Watson Murder Case - Discussion

[bowlofpetunias]

Actually I was thinking of the activity in the other threads here on the topic as well

I don't know if it was ever released EXACTLY what it was the dive operator didn't do. I know they met the mandated requirements and that is clearly stated by the finding against them. I wonder if the failure was because they allowed Tina and Gabe to opt out of having an employee escort them on their first dive on the site. Who knows what the outcome would have been had they been paired with t DM on that dive!

I notice in looking at links to operators who take groups out to the site that it is considered anything from a intermediate to advanced dive. Most of the operators seem to indicate if a diver hasn't got AOW or Deep certification that they must take the first dive as a training dive towards that qualification. I am not sure if that was the case before the incident in question. Some also indicate that if the person hasn't had a specific number or dives or hasn't dived in a specified time frame they have to dive with a staff member too.

I find it interesting that when we dive in Queensland there are a number of "regulations" that you are told you must follow. These relate to required gear and amount of air in the tank when you complete the dive. These "regulations" when researched relate to Occupational Health and Safety which technically only apply to employees and professional divers not to the patrons. Most DM's have no idea that these regulations are not Laws or where they come from. There is so much diving up there that I think it is just easier for the operators to try to apply the same requirements to the customers as the employees as an added safety factor.

 

[diver257a]

I don't know if it was ever released EXACTLY what it was the dive operator didn't do. I know they met the mandated requirements and that is clearly stated by the finding against them. I wonder if the failure was because they allowed Tina and Gabe to opt out of having an employee escort them on their first dive on the site. Who knows what the outcome would have been had they been paired with t DM on that dive!

Have a look at this link; this will clarify why Mike Ball Dive Expeditions was prosecuted - Details of successful prosecution against Mike Ball Dive Expeditions Pty Ltd - Workplace Health and Safety Queensland.

I find it interesting that when we dive in Queensland there are a number of "regulations" that you are told you must follow. These relate to required gear and amount of air in the tank when you complete the dive. These "regulations" when researched relate to Occupational Health and Safety which technically only apply to employees and professional divers not to the patrons. Most DM's have no idea that these regulations are not Laws or where they come from. There is so much diving up there that I think it is just easier for the operators to try to apply the same requirements to the customers as the employees as an added safety factor.

I don’t agree with your point of view. The law (i.e. “regulations”) does apply to the ‘patrons’ of a recreational scuba diving business, especially when the ‘patrons’ are present in the business’ workplace (i.e. the dive store, on board on its ‘live-abroad’ boat or in the water on dives supervised by its employees). Have a look at a Section 36 of the Queensland Workplace Health and Safety Act 1995 (http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/W/WorkplHSaA95.pdf) – this explains the obligations of the workers and 'other people' (i.e. ‘patrons’) in the workplace. Also, have a look at the Queensland Government Code of Practice (COP) currently in force at the following link - http://www.deir.qld.gov.au/workplace/resources/pdfs/divingrecreational_code2010.pdf. This COP provides an insight in what Queensland recreational diving businesses (& their employees) can do to reduce the risk of death & injury and the responsibilities of recreational divers receiving services from these businesses.

 

[bowlofpetunias]

Thanks for the info and the links. I will go read them. I have been basing my information on links someone else has provided me in the past supporting the other position. I will have to see if I can find them...

 

[diver257a]

Except that in this case, the liveaboard company, Mike Ball Expeditions, was convicted and fined about $8000 (total costs) for "fail(ing) to ensure that other persons were not exposed to risks to their health and safety arising out of the conduct or the employer's business or undertaking". Further on, "This charge related to a failure of the company to comply with its own procedures as set out in its manual", which were higher than state requirements. This is from the Coroner's Report under the section "Prosecution of the Dive Company", sections 38 - 41 at http://www.courts.qld.gov.au/Watson20080620.pdf

Ayisha,

I think 'It'sBruce' is talking about a Common Law principle in his post. The MBDE situation is different. It was convicted because it breached a statute (i.e. the Queensland Workplace Health and Safety Act). Have a look at the first link in post #385.

 

[Ayisha]

I find it interesting that when we dive in Queensland there are a number of "regulations" that you are told you must follow. These relate to required gear and amount of air in the tank when you complete the dive. These "regulations" when researched relate to Occupational Health and Safety which technically only apply to employees and professional divers not to the patrons. Most DM's have no idea that these regulations are not Laws or where they come from. There is so much diving up there that I think it is just easier for the operators to try to apply the same requirements to the customers as the employees as an added safety factor.

