Instructor liability?

[austriandiveress]

I had a conversation recently with a diving physician, himself a diver and certified instructor. In the course of our chat the following hypothetical scenario was discussed:
Divers 1 and 2 are on holiday. Diver 1 has been diving for many years, is a certified instructor who likes to "push the envelope" concerning depth, etc.
Diver 2 learned to dive from Diver 1, has in the meantime logged many dives and is experienced, has AOW certification. Neither are particularly fit, both are middle-aged.
The two dive two times daily for a week, with several dives meeting or exceeding the 40 meter mark. Everything goes well for several days. Then Diver 2 has a DCS hit and is given 02. He quickly feels better and, at Diver 1s urging decides to dive the following day as well. This time he gets very bent; he dies a short time thereafter.

So.... the physician now tells me that this behaviour indicates (at best) negligence on the part of Diver 1, and supposedly, should the family of Diver 2 decide to press charges, Diver 1 can be convicted of manslaughter. (or at least the Austrian equivalent thereof)
I asked why this is, because Diver 2 was not an inexperienced diver and chose to do this type of dive. Additionally, the student-teacher relationship had ended years before.
Doesnt matter, says the Doctor. He maintains that as an instructor, Diver 1 will always be held to a higher standard of behaviour, and should be held responsible for the consequences, especially as he and Diver 2 had been diving buddies many times: Diver 1 should know his partner's level of fitness.

I am asking this question not to discuss whether or not the divers in this scenario behaved dangerously (obviously they did) nor to discuss the benefits/drawbacks of a sometimes litigious society, but because I'd simply like to know: is an Instructor, simply by his certification, ALWAYS held to the highest standard of behaviour when under water, a bit like an off-duty Police Officer? Is this correct/reasonable/fair?

I had simply no idea where to post this question, and apologize should it be someplace else! (didnt want to post under accidents, as it is a hypothetical)

 

[seaducer]

More than likely, when presented to a US jury, yes, the instructor would be looked at much differently. I am not sure whether the law specifically has a provision for this type of thing, but a savy prosecutor would play the instrctor card to a jury big time.

As for whether this is reasonable? I think perhaps the instructor should lose his profesional rating if he doesn't make the attempt to stop #2 from diving while bent. He can't force #2 to stay topside, but I feel as an instructor, or a DM, even if on vacation, he should make some form of attempt to stop #2 from diving. Should he face prosecution involving jail time? I don't think so. But he should be brought up on review of his agency(s) and let a board determine whether or not he knows enough and is ethical enough to be in charge of students.

 

[Notso_Ken]

In my Divemaster class, I was taught that there would be a 4 step examination of circumstances.

First, did diver 1 have a duty toward diver 2?

Second, was there a breach of that duty?

Third was that the proximate cause of injuries?

Fourth, did damages result?

I think the only question that needs debating here is #1. If diver 1 had a duty to diver 2, then all the rest are "Yes", and diver 1 is liable for damages.

As an instructor, did not diver #1 have a responsibility to behave in a rerasonable and prudent manner? I think he had that responsibility, and did not do so. His breach of that duty then led to the death of diver #2.


My opinion only.


Ken

I had a conversation recently with a diving physician, himself a diver and certified instructor. In the course of our chat the following hypothetical scenario was discussed:
Divers 1 and 2 are on holiday. Diver 1 has been diving for many years, is a certified instructor who likes to "push the envelope" concerning depth, etc.
Diver 2 learned to dive from Diver 1, has in the meantime logged many dives and is experienced, has AOW certification. Neither are particularly fit, both are middle-aged.
The two dive two times daily for a week, with several dives meeting or exceeding the 40 meter mark. Everything goes well for several days. Then Diver 2 has a DCS hit and is given 02. He quickly feels better and, at Diver 1s urging decides to dive the following day as well. This time he gets very bent; he dies a short time thereafter.

