Divers charged with manslaughter from Discover Scuba death - Malta

[DandyDon]

A charity event, with a "No good deed goes unpunished" story...

Two men accused with diver?s death - maltatoday.com.mt

The 24-year-old woman who lost her life while diving for charity did not sit for the pre-dive medical test, although she was aware that her father had been diagnosed with a hereditary medical condition.
Taking the witness stand in the compilation of evidence against two men charged with the woman's involuntary homicide, the victim's boyfriend explained how they attended a 'dive-for' charity' event held at Qawra. The victim was among a group of four first-time divers who on 12 July 2009, were taken on a 15-minute shallow trial dive after donating €10 for charity.
The accused, a 49-year old man of St Paul's Bay and a 62-year old retired man of Zurrieq, face charges of involuntary homicide due to negligence in their work. The two are the organisers of an annual charity diving event. Magistrate Claire Stafrace Zammit ordered a temporary ban on all names of those involved in the proceedings.
When the couple arrived at the dive site, the organisers informed the participants that they did not need to sit for an on-site medical test unless they have a medical condition. The majority of the divers took their tests as some suffered from sinus and one had recently recovered from a head injury. However the victim held she had no medical history and did not take the test.
Unknown to the organisers, the victim's father had been diagnosed with a medical condition. The woman and her family were aware of this and had been attending counselling sessions to help the family cope with the father's illness. Although she knew her father's condition was hereditary the young woman had not shown any symptoms of being afflicted by the same condition and opted not to sit for the pre-dive medical test.
Once the tests were ready the group proceeded to start the dive. The water was murky and there was a lack of visibility. The couple were the last two divers at the end of the group, with the woman swimming to the side and slightly behind the witness.
"At one point I lost sight of her, but given the lack of visibility I swam on and rejoined the group. However I noticed that she was not with the instructor so I motioned to him that she was missing," the witness explained.
Moments later the group surfaced, only to be joined by the instructor calling for help. He was holding the young woman who was frothing at the mouth and unconscious. The woman was still wearing her weight belt but had ditched her oxygen tank and jacket. This may have kept her under water, the witness said.
The victim was taken to shore were the on-site doctors tried to revive her. "Twice the crowd cheered as she threw up water but I never saw her recover," the victim's boyfriend concluded.
Pathologist Mario Scerri confirmed to the court that the woman had died of asphyxia due to drowning.
A doctor on duty at the emergency department held the woman arrived in hospital dead and all attempts to resuscitate her proved futile.
Defence lawyers Michael Sciriha and Michael Tanti Dougal told the court that this was a tragic incident which took place five years ago. "There is no need for lengthy proceedings. It is a case where nobody is at fault yet everyone is hurt by the consequences," Sciriha said.
The lawyers requested a temporary ban on the names of the victim, accused and witnesses to prevent the charity organisation and the popular annual event from being jeopardised.
Inspector Joseph Busuttil is prosecuting.

 

[TSandM]

Well, there may be liability on how the dive was conducted, but I sure don't see any way the organizers could be held responsible for the diver's decision to proceed despite her known family history.

 

[AfterDark]

Pay your money and take your chance is out the window!

 

[Nirvana]

The way I read the news story, it doesn't seem like the woman died as a direct result of her preexistent condition, whatever it was. She had some kind of trouble under water, perhaps precipitated by the onset of her illness, ditched her regulator and BCD and drowned. It all happened at some sort of discover scuba dive where the instructors lost sight of one of the customers. Not only that, but had to have their attention called to the diver's disappearance by her boyfriend. Upon being found, she had already inhaled water and had her respiratory function compromised to the point that she ended up dying.

So this is not a case of sudden death underwater, but a case where lack of care by those who had put themselves in a position of responsibility for other people's safety led to someone's death. I don't see nothing wrong with them being prosecuted, from what is reported on the article posted.

 

[clownfishsydney]

The medical condition appears to be irrelevant to what happened.

 

[doctormike]

Pay your money and take your chance is out the window!

Hell yeah, and it should be! Taking DSD divers into water so murky that the instructor looses their "student"? Sure sounds like criminal negligence.

