This is the “not do” component. It is also somewhat harder to define. After all, who determines the duty to care and the non-compliance thereto in unique emergency situations? Still, this component is more likely to lead to a recovery of damages. Put differently, when you are under a legal duty to take reasonable care and you do not do it, then you could be held liable for damages that are directly caused by the breach of that duty. The key elements are “reasonable care” and “directly caused”. Let’s break that down, starting with directly caused. This means that the damages are linked directly to the failure to perform the reasonable duty. This is called a causal connection. In other words, there must be a connection between the duty not complied with and the damages. deep diving are so hazardous that it may well be better to only jeopardise the life of one individual rather than two. That is, of course, as long as no one is put at risk during the subsequent body recovery or rescue efforts! Well, as a qualified instructor and dive leader, I shall continue to teach and advocate the buddy system. I do not like the idea of diving alone anyway. I prefer to share the joys of diving with someone able to share the memories of the dive. To me, diving is, and remains, a team sport. Which introduces another consideration: How would the principle of duty to take care be applied to children who dive? Training agencies impose age and depth restrictions on children who enter the sport before the age of 14. Depending on the age and diving course, a child may be required to dive with an instructor or at least another adult dive buddy. If the adult were to get into trouble, the child would not be expected to meet the duty of care of another adult. He/she would be held to an age appropriate standard. What about all those waivers? As mentioned in the previous article, waivers define the boundaries of the self-imposed risk divers are willing to take by requiring that they acknowledge them. Waivers do not remove all the potential claims for negligence and non-compliance with a duty of care. As such, it is left to our courts to ultimately interpret the content of a waiver within the actual context of damage or injury.
RESEARCH, EDUCATION & MEDICINE DAN WAS THERE FOR ME When Scott Gleeson began experiencing headaches after diving, an MRI revealed a brain tumor attached to his pituitary gland and optic nerves. STEPHEN FRINK DOMINE/ISTOCKPHOTO.COM Travel Plans Interrupted By Robert Gleeson My son, Scott, grew up in a diving family and around dive shops. He has been diving off and on for more than 35 years. A few years ago he began to experience headaches after dives. The headaches became increasingly common, but there were never any other symptoms or problems at the end of dives. We typically did 65- to 75-minute multilevel dives. Thinking that his headaches might have something to with nitrogen exposure, Scott began diving with nitrox, which seemed to help alleviate them. For a while we thought the switch to nitrox had fixed the problem, but unfortunately the headaches came back. Scott enjoyed diving enough to put up with the discomfort he was experiencing, and we continued to go on weeklong diving trips together for several years after the headaches began to occur. 44 | FALL 2015
Late last year we planned our first liveaboard trip together to the Caymans. When booking the trip we purchased nonrefundable airfare, and we noted that the liveaboard trip was nonrefundable if we canceled within 90 days of departure. The dive operator suggested that we buy trip insurance, which seemed like a good idea to us since this was an all-inclusive, prepaid trip. We purchased DAN Trip Insurance to cover the cost of the nonrefundable round-trip airfare to Grand Cayman along with the cost of the liveaboard trip. In late January, Scott began to experience more frequent headaches, which began to occur when he was exposed to bright light. His doctor referred him to a neurosurgeon, Holger Skerhut, M.D. An MRI revealed a brain tumor attached to his pituitary gland and optic nerves. Dr. Skerhut initiated treatment to reduce the size of the tumor and scheduled Scott for surgery. The diagnosis of the brain tumor occurred three weeks before our scheduled dive trip. We discussed the trip with the doctor, who recommended against diving. Dr. Skerhut was a diver himself, and his son was a dive instructor, so he fully understood Scott’s concerns not only about the impending surgery but also about his ability to return to diving. He was very confident about a good surgical outcome and reassured us that Scott should be able to return to diving after a successful procedure and recovery. He predicted that Scott would be able to resume diving a few months after the surgery. Scott recovered from the surgery just fine. The doctor released him to return to diving, and we had a great trip to Cozumel this summer. Scott experienced no headaches or other problems in six days of diving. When we became aware that the brain tumor and surgery were going to interrupt our Cayman trip, we notified the airline, the dive operator and DAN. Even though our tickets were nonrefundable, the airline agreed to refund our airfare in light of the circumstances. Filing a claim with DAN was quite simple; we just needed documentation from the doctor and copies of our payment confirmations from the liveaboard operator. Once we filed this paperwork, the insurance claim was settled, and we received compensation in full for the missed trip. The DAN representative and the claims agent were very helpful and patient, assisting us every step along the way. Our main concern was getting Scott through the surgery, so it was a great relief that the insurance claims process went so smoothly. I can truthfully say that DAN Trip Insurance is now an essential part of all of our future dive travel plans. AD ALERTDIVER.COM | 45
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