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Hopping Mad
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I've just seen a post on Dnet (Link) in which a US court has ruled that a waiver signed by a diving student excluding the dive centre from liability was invalid in that he could sign away his own rights to sue but not those of his family.

In our increasingly litigious society and running a dive centre with all that entails, I wondered what the general concensus was out there.

How far should the law go in the UK in holding dive centres responsible - are they:-

1. always responsible no matter what;
2. it depends on the circumstances;
3. or it's an activity that carries risks and responsibility starts with the diver (in the absence of negligence on anyone elses part)?

With the compensation culture going the way it is, will we soon be in a position that the mere threat of a lawsuit perhaps years down the line prevents people being taught to dive at all?

What do y'all think ... ?
 

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<font color='#000080'>I think the UK law on negligence is quite good, not perfect but strikes a fair balance. Really, if you're not negligent you have nothing to worry about. If you are then you deserve to be sued.
 

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Team Starburst
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<font color='#736AFF'>
[b said:
Quote[/b] (Norbert @ April 17 2004,10:40)]in which a US court has ruled that a waiver signed by a diving student excluding the dive centre from liability was invalid in that he could sign away his own rights to sue but not those of his family.
This has always been the case in the UK. i.e. we can sign away our rights but not those of our dependents.

My local instructor (Hydroactive Outdoor Pursuits Ltd) has been on the receiving end of this. The HSE carried out a successful prosecution for incomplete paperwork-which it was agreed would not have prevented the incident. The family of the deceased appear to have accepted the risks inherent to scuba diving and have not pursued a claim for damages.

HSE would drown people in paperwork for risk assessments, and documentation on when equipment has been cleaned, serviced, etc. There is an important role for HSE for policing good practises, but my personal experiences suggest that they can go a little OTT.

My own belief in that things depend on the circumstances. Instructors do have a duty of care for those people in their charge. Trainees must not be placed in positions of danger (which is always relative of couse).

Trainees also have a duty of care to assess their own abilities to handle a given situation, as they place themselves, their buddy, and instructors with added risks. But this goes for all of us when diving.

Ian
 
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This has always been my understanding as well. You can sign any bits of paper claiming to waive your rights but ultimately they are worthless. If negligence has caused an incident then claiming a waiver as protection from legal action is pointless, and rightly so IMO.
 

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For the dives where one helicopter isn't enough
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My understanding is that you can't sign away the rights - but that it would be hard to argue that you weren't made aware of the listed risks if you have signed the waivers, and so it can be used in defence by the instructor/club/school.
 

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[b said:
Quote[/b] (Norbert @ April 17 2004,10:40)]I've just seen a post on Dnet (Link) in which a US court has ruled that a waiver signed by a diving student excluding the dive centre from liability was invalid in that he could sign away his own rights to sue but not those of his family.
Hi nick,

those PADI release forms are a waste of time! especially the PADI International ones - they were supposed to have been anglsised (sp) I used them on the original on line booking system and some Lawyer divers put me right on a few things. My current conditions were written especially for me, but even so, you have to recognise that you cannot prevent yourself from being sued for negligence with a bit of paper no matter whats written on it.

Its long past time that all the PADI professionals and centres put pressure on HQ to spend some of their vast profits on getting the paperwork put right


what do you think?
 
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There are several arguments here.
You should not be able to get someone to sign away any redress if you cause them injury or worse through your own negligence. Trying to write a waiver form is rightly near if not impossible and should remain so.
On the other hand, as an example, suing for somebody giving you too hot a cup of coffee after a dive and you being stupid enough to burn yourself is stupidity and shouldn't be entertained as a claim.
There are risks to diving but common sense should prevail, not something that is always prevalent when money can be involved, on either side of the coin, operators and customers.
I really don't want to go the US route, we are far enough down that route already sometimes.
 

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[b said:
Quote[/b] ]My local instructor (Hydroactive Outdoor Pursuits Ltd) has been on the receiving end of this. The HSE carried out a successful prosecution for incomplete paperwork-which it was agreed would not have prevented the incident. The family of the deceased appear to have accepted the risks inherent to scuba diving and have not pursued a claim for damages.
Nothing to do with accepting inherent risks, the family would have been advised they had no claim without causation. A criminal action by the HSE and a suit in negligence are very different things.
 

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<font color='#000080'>And its important to remember it would probably not have been their choice if there was an insurance company involved, making it doubly unlikely they had simply accepted the risks.
 

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Hopping Mad
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[b said:
Quote[/b] (Skipper @ April 17 2004,17:37)]what do you think?
What do I think?

Well, in my experience of English Law (and in a previous existence, I had quite a bit of experience of it), I well know that it is sometimes hard to second guess.

We have a good legal system, but I have an occasion had decisions both in the Court of Appeal and the House of Lords which went totally against that which was expected and were, in my opinion, perverse.  That happened both ways; when we expected to win, we lost and vice versa.

