Instructor Liability

A question popped into my head while I was thinking of all the crazy things some newly certified and hopelessly under qualified divers do underwater.

What is an instructors liability once he has certified a diver ?

Is he/she responsible if one of these people hurts/kills themselves whilst diving ?

Is there any clause that makes them liable ?

Has there been any case of an instructor being sued or taken to task for improper or incomplete instruction ?

hmm... interesting post, here's my thoughts.

Generally speaking, no. [please note, I'm not an expert in this field, but i have spent some time reading up on the topic when i completed my DM course and my opinion and experience in other areas of safety law which are part of my job]

Once you're certified you are responsible for yourself. If you are going on a guided dive with an organised dive leader (i.e. Dive Master or instructor) there is a very limited responsibility for the dive leader not to kill/injure anyone, but if you as the diver are certified and you as the diver are made aware of the risks and hazards associated with the dive/site (as so far as is reasonably practical) then you are responsible to make up your mind. [This is why you're required to come up with a dive plan in the OW course.]

the Dive Leader would have to commit gross negligence to be in significant risk, if that happens their professional insurance agency may not cover them and you are suing an individual who is most likely not very wealthy.

If your insta buddy is a DM/OWSI I would think it's almost impossible to sue unless your buddy was actively trying to kill you!?!?? in that instance it would be a criminal case, not a civil! :lol:

on the issue of so far as is reasonably practical (SFAIRP) which is a term (or variant of) used in safety law, there is only an onus on the dive leader to point out risks at a reasonable level, he is not responsible, for example, for your gear or what could be considered general hazards within SCUBA diving.

on your last question, i have no idea if a certified, medically fit, diver who has dived in the last 12 months (i.e. not in need of a refresher), who was diving within their limits, and had knowledge of all specific local risks, has successfully sued a dive leader.

comments? disagreements?

The instructor's responsibility exists during training and in certifying. What you are asking about is the instructor's possible liability afterwards.

The instructor's responsibility is to possess and exercise the skill and knowledge commonly possessed by instructors for the type of instruction being given. For example, if the instructor were teaching tech diving, he (or she) would have to have a higher level of skill and knowledge than if he were teaching basic OW scuba diving. Being certified as an instructor by a recognized agency (PADI, NAUI, etc.) would normally establish that the instructor possessed the requisite skill and knowledege to teach that kind of diving. (I am assuming that the certifying agencies in fact require specialized training for instructors before they can teach specialties such as tech diving.)

The instructor would still have to exercise that skill and knowedge in teaching. Thus, if the instructor fails to teach the student what the student needs to know, the instructor could be liable. If the student can demonstrate that he has acquired the skill and knowledge required by the certifying agency, then that would normally establish that the instructor exercised the requisite skill and knowedge in teaching. Therefore, the instructor should take the requirements seriously and not pass an inept student because he doesn't want to deal with the whining and threats of the inept student.

If a student properly trained thereafter violates his training and kills himself, then the instructor would not be liable. If the student kills himself because he wasn't properly trained according to industry standards (e.g., as required by the certifying agency), then the instructor might be held liable if the failure in training was a cause of the death.

If an instructor believes that a student is not qualified to dive open water without instructor supervision, the instructor should not certify the student (even if the student passes any written tests and demonstrates required skills).

All instructors working under the auspices of a training agency - regardless of that agency - are required to abide by minimum training standards. If an instructor could be demonstrably proven to have not met those minimum requirements, and yet still certified the diver, then for sure there is room for liability and litigation. Proving that, on the other hand, might be quite complicated without qualified, independent witnesses.

Once you are certified, as posted above, you are responsible for yourself, same as having passed your car driving license. The bulk of my work these days is actually guiding, not teaching, and therefore I often deal with the fallout from incompetently-trained divers. Sometimes, when I question them I get a response such as "my instructor didn't tell me that, we didn't have to do that, it wasn't part of the training" or something similar, and all I can do is try to fix the problem. I wasn't there, I wasn't involved in the training, and perhaps the student simply forgot that they did a particular task or skill, so I can't automatically state that the instructor was at fault. Perhaps the diver was great during training but without their buddy or instructor in the water, don't feel so comfortable any more - it happens.

Some of my colleagues see it as black and white: We are nothing more than underwater tour guides. We give a briefing and as long as divers keep to the briefing, we have no responsibility towards them beyond that. If they choose to ignore safety advice or deviate from the dive plan, then they are on their own. Me personally, I see it as a huge grey area and feel that actually, I am indeed responsible for all divers at all times, from the moment they get onto the boat until they get back to the bar at the end of the day, and partly this is because sooooo many divers believe that we are, indeed, there to look after them.

A case I always like to quote was one printed in PADI's Undersea Journal a few years ago. Two very overweight divers, a husband and wife, participated in a group dive and the husband sadly had a heart attack and passed away. The family tried to sue the dive operation firstly, because they didn't have a crane on the boat to lift the guy out of the water, and when this failed, they tried to sue the DM because he should have prevented them from entering the water, knowing they were unfit to dive. Both lawsuits thankfully failed, but in a sense, the final outcome doesn't matter - somebody still got dragged through the courts and that must have inevitably been a terrible process, given the litigious climate we live in these days.