So.... the physician now tells me that this behaviour indicates (at best) negligence on the part of Diver 1, and supposedly, should the family of Diver 2 decide to press charges, Diver 1 can be convicted of manslaughter. (or at least the Austrian equivalent thereof)
I asked why this is, because Diver 2 was not an inexperienced diver and chose to do this type of dive. Additionally, the student-teacher relationship had ended years before.
Doesnt matter, says the Doctor. He maintains that as an instructor, Diver 1 will always be held to a higher standard of behaviour, and should be held responsible for the consequences, especially as he and Diver 2 had been diving buddies many times: Diver 1 should know his partner's level of fitness.

I am asking this question not to discuss whether or not the divers in this scenario behaved dangerously (obviously they did) nor to discuss the benefits/drawbacks of a sometimes litigious society, but because I'd simply like to know: is an Instructor, simply by his certification, ALWAYS held to the highest standard of behaviour when under water, a bit like an off-duty Police Officer? Is this correct/reasonable/fair?

I had simply no idea where to post this question, and apologize should it be someplace else! (didnt want to post under accidents, as it is a hypothetical)

 

[leapfrog]

Tough one!

Like a lot of hypothetical discussions there are "gaps" that would have to be filled in, in a real life situation.

Almost certainly the Instructor (Diver 1) would be placed in "non teaching status" by his agency pending the outcome of enquiries. Being put in "NTS" is standard practice whenever an instructor is involved in an incident. The book says that this only occurs when the fatility is during a course or program. However, in most cases, the agency will do that pending the outcome of the investigation in a scenario such as that you mention. In no way does it reflect that agency has lost faith in the instructor or blaming him for anything. In this way, it is similar to your example of a police officer, whether on duty or not.

It is quite reasonable to suppose that the family would seek legal redress, principally to obtain damages. They may also feel that the behavior of the instructor was irresponsible and seek a manslaughter charge.

The defence of the Instructor will hinge on "standards, common practices and the knowledge of physiology and Diving Medicine" that the Instructor should have with regard to his specific training with his training agency.

Taking "your account" as literally as possible, it is certainly foolhardy for Diver 2 to go diving so shortly after experiencing DCS symptoms. For a diver at this level of experience, a hyberbaric facility would want to monitor the diver for between 24 and 96 hours to ensure that no more symptoms developed.

The following questions will be raised:

1. Why did Diver 2 not seek immediate, proper, medical attention?
2. Why did Diver 1 not not urge Diver 2 to seek such attention and not refuse to dive with him until after a doctor had said he was fit to dive again?

It is unlikely that a successful prosecution for manslaughter would succeed in most jurisdictions. As you have correctly stated, Diver 2 was a certified diver and therefore responsible for his own safety. In the unlikely event that there were witnesses to conversations between the two where the Instructor had told the other diver that he was completely safe and nothing would happen to him, even so it is unlikely that the prosecution would obtain a conviction.

 

[Rhone Man]

I suspect in most jurisdictions a key fact would be that Diver 1 is not teaching or supervising Diver 2 at the time of the accident. They just happen to be dive buddies, one more experienced than the other. Anyone who dives the day after a DCS hit is a complete idiot. Anyone who encourages someone to dive the day after a DCS hit is a complete idiot. But is Diver 1 liable to Diver 2's family because he encouraged him to do something idiotic? In the jurisdictions I practice in, I tend to think not. If I encourage people to try cliff diving, and they do it, it doesn't follow that I am responsible for everything that follows. Diver 2 has done something that he knew (or ought to have known) that he should not to have done; even if Diver 1 with his greater knowledge and experience encouraged him to do it.

My best guess in an English common law jurisdiction (based on the limited facts that we have): Diver 1 is either exculpated completely, or at worst, Diver 2 gets assessed at around 80% contributorily negligent.

As for manslaughter - proving to the criminal standard of proof under the Adomako test... I don't think we are even close.

 

[Rhone Man]

In my Divemaster class, I was taught that there would be a 4 step examination of circumstances.

First, did diver 1 have a duty toward diver 2?

Second, was there a breach of that duty?

Third was that the proximate cause of injuries?

Fourth, did damages result?

I think the only question that needs debating here is #1. If diver 1 had a duty to diver 2, then all the rest are "Yes", and diver 1 is liable for damages.

Correct on the legal tests (at least in English common law countries), but I think you latched on to the wrong limb. Dive buddies unquestionably owe each other a duty of care, but it is the limits of that duty and whether it was breached (#2) which is probably the defining issue. Encouraging mentally competent adults to take risks is not normally considered negligent conduct in itself.

