Divers in court
Could you be taken for every penny if you let down a buddy Are smart lawyers ready to start chasing lifeboats as well as ambulances Ben Jaffey offers a laymans guide to diving and suing in the UK Divernet

When you set out on a dive trip, the possibility of being sued by one of your fellow-divers probably never enters your head. You are more likely to worry about forgetting your weightbelt or getting stuck in traffic on your way to the dive site. However, the recent case of a divers widow suing his buddy for negligence brought the issue of the law and diving sharply into focus (Buddy Wins Action After Widow Files Negligence Claim, News, May).
We tend to think of suing as an American disease - after all, Ally McBeal sues someone every week for breaking a heart or wearing the wrong outfit. In the UK, it usually takes a fairly serious incident involving death or injury for people to sue; being disappointed by the viz or offended by the skipper would simply be laughed out of court.
Diving is an adventurous sport, and there are many opportunities for things to go horribly pear-shaped. It isnt just dive operators or professional instructors who get taken to court. So what can you do to minimise your chances of facing a court case

what is this negligence thing
The law of negligence and personal injury is a series of fairly sensible rules used to decide whether an injured person should be paid compensation by another person. If it should be paid, further rules determine how much.
The key feature of negligence is that it is fault-based. An individual gets compensation only if he can show that the injuries he or she suffered were, at least partially, the fault of others.
To prove negligence, a claimant has to show five things: a duty of care; a breach of that duty; that the injury was caused by the breach of duty; loss and damage; and lack of contributory negligence.

duty of care
When diving with other people, every diver owes a duty of care to everyone else. The dive marshal owes a duty to the divers, and vice versa. Buddies owe duties to buddies. Boat-handlers or skippers owe a duty to the divers, and the other way round. Even the trainee owes a duty of care to his or her instructor.

breach of duty of care
This is the important bit. Just because you owe a duty of care, it doesnt mean that you have breached it. For starters, not everyone owes the same duty. Its scope depends on the skills of the person and the position held. In medicine, for example, a GP might not be expected to spot a rare condition but a consultant doctor might be. The more responsible the position, the more exacting the duty of care.
The same principles apply to diving. The duty of an instructor to his or her trainee is much stronger than that owed by the trainee to the instructor. The duty owed by a BSAC Advanced Diver to others on a boat will be stronger than that owed by a Club Diver. After all, the average Advanced Diver has skills in observation, rescue, first aid, boat-handling, incident management and oxygen administration not held by the newly qualified diver. If you are trained to have skills, you are expected to use them where appropriate. If you dont have them, the law will not penalise you.
A good example of a court working out the scope of a duty is that negligence case referred to earlier. The court held that the scope of a buddys duty during an unplanned free ascent was only to attempt to keep in contact and ascend face to face in parallel. That the divers got separated was not negligent.
The court also emphasised that the scope of the duty was limited.
This case was just a reminder that no one expects the impossible or even the unreasonable. If a reasonable person, with the experience and training of the person being sued, would have done the same, the courts will not find negligence.
For example, a diver should never put himself at unacceptable risk of injury or death to assist another.

causation
Just because you do something wrong, that doesnt mean you have to pay for it. The loss that the victim suffers must have been caused by the negligence.
A famous case involved a patient brought into hospital with acute arsenic poisoning. It should have been an easy diagnosis but the doctor missed it, and the patient died.
The doctor admitted negligence in failing to make a correct diagnosis. However, the patient was so heavily poisoned that even if the doctor had diagnosed correctly, death was inevitable. He made things no worse in reality, so no damages were payable.
If a diver suffered a heart attack under water and died there and then, and the medical evidence was that resuscitation would have made no difference, no damages could be obtained against a buddy for failing to perform an effective controlled buoyant lift.
A failure to give oxygen to a diver showing DCI symptoms would not result in an award of damages if the diver did not really have DCI (so long as oxygen would have made no difference).

damages
The UK is not like America. You cant sue the local dive centre and win a million bucks for your bad back after hauling your own twinset around all day (sorry!). You get money only to compensate you for the actual losses you have suffered and will suffer in the future.
Payment falls into several categories. First, there is a lump sum for pain, suffering and loss of amenity. This sounds impossible to put a figure on but lawyers, using past cases as a guide, can work out with great accuracy what the going rate is for different injuries, even psychological trauma. As a guide, you might get £2000 for a broken leg that heals fully, or £100,000 for becoming paraplegic (loss of lower body function).
Second, you get a lump sum to compensate you for your past and future lost earnings. As a result of the accident, you might be in lower-paid work or have lost your job altogether. You might never work again. Your injuries might have diminished your promotion prospects. All these things are calculated and added in.
Finally, you can be awarded a sum for expenses incurred - recompression chamber bills, medical bills, the cost of special equipment and so on.