Maybe a different definition of "manslaughter" than we have here, though. I'm not a lawyer, but I thought that was when you accidentally killed someone, like a hunting accident. But I guess that's not the main point...

I'm not sure what the quick waterside medical exam would have picked up anyway...

 

[DevonDiver]

The water was murky and there was a lack of visibility. The couple were the last two divers at the end of the group, with the woman swimming to the side and slightly behind the witness."At one point I lost sight of her, but given the lack of visibility I swam on and rejoined the group. However I noticed that she was not with the instructor so I motioned to him that she was missing," the witness explained.

Going only by what was written in the media report, this sounds like a potential negligence of supervision issue.

DSDs are not trained divers. Direct supervision is needed. Participants trailing the instructor in a group with occasional backwards glances is not direct supervision IMHO.

 

[boulderjohn]

I agree that conducting a DSD dive brings with it liability for a failure to provide the level of care and safety required by the standards. If they did not provide that level of care and safety, there is a good chance they will be found guilty.

As for the charge being manslaughter, we must remember that this is in Malta, and the laws there will vary from the laws in the United States. In Australia, Gabe Watson served a year in prison for manslaughter in the death of his wife while diving. It would be wrong to apply the American definition of the term to that situation and make assumptions about the reason for his imprisonment. He was essentially guilty of failing to perform an effective rescue, which was required by a local law that does not exist in the United States.

 

[SailNaked]

I would think if the visablility was that bad that someone should have had a hand on every DSD diver in the water. when we do DSDs in bad vis it is usually at least 1:1 and sometimes 2 instructror to each DSD. no idea what the actual vis was, maybe bad to them is only 20 ft. and I could see having a few divers to one instructor. while 6ft is about average here.

 

[Phil_C]

QUOTE "Defence lawyers Michael Sciriha and Michael Tanti Dougal told the court that this was a tragic incident which took place five years ago. "There is no need for lengthy proceedings. It is a case where nobody is at fault yet everyone is hurt by the consequences," Sciriha said.
The lawyers requested a temporary ban on the names of the victim, accused and witnesses to prevent the charity organisation and the popular annual event from being jeopardised.
Inspector Joseph Busuttil is prosecuting."

Maltese law is based on UK common law (a hang over from the "Empire" days) so manslaughter has a very different interpretation from the US. The UK has updated its definitions a few years ago, but from memory manslaughter under the common law system used to be "an unlawful act or ommission without malice aforethought by the accused which led to the death of the victim".

So in order for it to be manslaughter the act or omission must be unlawful - not an accident - and there must have been no intention on the behalf of the actor to cause harm or injury (mens reas in the latin definition of the components of an offence).

Criminal negligence can make an otherwise lawful act unlawful (approaching a duty of care type responsibility) but generally someone had to do something illegal which led to a death which they didn't intend should occur. The significant sentencing difference in UK common law was that for murder the mandatory sentence was life, the sentence for manslaughter was at the discretion of the trial judge.

What I did notice from the report DandyDon quoted was this incident and death took place FIVE years ago - that has been a slow investigation by anyones standards, and makes me wonder what witness memories and accounts are likely to be now. Especially if they were not properly and thoroughly recorded at the time.

Regards - Phil

---------- Post added December 5th, 2013 at 04:58 PM ----------

Went hunting through old press reports for Malta, here is the text of an article published in Malta - Sunday 12th July 2009 and relates to the original incident.

"A 24-year-old woman from Zabbar - Tamara Psaila, lost her life this morning after losing consciousness in the water when taking part in a charity dive.
The dive was organised by the Atlam Subaqua Club in Qawra. Ms Psaila was rushed to hospital by ambulance but died following a medical intervention.
This was the 11th time that the activity, which was collecting funds for the Dar tal-Providenza was organised. The event was stopped after the woman was taken to hospital and people who had already gave their contribution were offered reimbursement.
In a statement, Atlam said that the dives were manned by qualified instructors and accompanied by qualified divers.
Participants completed a medical questionnaire and any medical matters that required further clarification were addressed to the medical team made up of three practitioners and a nurse.
By 11.30 a.m., 75 persons had dived. The participant brought up from the water unconscious had been doing a taster dive. Efforts were made to revive her and the ambulance was called.
Atlam Sub Aqua Club expressed its solidarity with all family members"

