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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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the combination of swimming,<br />

moving the unresponsive victim<br />

and enduring the general stress<br />

of it all. We deployed our DAN®<br />

oxygen unit to help him recover.<br />

Later we learned the victim,<br />

who was the boyfriend of the<br />

woman in the inner tube, had<br />

swum across the cove in pursuit<br />

of a small raft that the wind was<br />

blowing across the water. He<br />

failed to reach the raft, became<br />

exhausted and submerged about<br />

20 feet away from the far shore.<br />

The man unfortunately never<br />

regained consciousness and was<br />

later pronounced dead.<br />

Looking back on the incident I<br />

think about what we as individuals<br />

carrying rescue gear such as<br />

pocket masks with you — they<br />

are extremely effective for giving<br />

rescue breaths and shielding<br />

you from bodily fluids and<br />

possible disease transmission.<br />

The instructor who had one<br />

with him always keeps it in an<br />

add-on trim pocket secured under<br />

his dive-knife grommets. Now<br />

each member of our instructor<br />

team includes this as part of our<br />

normal kit.<br />

We always keep a DAN<br />

Rescue Pack oxygen unit with<br />

us whenever we are at a remote<br />

dive site. We have an emergency<br />

action plan that acknowledges<br />

that cell phone reception is often<br />

“Our training kicked in. One member of<br />

our group returned to our base camp<br />

to phone for emergency assistance,<br />

two swam to assist the woman and<br />

get a better understanding of what<br />

had happened, and the rest descended<br />

to conduct a search pattern. Five<br />

minutes into our search I discovered<br />

an unresponsive man on the bottom in<br />

approximately 40 feet of water.”<br />

and as a team did right and what<br />

we will do better if we ever find<br />

ourselves in such a situation again.<br />

After this experience, I cannot<br />

overstate the importance of being<br />

prepared. I believe all divers<br />

should learn and stay current in<br />

CPR skills and emergency oxygen<br />

administration. I also advocate<br />

bad at our local dive sites and that<br />

multiple agencies may be involved<br />

in an emergency.<br />

I was proud of our team’s<br />

response and how closely it<br />

followed what we teach in our<br />

Rescue Diver program. I believe<br />

we gave the victim the very best<br />

chance possible. <strong>AD</strong><br />

ALERTDIVER.COM | 59

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