16.09.11

The Diving Instructor - in the eyes of the law

Every diving instructor must carry out his or her instruction to a specific standard required by the law. Failure to meet that standard can leave an instructor open to law suits from injured divers, their loved ones and dependants.

The law of England and Wales works on a case-by-case basis. In other words, the law develops as society changes, taking into account new activities such as scuba diving. This means that the standards change and that an instructor must keep up to date.

The general principle is that every instructor must act as what the law refers to as the reasonable instructor. To fail to do so amounts to negligence and if someone is injured or has kit damaged (from say regulators to a dive boat) as a result then the instructor in question can be held liable to pay compensation, what the law calls damages.

The reasonable instructor is judged by an objective standard, but what is the standard of the reasonable diving instructor? It is the standard that an instructor, properly trained and qualified and sufficiently experienced would operate at in the circumstances of the instruction or dive in question.

It is no defence to say that you were an inexperienced instructor, for example, or that you had been asked to take on too much by the dive school. Once you undertake what the law sees as instructing those who are being trained as divers, you must meet the standard, no excuses.

This is the case whether you are a trained and qualified instructor or not. It is exactly the same as a learned or unqualified driver in a car. They must still meet the standard required or a skilled and competent driver.

It is no defence to say that you were not trained or not a member of a recognised training organisation such as PADI. If what you are doing is carrying out training of divers, you will be seen by the law as instructing and measured against the standard of the reasonable diving instructor.

However, if you are an experienced instructor with special training, such as being a technical diving instructor, undertaking specialist deep mixed gas training or being say a PADI course director, the law may see that you should be judged by an even higher standard.

In assessing the standard that should have been reached, in other words, in assessing if what you did was negligent or not, the court will look to the current standards in the industry as a guide to what the reasonable instructor should have done.

The court may give consideration the PADI Instructor Manual and the guidance given in the Undersea Journal and other notable publications such as HSE guidance. Whilst these rules and guidance are not the law, they are indicative of the standard that the industry expects and that the court and the law may see as the minimum required standard.

In what circumstances must an instructor act as the reasonable instructor? The instructor must act this way where ever the law recognises or imposes a duty of care. This means that where the law sees that the instructor has a duty to look after the interests of others, the instructor must meet the standard.

Duties of care arise, for example from training people in the classroom (the law requires that the proper level of teaching of theory and safety is met), through to pool work and open water dives. It will include advice given during the purchasing of dive kit and the relevant next course, to suit the diver in question. It could even stretch to giving what may appear to be informal advice in the pub! In short, whenever an instructor is ‘dealing’ with divers or diving, they should assume that a duty of care arises and make sure they are fully up to speed with all of the rules and guidance and practise that will allow them to meet the required standard of the reasonable instructor.
 

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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