As an instructor, you have agency standards to follow and if you break them, even in a small way, then you automatically lose your agency backing. As a dive guide, the rules that apply are those that are stipulated by international/local law and regulations, such as with regard to maximum depths and suchlike. As an example, local law in Egypt says that the maximum depth for a single tank air dive is 40m (with appropriate experience or training) so if I took somebody to 50m and they had a serious problem, then for sure I am going to jail, but I cannot be sued because PADI (For example) recommends a maximum depth of 30m for Advanced Open water divers.

As for cases - I would have to leave that open to others... I tend not to read about them, they give me the shivers!

Cheers

C.

No liability. Diving, like sky diving, is pretty much up to the individual once you leave the plane/boat.

That's all a nice sentiment, but unfortunately, in the United States, not always true. I have a very good friend, an instructor, going through a lawsuit at this very moment regarding a diver he had certified years ago. The gist of the story is this. A diver dies while on a dive to a well known wreck. the diver had made similar dives before, and in fact dies due to a virus which had weakened his heart. Autopsy shows the virus and the weakened condition of the heart. Not diving related, right?

Well, the lawyer used the shotgun approach and sued the dive boat, the trip leader, the film production who had filmed divers doing the same dive years before, and the certifying instructor. The dive boat has no liability insurance and in fact never responded to the suit, and got a summary judgement against them. With nothing to take, the lawyer for the plaintiff has nothing to get, so no harm there. The film production company said "huh?" and fought successfully to be removed from the suit. I'm sure that there is a term for this, but I don't know what it is. The trip organizer is still fighting the suit. The original certifying instructor is still fighting the suit. the certifying instructor was nowhere in the vicinity of the diver when he passed on, didn't organize the trip, and should have no liability in the court of common sense, but hey, this is the land of the free and the home of the brave, isn't it?

Hell hath no fury like a lawyer who thinks that they can get an insurance company to settle.....

Frank, the term is summary judgement whether plaintiff or defendant uses it. Educated guess, what was brought against the non-responding uninsured dive boat/company was likely a "default judgement".

Usually those who have no liability "in the court of common sense" can obtain a summary judgement dismissing them, as the film production co apparently did. But it involves assembling some evidence of why you had nothing to do with it, drafting/filing a motion, responding to plaintiff's opposition (if they file one) and of course, paying for same. Or you don't file, and the case moves toward a trial date. Plaintiff can throw in the towel at any time, sometimes they do, most times not. They're typically paid only if they win, and may decide the odds are too long to justify the expense on their side.

It's "the system".

Wookie:

That's all a nice sentiment, but unfortunately, in the United States, not always true. I have a very good friend, an instructor, going through a lawsuit at this very moment regarding a diver he had certified years ago. The gist of the story is this. A diver dies while on a dive to a well known wreck. the diver had made similar dives before, and in fact dies due to a virus which had weakened his heart. Autopsy shows the virus and the weakened condition of the heart. Not diving related, right?

Well, the lawyer used the shotgun approach and sued the dive boat, the trip leader, the film production who had filmed divers doing the same dive years before, and the certifying instructor. The dive boat has no liability insurance and in fact never responded to the suit, and got a summary judgement against them. With nothing to take, the lawyer for the plaintiff has nothing to get, so no harm there. The film production company said "huh?" and fought successfully to be removed from the suit. I'm sure that there is a term for this, but I don't know what it is. The trip organizer is still fighting the suit. The original certifying instructor is still fighting the suit. the certifying instructor was nowhere in the vicinity of the diver when he passed on, didn't organize the trip, and should have no liability in the court of common sense, but hey, this is the land of the free and the home of the brave, isn't it?

Hell hath no fury like a lawyer who thinks that they can get an insurance company to settle.....

Click to expand...

Unfortunately this is true. People sign waivers and give instructors (Or anyone providing a service) a flase sense of security. Most of the time the waiver does prove that people knew the risk of something before they ever started and accept the responsibility of making a sound decision of their own based on all of the mentioned warnings. In the United States though you can still sue even if you signed every waiver there is despite having little to even no chance of winning.

Building on what nolatom said, it's possible that the film production company filed a motion attacking the complaint filed by the plaintiff(s). Basically what such a motion says is "Even if everything you say is true (and I'm not agreeing that it is), I still have no liability under the law." This is likely what the film production company did since on the facts that Wookie related there is no cognizable legal theory on which to hold the film production company liable.

As an instructor you're on the hook and succeptible to lawsuits from past students or their families. I don't know if it ever ends, but PADI recommends you keep your files for at least 7 years if I'm recalling correctly off the top of my head. It's impossible to difinitively prove years down the line that an instructor did or didn't fail to follow the guidelines to the T, but if there's no paperwork I bet an instructor could be in hot water real fast if someone came after them after the fact.