The Good Samaritan concept in Canada is only helpful to lay individuals that get involved in a situation. You may still be sued if the situation goes pear-shaped but you have the Good Samaritan concept as a defense. An off duty EMT or physician responding can still be successfully sued if they were negligent.
Master Diver - Liability
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The Good Samaritan concept in Canada is only helpful to lay individuals that get involved in a situation. You may still be sued if the situation goes pear-shaped but you have the Good Samaritan concept as a defense. An off duty EMT or physician responding can still be successfully sued if they were negligent.
Exactly why I started this thread: http://www.scubaboard.com/forums/advanced-scuba-discussions/358889-master-really.html
There has been a lot of creative thinking along the lines of what could happen in our litigious society. In theory, almost anything could happen, but let's look at reality: how often has it happened in real life?
According to what I remember from the many, many past threads on this topic, attorneys have researched this and found that no, it has never happened. In fact, it is pretty darn rare for a DM who did hold a clearly responsible position to be sued. It is even rarer for such a case to succeed. In the only such case I have ever seen discussed on SB (and which I believe may be the only case in history) the DM was so absurdly in the wrong that there was no way any sensible person could do anything but condemn him.
There was another case recently where a lawsuit was initiated against a DM who was again unquestionably in the wrong in a man's death. In this case the DM had not maintained his rating and was not insured. I don't know what happened after the DM's suicide.
One of the problems with the theory that lawyers will sue anyone they can at any opportunity is the fact that they usually take no payment unless they win, and they are loathe to put out a lot of time and effort without a good chance of winning. Successfully suing someone who just happened to be a passenger on a boat is so unlikely that I doubt if many attorneys would undertake it. Furthermore, in such cases a countersuit is a real risk.
According to what I remember from the many, many past threads on this topic, attorneys have researched this and found that no, it has never happened. In fact, it is pretty darn rare for a DM who did hold a clearly responsible position to be sued. It is even rarer for such a case to succeed. In the only such case I have ever seen discussed on SB (and which I believe may be the only case in history) the DM was so absurdly in the wrong that there was no way any sensible person could do anything but condemn him.
There was another case recently where a lawsuit was initiated against a DM who was again unquestionably in the wrong in a man's death. In this case the DM had not maintained his rating and was not insured. I don't know what happened after the DM's suicide.
One of the problems with the theory that lawyers will sue anyone they can at any opportunity is the fact that they usually take no payment unless they win, and they are loathe to put out a lot of time and effort without a good chance of winning. Successfully suing someone who just happened to be a passenger on a boat is so unlikely that I doubt if many attorneys would undertake it. Furthermore, in such cases a countersuit is a real risk.
Thanks NWGratefulDiver you made it a lot easier to understand than I did. xD
You're right too, NAUI does look at DM's as higher up compared to AI's. I think it's the reverse for PADI.
I'm was just trying to keep it simple since you could go straight to DM and skip AI.
You're right too, NAUI does look at DM's as higher up compared to AI's. I think it's the reverse for PADI.
I'm was just trying to keep it simple since you could go straight to DM and skip AI.
I hate these threads because there is so much incorrect information, half correct information and correct information -- sometimes all in the same sentence, let alone post. I also do get a little ticked off when people who only slept in a Holiday Inn Express the night before believe they have the knowledge to respond to technical questions. I KNOW I don't have the knowledge to respond to a medical question (or many photography questions for that matter) and so I don't -- but why does everyone seem to think they are qualified to answer legal issues? I don't get it -- and as a result, there is a lot more confusion than there should be.
a. Anyone can be sued for anything at any time -- well, yes BUT, at least here in the USofA, it can be costly for the plaintiff if the lawsuit doesn't have a well founded basis and, as a result, it is highly unlikely that a REAL person will be sued just because she "was there."
b. A "Master Diver" (aka, a recreational diver) has some sort of cloak of immunity because she is not a "professional." No -- the rules are the same for all people regardless of their status.
c. A "Dive Master" (aka, a "professional diver") has some sort of absolute liability because she is a "professional." No -- the rules are the same for all people regardless of their status.
d. Because there is a Good Samaritan Law in the jurisdiction means you are immune from liability. No, not necessarily -- it depends on what the Good Samaritan Law covers and it appears the norm is that they would NOT be applicable to most diving incidents. But the important issue is that they are jurisdiciton dependant.
OK -- What are "the rules" of liability, at least in most of the US of A (and other "Common Law" jurisdictions)?
A person is (may be) liable for damages if:
a. A person has a duty of care toward another; and
b. That person negligently failed to maintain that duty of care; and
c. That as a result of that failure, the person to whom the duty of care was owed suffered an injury.
Line "a" tends to be a "legal" question, while "b" and "c" tend to be "factual" questions.
It is often easier to prove that a "professional diver" has a duty of care (afterall, that is why DMs are hired, for example) than it is to prove a "recreational diver" has a duty of care -- which is why too many people think being a recreational diver gives one immunity. Whether any diver has a duty of care towards another depends on the circumstances. My belief is that ALL "buddies" (whether professional or not) owe a duty of care to each other for example.
