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 EXPERT OPINIONS opinion it’s more important that the instructor has the skills to assess a young diver’s ability to be mentored. Stratification based on skills and experience — as seen in martial arts training, for example — could be useful. Many young divers are eventually able to appreciate the risks, but readiness can vary dramatically and depends much less on age than maturity. I think efforts to credential specialized instructors might be worthwhile. Wakely: A graduated response to learning and freedom to dive is essential for child safety. I like to use the analogy of skiing — it’s a potentially dangerous sport, but there are few adults who argue that children shouldn’t be skiing. It’s widely accepted that children should start on gentle slopes, wear a helmet and gradually move up to more advanced terrain according to their abilities. Is decompression stress a concern with regard to long bone development in children? Mitchell: There is no evidence for it. The epiphyseal plates of the long bones do not close until late adolescence, and there has been extensive diving by teenagers for decades. Despite this, I am unaware of a single case of apparent growth inhibition in a limb as a result of decompression sickness in a teenager. Charash: There are no studies that show clear evidence that diving (decompression stress) can affect long bone development in young divers. What is not so clear is the effect of microbubbles that may enter the circulation and possibly affect the blood vessels in the growth plates (epiphyseal plates). I suggest limiting children’s exposure to nitrogen by restricting depth and dive time and increasing surface interval time. March: We know that tissue perfusion in the growth plates is significantly different from that in most other body compartments. This is clear because we find pediatric patients much more susceptible to bloodstream infections in these areas. The standard gas-compartment models are likely inadequate as routine dive tables, and experimental confirmation is neither ethical nor practical. The general consensus of a margin of safety seems prudent. Wakely: There is no evidence that the hyperbaric environment has any ill effect on growing bones. The Undersea and Hyperbaric Medical Society (UHMS) lists 14 medical conditions that are known to benefit from hyperbaric oxygen therapy (HBOT). For two of these conditions, osteomyelitis (long-term bone infection) and osteoradionecrosis (bone damaged by radiation therapy), the HBOT addresses the underlying problem (infection and dead bone), encourages new blood vessels to form in the bone and allows the bone to heal itself. HBOT has no known negative effect on healthy bone of any age. Do you think 10-year-olds have the mental maturity to understand and manage the invisible risks involved in scuba diving? Mitchell: The question requires context. Within the framework of a dive training program and guidelines of practice designed specifically for this age group, my answer would be “yes, in most cases.” Put another way, if the supervision and depth/time recommendations for diving are adhered to, then most properly motivated 10-year-olds should be fine. But if the question is whether a 10-year-old should be considered an independent open-water diver (as we understand that concept in adults), then my answer would be no. Charash: To answer this question it is important to understand normal childhood growth and development. As there is significant variation in maturity and development, it is not possible to predict who will have the capacity to understand and also manage risk. Specific to the question, it would be a challenge to expect a 10-year-old to understand “invisible risk.” STEPHEN FRINK 52 | FALL 2015
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