Liability of going pro?

[Hawkwood]

It's not what I am saying. What I am saying is fully possible that you, or I, or Joe Blow diver, don't have to be a "pro" to be put into that position. All you have to be is the most "experienced" person in the group.

Four people go diving. Two newbies, one with a bunch of dives and is AOW, and one with a few hundred and is a rescue diver. Something goes wrong. I have a sneaking suspicion that someone might be asking the more experienced diver what went wrong.

As a "pro", I agree that I don't see how keeping that fact a secret is going to in anyway protect me getting caught up in things after the fact. It might keep me from being asked to pair up with someone, or help out, on the basis I am a "pro", but that's a different discussion.

 

[Bob DBF]

Everyone else covered how interesting the legal system can get.

I think the real question should be, do you want to be a working DM and/or instructor or do you want to get a certification just to stroke your ego. If you are going to be working, make sure you have adequate insurance for the job. If your not going work at it, spend your money on training you will use.


Bob

 

[Phil_C]

I
In a case in Malta, two divers died, both diagnosed with Immersion Pulmonary Edema. As I understand it, one of the other divers is being charged with their deaths on the basis of the fact that as the most experienced diver in the group, he should have recognized that the dive conditions were perilous and and talked the others into calling off the dive. He happens to be an instructor, but he was in no way acting as one on the dive, and it appears as if he was being charged for being the most experienced diver instead.

John - just a quick correction - all charges have been dropped in this case and no action is being taken. It did take intervention by BSAC at international level together with lobbying to achieve this, but basically in this case it was a private group, self organised and guiding themselves and the person who was charged was an instructor and the most experienced/qualified member of the group. They were not using an organised dive centre guide and the Maltese authorities took the view that the diver charged had some organisational responsibility for the group as a whole.

He didn't, he was just another member of the group and not acting as a guide or organiser for the others. One of those who died was his buddy, the other one of the others in the group who helped in the initial rescue of the first diver then succumbed to the stress of the rescue.

But I do agree that generally if you are better trained/higher qualified you will be held to a higher level of expectation in the duty of care assessment, because you would be deemed to be more capable, therefore should have acted within your abilities and done more. If you do not know how to do something then no-one will reasonably expect you to do it. If you have the skills then you can be reasonably be expected to use them in an appropriate situation.

So an OW diver not carrying out a CBL because he does not know how to do a CBL should not be criticised, but a highly trained DM or instructor who does know how to do so safely, but does not do a CBL when one could make a difference to the outcome of an incident would be looked at differently. And in my opinion rightly so. - Phil.

 

[Phil_C]

As a "pro", I agree that I don't see how keeping that fact a secret is going to in anyway protect me getting caught up in things after the fact. It might keep me from being asked to pair up with someone, or help out, on the basis I am a "pro", but that's a different discussion.

I totally agree - it matters not a jot what you tell people when it comes to your duty of care, it is facts about your abilities that matter. If you are capable of assisting and carrying out a rescue, and do not do so, then whether you have told people you are qualified or skilled enough to do so is irrelevant.

I know the laws or when your acts or OMISSIONS can be held to make you legally culpable differ from place to place, but one thing that is constant in my experience is that what matters is what you actually could have done, and not what you admitted or told people you could have done that matters when it comes to judging your actions. - P

 

[markmud]

It's not what I am saying. What I am saying is fully possible that you, or I, or Joe Blow diver, don't have to be a "pro" to be put into that position. All you have to be is the most "experienced" person in the group.

Four people go diving. Two newbies, one with a bunch of dives and is AOW, and one with a few hundred and is a rescue diver. Something goes wrong. I have a sneaking suspicion that someone might be asking the more experienced diver what went wrong.

As a "pro", I agree that I don't see how keeping that fact a secret is going to in anyway protect me getting caught up in things after the fact. It might keep me from being asked to pair up with someone, or help out, on the basis I am a "pro", but that's a different discussion.

Hi Hawkwood,

I think this article (link below) may shed light on your opinion (and prove your point). The facts described in the article do not match your scenario well, but I believe it is still instructive.

While the Defendant diver was not held liable by the court, he was drawn into an expensive legal battle that temporarily ruined his life (I am speculating on the quality of his life during the suit--it is probably a reasonable inference though). The decedents family tried to make the buddy culpable, because he was the buddy, and for no other reason.
Diver Sued for Abandoning Buddy: Undercurrent 03/2004

My advice: Be careful with whom you dive!

markm

 

[Hawkwood]

... The decedents family tried to make the buddy culpable, because he was the buddy, and for no other reason.
...
My advice: Be careful with whom you dive!

markm

There was a court case in British Columbia a couple of years ago based on the responsibilities of the "buddy" of a skier who died. It's not limited to diving.

 

[markmud]

(Quoted in part; emphasis added by markm)

In the Gabe Watson case in Australia, Watson plead guilty to manslaughter for failing to perform an effective rescue of his distressed wife. This case had a lot of misreporting of facts, so you may have heard something different, but the fact is that under the local rules for that area, he was convicted simply for not being competent in his attempt to rescue her. His highest certification level was Rescue Diver.

In a case in Malta, two divers died, both diagnosed with Immersion Pulmonary Edema. As I understand it, one of the other divers is being charged with their deaths on the basis of the fact that as the most experienced diver in the group, he should have recognized that the dive conditions were perilous and and talked the others into calling off the dive. He happens to be an instructor, but he was in no way acting as one on the dive, and it appears as if he was being charged for being the most experienced diver instead.

Hi Boulderjohn,

WHOW! Watson was convicted for not being competent and failing to effectively rescue his wife. I may never dive with a buddy in Australia! Do they honor solo certs down-under?

Rescue Diver: The name of this cert needs to be changed. The person who obtains this cert is not a AF PJ, is not a navy corpsmen, is not a public agency safety diver, is not a USCG SAAR swimmer or diver, is not UDT, is not SEAL, is not a RANGER, and is not DELTA.

My wife has the Rescue Diver cert. She learned many things in this course, some of which she has used in real life to help people who were distressed. It was a very good course and we are both glad she accomplished it. However, she is not a RESCUE DIVER! Words mean things. One weekend on California's North Coast did not make her a RESCUE DIVER!

If we are involved in an accident and get sued, I am sure the plaintiff's attorney will repeat ad nauseam that my wife is a trained and certified RESCUE DIVER.

markm

 

[markmud]

There was a court case in British Columbia a couple of years ago based on the responsibilities of the "buddy" of a skier who died. It's not limited to diving.

Hi again,

Do you have a link?

markm

 

[Hawkwood]

Hi again,

Do you have a link?

markm

One of many sources: ‘Ski buddy’ not responsible in back-country death, B.C. judge rules

 

[markmud]

One of many sources: ‘Ski buddy’ not responsible in back-country death, B.C. judge rules

Thanks Hawkwood,

Nice article. Short and sweet.

markm