The civil liability of a recreational diver may include a duty of care to another diver during a dive. Breach of this duty that is a proximate cause of injury or loss to the other diver may lead to civil litigation for damages in compensation for the injury or loss suffered.
Participation in recreational diving implies acceptance of the inherent risks of the activity. Diver training includes training in procedures known to reduce these risks to a level considered acceptable by the certification agency, and issue of certification implies that the agency accepts that the instructor has assessed the diver to be sufficiently competent in these skills at the time of assessment and to be competent to accept the associated risks. Certification relates to a set of skills and knowledge defined by the associated training standard, which also specifies the limitations on the scope of diving activities for which the diver is deemed competent. These limitations involve depth, environment and equipment that the diver has been trained to use. Intentionally diving significantly beyond the scope of certified competence is at the diver's risk, and may be construed as negligence if it puts another person at risk. Recommendations generally suggest that extending the scope should be done gradually, and preferably under the guidance of another diver experienced in similar conditions. The training agencies usually specify that any extension of scope should only be done by further training under a registered instructor, but this is not always practicable, or even possible, as there can always be circumstances that differ from those experienced during training.
Retention of skills requires exercise of those skills, and prolonged periods between dives will degrade skills by unpredictable amounts. This is recognised by training agencies, which require instructors to keep in date, and recommend that divers take part in refresher courses after long periods of diving inactivity.
Duty A recreational diver may have a duty of care to another diver if one of these conditions occurs: The diver is the instructor of the other diver. This is usually established by a contract or other agreement to teach the other diver how to dive, or some part of the skills and knowledge required for certification as a competent diver. The diver is divemaster to the other diver. This may be a formal arrangement where the divemaster is paid to lead a dive, or less formal where the divemaster leads a group from a club or a group of acquaintances. Giving the divers instructions (as opposed to advice or information) regarding the dive plan may be construed as establishing a dive leader relationship. Simply informing them of the known geography, expected conditions and a maximum time limit for the dive should not. The diver accepts the other diver as a dive buddy for a dive. If no limitations are stated, it may reasonably be assumed that buddy responsibilities are as specified in the training standards for the certification of each diver. This can be problematic if the divers have different training and certification, particularly if one is a registered instructor or divemaster, as it may be claimed that this implies a greater duty of care based on competence. In the absence of any record of an agreement that the dive will be conducted to a different set of protocols, the default assumption may be that protocols of the training organisations at the time of certification will be followed, or should have been followed.
The existence of a duty of care between two persons depends on the relationship between them. Dive buddies who depend on each other to perform tasks such as equipment checks and provide assistance in an emergency are obliged to act reasonably and not increase the risks of the activity, but may be excluded from liability by assumption of the risk or waiver.
Duty of the operator Where relevant, the dive operator is responsible for: ensuring that the vessel is suitable and carries the necessary safety equipment, the crew are competent and carry out the necessary procedures on the surface to support a safe experience for a certified diver. Are you aware of what the National Small Vessel Safety Regulations require of you? safely transporting the divers to dive sites that are suitable based on the certification of the divers and the expected conditions, assessing the site conditions on arrival, conducting a dive briefing informing the divers of the known and reasonably foreseeable conditions and hazards of the site, recalling divers to the surface in an emergency, recovering a distressed or incapacitated diver on the surface into the boat, alerting the emergency services in the event of an accident, and ensuring that no-one is left behind after the dive. In some jurisdictions the dive boat skipper may be legally obliged to be licensed to operate a dive boat. In South Africa a "diving endorsement" to the skipper's certificate of competence is a requirement to operate a dive boat as a commercial operation.
In a number of US cases, the failure of a charter operator to assign a buddy has been ruled a breach of the industry standard of care. It is not clear what competence or certification is required to allocate buddy pairs, and whether this duty would also apply to a boat operator who is not a divemaster or instructor. Defendants have argued that a person who dived without an allocated buddy was contributorily negligent as they also did not meet the appropriate standard of care.
Limiting the liability of the operator Waivers and release The waiver is intended as a legal defense against lawsuits claiming ordinary negligence by the operator. The diver acknowledges understanding and acceptance of the risks inherent to scuba diving. The waiver may also require the diver to follow recognised safe diving practices. By signing the waiver the diver agrees not to sue the operator for injuries and damage due to ordinary negligence relating to the diving activity. It will generally not be enforceable for gross negligence and events beyond the normal scope of diving.
