Liability in Context

The standards of care and legal principles can vary from country to country, including the context of liability and professional responsibilities. If you are operating in a jurisdiction outside of South Africa, it is advisable to seek advice from professionals familiar with the laws and regulations of that particular jurisdiction. In the context of South African common law, three distinct standards of care can apply to different situations: due care, professional care, and business care.

Here's an explanation of each:

1. Due Care:

Due care is the standard of care expected from an ordinary, reasonable person in similar circumstances. It is a general standard that applies to individuals who are not professionals or business owners. The focus is on whether the defendant's conduct fell below what an average person would do in a similar situation.

Based on this description, if an individual, while engaging in a casual dive in their private capacity, causes a loss or injury to another person or their belongings due to negligence, their personal liability insurance would typically have an obligation to defend them and settle the liability as per the terms of the policy contract.

Personal liability insurance is designed to cover incidents in an individual's life, including non-professional or non-business activities. It aims to protect insured individuals from claims made against them for accidental bodily injury or property damage caused to others, provided that the incident falls within the scope of the policy terms and conditions.

Therefore, if a lawsuit arises due to negligence during a casual dive, personal liability insurance may cover the legal defence costs and potential damages awarded to the injured party, subject to the specific terms and limits of the policy.

2. Professional Care:

Professional care refers to the higher standard of care expected from professionals with specialised knowledge or skills in a particular field. This standard applies to professions such as doctors, lawyers, engineers, dive masters, instructors, and skippers. Professionals are expected to adhere to a standard of care commensurate with their expertise and qualifications. This standard requires them to exercise the skill, knowledge, and care that would reasonably be expected from a competent professional in the same field.

When determining whether a professional's conduct fell below the expected standard, factors such as industry practices, professional guidelines, and the situation's specific circumstances are considered. The focus is on evaluating whether the professional acted in a manner that a reasonably competent professional in the same field would have acted under similar circumstances.

Suppose a professional's actions are found to have fallen below the standard of care expected from their professional peers. In that case, they may be deemed negligent, which can potentially lead to legal liability if it results in harm, injury, or financial losses to a client or third party.

It's important for professionals in the diving industry, such as dive masters, instructors, and skippers, to understand and adhere to the professional standards and guidelines specific to their roles. This includes maintaining the necessary certifications, staying updated with industry best practices, and continuously enhancing their skills and knowledge.

Additionally, professionals in the diving industry should consider obtaining professional liability insurance (also known as professional indemnity insurance) to protect themselves against claims arising from alleged professional negligence or service errors. This insurance can help cover legal defence costs, settlements, or judgments arising from such claims. Unfortunately, professional indemnity insurance is not readily available in certain geographical jurisdictions.
In the South African context, it’s not available locally, and it is essential for professionals in the diving industry to carefully consider other risk management strategies to protect themselves against claims arising from professional negligence or errors.

Here are some alternative risk management measures that professionals in the diving industry can consider:

• Implement thorough safety protocols and procedures:

Establish comprehensive safety protocols and procedures in line with industry best practices. Regularly review and update these protocols to ensure they are up to date and reflect the latest safety standards.

• Obtain appropriate certifications and training:

Ensure that all dive professionals within your organisation possess the necessary certifications and qualifications. Ongoing training and education can help maintain a high level of expertise and stay updated on industry developments.

• Use well-drafted contracts and waivers:

Have clear and comprehensive contracts and waivers that outline the terms and conditions of the services provided, including any limitations of liability or assumption of risk. Consult with legal professionals to ensure these documents are legally sound and provide appropriate protection.

• Maintain meticulous records:

Keep detailed records of all activities, including client information, dive logs, training records, and safety measures implemented. Accurate and comprehensive records can be crucial in a dispute or claim.

• Seek legal advice:

Consult with legal professionals experienced in the dive or marine industry to ensure compliance with relevant laws and regulations. They can guide risk management strategies specific to your circumstances.

Business Care:
Business care is a standard specifically applicable to business owners or operators. It recognises that individuals engaged in commercial activities may have specialised knowledge or expertise related to their business. Business owners are expected to exercise a reasonable degree of skill, knowledge, and care that a person conducting that type of business would possess. The focus is on whether the defendant's conduct fell below what a reasonably competent businessperson would do in similar circumstances.

In South Africa, several types of liability policies are available to businesses. Here are some of the common liability policies you may come across:

• Public Liability Insurance:

Public liability insurance protects businesses and individuals from claims made by third parties for bodily injury, property damage, or financial losses due to the insured's business activities. It covers legal defence costs, settlements, or judgments awarded to the claimant. Public liability insurance is crucial for businesses that interact with the public.

• Product Liability Insurance:

Product liability insurance is essential for businesses involved in manufacturing, distributing, or selling products. It covers claims arising from injuries, illnesses, or property damage caused by a faulty product. Product liability insurance covers legal costs, settlements, or judgments and helps protect businesses from financial losses resulting from such claims.

• Directors and Officers (D&O) Liability Insurance:

D&O liability insurance protects directors and officers of companies against claims made against them for alleged wrongful acts, errors, or omissions committed in their roles. It covers legal defence costs, settlements, or judgments awarded to the claimant. D&O liability insurance is crucial for companies to attract and retain qualified directors and officers, as it provides financial protection for their personal assets.

• Employers' Liability Insurance:

Workman’s compensation is a statutory requirement for businesses with employees in South Africa. It covers employee claims for work-related injuries, illnesses, or occupational diseases. Outside of the South African context, Employers' liability insurance covers legal costs, settlements, or judgments, ensuring that employers can meet their legal obligations towards their employees.

• Cyber Liability Insurance:

With the increasing risks of cyber threats and data breaches, cyber liability insurance has become essential for businesses. It covers the financial losses, legal expenses, and liability arising from cyber-attacks, data breaches, or other cyber incidents. Cyber liability insurance helps businesses mitigate the financial and reputational risks associated with cyber threats.

It's important to note that the availability and specific terms of these liability policies may vary among insurance providers. It's advisable to consult with an insurance specialist or broker to determine the most suitable liability coverage for your specific needs and industry.
Please remember that this information is a general overview, and it's always recommended to review the policy terms and conditions of specific insurance providers to understand the coverage provided by each policy.

If you have any further questions, feel free to ask!