start a blog and to stimulate discussion to make the material more “real”. Usually, legal issues are a very hot topic.

Anyway, I have reverted to contacting several of my international colleagues and invited them to respond to my material and also to share their experiences. The following three topics were mentioned specifically: waivers, children and diving, and solo diving.

Waivers 

One of my colleagues wrote the following in a commentary on diving operators: “A diving operator may deny a diver the opportunity to dive when the operator, objectively and reasonably, believes that the diver poses a danger to himself or to his fellow divers. The diving operator cannot deny service on a discriminatory basis, however.”

This is a very interesting statement as it brings another facet of the liability issue into play: the so-called Volenti Doctrine (derived from the Latin phrase “volenti non fit injuria” ). But, what does this mean, you may wonder? Simply stated, it means that you agree, without an indemnity having been signed, not to hold another party liable for a certain detrimental occurrence.
 
Let me illustrate this by means of two examples: On the one side, if you decide to get on the back of a motorcycle as pillion (namely as a passenger), well-aware that the driver is drunk, you exonerate him from liability. This is so‑called consent and voluntary assumption of risk. On the other hand, if you go to a surgeon who suggests surgery and you agree to this, you are actually giving consent to receive the intentional bodily injury associated with the surgical procedure. The surgeon’s conduct must obviously be lawful and without negligence and the recipient’s understanding is generally formalised by means of signing an informed consent document. However, the principle of tacit consent still applies.

What remains to be established is whether or not the participant or recipient fully understood the risk related to what they consented to. With drunk driving, the inherent risks are considered common knowledge; so a common law principle applies. For a specialised, potentially hazardous and unfamiliar medical procedure, however, the implications and alternative options need to be spelled out. So, given this framework, one can see that diving would lie somewhere between these two extremes.

Although the diving risks are not necessarily common knowledge, the fact that someone has undergone diving training to the point of certification implies that they have received detailed and fairly standardised information regarding the risks involved. Nevertheless, diving leaders must ensure that the inherent dangers of the sport of diving are explained. This includes a thorough briefing before every dive. Diving conditions and inherent dangers are also different from dive to dive; depth or the presence of sharks may affect the individual dive, hence the “SEABAG” mnemonic for site, emergency, activities, buoyancy, air, gear-up and go. Still, every dive does not come with a specificontract or waiver – therefore it is subject to a common law principle.

The three components that apply to and constitute a voluntary assumption of risk are:

• The knowledge of the risk;
• The appreciation of the risk; and
• The consent to run the risk.

The first two elements have been the subject of various decisions in South African case law in the medical field. There have also been various decisions involving sporting activities. To bring this closer to home, consider the case of Boshoff v Boshoff 1987 (2) SA 694 (O): Two brothers were playing squash. The racket slipped out of the one brother’s hand and hit the other brother. The court found that the injured brother knew that a racket could slip from his opponent’s hand and he had appreciated this risk and consented to run the risk and the claim was dismissed. It is obvious that there were no waivers involved.

The next example can perhaps explain the legal principle more conclusively. In the matter of Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) (paralell citation) Santam Insurance Co Ltd v Vorster 1973 (4) All SA 558 (A) there was a street race in Boksburg. It went horribly wrong and the injured person ended up in a wheel chair. The Appellate Division found that the injured person had consented to the inherent risks involved in a street car race. Again, it is obvious that there were no signed waivers applicable.

Still, there is a twist to the tale of consent to risk: The consent must be reasonable. Also, that which is consented to must be acceptable in the eyes of public policy. Let me explain with a rather extreme example: You cannot consent to being murdered. Even in high-risk sporting activities there are limits on “fair play”: A Springbok fly-half would not be seen to consent to a punch from the opposing team’s hooker that lands him in a wheel chair. Similarly, a world champion Internal Boxing Federation (IBF) heavy weight champion would certainly not consent to being stabbed with a concealed sharp knife during a championship boxing bout. So, even though a sport has waivers, it also has rules. Conduct outside of these rules also falls outside the ambit of consented risks.

In summation, the following can be said in the interests of safe diving:

• All participants must be aware that there are inherent dangers in the sport of diving. These dangers are sometimes unique and particular to a certain diving activity. Certain dangers may be obvious, such as for a baited shark dive. Others may be less obvious: A dive in poor visibility at altitude may require unique adjustments that are not “automatically” understood.
• Diving leaders must ensure that all divers are empowered with sufficient knowledge of the diving circumstances to allow them to, in legal terms, have knowledge and appreciation of the risk to which they are said to have properly consented. This should include, amongst others, an enquiry whether any person who is part of the dive group is on medication or has any medical condition that may affect their diving safety.

