Reduce Your Liability Risk

BY FRANCOIS BURMAN, PR.ENG., M.SC.

DIVING IS INHERENTLY RISKY, and dive professionals must take care of their customers and do their best to prevent accidents. But accidents may occur despite the best efforts to prevent them.

Training, awareness, emergency action plans and insurance can help mitigate the consequences of accidents, but nothing can truly prevent you from being sued or even criminally charged. While insurance can limit your financial losses, accidents may produce consequences that can harm your reputation, cause you to face significant downtime with an associated loss of income, and may even have moral consequences that can cause personal health issues.

Prevention is key to reducing your risks; understanding these risks will help limit your exposure to legal consequences.

The following are a few of the most important risk factors to consider. While not an exhaustive list, these items are from incidents of damage, injuries and fatalities that prompted lawsuits.1

• Failing to have, practice and implement an appropriate emergency action plan (EAP) —

Taking inappropriate action in response to an accident or failing to follow the EAP can render worthless even the best preparations. • Losing a diver — Hundreds of resources can help you reduce this risk, but managing this situation when it occurs requires a specialized EAP.

• Failing to properly assess dive site conditions —

Improper assessment, which includes accounting for situational changes and the required experience and preparedness of divers, can lead to liability exposure and injuries or fatalities.

• Failing to use a suitable health questionnaire and

enforce its recommendations — Dive professionals need to create and follow formal procedures carefully to avoid causing harm to a student while still ensuring their privacy.

• Having inadequate preexcursion, predive and

postdive briefings — Briefings must be thorough and given consistently before and after every dive or dive trip, regardless of the group’s experience levels.

• Lacking appropriate first aid equipment and supplies

— Plan for the longest return-to-shore journey in the event of a dive injury that requires oxygen, and consider the possibility of multiple victims. Ensure your supplies and equipment are sufficient, appropriately maintained and not expired. Being unable to render first aid presents significant risks.

• Failing to comply with adequate instructor-to-

student ratios — These ratios exist to keep students safe, so not only is noncompliance a standards violation, but it can also result in undue harm, a diver lost at sea or even a fatality.

• Lacking suitable communication equipment

— Divers need to be able to reach assistance in times of need. Most maritime rules require specific redundancy; sole reliance on a cell phone during shore or inland diving is ill-advised. • Neglecting self, student or buddy checks — Failing to regularly and adequately perform these checks exposes every diver to accidents, especially when overlooking gas and buoyancy deficiencies.

The exposure risk to liability and other claims for damages varies per location and depends on environmental conditions, the market, inherent site risks and geographic location, among other considerations. A careful risk assessment of each operation at every site is necessary to identify these exposures. Appropriate risk mitigation, enhanced awareness, staff training and retraining, and adequate professional liability insurance are essential to prevent accidents, control as much damage as possible in the event of an accident and provide you with suitable legal defense protection.

When an accident occurs or if you suspect something may happen, it is essential to immediately report these situations to your training agency and your insurer, no matter how great or small the anticipated consequences may be.2 Failure to report can seriously inhibit the ability of your insurance carrier to respond appropriately and protect your interest. Being prepared and having the incident on record will enhance your protection from potential consequences. AD

NOTES: 1. The DAN Risk Assessment Guide for Dive Operators and Dive Professionals, which identifies many additional legal liability risks, can be found online as a free download at DAN.org/research-reports/publication-library/. • 2. Download DAN’s article on incident aftermath at DAN.org/wp-content/uploads/2020/08/incident-aftermath-what-to-do-liability.pdf.