I don’t agree with your point of view. The law (i.e. “regulations”) does apply to the ‘patrons’ of a recreational scuba diving business, especially when the ‘patrons’ are present in the business’ workplace (i.e. the dive store, on board on its ‘live-abroad’ boat or in the water on dives supervised by its employees). Have a look at a Section 36 of the Queensland Workplace Health and Safety Act 1995 ( http://www.legislation.qld.gov.au/LE...rkplHSaA95.pdf) – this explains the obligations of the workers and 'other people' (i.e. ‘patrons’) in the workplace. Also, have a look at the Queensland Government Code of Practice (COP) currently in force at the following link - Department of Justice and Attorney-General. This COP provides an insight in what Queensland recreational diving businesses (& their employees) can do to reduce the risk of death & injury and the responsibilities of recreational divers receiving services from these businesses.

Yes, the same is true in Canada, Petunia and diver257a. I am the Health and Safety Advisor (in addition to a teacher) for our Organization of Montessori Schools, certified by the WSIB (Workers Safety and Insurance Board) under the OHSA. It sounds like Diver257a has it right for Queensland.

 

[burna]

Have a look at this link; this will clarify why Mike Ball Dive Expeditions was prosecuted - Details of successful prosecution against Mike Ball Dive Expeditions Pty Ltd - Workplace Health and Safety Queensland.



I don’t agree with your point of view. The law (i.e. “regulations”) does apply to the ‘patrons’ of a recreational scuba diving business, especially when the ‘patrons’ are present in the business’ workplace (i.e. the dive store, on board on its ‘live-abroad’ boat or in the water on dives supervised by its employees). Have a look at a Section 36 of the Queensland Workplace Health and Safety Act 1995 (http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/W/WorkplHSaA95.pdf) – this explains the obligations of the workers and 'other people' (i.e. ‘patrons’) in the workplace. Also, have a look at the Queensland Government Code of Practice (COP) currently in force at the following link - http://www.deir.qld.gov.au/workplace/resources/pdfs/divingrecreational_code2010.pdf. This COP provides an insight in what Queensland recreational diving businesses (& their employees) can do to reduce the risk of death & injury and the responsibilities of recreational divers receiving services from these businesses.

Nope. Disagree totally.
These Workplace COP is only a 'recommendation' and only apply to persons engaged in work at the place. The first page says,

What is this code of practice about?
The Recreational Diving, Recreational Technical Diving and Snorkelling Code of Practice 2010 provides practical advice on ways to manage exposure to the risk of death or injury related to recreational diving, recreational technical diving and snorkelling activities.
The code can help persons conducting a business or undertaking identify what control measures need to be implemented to ensure the health and safety of persons at or near the workplace.
Workplace health and safety obligations and the Workplace Health and Safety Act 1995
The Workplace Health and Safety Act 1995 (the Act) imposes obligations on certain persons to ensure workplace health and safety. Workplace health and safety is ensured when persons are free from the risk of death, injury or illness created by workplaces, relevant workplace areas, work activities or plant and substances used at a workplace. Ensuring workplace health and safety involves identifying and managing exposure to the risks at your workplace.

In addition, these 'recommendations' don't have to be followed if the risk is managed another way.

How can l meet my obligations?

If there is a code of practice about a risk, you MUST either –
(a)
do what the code says; or
(b)
do all of the following –
(i)
adopt and follow another way that gives the same level of protection against the risk;
(ii)
take reasonable precautions; and
(iii)
exercise proper diligence

With regard to "this equipment is law".Again it isn't law it is a COP...
2.3.5 Equipment for diving states

2.3.5.1 Resort divers engaging in recreational diving
All resort divers, other than those doing helmet diving, should wear the following equipment:
(a)
fins
(b)
mask
(c)
compressed air cylinder and valve designed specifically for SCUBA
(d)
buoyancy control device fitted with a power inflator device
(e)
regulator fitted with an alternate air source or an alternative air supply
(f)
submersible depth and cylinder pressure indicators
(g)
quick-release weight system
(h)
exposure protection, as appropriate to conditions.

The following clauses are the same.
2.3.5.1 Resort divers engaging in recreational diving
2.3.5.2 Entry-level certificate divers engaging in recreational diving
2.3.5.3 Certificated divers engaging in recreational diving
2.3.5.4 Diving workers engaged in recreational diving


The important word is "should" as opposed to "must".

If someone dies on your diving charter they will find something that you have done wrong somewhere but a patron doesn't have to do any of these things above.

The operator on the other hand can impose any reasonable 'requirement' they like, if you don't like it then they don't have to take you.
Workplace Health and Safety Act 1995 see clause 36. Obligations of workers and other persons at a workplace

 

[Ayisha]

If someone dies on your diving charter they will find something that you have done wrong somewhere but a patron doesn't have to do any of these things above.

The operator on the other hand can impose any reasonable 'requirement' they like, if you don't like it then they don't have to take you.
Workplace Health and Safety Act 1995 see clause 36. Obligations of workers and other persons at a workplace

No one has said that a patron has to do anything. The issue is that the liveaboard did not follow it's written procedures in keeping divers safe. If an orientation dive must be conducted, Gabe and Tina should not have been able to opt out of it. If less experienced divers must have a staff with them, then Tina, with 11 total dives, required a leader. If one must have AOW certification for that wreck, someone without at least that c-card (like Tina) should not have been allowed to do it.

