More on Malta verdict

[boulderjohn]

The Malta case thread is closed for discussion, so there is no place to put this article about it:

Diving has been damaged by this court verdict – Daniel Xerri

The verdict has been criticised by both diving professionals and enthusiasts based locally and abroad

timesofmalta.com

 

[BoltSnap]

I think that the Jon Borg mentioned in the article is our same @jborg ?

 

[jborg]

Nope! Same surname but not same person.

 

[Wibble]

Human factors analysis by the author of Under Pressure: Diving Deeper with Human Factors

Human Factors Analysis of a Maltese Diving Fatality

This is a detailed analysis of the diving fatality which took place in Malta in January 2020. It uses the AcciMap framework to bring the points to the fore, along with exploring comments made during the proceedings.

www.thehumandiver.com

 

[dlofting]

A really good analysis. The defendant would have been well served to have Mr. Locke as an expert witness in this case.....as would the court.

 

[wetb4igetinthewater]

A really good analysis. The defendant would have been well served to have Mr. Locke as an expert witness in this case.....as would the court.

Good suggestion. I passed it on to a friend of the defendant that is helping him.

 

[SlugLife]

Human factors analysis by the author of Under Pressure: Diving Deeper with Human Factors

Human Factors Analysis of a Maltese Diving Fatality

This is a detailed analysis of the diving fatality which took place in Malta in January 2020. It uses the AcciMap framework to bring the points to the fore, along with exploring comments made during the proceedings.

www.thehumandiver.com

Great article! Even setting aside this incident, this is a good "how to think" article.

---

It's 100% correct, that a liability/legal analysis, is radically different from an accident-investigation intended to help improve equipment, training, etc. From a legal perspective, you're usually trying to establish a malicious action or flagrant negligence.

From an accident-analysis perspective, you're trying to discover ways to improve training, equipment, redundancy, accident-avoidance, etc. Blaming is usually counter-productive to that goal, and instead, we're focused more on raw pragmatism.

For example, lets say I unexpectedly run out of air, and my dive-buddy is inattentive and swam off to look at fishes. Maybe the dive-buddy deserves some "blame" (or maybe not). However, at that moment, it's FAR more important I get to the surface alive than my last thoughts being "fk you buddy, you killed me, hope the fish was worth it!" And because I take the mindset of 100% responsibility for my own safety, I have plenty of redundant gas so the scenario is mostly an annoyance, with CESA as a 3rd redundancy.

Also as human and biological beings, we all make many well-meaning errors or "minor neglect" (in a non-legal sense) just about every waking hour. Also, that chance, limited knowledge, or things outside one's control the "right"-action having the wrong-outcome, or "wrong"-action having the right-outcome.

Hindsight bias is just one of a few biases that can seriously impact our learning from an event. The next one to consider is outcome bias

There is a 33% to 95% chance that, with all of the information Castillo knew at the time, I would have done the exact same things as Castillo. With additional training, maybe I become wiser, and maybe those percentages come down (or maybe not, because it's very complex). Until those percentages get down to below 1%, I'm not okay with labeling them criminal-neglect and perhaps not even liability-neglect either (without turning all of us into daily criminals, or daily lawsuits).

"My buddy hasn't slept in 20 hours" Less than ideal, but without more info, that says very little. I've been tired having 8-hours of sleep and woke up 3 hours ago. I've also been wide-awake after 24-hours of no sleep. "Buddy is a dive-instructor, says they're ok to dive, buddy visibly looks fine, and it's an easy dive." Yeah, I'd have no real concern.

I'll note that even with hindsight and outcome bias, I didn't see the judge or prosecutor clearly articulate what Castillo should have done and when he should have done it, much less cite specific training or best practices that he violated. It's all vague, about being a good buddy, or even suggesting his mandator-deco was optional and could have been violated, or maybe should have known the diver at the shore wasn't their buddy.

 

[SlugLife]

Historical law shows that while there is a ‘fictional character’ - the ‘reasonable man’ - safety science and behavioural economics show there can be no such thing. This is for a number of reasons: individuals behave differently to groups of individuals, individuals behave locally rationally in real-time but in hindsight appear irrational, and behavioural economics shapes risk and reward. The diving community is not representative of the wider population when it comes to perceived and acceptable risks - are they 'prudent'? Therefore, what is ‘reasonable’ considering a proportion of social media responses from instructors/technical divers indicate they would have done the same as the surviving diver? Is the reliance on this premise still valid in such cases?

