DIVE LAWYER: Health and Safety in diving

Who does the Health and Safety Law apply to?

The law applies to any individual or organisation where one or more of the divers are divers at work i.e. receiving money or some other benefit for their services. In this case all of the divers involved come under the law. The law is not limited to instructors and divemasters.

Duties under the Health and Safety at Work etc Act 1974 (“HSWA”)

Any diver or dive school organising diving activities must protect the health and safety of its staff, including paid and unpaid divers and helpers, and public, which includes divers under training or supervision but also any other divers who may be harmed if the diving is not carried out properly.

Diving at Work Regulations 1997 (“Regulations”)

The Regulations state that someone organising the diving must be designated as Diving Contractor, who will have ultimate responsibility for compliance with all health and safety law. The Contractor is usually the dive school and may be a limited company.

Diving Project

Whenever diving takes place, the Regulations refer to this as a Diving Project, which starts when the first diver begins preparation for diving and ends when the last diver has finished decompression. Contractors must be aware that preparations may begin well before the day of diving, e.g. preparation on the decompression schedules.

Every dive is classified as a Diving Operation and must be carried out by a Dive Team of at least 3 qualified and competent people - the supervisor (appointed in writing), a second diver, both capable of in-water rescue and a surface cover person. There is no legal requirement that the supervisor is an instructor or the second diver a Divemaster, but may be a requirement of the Contractor’s insurance.

Every diver must be certified as medically fit by an HSE approved doctor.

The surface cover operative need not be a diver. They may need to be trained in first aid depending on the circumstances and of course be fully familiar with the Plan and its emergency procedures.

Diving Project Plan

For every Diving Project, the Contractor must prepare a Diving Project Plan, detailing everything about the Diving Project including both a generic and a site-specific risk assessment. The Plan and especially the risk assessment must be updated throughout the Diving Project.

The Plan must contain emergency procedures, including first aid and alerting the emergency services, which may even involve getting the diver to a recompression chamber. This immensely important part of the Plan is often woefully inadequate.

As a rule of thumb, if a question asked by a lawyer in Court cannot be answered by reference to the Plan then the Plan is probably inadequate and prosecution for that alone may follow.

The supervisor must ensure that a record of the dive is made and the Contractor must ensure that the record is kept for at least 2 years (although keeping the record for longer is advisable and insurance may require this).

The Regulations differ to the PADI Standards in certain respects and the best advice is to adhere to both.

Breaches of Health and Safety law usually result in required improvements through to a fine but where breaches lead to the death of a diver, all of those involved may be prosecuted for manslaughter, which may result in a prison sentence.

Every dive school operator should be able to quickly and openly show staff and customers how they comply with the law.

If in any doubt, seek specialist legal advice now and get your paperwork and procedures checked by a lawyer before it’s too late.

QUESTION TIME:

Q - I am a PADI Instructor and intend to work on my own account, rather than with a dive centre. I have been told that I will have to abide by the Diving at Work Regulations. Is this correct?

A - Whether the Diving at Work Regulations 1997 (“DWR”) apply to recreational instruction depends on whether those taking part are seen, in the eyes of the law, as divers at work. If at least one of the divers involved in the provision of training are employed or self-employed, i.e. they receive payment or reward or benefit, then all of the divers taking part, including the instructors and divemasters etc., are divers at work and the DWR apply. An Instructor being paid for the work is a concept that is easy to understand. However, an instructor who, for example, may receive benefit in other ways, such as his/her entrance fees to the dive site being paid, may be seen to have received a benefit and while not being paid, may have to comply with the regulations. If the DWR apply, then the regulations must be adhered to and failure to do so can result in the instructor being required to bring their work up to standard and comply with the regulations through to be stopped from teaching and even prosecuted. In addition, failure to comply with the DWR may amount to a breach of the instructor’s insurance policy and leave the instructor, the students and the public uninsured. If you are at all in doubt as to whether your teaching requires compliance with the DWR or as to your duties under the DWR speak to a lawyer who specialises in this area.

Andrew Tonge is qualified as a Solicitor and a Barrister. He has been practising law for over 15 years. He is also a PADI Instructor, experienced technical diver and a director at Odyssey Dive Centre Limited, based in Stockport and Wigan. Andrew can be contacted at Nexus Solicitors, Manchester, where he is a partner.

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