Medical statement The medical statement is intended to draw the diver's attention to the range of medical conditions that may increase the risk of injury during a dive. Failure to disclose a known medical condition which is then the cause of an injury will usually disqualify the diver from legal compensation, and may also void an insurance claim. It also transfers responsibility for establishing fitness to dive from the operator to the diver.
Duty of the diver The certified diver is responsible for ensuring that their personal equipment, competence and fitness is sufficient to ensure their own safety in and under the water on the planned dive, allowing for reasonably foreseeable contingencies, and to follow safe diving practices.
A diver in training may not be competent to assume one or more of these duties, or their competence may be limited, depending on their existing certification. The duty of care of the instructor is to compensate for the known or reasonably predictable shortfalls in the learner's competence.
Responsibilities of buddies The responsibilities of dive buddies have been established by training standards and usage, but there is no definitive list of buddy legal obligations. An effective way to protect oneself from liability is to comply with the buddy practices agreed between the divers before the dive, and not make assumptions that both parties are following the same set of practices. Buddies are responsible for: planning the dive, taking into account known hazards and personal limitations and the level of risk acceptable to both visually checking each other's equipment after kitting up and before entering the water monitoring each other's safety throughout the dive providing assistance to an entangled buddy sharing breathing gas in an emergency getting each other to the surface in an emergency Training agencies may differ in the detail of the procedures divers are expected to use in each of these cases. In most cases both systems work and are reasonably compatible when they require the active participation of one diver at a time, but there are examples where differences could lead to complications. For example, the specific procedures for sharing air can vary considerably between agencies, and have changed over time. It is quite possible for a buddy pair to have been trained in two conflicting protocols for air sharing, and each use equipment selected according to the system they were trained to use. In an emergency this could lead to sub-optimal response even if the procedures had been agreed during planning.
Divers may be given vague, conflicting and outmoded advice: "Always dive with a buddy." – Solo diving is fairly common, it is actively promoted in books and magazines, there are recognised certifications in solo diving, a great deal of nominally buddy diving is effectively solo diving, and solo diving can eliminate the risks of an incompetent buddy. On the other hand, service providers may be found negligent if they do not allocate buddies. "Know how to use decompression tables." – Many divers use dive computers exclusively for diving where no obligatory decompression is required, and a computer failure can be satisfactorily managed by an immediate ascent at a controlled rate. Some of these divers never use tables, and have no obvious need to be able to do so. "Do not make decompression dives." – All dives are decompression dives, and what is actually meant is not to do dives that require decompression stops during a direct ascent from any point in the planned dive profile. Dives requiring stops are fairly common when using dive computers with conservative algorithms, safety stops and slow ascent rates. Extended-range and tech diving routinely require planned decompression, and mitigation procedures for a possible computer failure on a decompression dive are well known. "Do not dive beyond as an open-water diver or beyond as a recreational diver." This is the policy of only some diver certification agencies, and may be appropriate for their training standards. Other organisations with different training standards have established different recommendations. Technical divers are generally considered competent to dive to greater depths, and technical diving is legally considered recreational diving in some jurisdictions, such as the USA.
Solo diving option
An option for some divers is to dive without a buddy. Although this would relieve the diver of any duty to a buddy and any related liability, this may not be permitted by the service provider, or in a few cases, by national law.
Not all dive professionals agree that the buddy system is entirely preferable to solo diving. Even professionals who basically support the buddy system in theory accept that in practice it often leaves a great deal to be desired, and that in some circumstances diving solo may be safer as this avoids the hazards imposed by a panicked or incompetent buddy. Solo diving advocates also contend that most dives do not follow the buddy system as specified by the training agencies, as the divers are often too far apart to notice if a problem occurs or to respond effectively.
Remedies The usual strategies used by divers to minimize the likelihood of being sued and the consequences of a lawsuit are insurance, liability releases and care in selecting a buddy. Following the accepted procedures when buddy diving, ensuring personal competence and taking due care will reduce the risk of an incident occurring due to fault of the diver, and if one does occur, will be a useful defence against claims of negligence.