 

[jpcpat]

To answer the OP, an instructor is held to a higher standard under US law than, say an AOW diver would be.

For example, An instructor has been trained in handling distressed divers without putting himself at risk, so has skills to assist in situations that would be too risky for someone without that training. If you have the skills and the training to do it without becoming another victim, you do have a legal obligation protect the lives of those around you. The behavior would have to be pretty egregious or have some obvious bad intent to become a criminal matter though. Civil liability (money damages) arise quite a bit more easily.

If your scenario involved an uncertified diver, or a plot to kill the diver, I could see criminal charges. I think you have to take into account that the diver, from his own training knew how dangerous the dive was. The instructor was certainly stupid, but criminal is a leap for me.

 

[eponym]

I'm just an instructor, not a lawyer, but . . .

[. . .] Diver 1 [. . .] is a certified instructor [. . .] Diver 2 learned to dive from Diver 1, has in the meantime logged many dives [. . .] Diver 2 has a DCS hit and is given 02. He quickly feels better and, at Diver 1's urging, decides to dive the following day as well. This time he gets very bent; he dies a short time thereafter [. . .]

No question in my mind that the instructor could be found liable for damages of some kind, although manslaughter (a criminal charge) sounds like a stretch. It seems more likely that diver 2's family would bring a civil suit for damages.

What sort of idiot would urge a diver to dive within days after a hit? You don't specify in your hypothetical what the hit was, nor how severe, but the fact that oxygen was administered implies it was more than sub-clinical. And you imply that diver 1 pushes the envelope, which if public knowledge would certainly attract the attention of a lawyer looking for deep pockets (or a settlement with the instructor's insurance agency).

Had I been diver 1 I would have refused to dive with diver 2 and would have advised the boat crew or dive shop to refuse him or her any tank fills. I would have stopped diving myself, as well, if we had been diving the same profiles.

Is an Instructor, simply by his certification, ALWAYS held to the highest standard of behaviour when under water, a bit like an off-duty Police Officer? Is this correct/reasonable/fair?

That is what we teach. I am currently conducting an SSI DiveCon (Divemaster/Assistant Instructor) course and we had a similar discussion last Monday. A professional (divemaster or instructor) diving with a non-professional assumes a higher duty of care in the USA. Buddying up with a diver who was hit in the past week sounds downright careless to me, regardless of his or her level of training or experience.

I have seen a diver run out of air on a wreck dive but get to the surface safely by sharing air. Despite showing no symptoms, he was given oxygen as a precaution. Despite feeling fine, he did not dive again that weekend. He, the crew, and the other divers were all in agreement on this.

-Bryan

 

[rstofer]

As a guess, I would think (in the US) that criminal charges might be successful due to the professional stature of the instructor. Instructors are thought to have superior knowledge and reliable in their advice. It's possible the instructor could be convicted.

I am absolutely certain that in a civil trial the professional will be found financially liable to the deceased's estate. Juries are always willing to award damages. Besides, instructors have insurance and everybody knows that it is ok to award at least the limit of the policy.

I kind of like the idea of 'misadventure' I read about in the Straits Times (Singapore). The deceased diver was responsible for their own demise due to misadventure. Works for me! But it won't sell in the US.

Richard

 

[adurso]

To answer the OP, an instructor is held to a higher standard under US law than, say an AOW diver would be.

For example, An instructor has been trained in handling distressed divers without putting himself at risk, so has skills to assist in situations that would be too risky for someone without that training. If you have the skills and the training to do it without becoming another victim, you do have a legal obligation protect the lives (emphasis added)of those around you. The behavior would have to be pretty egregious or have some obvious bad intent to become a criminal matter though. Civil liability (money damages) arise quite a bit more easily.

If your scenario involved an uncertified diver, or a plot to kill the diver, I could see criminal charges. I think you have to take into account that the diver, from his own training knew how dangerous the dive was. The instructor was certainly stupid, but criminal is a leap for me.

Could you point me to the state or federal code spelling out how one incurs this "legal obligation"?
Thank you.