So, why the fuss about waivers? Well, waivers assist in giving clarity to the issue of scuba diving risks and possible liability and they also provide evidence to the next of kin (dependents) of the person that he or she consented to the risk. Whereas a waiver indicates that any claims of whatever nature are indemnified, the Volenti Doctrine does not afford the same level of indemnification.
 
 Volenti and dependents

An agreement between a breadwinner who is willing to undergo risk of injury or even death to himself or herself does not exclude the possibility of the dependents bringing a claim against a wrongdoer who unlawfully causes the breadwinner’s death. The agreement to undergo the risk is only relevant between the agreeing parties, so to speak. This is where the protection of a waiver (as discussed in previous editions) is paramount. It defines the parties, the activities as well as the risks.

Children and diving – how old must a child be to dive? 

Children and diving is another hot topic. There is much that can be discussed. However, let us look at children and diving in the same vein as the issue on waivers. How does the Volenti Doctrine apply to children and diving?

As an instructor, I must state that, often, children are much easier to train than adults. With age comes pre-conceived ideas and methods. These preconceptions create inhibitions that make adults wary. However, as a consequence of the Volenti discussion above, the legal side of the enquiry must concern itself with the questions of contracting capacity (amongst others, the age and mental capacity of the child) and accountability. Remember what we said – for someone to consent to risk taking, he or she must have knowledge of, appreciation for and consent to run the risk. So, can an underage person comply with these factors?

My research has indicated that, in various forums, children are encouraged to dive. Various programmes and even certifications exist to get children involved in the family sport of diving. Even excelling in the sport at a young age is well-applauded and quite rightly so. It beats children getting involved in other nasty activities and is an excellent stimulant. It also keeps the family together.

One article on the Internet states that if a child under the age of 12 is physically, mentally and emotionally able to handle the skills and understand the knowledge needed to scuba dive and wants to learn, he or she should be able to get certified. The author continues and expresses her sentiments on the ease with which children can be taught and adds that they are more eager to learn, better able to comprehend content and have better study habits than many adults. I concur herewith. But what are the legal implications, specifically to the subject of liability and consent?

In certain cases, the law attaches consequences to some expressions of will of certain persons, while no consequences are attached to other expressions of will of the same persons. Such persons, for example minors between seven and 16 years old, have limited capacity to act. The considerations which underlie these limitations on their capacity to act may vary. A person under 16 years of age is considered not to have the necessary maturity of judgement and must thus be protected by the law, be it by their parents or guardians. This has the implication that the younger the individual, the less the chances that the youngster would have consented to the risk. I venture to say that a child of 12 years old would not be found to have consented to the Volenti principle.

Diving leaders must ensure that their waivers are in place and properly worded and their divers are properly briefed.

Solo diving 

We have all heard it: “Dive alone, die alone” and “You are risking certain death, because solo diving is nuts.” Still, at least one scuba diving enterprise has revolutionised this concept. They have actually launched a unique course called “Solo Diver”. This programme teaches recreational sport divers to stay safe when diving alone. Solo diving is defined as self-sufficient diving. Interestingly, the definition can be interpreted as diving with a less- experienced buddy or a buddy who you would not want to rely on in the case of an emergency. This definition is even expanded in terms of someone who dives with a group, but who does “his or her own thing”, for example underwater photographers. Also, it includes instructors. The latter must be able to assist themselves with “self-rescue”, because it would be unfair and perhaps naive to rely on a student for help. For interest’s sake, here is the scenario.

One of the worst situations, other than being eaten by sharks or losing consciousness, would be an out-of-air situation. This is a basic part of any diving training. We do add statements like “This should never happen” but, as I always say to my students: “In the unlikely event of…” The fact is that simply allowing yourself to run out of air because you can rely on your buddy’s assistance to get back to the surface is careless, to say the least. You are also putting your dive buddy at risk. So, in this respect, solo divers may tend to be more responsible. You can imitate this culture of self-sufficiency by applying proper gas management principles taught to solo divers:

• Know your personal air consumption.
• Budget time and depth by litres of air as well as no decompression limits.
• Plan for inadvertent equipment failures.
• Plan for bail-out and decompression cylinder, when required.

So, does this mean that I condone solo diving? Well, we are definitely taught not to dive alone. I also omitted that the solo divers were very advanced technical divers. The Volenti Doctrine is certainly simpler to follow. If this is your passion then it is your passion. As for me: Diving is such an awesome experience, I definitely prefer to share it with another dive.

Previously, DAN only offered medical advice to its members, but has recently decided to extend the services it offers to its members by introducing a network of legal professionals to advise members on diving related legal matters when needed.

Divers and Diving Professionals in particular may find themselves in need of specific diving related legal advice and support from time to time. In response to this need, and following proposals by several DAN members who are also members of the legal profession, DAN has established an amazing worldwide network of legal experts and lawyers who are both experienced and knowledgeable in diving practices (being divers themselves) and diving law, in order to assist our members.