Diver missing in Ontario

[Ayisha]

In case anyone has not seen the Incident Report for this accident, it is here: http://www.underwatercouncil.com/downloads/incident_reports/ouc_2011_scuba_incident_reports.pdf

Please note that this accident investigation is ongoing due to legal matters and the incident report will be updated if and when the information becomes public.

 

[CDNScubaMoose]

According to my Instructor, his boss and course director, any instructor on any dive has a professional duty of care. As long as anyone maintains their status as a qualified, they had better keep their insurance up to date.

I would love to hear that from a lawyer. I am curious which agency your instructor teaches for? If instructors are passing along that kind of information to their students then there is a major issue. I can see it now, "don't worry if you aren't comfortable in the water, here is your card anyway and just make sure whenever you go diving there is an instructor or divemaster to babysit you".

Could not disagree more strongly, at least as concerns PADI. The courses are designed to make it easy for as many people as possible to pass and take additional courses, while minimizing the risk them injuring themselves.

Yep, if what you relayed from your instructor is what is being taught by them then I'd agree with you ... when I teach I make multiple points and very strongly that they are responsible for their own safety once the course is done. I am more then happy to buddy up with graduates on dives that are suitable for their skill set but I'm not an u/w babysitter. It isn't the agencies that are at fault if instructors are giving new divers the idea that everyone else is responsible for babysitting them. Except the fact that the agency certified those instructors in the first place.

I hope this instructor, who took an newly certified OW diver with presumably no experience or training in current diving, which isn't covered in basic OW course, on this dive, is never allowed to teach again.

Having done the dive in question multiple times it was an incredibly stupid decision to do this dive. However, I don't agree there is blame on the instructor for this particular dive. Where the fault could lie is if it could be shown that the instructor was negligent during the course and the deceased was left with the assumption that his and all other instructors are u/w babysitters.

 

[Groundhog246]

Having done the dive in question multiple times it was an incredibly stupid decision to do this dive. However, I don't agree there is blame on the instructor for this particular dive.

IMHO, a "responsible" buddy would have discouraged a newly certified diver from doing this dive. For an Instructor to buddy, especially in a threesome on this dive, with a newly certified student on this dive, is totally irresponsible. I wasn't there (and I assume you weren't either), but where did the deceased diver get his info about the site from? I've done more than one dive, where my primary source of details on the dive site, current, potential hazards, etc has been from my buddy. If he doesn't tell me there's a 6 knot current, how do I know? And more than half the people I know, including some divers, don't know what a knot is.

And I believe you misunderstand my statement "

any instructor on any dive has a professional duty of care"​

I didn't say babysitter, nor did I say they're required to buddy with new or any divers. It's been quite a few years, but I was shown articles where Instructors and shops had been sued and lost when they were present when a dive went bad. Ruling was they were present and should have reasonably foreseen the incident might happen and did not take action to prevent it. This idea of a professional duty of care is not unique to a dive professional, it exists in many professions. For example, if you carried an expired epipen, had an allergic reaction to something and a EMS tech, doctor or nurse administered it, even though it was expired, they would be held liable for any complications (using an expired epipen can be more dangerous than anaphylactic shock ), as they are expected to know. Here's more ​Duty of care in English law - Wikipedia, the free encyclopedia

​

---------- Post added ----------

Also the same rule of law that causes people who sell or serve alcoholic beverages so much grief.

 

[t4e]

Yep, if what you relayed from your instructor is what is being taught by them then I'd agree with you ... when I teach I make multiple points and very strongly that they are responsible for their own safety once the course is done.

i fully agree with you that once you've got your card you are responsible for your own safety, however i think you're missing Groundhog246's point, with which i fully agree, i don't care how smart people think they are there is now way in hell that someone could get the same depth of training in a weekend course vs the 10 weeks we had through my agency of choice

there are two ways of learning, either you dissect everything to gain an understanding of what you are being taught and you will remember it forever or you cram it all in during a very short period of time using short term memory that doesn't really have a lasting effect but it helps to get a passing grade
i used both methods during my accounting designation courses, with the latter for a couple of subjects that i really didn't care for, the information was good long enough for me to pass my exam, after that it all faded as fast as it was gained

 

[CDNScubaMoose]

IMHO, a "responsible" buddy would have discouraged a newly certified diver from doing this dive. For an Instructor to buddy, especially in a threesome on this dive, with a newly certified student on this dive, is totally irresponsible. I wasn't there (and I assume you weren't either), but where did the deceased diver get his info about the site from? I've done more than one dive, where my primary source of details on the dive site, current, potential hazards, etc has been from my buddy. If he doesn't tell me there's a 6 knot current, how do I know? And more than half the people I know, including some divers, don't know what a knot is.

There is 1 person definitely at fault - the deceased. For not taking personal responsibility for his safety. This was a tragedy that could have been prevented. I have buddied up with many divers for the first time that they have done this dive and everyone of them has done a double take as soon as we look at the entry and start discussing how we are going to do the dive. (the current is so strong that there are occassionally standing waves in the river). I've had buddies that were planning on doing this dive that took one look at the site and said "thanks but no thanks". If the deceased couldn't have recognized that this dive was something more then what he had been trained for then he should have never been given a card. If his instructor failed in explaining why personal responsibility is critical in diving then the instructor is at fault as part of the original course, not as part of this dive. It might seem like a fine line but IMHO I am getting the impression that some of you believe all dive professionals are always legally responsible for everyone at a dive site that they may be visiting. I have no problem holding myself morally responsible and if you have a problem u/w or on the surface and I can render assistance I will do so in a heart beat. But if you think for a second that I or the vast majority of dive professionals signed up to be legally liable at all times because you can't or won't think for yourselves ... guess again.