For a claim for damages to succeed, there is a four-part test:-

1.  A duty of care must exist from one party to the other;
2.  There must be an act or omission on the part of one party;
3.  Such an act or omission must result in harm (either real or financial) to the other party;
4.  Damages - there must be physical or financial loss.

If any of these elements are absent, the action fails.  Why mention this, well in terms of the duty of care, as an instructor of course there is normally a duty of care to the student and how the instructor acts impact upon that; the instructor is expected to act in a way a reasonable and prudent person would do in the same circumstances.

The problem is the word "reasonable" - always cropping up in English Law ("resonable force" was always a good one).  What one person deems "reasonable", another will not.

What we try and do with our courses is ensure we do as much as is possible to mitigate any exposure to legal risk; the students have all the forms explained to them, then they read them, then they sign them.  We operate in compliance with HSE guidelines (risk assessments, safety divers, shore support etc.); the kit is regularly serviced and records kept etc.; we run courses with low student/instructor ratios.

Trouble is, you can only act to mitigate forseeable risks - it is wholly unreasonable to expect someone to take steps to prevent risks that no-one could forsee or predict.  In our experience, the HSE want you to try and forsee every conceivable risk and plan for it - just not possible.

As far as the forms go, they are not a legal get-out in the UK.

What they do achieve though is to demonstrate that the student was aware of the inherent risks of the activity and that they undertook the activity knowing there were risks and the potential consequences to their wellbeing.  In that aspect, they are an important plank of any defence case.  Together with demonstrable prudence on the part of the instructor and compliance with all other legal and professional requirements, the defence case improves all the time.

This will not absolve the instructor of responsibility in the case of his being negligent, but it will demonstrate that the student went into the activity with their eyes open and fully aware of the potential risks associated with the planned course.

In my opinion, English law is swinging towards "everyone has rights - no-one has responsibilities" (how about the woman who sued a supermarket because she fell over a child in the store.  The child was her own but she won the action.)

We need to ensure that students are safe, that their courses are conducted with prudence and that we take all reasonable steps to ensure their safety.  In the event that something goes wrong, and someone has been negligent, then it is fair to bring an action (mitigating the perfection of 20/20 hindsight, of course).

Moreover, we need to remember that if you want to stay risk-free, don't dive - stay in bed.  We tell our students that and drum into them to dive conservatively and safely.

A bit of a waffle, but I hope it goes some way to setting out how I see things.
 

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Team Starburst
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<font color='#736AFF'>Uh... No. In the UK, you CANNOT sign away your rights - Section 2(1) of the Unfair Contract Terms Act 1977[/quote]
I stand corrected.
The information I supplied came directly as a result from discussions with the dive contractor. If I have misinterpreted please accept my apologies.
Ian
 

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[b said:
Quote[/b] (Norbert @ April 18 2004,09:47)]
[b said:
Quote[/b] (Skipper @ April 17 2004,17:37)]what do you think?
What do I think?
Loads cut........

Yes Nick I see where you are coming from and agree.

but the point I was making was that the PADI forms are in fact meeningless (excepting you comments) and it should be a simple issue for HQ to correct the forms to apply in UK law

Regards

Ps you last post was very well put
 

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I did a bit of research on the "U.S" court ruling in question, and the Diver article is misleading in some critical details.

Laws in the U.S. are created at both the federal and state levels with wrongful death lawsuits being a matter of state law. Different states can -- and have -- adopted different standards for such suits.

The incident at issue is the death of Eugene Pietrolongo, a 44 year-old AOW diver looking to do a nitrox course. The laws of teh state of New Jersey apply in this case. A New Jersey trial and appellate court ruled that Pietrolongo could not  under New Jersey law waive his heirs' rights to file a wrongful death suit. Interesting, the opinion makes it quite clear that had this tragedy happened in California (i.e. under California law), the waiver of his heirs' right to file a wrongful death suit would have been valid.

You can read the opinion at http://www.judiciary.state.nj.us/opinions/a6391-02.pdf

Best wishes,

Michael
 

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Hopping Mad
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Discussion Starter · #15 ·
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Thanks Michael for the link.

For those who are prepared to negotiate the legal-ese, the judgement makes interesting reading.

A couple of things strike me:-

1.  Thankfully, we don't have the same State/Federal jursidiction as in the USA.  If we did, we'd have differing laws in say, Dorset, Devon and Hampshire with all the complications that would bring - English law covers the whole country.

2.  The judgement states that a person can sign away their own rights to sue, but not those of their heirs, principally, because the heirs had not signed the release form.

The one line that did hit me though, was:-

"The law does not favour exculpatory agreements becasue they encourage a lack of care."

The whole PADI system of Liability Releases is based on exculpatory statements by students - will they now be revised in light of this judgement?

As Michael points out, this is a New Jersey ruling; California law is the polar opposite.

I wonder if anyone from PADI has a view ...
 
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