Andrew Tonge is qualified as a Solicitor and a Barrister. He has been practising law for over 15 years. He is also a PADI Instructor, experienced technical diver and a director at Odyssey Dive Centre Limited, based in Stockport and Wigan. Andrew can be contacted at Nexus Solicitors, Manchester, where he is a partner.
Diving with a buddy is one of the best ways of exploring the underwater water world. No instructors, no knowledge reviews. Just diving!
For most of us, our buddy is a close friend and someone we trust. Someone we know to be a properly trained diver, someone who understands the way we dive. But year after year, divers, in buddy teams, get into difficulty. Year after year, many divers are seriously injured or killed at home in the UK and abroad.
So what happens in these cases? There is no dive school to point the finger at. No instructor or divemaster who was ‘in charge’. If anything happens to your buddy, who carries the can?
If you (or anyone else diving with you and your buddy) take certain steps either before or during or even after the dive, then the law sees that you have assumed responsibility and will impose a duty of care on you.
Whether and when the law imposes a duty on a dive buddy is a very complex area of law and it is easier than you think to find yourself on the hook.
For example, if you ‘lead the dive’ you may have assumed responsibility for the welfare of your buddy. This is not only where you are a more experienced or better qualified diver. This does not mean that everyone who ‘leads the way’ underwater becomes responsible in law for their buddies but it is easy to overstep the mark and become so.
Where, say, you are familiar with a wreck and your buddy isn’t, then the law is likely to require you to lead in a way that keeps your less-familiarised buddy safe. This may mean briefing him properly, possibly to the standard required of a wreck qualified dive leader, because in the eyes of the law, that is what you have said you will do.
It’s a little like a car driver, taking a friend for a ride in an articulated heavy goods vehicle. The driver must drive not simply like a car driver or ordinary road user, but as an HGV driver.
It is also very easy to fall foul of this legal conundrum in much less obvious circumstances. A buddy check means that you must do that buddy check as a reasonable diver would. As soon as you take the job on, you assume the duty of care. Maybe not for your buddy’s safety on the whole dive, but as far as checking his kit is concerned.
A loose weight pouch that drops out or a loose cylinder band, that should have been checked by you and which causes injury (or worse) to your buddy, will mean that you have not discharged your duty of care and may be liable in civil law to your buddy or his estate after death.
The same applies to everything you do, during and after the dive.The legal duties of care do not always end when the dive does.
If for example, you are unable to render assistance to your buddy because your alternate air source is not serviceable, then you may be liable for some or all of his injuries, because a reasonable buddy would have had kit that would have been useable by a buddy in trouble.
This is where the rules of diving as set out by organisations such as PADI would be used to assess whether you have behaved in the right way. The PADI diving rules are not the law, but the court, in deciding on how you should have behaved will look to the current reasonable practice of other divers and diver training agencies, in the same way as the court may look to the Highway Code.
Of course, whilst you may not, in certain circumstances, be obliged to attempt a rescue of your buddy, you may, by simply diving with your buddy have impliedly accepted that he can use your alternate air source or that you will dive in particular way (e.g. close enough for him to use your octo) so as not to put him at risk.
If you do attempt a rescue during the dive, or say administer first aid after the dive, you must of course do so, as the reasonable diver or first aider would do. To make the situation worse may leave you liable.
It is worth noting that simply being an instructor or divemaster does not in itself give rise to a duty of care towards the people you dive with, but it may be harder to guard against assuming a duty of care especially if those diving with you are less experienced and qualified than you,
They may be asking questions which you answer in a way that causes you to assume a duty, either in the answers you give, say on how to safely enter the water, or how to configure kit or which route to take to the wreck, right through to a need to closely supervise the divers in the water.
It may not be enough to simply state, at the waters edge, “…it’s every man for himself by the way!” Once a duty of care has been assumed it is legally very difficult to exclude or limit it in cases of personal injury or death resulting from the negligence (behaviour falling below the standard required) of the person with the duty.
The standard of the reasonable diver is an objective standard and is irrespective of a lack or training or expertise. To say that you were not qualified to lead a particular dive or give particular advice is not enough. And where you are better qualified and more experienced than the ordinary, reasonable diver, you may in certain cases be assessed against that higher standard.
In a world where legal action is commonplace and diving as a sport is expanding, with the growth of areas such as deep, mixed gas, technical diving, the dive buddy is taking on a responsibility that must be properly managed.
Check your insurance. Does it pay your legal fees if your buddy (or his relatives) sues you?
Get proper diver training. Dive with a recognised organisation such as a PADI Dive Centre and make sure that you and your buddy know what you are getting into. If you have any doubts, speak to a specialist solicitor.
Kathy Dowsett
www.kirkscubagear.com
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