Now I have found the original I will see if I can dig up anymore - P

---------- Post added December 5th, 2013 at 05:02 PM ----------

From a different report -

The young woman who died during a charity dive on Sunday came to twice while being given first aid in front of tens of people who cheered her on to recover.As more details emerged about the incident, witnesses yesterday described the dramatic moment when 24-year-old Tamara Psaila was lifted out of the water and given mouth-to-mouth resuscitation.
"She spat out water twice and we started shouting brava, brava but she soon lost consciousness again" one witness explained.
The witness said "it was horrible to watch such a horrific sight" and "a waste of life".
The police said an autopsy concluded that Ms Psaila had drowned.
"No words can bring her back, neither for me nor for her mother," were the only words that her 25-year-old boyfriend, Ryan Curmi, could say yesterday.
Ms Psaila was among a group of four first-time divers who were taken on a 15-minute shallow trial dive after donating €10 to Dar tal-Providenza.
Sources said the group, which included her boyfriend, was being assisted by a very experienced instructor who fainted after the girl was brought to shore. He was said to still be in shock yesterday.
There was also an experienced diver with the group, sources said.
Before being handed the equipment, the first-time divers had filled in medical forms, underwent a check-up and been given a pre-dive brief.
According to one eyewitness, when the group was immersed they suddenly became engulfed in murky water. When it cleared, the people around her realised they could not see her. The instructor then spotted her on the seabed without her oxygen regulator while her oxygen tank and jacket were also detached.
Sources said the woman was still wearing her weight belt and this may have kept her under water.
The equipment originated from different diving schools which volunteered to help in the fund-raising event. The equipment that the woman was wearing was taken away by the police for testing.
Commentators on timesofmalta.com described Ms Psaila as a "lively, altruistic and creative" person who was training to become a geography teacher.
People who were at the scene said that it was shocking and heartbreaking to see the young woman dying on the shore.
"I always admired her courage and patience and she was always there to help me and others," one of her friends said.
Several people described her as beautiful, kind and caring, with a passion for animals and a desire to help people in need.
"I am sure that if you had been given a chance, you would have chosen to die for a good cause. You and Ryan were an exemplary couple of what love is all about. You will be missed but never forgotten," one person who knew her said of her.
Meanwhile, it was established yesterday that Tania Spiteri, 26, of Cospicua, who died while on a boat off St George's Bay also on Sunday, had suffered pulmonary oedema (her lungs were filled with water), according to preliminary results.
What caused this has not yet been established but her friends told the police she suffered from a condition in her lungs. More tests are being carried out, the police said.

- P

---------- Post added December 5th, 2013 at 05:22 PM ----------

From what I know of Maltese diving visibility is usually good, unless you are in one of the enclosed bays - so I would speculate that there was possibly a silt out at the entry point due to inexperienced divers kicking it up.

The report suggests that the water "cleared" - which would be consistent with moving away from the murky silted up section, otherwise how could the instructor then be able to see her on the bottom without regulator in and with BC partially removed. Sadly this sounds like she panicked due to the silty water, became separated and drowned whilst dying to remove equipment in order to surface.

We all know that putting air in the BC would probably have been enough, this happened at the start of the dive - but sadly she was not a diver and did what I think would be the natural instinct if not trained, which is try to get kit off in order to surface. As far as preferring a charge of manslaughter I would assume eon these facts that the prosecution are inferring a duty of care to closely supervise the DSD divers, this close supervision failed because the instructor did not notice the separation and incident, therefore the failure of the duty of care led to the unintended death of the participant and hence the manslaughter charge. The reason two persons have been charged would be that whoever was the responsible dive supervisor/organiser on the surface is also getting blamed for not ensuring the duty of care was applied.

A bit harsh in some eyes I suspect, but I think that the legal advice when the case was reviewed will have been along the lines of - in order to ensure the duty of care there should have been someone at the front and someone at the back, with all divers remaining in full view at all times, so it was not possible for the DSD's to become separated and an unseen incident to occur.

Which from the angle of risk management would not be seen as unreasonable - P