And I believe you misunderstand my statement "

any instructor on any dive has a professional duty of care"​

I didn't say babysitter, nor did I say they're required to buddy with new or any divers. It's been quite a few years, but I was shown articles where Instructors and shops had been sued and lost when they were present when a dive went bad. Ruling was they were present and should have reasonably foreseen the incident might happen and did not take action to prevent it.

Nope, I understand exactly what you are saying. You might not have said babysitter but that is what you are asking off duty dive professionals to do. Please show me documented evidence of these articles - I would like to understand the exact circumstances. I could see it if there was an exchange of money as part of organizing a trip where the person who was sued monetarily benefited from it.

This idea of a professional duty of care is not unique to a dive professional, it exists in many professions. For example, if you carried an expired epipen, had an allergic reaction to something and a EMS tech, doctor or nurse administered it, even though it was expired, they would be held liable for any complications (using an expired epipen can be more dangerous than anaphylactic shock ), as they are expected to know. Here's more ​Duty of care in English law - Wikipedia, the free encyclopedia
---------- Post added ----------

Also the same rule of law that causes people who sell or serve alcoholic beverages so much grief.

Makes sense - someone is being paid to sell/serve alcoholic beverages ... monetary incentive to perform your expected duty of care. Likewise with the EMS, Dr., Nurse ... they are being paid at that moment in time. Unless this was a "Discover Local Diving" or a paid excursion ... there was no monetary exchange. If this dive was part of the course, or the first dive of his AOW course then there is an obvious duty of care. Like I said before, if the instructor didn't explain personal responsibility during the course then there could be a case for negligence from the original course but not on this specific dive.

That said - I do agree with you on the need for dive professionals to always carry insurance because lawyers love to sue and defending ones self can be pretty expensive. However, if a dive professional breaches duty of care ... pretty good bet your insurance carrier is going to take one look at say seya, you are on your own.

---------- Post added ----------

i fully agree with you that once you've got your card you are responsible for your own safety, however i think you're missing Groundhog246's point, with which i fully agree, i don't care how smart people think they are there is now way in hell that someone could get the same depth of training in a weekend course vs the 10 weeks we had through my agency of choice

there are two ways of learning, either you dissect everything to gain an understanding of what you are being taught and you will remember it forever or you cram it all in during a very short period of time using short term memory that doesn't really have a lasting effect but it helps to get a passing grade
i used both methods during my accounting designation courses, with the latter for a couple of subjects that i really didn't care for, the information was good long enough for me to pass my exam, after that it all faded as fast as it was gained

Yep, I agree that a well run extended course is going to be better then any weekend course. It is also why I refuse to teach weekend courses. If Groundhog246 wants to slam a particular agency for allowing a piss poor instructor through the ranks which may have resulted in the basic concept of not thinking for yourself ending up in short term memory then I am fully on board (if that is what happened). But making a statement along the lines of all dive pro's have to be legally responsible for all divers at a site, all the time ... that I take issue with.

 

[t4e]

@ CDNScubaMoose Duty Of Care has nothing to do with being paid to do so
as a home owner, if you have a hole in your driveway you owe a duty of care to anyone that could possibly fall in, so you need to ensure that is properly enclosed or mad visible

 

[decompression]

@ CDNScubaMoose Duty Of Care has nothing to do with being paid to do so
as a home owner, if you have a hole in your driveway you owe a duty of care to anyone that could possibly fall in, so you need to ensure that is properly enclosed or mad visible

In this scenario, you are the owner of a property with a duty of care and does not transfer to this scenario. We carry professional liability insurance, we are NOT acting in a professional capacity in a dive outside of a course or paid activity. However, the less experienced diver places trust in a more experienced diver BUT is ultimately responsible for themselves. This has been discussed many times in many scenarios (many actual incidents, citing failed litigation). If you have been led to believe the opposite, that is unfortunate. Most instructors are aware of this as it is a very likely outcome in our lives. Some very poor judgement was used and poor decisions were made, it is unfortunate that we must seek to place blame (myself included, having just lost a friend this week in a diving accident).

 

[Ayisha]

Let's remember folks that the deceased was certified just a couple of hours prior to this fateful dive by this particular instructor. This isn't about all instructors being responsible for all divers in an area.

 

[t4e]

In this scenario, you are the owner of a property with a duty of care and does not transfer to this scenario. We carry professional liability insurance, we are NOT acting in a professional capacity in a dive outside of a course or paid activity. However, the less experienced diver places trust in a more experienced diver BUT is ultimately responsible for themselves. This has been discussed many times in many scenarios (many actual incidents, citing failed litigation). If you have been led to believe the opposite, that is unfortunate. Most instructors are aware of this as it is a very likely outcome in our lives. Some very poor judgement was used and poor decisions were made, it is unfortunate that we must seek to place blame (myself included, having just lost a friend this week in a diving accident).

i realize that professional liability stops when the student is out of training, but duty of care never ceases
so even though the diver was done with the course and out of the instructor's hands, the instructor, as well as anyone else like a buddy, arguably still owes a duty of care, in that he should have informed the new diver that this is beyond his experience
perhaps he did, i am not accusing the instructor in any way, just making an argument for what "duty of care" means and how much it extends
if the diver still chose to go ahead despite the advice there is not much more to argue about IMO

 

[decompression]

I understand it can be difficult to separeate professional liability and duty of care, as mentioned, duty of care is applicable in all buddy dive cases even if it is a professional as a buddy. Certainly, duty of care (buddy and self) wasnt exercised by the decisions to do the dive in questionable conditions for each member and the action of leaving a team member alone. It is a sad outcome and one I hope we all can learn from.