Let me give a lawyer's answer to this.
First, be aware that liability for a diving accident will usually be judged by the law of the country where the accident occurred. That remains true whether the lawsuit is started in your home jurisdiction or not. Being sued in California, where you live, for an accident in Roatan? Your liability will depend upon the California judge's understanding of the law of Honduras (aided by Honduran legal experts). It is dangerous and misleading to assume that all legal systems are the same or, worse, that the law of the USA will always be the governing law.
English law applies in the UK and in all English Overseas Territories, including the Cayman Is., the Turks & Caicos Is, Bermuda, Anguilla, BVI, etc. Former colonies can be assumed to have very similar regimes. As far as English law is concerned:
You cannot be liable for a diving accident unless you have assumed a duty of care to the Victim/Patient. You may assume one expressly, by agreeing to instruct, guide, or buddy up with him (whether for pay or not). You could assume a duty of care implicitly: the DM says you will buddy with X, and you dont disagree. The most common way to assume a duty of care you would not otherwise have is to intervene in an emergency and try to help.
You do NOT assume a duty of care simply by virtue of your DM certification, whether you advertise it or hide it. Any lawyer who is consulted about a diving accident will ask, as question #1, what were the qualifications of the potential defendant? You cant hide them. On the other hand, you could wear an I am a DM T-shirt on the dive boat but, unless you are a part of the staff and not just a guest, your duty of care is owed only to your own buddy.
Assuming you have a duty of care, you will be liable if, but only if, you failed to act as a reasonably prudent person WITH YOUR TRAINING & QUALIFICATIONS would have acted. The standard is usually stated as that of the reasonably prudent person but this is too general: we are speaking here of the reasonably prudent DM who is assumed to remember and use all of his training. It doesnt matter whether the Victim/Patient knows you are a DM or not. If you ignore your training, you are (by definition) not acting as a reasonably prudent person. Good Samaritan laws, which exist in some places but not others, may provide some (?) additional protection but dont really change this much. This standard does not require perfection; accidents happen, diving is a (somewhat) dangerous sport, and divers are deemed to assume some risk voluntarily. To find you liable, the judge must be satisfied that your performance, taking all the circumstances into account, fell below what the hypothetical prudent DM, acting reasonably, would have accomplished.
Finally, your negligence (meaning, in this context, failure to perform according to the standard described above) must be shown to have caused or contributed to the unfortunate result. If you had performed to the required standard, would that have made a difference? Not infrequently, the answer is No.
DM liability insurance is important because it protects you against the cost (in legal fees) of unmeritorious lawsuits (the US has a lot of these, it seems) as well as those where you screwed up. Even the hypothetical perfect DM should keep his insurance current.
My advice? Get your DM certification, keep your skills and your insurance up to date, and have fun diving!
You're welcome! Here's your bill ...
First, be aware that liability for a diving accident will usually be judged by the law of the country where the accident occurred. That remains true whether the lawsuit is started in your home jurisdiction or not. Being sued in California, where you live, for an accident in Roatan? Your liability will depend upon the California judge's understanding of the law of Honduras (aided by Honduran legal experts). It is dangerous and misleading to assume that all legal systems are the same or, worse, that the law of the USA will always be the governing law.
English law applies in the UK and in all English Overseas Territories, including the Cayman Is., the Turks & Caicos Is, Bermuda, Anguilla, BVI, etc. Former colonies can be assumed to have very similar regimes. As far as English law is concerned:
You cannot be liable for a diving accident unless you have assumed a duty of care to the Victim/Patient. You may assume one expressly, by agreeing to instruct, guide, or buddy up with him (whether for pay or not). You could assume a duty of care implicitly: the DM says you will buddy with X, and you dont disagree. The most common way to assume a duty of care you would not otherwise have is to intervene in an emergency and try to help.
You do NOT assume a duty of care simply by virtue of your DM certification, whether you advertise it or hide it. Any lawyer who is consulted about a diving accident will ask, as question #1, what were the qualifications of the potential defendant? You cant hide them. On the other hand, you could wear an I am a DM T-shirt on the dive boat but, unless you are a part of the staff and not just a guest, your duty of care is owed only to your own buddy.
Assuming you have a duty of care, you will be liable if, but only if, you failed to act as a reasonably prudent person WITH YOUR TRAINING & QUALIFICATIONS would have acted. The standard is usually stated as that of the reasonably prudent person but this is too general: we are speaking here of the reasonably prudent DM who is assumed to remember and use all of his training. It doesnt matter whether the Victim/Patient knows you are a DM or not. If you ignore your training, you are (by definition) not acting as a reasonably prudent person. Good Samaritan laws, which exist in some places but not others, may provide some (?) additional protection but dont really change this much. This standard does not require perfection; accidents happen, diving is a (somewhat) dangerous sport, and divers are deemed to assume some risk voluntarily. To find you liable, the judge must be satisfied that your performance, taking all the circumstances into account, fell below what the hypothetical prudent DM, acting reasonably, would have accomplished.
Finally, your negligence (meaning, in this context, failure to perform according to the standard described above) must be shown to have caused or contributed to the unfortunate result. If you had performed to the required standard, would that have made a difference? Not infrequently, the answer is No.
DM liability insurance is important because it protects you against the cost (in legal fees) of unmeritorious lawsuits (the US has a lot of these, it seems) as well as those where you screwed up. Even the hypothetical perfect DM should keep his insurance current.
My advice? Get your DM certification, keep your skills and your insurance up to date, and have fun diving!
You're welcome! Here's your bill ...
