Who would die if the instructor were diving air and used that to donate??
The instructor would die from DCS after doing all too many CESA attempts!
Kierentec -- Your point is, in fact, an interesting one that has several different variations.
a. I don't dive Air -- I dive 32% all the time. Given your scenario, would you be concerned that an OOA student, now suddenly breathing 32%, would have a cause of action for the injury? (BTW, putting aside the notion that breathing high PPO2 mixes could cause an injury, excluding O2 toxing issues.) What possible injury could be caused by virtue of breathing a mix as opposed to Air?
b. Diving trimix when doing deep dives with students who are not trimix certified. I, for one, am quite concerned about diving Air/EAN below 100' -- especially if I am responsible for overseeing a student at a depth down to 130' during a Deep Specialty. I don't think it is safe NOT to be on 25/25 (for example) -- but would I be doing someone "dangerous" by giving a narced OOA student 25/25 instead of Air when I was also narced?
c. I still think the benefits to me of a high O2 mix, the instructor who may be creating a personal dangerous situation by virtue of many ascents/descents, outweigh the potential theoretical liability issues from a student breathing the same mix. And I say theoretical because I can't think of any real liability issues from having a student breathing a mix that is well within the MOD.