Very good point here.

There is no reasonable man, at best there are reasonable people or potentially reasonable choices. Furthermore, criminalizing individual choice and free-will is a very dangerous precedent. (The reasonable man isn't a scuba-instructor or technical diver, are they?)

If you surveyed the diving community, or better technical-diving community, taking care the survey didn't contain hindsight bias, outcome-bias, or leading questions, about what they would do at each stage, you'd get a 30% to 95% agreement depending on which action or step in the process you choose.

 

[wetb4igetinthewater]

Very good point here.

There is no reasonable man, at best there are reasonable people or potentially reasonable choices. Furthermore, criminalizing individual choice and free-will is a very dangerous precedent. (The reasonable man isn't a scuba-instructor or technical diver, are they?)

If you surveyed the diving community, or better technical-diving community, taking care the survey didn't contain hindsight bias, outcome-bias, or leading questions, about what they would do at each stage, you'd get a 30% to 95% agreement depending on which action or step in the process you choose.

Reminds me of "what a prudent instructor would do"

 

[SlugLife]

However, there is a considerable stigma associated with reporting adverse events like this, and therefore the true scale of the problem is unknown but given the experience in other areas, reported events are likely to be in the order of 10-20% of actual events.

I was too embarrassed to admit to an incident (unscrewed hose) until about 1-year later. Then I discovered many other divers had similar incidents.

It is not possible to see how providing compressed air by an unlicensed third party" causes buoyancy issues.

It's also VERY unclear, how that air contributed in any way, or what that air has to do with Castillo.

Without some form of logging system, it isn’t known why the diver ran out of gas.

...and perhaps more importantly, why they didn't switch to their full cylinder.

There are two statements from an expert witness which would be hard to evidence “fatigue caused buoyancy issues” and “fatigue caused overuse of gas”.

...or what relevance that has to Castillo's criminal charges.

If this was in the US, "objection, relevance" would have probably been raised by the defense 100s or 1000s of times.

During the proceedings, one of the expert witnesses makes mention of the lack of checking of gas of the deceased diver by the surviving diver. The majority of divers who have technical training won’t check the gas pressures of other divers because a turn pressure or minimum gas has been briefed prior to the dive and there is an expectation that gas will be monitored (this should also happen on a recreational dive too). During a recreational dive, I wouldn’t expect divers to be asking to check gas unless they were new divers and there was a concern that one diver or another wouldn’t be monitoring their gas.

Exactly! I almost never ask a dive-buddy their gas-level because of safety; I presume them competent to monitor their own gas. When I do ask, it's usually to get a better idea of how much more time we have to play with, before it's time to turn the dive. "They have 1500psi, I have 1750psi, which means I we've got about another 500psi to go before turning the dive, and I've got some time to look around."

An expert witness stated that the Venturi controller was open and this could have led to excessive gas being breathed or contributed to the empty cylinders.

This sounds like nonsense. I often forget to change any adjustments on my regulators, and control gas consumption by breathing alone. Perhaps a trivial curiosity, but I'd question the relevance to this trial, much less the accident itself.

This ruling likely has wide-ranging implications regarding the buddy system. In the US, breaches of the buddy system have been subject to litigation, but it is believed that this is the first time a ‘failure’ of the buddy system has been subject to criminal law.

There was another incident in Malta that was treated as criminal. Regardless, I'd set a very high bar for any liability in the buddy-system. Simply put, given an incident like a diver runs out of air, who is responsible? Whatever the standard, it must apply to BOTH divers, assuming they're peers (excluding Instructor/Student relationship).

Lets say the buddy is responsible or liable. Ok, but the OOA diver themselves wasn't monitoring their own air or their buddy's air. It's an impossible standard logically. How is it the buddy's responsibility to do something the OOA diver didn't do? The only time I see any of this making sense is in an Instructor/Student relationship, where the student reasonably trusts the instructor to keep them safe, including safe from themselves.