DIVE LAWYER: Dive trips - where do you stand if something goes wrong?
Dive trips, holidays, excursions, expeditions - call them what you will - are the way in which most divers see the world. The trip may be local, to the coast for example, or to an organised event, or may be abroad, to the furthest reaches.
Hopefully, the divers on the trip have the time of their lives. Great dives, great photos, maybe some more qualifications. But sometimes not everything goes to plan.
Dive gear gets damaged or is lost; expected dives never materialise; places are cancelled; or, of course, for some, the unthinkable happens.
Every year divers are injured or killed on dive trips. The reasons vary and we all know that accidents do happen, but that doesn’t mean that the law won’t hold someone responsible.
Most divers go on trips organised by their local dive shop or club and some just discuss it in the pub, make the arrangements and go.
Whilst the informal arrangements between buddies in the pub may mean that everyone travels and dives at their own risk (sometimes), this is less likely where there the trip has been arranged more formally. There is no definite line in the sand after which the organisers are liable for what goes on. It is more a question of fact and degree.
But, English law is clear on one thing: if someone (be that a dive shop, club, individual etc) organises a trip or an event for others, they may have assumed a legal duty of care, which means that they are responsible for the safety of those on the trip.
They may also have become contractually responsible for safety and even for other things, right down to the trip going ahead and the disappointment that may come from that (although that is beyond the scope of this article and I will just concentrate on the safety issues here).
So when does an organiser become liable for what happens to people on the trip?
If the organiser is getting paid, then the law will imply a contract between the organiser and the divers on the trip. There is no defence in saying that there was no written contract. Where there is nothing in writing, the law puts in place, contractual terms to cover the situation.
The terms will usually include a requirement to organise the trip to the standard of the reasonable organiser of a trip such as this. In other words, to organise the trip with reasonable skill and care.
Remember, divers (especially new divers) are different to ordinary holidaymakers; they rely heavily on the organisers’ say-so. They will put themselves into the hands of the organisers or their recommended agents such as dive schools abroad or dive boat operators.
If there is no contract, then simply taking on the organisation or holding yourself out as responsible for it, can mean that you have assumed legal duty of care.
The contract or the duty may include a requirement to give proper advice concerning the trip, for example, as to the level of qualification required, the kit that should be used, the preparation and practice required (especially where the trip takes divers to a new environment such as drift dive or low visibility or the expanses of the sea or a boat).
It may mean that the organiser ought or ought not to recommend a particular trip or operator. It may mean stepping in, to ensure that a particular diver that you know is not up to the trip just does not go. This may mean offending him or her by refusing to let them book through you.
Equally, the organiser must also consider the safety of other divers on the trip, especially where a particular diver may cause others to suffer, through inexperience etc.
If the advice or actions (or lack of them) of the organiser are wrong, or found wanting and lead to injury or death, then civil liability can easily follow. If the acts of the organiser are grossly negligent then criminal prosecution of the organisers could also follow.
For injured divers (or their grieving relatives) facing the possibility of suing dive schools on the other side of the world, they may be persuaded to have a go at the people here, in the UK. As a legal system, English law does not limit itself to where the accident happened, but rather, it looks to where the contract of the legal duty of care arose. If the organiser did the organising in the UK then they could be sued in the UK. If the organiser wishes to say that the accident was the fault of someone else on the other side of the world, and wishes to join them into the law suit, that is up to them.
Remember, whether you are diver or organiser, to check your insurance to see if you are covered to do what the trip provides. Organisers should also check the insurance of the divers on the trip and if you are a diver, check the insurance of the organiser. If they do not want to show you their insurance, that speaks volumes.
Organisers should have effective, written terms and conditions in the contract, to protect themselves and their insurers’ position. Those terms and conditions should be available for everyone to see. But beware that not all terms and conditions are what they seem. It is not allowed in English law for an organiser to seek to exclude or limit their liability for personal injury of death from their negligence. But in certain circumstances, they can exclude or limit their liability when it comes to dive kit, even expensive stuff like cameras and drysuits.
Dive trips are a great way to enjoy and develop your diving, but not every trip is the same. Not every trip is right for you. Read the small print. Do your homework. Travel and dive with a reputable organiser and enjoy the underwater world.
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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