 |
WHO SAYS THERE'S A DUTY OF CARE?
NIGEL EATON, EDITOR
IN HIS ARTICLE EXPLORING THE PROS AND CONS of buddy-pairing and diving in groups (see page 46), John Bantin considers the controversial topic of who can end up in the legal firing line when things go wrong under water.
It is now his habit, he says, to write a disclaimer on anything he signs before diving, making it clear that he takes no responsibility for anyone else in the water. But the question of how far a diver may be considered liable for a buddy who gets injured or killed is not always clear-cut. This point was illustrated in a fascinating recent US court case - the details of which are published here without further comment.
The case concerned the death of Katherine Sentner during a dive to around 20m near Santa Cruz Island, southern California. Following the incident, her children (referred to collectively in the court action as "Yace") sued Dennis Dushane, who was diving with Sentner at the time.
According to a review published by Florida lawyer Mark Ercolin, Yace alleged that Dushane and Sentner agreed to be each other's buddies. During their second dive, Dushane separated from Sentner at 20m to check his bearings. He did not see her again until he felt her suddenly reach for his regulator.
At this point, it was alleged, Dushane "negligently panicked and abandoned" his buddy. He ascended to the surface without sharing his air and helping Sentner to the surface. Dushane had enough air to share with Sentner. If he had not left her on her own, she would not have drowned.
But the Los Angeles Superior Court said that a participant in an active sport breaches a duty of care to a fellow-participant only if he or she "intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport". This had not occurred.
Firstly, said the court, a diver's panicked ascent instead of sharing air was an inherent risk. "Unlike most other sports, the possibility of a life-threatening emergency in scuba-diving is apparent, and indeed anticipated. Just as an emergency problem with an air supply is itself an inherent risk of the sport, so also is the reaction to that emergency of one's diving buddy."
Secondly, a diver's panicked failure to assist a dive buddy in trouble could not be characterised as either intentional or reckless, because "panic is a sudden overpowering fright [...] a sudden unreasoning terror often accompanied by [...] flight".
Yace's case was rejected by the court, which said in summary that there was a "primary assumption of risk" on the part of those taking part in diving. Between buddies, "no legal duty of care exists".
FIRST IN Index page
|
