AD 2016 Q2
As we pointed out in the spring 2013 edition of the Alert Diver, even being a dive buddy has potential legal implications. So, to bump this up a notch, what about the diver training organisations themselves? Where do they stand? How do they relate to South African law? Are they all considered the same under our legal system in spite of the differences in organisational structures and training programmes? How does this affect their respective instructors and trainee divers from a legal perspective? These are not exactly simple questions. It is certainly true that the respective training organisations differ in a number of ways. However, this does not imply that there are necessarily differential legal implications for each of them. In fact, under South African law, the legal principles are common in all matters. Therefore, if you suffer a loss and you (or your estate in the case of a fatality) wish to recover damages, the legal principles would be applied commonly; whether you are driving or diving. Although not a frequent occurrence, there have been quite a number of law suits associated with diving injuries and damages in South Africa. This is not surprising, as the occurrence of law suits is really a function of “numbers”. As training increases, so do the chances of injuries and, with it, the chances of legal recourse. So, it remains wise to insure yourself, your equipment or your business in a proper and effective way. But before getting back to the potential differences amongst the training agencies, let’s first explore the foundational legal principles on which any civil claim would be adjudicated: inherent risk, negligence and duty to take care.
As we pointed out in the spring 2013 edition of the Alert Diver, even being a dive buddy has potential legal implications. So, to bump this up a notch, what about the diver training organisations themselves? Where do they stand? How do they relate to South African law? Are they all considered the same under our legal system in spite of the differences in organisational structures and training programmes? How does this affect their respective instructors and trainee divers from a legal perspective? These are not exactly simple questions.
It is certainly true that the respective training organisations differ in a number of ways. However, this does not imply that there are necessarily differential legal implications for each of them. In fact, under South African law, the legal principles are common in all matters. Therefore, if you suffer a loss and you (or your estate in the case of a fatality) wish to recover damages, the legal principles would be applied commonly; whether you are driving or diving.
Although not a frequent occurrence, there have been quite a number of law suits associated with diving injuries and damages in South Africa. This is not surprising, as the occurrence of law suits is really a function of “numbers”. As training increases, so do the chances of injuries and, with it, the chances of legal recourse.
So, it remains wise to insure yourself, your equipment or your business in a proper and effective way. But before getting back to the potential differences amongst the training agencies, let’s first explore the foundational legal principles on which any civil claim would be adjudicated: inherent risk, negligence and duty to take care.
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GEAR<br />
STEPHEN FRINK<br />
GEAR-RELATED<br />
INCIDENTS<br />
By Peter Buzzacott, MPH, Ph.D.<br />
The sun was out, and the visibility<br />
down at 30 feet was excellent. It was<br />
nearly time to ascend, so my buddy<br />
tapped her watch and then gave me<br />
the “OK” signal; I happily signaled<br />
back. This down time was just what I<br />
had needed after a busy week at work.<br />
Then, just when everything was going perfectly, I<br />
heard some bubbling. I removed my second stage from<br />
my mouth and held it with the mouthpiece facing<br />
downward. To my dismay, I saw bubbles coming out<br />
— my regulator was leaking. We were almost at our<br />
safety stop, so I put the regulator back in my mouth<br />
and double-checked that my buddy was within reach in<br />
case something unexpected happened. Thinking about<br />
it, I realized I hadn’t had my regulator serviced since<br />
last summer, so I resolved to drop it off at the dive<br />
shop later in the week. Better safe than sorry when it<br />
comes to having gas to breathe.<br />
When I got back to work at DAN®, my first task<br />
for the week was to look at the latest diving incident<br />
reports, which are submitted by divers who have had<br />
or have witnessed a near-miss. These are unexpected<br />
events that could have resulted in an injury. Curious,<br />
I counted how many of the incidents were the result<br />
of equipment malfunctions. Of the first 92 reports I<br />
reviewed, 16 incidents (17 percent) involved equipment<br />
issues. Based on other data, we know this number likely<br />
overrepresents the incidence of equipment problems,<br />
but this overrepresentation stands to reason because<br />
equipment failure is a matter of concern to many divers. I<br />
found it interesting that 13 of the 16 equipment problems<br />
reported (81 percent) related to air supply, and the other<br />
three reports (19 percent) related to buoyancy control.<br />
While studying the air-supply problems, I soon<br />
identified a common error: failure to watch the<br />
submersible pressure gauge (SPG) while test-breathing<br />
the regulator. Here is an excerpt from one of the<br />
incident reports:<br />
The group went out with four divers and two<br />
guides. The drop-in was a back roll, and I dropped<br />
in first. Prior to entry I checked all my gear and<br />
tested my regulator and inflator. I then dumped<br />
the air from my BCD [buoyancy control device]<br />
and moved into position. The deckhand checked<br />
all my equipment and made sure my tank valve<br />
was opened. I rolled in and dropped down 6-10<br />
feet and took my first breath: nothing. Now I was<br />
underwater, slightly negatively buoyant, with no air<br />
for breathing or inflation. I kicked for all I had and<br />
was able to reach the boat and grab ahold of the<br />
swim deck. The deckhand was then able to reach<br />
over and turn my air back on.<br />
Another incident report highlights a common error<br />
that’s reported to DAN every year: turning the valve<br />
the wrong way.<br />
While diving in Florida, I noticed that upon each<br />
inhalation the needle of my SPG fluctuated. It dipped<br />
down with each breath before returning to the correct<br />
pressure reading for my tank. I continued diving while<br />
keeping a close eye on the gauge, and upon reaching<br />
a depth of approximately 55 feet it suddenly became<br />
very difficult for me to breathe. I looked at my SPG<br />
mid-breath and saw the needle drop to 0 psi, and it<br />
did not readily move back up. I felt like there was no<br />
more air available to me even though I knew there<br />
108 | SPRING <strong>2016</strong>
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