IF the duty of care is established, then the issue of what is the scope of that duty of care must be established -- and that may well rely on the actual experience of the divers involved regardless of their "professional or recreational" status. A very experienced "recreational" diver may, in fact, have a higher duty of care than a brand new "professional." But the exact scope of that duty is probably unknown until the jury comes in! That is also why the liability waivers tend to be expansive.
Once the duty of care issue has been established, there must be proved that the injury, assuming there was one, resulted from that failure to provide the proper duty of care. This may be the hardest part and was certainly one of the big issues in, for example, Drifting Dan's case. In that case, for example, it was easy to prove there WAS a duty of care and that the Boat failed to execute it -- but it was highly questionable whether the injury (cancer) was a result of that violation! (You sometimes just have to marvel at juries.)
In this particular issue, Google (or Bing) really IS your friend. Before one writes, one might want to confirm one's "knowledge" -- especially in technical fields such as this one.
a. Anyone can be sued for anything at any time -- well, yes BUT, at least here in the USofA, it can be costly for the plaintiff if the lawsuit doesn't have a well founded basis and, as a result, it is highly unlikely that a REAL person will be sued just because she "was there."
b. A "Master Diver" (aka, a recreational diver) has some sort of cloak of immunity because she is not a "professional." No -- the rules are the same for all people regardless of their status.
c. A "Dive Master" (aka, a "professional diver") has some sort of absolute liability because she is a "professional." No -- the rules are the same for all people regardless of their status.
d. Because there is a Good Samaritan Law in the jurisdiction means you are immune from liability. No, not necessarily -- it depends on what the Good Samaritan Law covers and it appears the norm is that they would NOT be applicable to most diving incidents. But the important issue is that they are jurisdiciton dependant.
OK -- What are "the rules" of liability, at least in most of the US of A (and other "Common Law" jurisdictions)?
A person is (may be) liable for damages if:
a. A person has a duty of care toward another; and
b. That person negligently failed to maintain that duty of care; and
c. That as a result of that failure, the person to whom the duty of care was owed suffered an injury.
Line "a" tends to be a "legal" question, while "b" and "c" tend to be "factual" questions.
It is often easier to prove that a "professional diver" has a duty of care (afterall, that is why DMs are hired, for example) than it is to prove a "recreational diver" has a duty of care -- which is why too many people think being a recreational diver gives one immunity. Whether any diver has a duty of care towards another depends on the circumstances. My belief is that ALL "buddies" (whether professional or not) owe a duty of care to each other for example.
IF the duty of care is established, then the issue of what is the scope of that duty of care must be established -- and that may well rely on the actual experience of the divers involved regardless of their "professional or recreational" status. A very experienced "recreational" diver may, in fact, have a higher duty of care than a brand new "professional." But the exact scope of that duty is probably unknown until the jury comes in! That is also why the liability waivers tend to be expansive.
Once the duty of care issue has been established, there must be proved that the injury, assuming there was one, resulted from that failure to provide the proper duty of care. This may be the hardest part and was certainly one of the big issues in, for example, Drifting Dan's case. In that case, for example, it was easy to prove there WAS a duty of care and that the Boat failed to execute it -- but it was highly questionable whether the injury (cancer) was a result of that violation! (You sometimes just have to marvel at juries.)
In this particular issue, Google (or Bing) really IS your friend. Before one writes, one might want to confirm one's "knowledge" -- especially in technical fields such as this one.
I'm going to help anyway...its what I do. Liveaboard, shore or the side of the road, I don't care.
I'll do my best, to the level of my abilities and let the chips fall where they may.
Hope most of you feel the same way.
I'll do my best, to the level of my abilities and let the chips fall where they may.
Hope most of you feel the same way.
Fair point.
Bygolly....very interesting. My GF told me that once she got to the site of an accident in the Ottawa area and one couple who did stop just stood there and did not do anything, did not give any advices, etc and let common folks administer first aid even though the two of them were..............qualified nurses.
Bubbletrubble
Contributor
People have to decide whether this is the kind of society they want to be living in. Clearly such a situation doesn't give the victim the best chance at the best possible outcome. Until people become more vocal and work to change the legal climate, medical pros will continue to behave like this. FWIW, I'm sure that the nurses didn't feel good about not getting involved. On the other hand, it's difficult to fault them for choosing not to jeopardize their financial security and professional careers. They've poured a lot of time, effort, and dedication into getting the proper training and experience to do what they do. The victim suffers. Society suffers. What a sad situation!
I'm sure that people could come up with anecdotes of similar things happening in the U.S.
seaducer
Contributor
Here is a shorter answer. If you do respond and the person still dies, you could be sued anyway.
Damned if you do, damned if you don't, professional or not a slimy attorney can convince a grieving family to sue over anything, and have, so my advice would be to forget about attorneys and hope the Good Samaritan Act saves your bacon if you think you can help, and hope the captain loses the manifest if you decide the better course of action is to stay out of the way.
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