Should DMs worry about getting sued?

[TMHeimer]

You don't have to present a DM card to do a vacation dive, do you? (rhetorical question)

That said, I think it goes without saying that you help where help is needed. I'm not a DM, however that doesn't keep me from helping someone if they need it.

On the other hand, barring gross negligence, I really can't stand sue-happy people. Diving isn't for couch potatoes and there are inherent risks. People need to accept that or take up knitting.

Apparently many DMs do exactly that-they show their Rescue card, etc. instead. It has been pointed out that if there is a lawsuit it is easy for a lawyer to find out the certification of everyone who is there. Also, there is a whole other discussion about ANYONE who is buddied up with (or voluntarily buddies up with) anyone else who has an accident-professional or not. As I mentioned, check the Going Pro Forum as this subject is turned inside out.

 

[SeaHound]

unfortunately the GOING PRO forum seems to have limited user access which makes me a passive reader of comments. I cant post there

 

[boulderjohn]

This has been discussed many, many times. I am not a lawyer, but the conclusion I drew from the lawyers who have participated in these discussions (who by the way sometimes seemed really frustrated by the unending repetition of misinformation) is that if you do not act in any way as a professional, then you have no more liability than anyone else.

First, ask yourself why anyone who just happens to be present would be sued in such a case. The implicit answer is that you would be under some obligation to provide some level of care. That is pretty much not the case legally anywhere. You can see this if you read about the Gabe Watson case in Australia. In this case, he was widely believed to have actively murdered his wife while they were diving, and he accepted a manslaughter plea. In his summary, the judge who accepted the plea got everyone's attention by saying he was guilty of manslaughter because he failed to complete a rescue. The lawyers on that thread were really going over that statement because failing to complete a rescue is not against the law.

The difference would be if you were acting in a professional relationship with someone when an incident occurred. If that is so, then you can be held liable. If you accept any kind of payment in return for services, you are acting as a professional. (This includes the operator letting you dive for free.) If you say, "I am a divemaster. I will show you around," you are acting as a professional.

If, on the other hand, you are just diving, then you have nothing to worry about.

And the card you show does not make a bit of difference.

 

[SeaHound]

Very helpful post John. It is hard to go through distorted perceptions and see the "facts" and your post was indeed very helpful in that direction.

Thanks

 

[caver]

You can be sued for posting on the internet.

 

[sydney-diver]

There was a case in QLD where a diver Gabe Watson was found guilty of manslaughter because the court found that as an experianced rescue diver he failed in his duty of care to resuce his buddy (wife) who drowned in unusual circumstances. The conviction was controversial because he was originally facing a murder trial but instead pleaded guilty to manslaughter and was given a reduced sentance. Regardless however, it does appear that in QLD at least, even when on a recreational dive you still have a duty of care which increases with your level of certification.

 

[SkimFisher]

There was a case in QLD where a diver Gabe Watson was found guilty of manslaughter because the court found that as an experianced rescue diver he failed in his duty of care to resuce his buddy (wife) who drowned in unusual circumstances. The conviction was controversial because he was originally facing a murder trial but instead pleaded guilty to manslaughter and was given a reduced sentance. Regardless however, it does appear that in QLD at least, even when on a recreational dive you still have a duty of care which increases with your level of certification.

There is a 5,000 page thread somewhere on Scubaboard devoted to that case

 

[drdaddy]

When my wife and I teach Sunday School, we may just think that we are just SS Teachers. However, my wife is a professional educator, and even though she does not presently teach or keep up professional certification, she will still be judged as a "professional educator" in any lawsuit. I am a licensed clinical psychologist, and even though I am just teaching SS, I will be be judged in any lawsuit as a psychologist. Once you are a professional, you can bet the bank that in any Tort case the suing attorney will make the case that you are not any ordinary person. You are a professional. I made this point at my church when they allowed an unsupervised profoundly autistic boy into our class. Under my insistence, his mother accompanies him and is completely in charge of his well being and actions, and she is liable for any damage he does to property or others.

My son who is a PADI Instructor will not dive with one of my buddies because my son say he is "stupid" and it could make my son liable if any thing would happen to this buddy. I agree with my son.

The Tort example that shows this to the extreme is when a physician offers his/her assistance at a roadside accident, he/she has been found not to be covered under the "good Samaritan laws", but is judged by professional standards.

I don't mean to be cynical, because one has to follow their conscience, but it does kinda makes one pause and think in this suit hungry/get rich quick atmosphere.

Personally, I have a lot of training and experience, and have decided that my previous lifeguard experience and an excellent Rescue Diver Course were as close as I will ever be to being a professional diver. I purposefully have chosen to never become a Divemaster, even though my skill and training would have easily brought me to this professional label. I can help, assist, train, and even save a life, if necessary, but will not be judged as a dive professional.

 

[boulderjohn]

There was a case in QLD where a diver Gabe Watson was found guilty of manslaughter because the court found that as an experianced rescue diver he failed in his duty of care to resuce his buddy (wife) who drowned in unusual circumstances. The conviction was controversial because he was originally facing a murder trial but instead pleaded guilty to manslaughter and was given a reduced sentance. Regardless however, it does appear that in QLD at least, even when on a recreational dive you still have a duty of care which increases with your level of certification.

There is a 5,000 page thread somewhere on Scubaboard devoted to that case

I read that thread carefully, and I came away with a slightly different impression. The judge did indeed say something like that, but the attorneys on the thread had a lot to say about that. Here are some highlights as I understood them.

1. He was not "found guilty of manslaughter." He pleaded guilty to manslaughter, and that is important, as I will point out later.

2. The judge's statement is not founded in law or in the evidence, and pretty much everyone was confounded by it. Even in QLD, there is no law that says a recreational diver has a duty to care. The only reference to it is in the judge's interpretation of an agreement made between the prosecution and the defense.

3. In countries (like both the U.S. and Australia) that use precedent setting cases as guidelines for future decisions, one might be concerned that this judge's statement might be considered precedent and influence future cases, but it will not. Precedents can only take effect if the decision is the result of a full judicial process, not a plea bargain. If Watson had been "found guilty," it would have set a precedent. Since he was not found guilty, it does not.

Again, I am not an attorney and am just summarizing my understanding of what the participating attorneys said.

I will however repeat a challenge that has been made many times: search legal history and see if you can find a case where a nonprofessional diver who happened to be the vicinity of an incident was successfully sued. I am not sure you would find a case where one was unsuccessfully sued, either.

 

[H2O 70]

Dive Master can be a fantastic course and can make you a better diver. I don't think anyone will really debate that.

I wouldn't let the fact that you could be sued impact your decision. Don't discount it, but don't let it be the overriding decision to pursue or not pursue the course.

In order to be an Active DM, you need to be current with your agency and have current insurance.

Our society is very litigious and you can get sued for just about anything, but that doesn't paralyze us. We still go out and do stuff.

Part of the DM course is to cover the legal aspects of being a DM.

It is a good course.