contributory negligence
For the person suing, there is one final hurdle: contributory negligence. Often, even when all the other tests have been passed, the injured person might have been at least partially at fault for his or her injuries.
The courts assess this as a percentage, and knock it off the damages award. For example, a person whose car injuries are made worse by failing to wear a seatbelt typically gets his or her damages cut by around 25 per cent.
Contributory negligence is often an important part of diving negligence cases. In one case brought against a PADI instructor, damages awarded to a trainee who suffered severe decompression illness after a solo fast ascent were reduced by 50 per cent.
The instructor was unable to assist, as he was trying to round up his other students after a starburst, and was found liable because he had not given a proper briefing about separation.
However, the trainee was found to be contributorily negligent because she should have dealt with the situation better, even on her limited knowledge.

MYTH 1: the waiver
Whenever diving with a commercial centre, punters nearly always get presented with long, scary-looking waiver forms. These usually purport to waive your rights, your mums rights, your pet cats rights and your unborn childrens rights to sue the dive centre.
I always cheerfully sign, because they make no real difference.
They are invalid because Section 2(1) of the Unfair Contract Terms Act 1977 says so. They dont stop you suing and they dont give the dive centre a defence. However, they can sometimes be useful in showing that a person has understood the inherent risks of diving.

MYTH 2: doing nothing is OK
You cannot avoid a duty of care by an omission (refusing to do something). Once a duty is owed, it must be fulfilled. It doesnt matter if this requires you to take positive steps - you are expected to be the Good Samaritan, cross the road (or the RIB), and help those to whom you owe the duty. Doing nothing is usually not an option, particularly when you have it in your power to help.
Example: a group of divers charter a hardboat for the day. After surfacing from the second dive, one develops DCI symptoms. The dive marshal asks for the boats oxygen but the skipper refuses to hand it over, believing that if it is given and all is not well, he could be sued.
The skipper got it the wrong way round. If he had given the oxygen, called the coastguard and headed back to shore, he would have been safe from any negligence action. Instead, if the DCI was made worse by the refusal to supply oxygen, he will certainly be liable.

MYTH 3: others are not responsible for detecting DCI
A recent incident reported in Diver described the situation of a woman who continued to dive with a neurological bend. As the accompanying article by Marguerite St Leger Dowse (Divers in Denial, March) highlighted, judgment is frequently impaired by a bend and divers with DCI will often behave irrationally.
Following this, I received a diving practices guide written by a very experienced and qualified diver.
It asserted that: The dive marshal is not responsible for detecting symptoms of DCI, particularly if you try to cover them up as some other condition. He is not responsible for you getting it, or for your treatment. But if he is aware of it, he can at least monitor the condition, obtain further medical guidance, refer you to a chamber or give you oxygen.
It is far too simplistic to say that the dive marshal is not responsible for a person getting DCI or for treatment. For example, a person who got into difficulties and suffered a bend as the result of an inadequate briefing might properly claim that the marshal was, at least in part, responsible for the DCI.
Regarding treatment, the point is that where you should have figured out that something was wrong, doing nothing is not good enough. Any experienced diver will know at least some of the symptoms of DCI and the need for urgent treatment. If those symptoms would have been apparent to an ordinary and reasonably skilled diver (ignoring the marvellous luxury of hindsight) and nothing was done, a finding of negligence is a real possibility.

how to stop worrying and learn to love the law
We have a right to expect others to take reasonable steps to take proper care of us. But dont get worried about the possibility of being sued.
It happens all the time to all sorts of people, and divers are no exception, but the risk of litigation should not make anyone stop diving, instructing or marshalling. Every time you drive a car, you are at risk of being sued. No one thinks that is a good reason to stop driving. It is also quite difficult (rightly) for an injured party to win a negligence case. He or she has to prove everything I have set out above, and many claims fail.
All members of the BSAC and SAA have automatic third party liability insurance cover. If you are not a member of either club, make sure you get a suitable policy.
Follow the standards and guidelines laid down by your training agency. Keep updated on rescue and safety procedures. If you can show that you acted in accordance with recommended diving practices, it will be extremely difficult for anyone to sue you successfully.
This article is not about getting divers worried, but the opposite. The law is there simply to compensate people when others fall below the standards that can reasonably be expected from them.
The more experienced and qualified you are, the more can be expected from you but, equally, the less likely anything is to go wrong and, if something does happen, the better you are able to deal with it.
Deal with it as youve been trained to do, trying your best, and youll be fine.




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