The workplace must follow their procedures in keeping everyone within the workplace as safe as possible. Unfortunately, Mike Ball Expeditions set higher written standards for their workplace than the state requirements, and they were convicted and fined for it. If the patrons will not accept the procedures that are laid out, the workplace has a duty to not allow them to do the dive. Unfortunately, Mike Ball Expeditions allowed their own written procedures to not be followed. Whenever there is a critical injury or death in the workplace, it applies to all persons, not just workers.

Many dive shops routinely get away with not following their procedures, but if someone dies or gets critically injured and it is discovered that the procedures were not followed, it is a whole other can of worms.

 

[burna]

No one has said that a patron has to do anything. The issue is that the liveaboard did not follow it's written procedures in keeping divers safe. If an orientation dive must be conducted, Gabe and Tina should not have been able to opt out of it. If less experienced divers must have a staff with them, then Tina, with 11 total dives, required a leader. If one must have AOW certification for that wreck, someone without at least that c-card (like Tina) should not have been allowed to do it.

The workplace must follow their procedures in keeping everyone within the workplace as safe as possible. Unfortunately, Mike Ball Expeditions set higher written standards for their workplace than the state requirements, and they were convicted and fined for it. If the patrons will not accept the procedures that are laid out, the workplace has a duty to not allow them to do the dive. Unfortunately, Mike Ball Expeditions allowed their own written procedures to not be followed. Whenever there is a critical injury or death in the workplace, it applies to all persons, not just workers.

Many dive shops routinely get away with not following their procedures, but if someone dies or gets critically injured and it is discovered that the procedures were not followed, it is a whole other can of worms.

I didn't mention the Mike Ball incident.

My response was in relation to diver257a who said...

I don’t agree with your point of view. The law (i.e. “regulations”) does apply to the ‘patrons’ of a recreational scuba diving business, especially when the ‘patrons’ are present in the business’ workplace (i.e. the dive store, on board on its ‘live-abroad’ boat or in the water on dives supervised by its employees)...

And I said I don't think it does and have given the reasons for it.

 

[K_girl]

Dictionary.com

–adjective 1. no longer possessed or retained: lost friends.

2. no longer to be found: lost articles.

3. having gone astray or missed the way; bewildered as to place, direction, etc.: lost children.

4. not used to good purpose, as opportunities, time, or labor; wasted: a lost advantage.

5. being something that someone has failed to win: a lost prize.

6. ending in or attended with defeat: a lost battle.

7. destroyed or ruined: lost ships.

8. preoccupied; rapt: He seems lost in thought.

9. distracted; distraught; desperate; hopeless: the lost look of a man trapped and afraid.

Synonyms
1. forfeited, gone, missing. 3. confused, perplexed. 4. squandered.

Seems like the English language leaves a lot of wiggle room here!:

I can't imagine a defense attorney trying to isolate the meaning of the word "lost" and discard the context of Watson's statement. It can be easily matched to the context definition bolded above.

"WATSON: ..I was thinking back to that current and I was like ‘my God she’s going to be lost’ and that was probably the reason why I didn’t want to leave her.."

This is an exercise in silliness and would, in my opinion, be laughed right out of the courtroom if tried.

 

[K_girl]

Originally Posted by bowlofpetunias
Some people don't understand "Safety stop". If Gabe equated "Safety Stop" with "Deco Stop" like many divers seem to... skipping the safety stop... IS bolting to the surface.

Skipping a safety stop from his max depth of 45 feet could be considered bolting to the surface??

Something that is interesting that Kgirl alluded to earlier is that arguments are being made for Watson that he himself has apparently not made. Hmm...

Actually, Watson said after he reached the anchor line and shook an Asian male diver and then from that point, he "rocketed" to the surface. The defense says that they have witnesses that will say that Watson came up out of the water so fast from "rocketing" to the surface that he came up out of the water up to his waist. So -for now it looks like the defense is going with a truly rapid ascent and not just some diver's perception of a rapid ascent and trying to redefine what "bolting" or "rocketing" means. So, unless the defense changes their apparent tact, I think we can throw-out a theory of trying to redefine rocketing or bolting to the surface.

The proof will be in the dive computer, and whether or not it shows a rapid ascent. Starting from 5 feet and kicking hard, he could appear to bolting up out of the water from a rapid ascent. The police said, however, there was no rapid ascent alarm. Even from 10 feet, I've received a rapid ascent alarm on my Oceanic, but if I'm 5 feet or less, I don't get one unless I am already in one.

It would be a good idea for both the defense and the prosecution to test Watson's dive computer model to see from which depth it stops registering a rapid ascent to the surface. If it turns out that it not register a rapid ascent from 5 feet or less, and there is no rapid ascent on the computer, I think it will hurt Watson - especially if they put witnesses on the stand that say he came up out of the water up to his waist.