If I was an instructor who was being sued by the 'shotgun" approach I'd probably sell out and head for the Cayman Islands, Fiji, British VIrgin Islands or maybe Bermuda and start over again. I doubt that I would be bothered with a warrant in any of these places. You could return in 7 years anyway without liability.
Instructor Liability
- Thread starter Bombay High
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Let's start with an understanding of the premise that anyone can be sued for anything at anytime. The only real protection that you have is the lack of a pot of gold at the end of the rainbow, e.g., no deep pocket or a case what has a very unlikely payout.
If someone is hurt or injured during training, you're in pretty deep kim che, unless you can show conclusively that the student willfully disobeyed instructions from you that they were perfectly capable of following (but he did if fine yesterday, or even 10 minutes ago doesn't cut it).
Once a student is "certified" you may still have to prove that the student was taught a given skill or knowledge point. More so than that, you maybe expected to prove that that student "mastered" it, and such "mastery" may not, in the jury's mind, follow the PADI definition, it may follow a dictionary definition, which is quite different.
The further in the past the course, the more con-ed the diver has had, the more dives the diver has made, all these will serve to lessen the likelihood of a big payout and thus will make taking the case less and less attractive.
Frankly, I think the only real solution to this issue is to get rid of liability insurance as we know it (not going to happen the agencies make way too much money on it in the form of "finders fees"), make boilerplate creation and servicing of LLC's for instructors along with "defense only insurance" available (Officers' and Directors' Policies). But don't hold your breath for such a reasonable product, the agencies make too much money off insurance, and get too much control through insurance to ever let go, they are, after all, concerned with their bottom line, not yours.
If someone is hurt or injured during training, you're in pretty deep kim che, unless you can show conclusively that the student willfully disobeyed instructions from you that they were perfectly capable of following (but he did if fine yesterday, or even 10 minutes ago doesn't cut it).
Once a student is "certified" you may still have to prove that the student was taught a given skill or knowledge point. More so than that, you maybe expected to prove that that student "mastered" it, and such "mastery" may not, in the jury's mind, follow the PADI definition, it may follow a dictionary definition, which is quite different.
The further in the past the course, the more con-ed the diver has had, the more dives the diver has made, all these will serve to lessen the likelihood of a big payout and thus will make taking the case less and less attractive.
Frankly, I think the only real solution to this issue is to get rid of liability insurance as we know it (not going to happen the agencies make way too much money on it in the form of "finders fees"), make boilerplate creation and servicing of LLC's for instructors along with "defense only insurance" available (Officers' and Directors' Policies). But don't hold your breath for such a reasonable product, the agencies make too much money off insurance, and get too much control through insurance to ever let go, they are, after all, concerned with their bottom line, not yours.
Anyone can be sued for any reason, winning the lawsuit is an entirely different matter. They would have to prove negligence. Thats why instructors keep waivers, tests, and knowledge reviews. So that in the event of a suit they can prove that they acted in a manner reasonably within safe diving practices and instruction.
If the diver can show that the instructor deviated from the safe diving practices outline in the instructor manuals then he may have a case.
If the diver can show that the instructor deviated from the safe diving practices outline in the instructor manuals then he may have a case.
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No, what is in the manuals does not define what practices must be from a legal standpoint, though such evidence may influence the definition. What is critical is that it make sense to the jury and that what was done be shown to meet or exceed the standard of practice in the community and that what was done be shown to be in keeping with "best practices." The problem with relying too heavily on agency manuals is that the can rather easily be shown to be tautological and self-serving (e.g., the PADI "mastery" issue) and it is almost always possible to find someone who has a better "best practice."
also keep in mind too though that should they select a jury then you have to convince that jury you did everything right in addition to the waivers. Remember when the victim wheels into the courtroom and has a nurse by his side then the jury may think "poor guy" and still find you liable.
Juries are a nightmare for civil cases as there literaly is no way of knowing where they will go with it.
Bombay High -- there is no simple answer to your question except, "It depends." The law in a particular jurisdiction may well be very different from the law in another -- it just depends.
In "Common Law" jurisdictions (like the US, UK, Canada, etc. but I don't know about India) the general rule is that to have liability there must be:
a. An injury;
b. A duty of care by the defendant to the injured party; and
c. A breach of that duty of care which led to the injury.
I could certainly come up with scenarios where an Instructor could be (should be) liable for injuries caused to a diver after the diver has been certified. The really hard part in most of these cases would be in showing that the breach of the duty of care led to the injury.
In "Common Law" jurisdictions (like the US, UK, Canada, etc. but I don't know about India) the general rule is that to have liability there must be:
a. An injury;
b. A duty of care by the defendant to the injured party; and
c. A breach of that duty of care which led to the injury.
I could certainly come up with scenarios where an Instructor could be (should be) liable for injuries caused to a diver after the diver has been certified. The really hard part in most of these cases would be in showing that the breach of the duty of care led to the injury.
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Everybody is liable to have to pay for their own defense.
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An interesting thread and a variation on the much discussed "divemaster liability on a boat trip/is he responsible even if he's not working, etc." All the talk of lawsuits (especially in the U.S.) and who can ever prevail makes my head spin. I will throw this in: If a dive instructor can be successfully sued when a now certified former student of his has an accident wouldn't that mean anyone having a car accident could sue the person who supervised his road test?
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No, the person supervising the road test is an employee of the State and as such enjoys sovereign immunity. In any case, said supervisor has no duty to teach anything, just to test it (and that is rather objective).
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