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February 2011    Download the Entire Issue (PDF) Available to the Public Vol. 37, No. 2   RSS Feed for Undercurrent Issues
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Who’s Responsible for a Diver’s Death?

In the U.S., there’s no clear-cut way to assign proper blame to guilty parties

from the February, 2011 issue of Undercurrent   Subscribe Now

As many as 100 American divers die annually. That means the U.S has many more dive-related deaths than, say, the United Kingdom or Australia. We do a better job - at least an equal job - of investigating and explaining dive-related deaths compared with those countries? And are we better at assigning blame to the parties that deserve it?

A recent case involving the death of a British diver brought those questions to mind about whether methods used overseas should be adopted here. Back in April 2005, Thomas Young, a 24-year-old British diver died during an open water certification dive with Jurassic Coast Diving. While diving at 95 feet on the WWI wreck Bretagnem, Young signaled to his instructor and another diver that he had a regulator problem. After grabbing one of the diver's octopus regulators, Young still had problems breathing, panicked and pulled off his instructor's mask. After she pushed him away, Young sank to the bottom, and his body was never recovered.

An inquest with a jury was held to investigate Young's death. The Health and Safety Executive found that Jurassic Coast Diving failed to properly assemble and maintain its dive equipment. After pleading guilty, the dive operator was fined US$9,400, and ordered by the court to pay additional costs of US$9,700. It was all public information, and written about in local newspapers.

Australians are investigating the drowning of a novice Chinese diver and the dive instructor held responsible for her death. Xia Dai, 20, drowned in April 2009 while taking a dive course off Queensland's Wave Break Island with instructor Yuri Bonning. While PADI investigated the death and failed to take any disciplinary action, police detectives charged Bonning with manslaughter. At the hearing in October 2010, police prosecutor Reece Foort told the court that Bonning failed in her duty as a dive instructor by not adequately briefing or instructing Dai, especially because weather conditions were poor, and letting Dai dive overweighted and with a faulty regulator. The next hearing will be in May.

Why does a British- or Australian-style inquest not happen here? And why aren't penalty fees assigned to the dive operator if it is at fault instead of entangling multiple parties in a costly lawsuit, or more often, the death is swept under the rug?

Industry expert Bret Gilliam says there are many differences between the UK and our legal systems. "The U.K. has an oversight agency called the Health & Safety Executive (HSE) that aggressively reviews diving training standards, equipment manufacturing, dive operators, etc. They are empowered to intervene and mandate necessary changes as they see fit. They also initiate most investigations using professional diving experts for accident review, and their recommendations can lead directly to criminal charges or lesser fines and punishments. The U.K. discourages the filing of dubious legal claims because the losing party has to pay the other side's costs. This goes a long way to stopping frivolous litigation."

Longtime Undercurrent contributor and U.K. resident John Bantin adds, "U.S. litigation can drain funds disastrously from a winning defendant. I know of a British company that has made no profit for two years while successfully defending frivolous cases in the U.S. That cannot happen under English law. The court awards costs to the winner. You have to be sure you have a good case before taking it to court."

Meanwhile, in the U.S., "diving is a self-regulated industry with only rare oversight from OSHA in matters of employee safety," says Gilliam. "If a fatality or injury occurs., heirs are provided remedy through civil litigation, wherein the defendants are named in a personal injury or wrongful death lawsuit. Acts of deliberate malice such as murder and sometimes acts of egregious negligence are pursued by criminal charges and prosecuted by state or federal authorities. This still allows recovery from the guilty parties in a civil action that would be filed and proceed separately. Also, the U.S. Coast Guard can exercise their authority over U.S. flagged vessels and those with specific Certificates of Inspection allowing them to carry passengers for hire. They can investigate, fine, suspend or revoke licenses, and assist in bringing criminal charges against individuals or companies if events justify such actions."

The majority of dive-related litigation gets settled before trial, and the details are kept secret. While PADI may investigate all cases that arise, it frequently settles quietly and immediately, with sealed confidentiality agreements so no one knows the outcome. Gilliam, an expert witness who works for both plaintiffs and defendants, says transparency is lacking. "When a case settles, it is usually closeted in confidentiality agreements and non-disclosure mandates that make it impossible to know the facts unless you are privy to the evidence. A lot of facts that might help in overall diving safety and forensic evaluation are not available to the industry or to the public. That's sad. But whether we need yet another layer of government bureaucrats to oversee this process is doubtful."

Still, as Undercurrent subscriber Dan Clements (Everett, WA) points out, the far-from-transparent outlook the dive industry has accidents does a disservice to divers, as compared to the view taken by other risky sports. "I have climbed major peaks around the globe. Every year, the American Alpine Club and Alpine Club of Canada prepare 'Accidents in North American Mountaineering,' a detailed analysis of climbing accidents and fatalities in the U.S. and Canada. It is a useful tool in reconstructing what happened and went wrong. I contrast the climbing analysis with the information contained in DAN's Annual Diving Report, and find it nowhere near as helpful. My guess is that this is not due to any issues relating to DAN, but rather liability concerns from dive operators, customers, certifying agencies, and insurance companies. Having been on a boat in the Bahamas last year when a female diver died, it would have been extremely useful to know: 1) did the victim disclose any medical conditions; 2) what specific actions did the accompanying divemaster take; and 3) should protocols for surfacing a distressed diver be modified?

"As soon as accident investigators, representing either the operator or injured diver, arrive, information about what happened becomes closely held as both sides jockey for the best legal position. Clever investigators may attempt to influence what individuals may have seen or heard with leading questions, especially when law enforcement is not involved. The diving community would be much better served by an open and full analysis of what happened, and what can be done to avoid similar instances in the future."

We agree because, as it stands now, dive training agencies do their best to keep all their data to themselves. Everyone is afraid to distribute information for fear it will be used against them. But we gave it a shot, contacting dive agencies to find out how they investigate divers' deaths, how they find who's at fault, and how they discipline the guilty parties if their dive operators are at fault. PADI, NAUI and SSI did not reply. Only TDI/SDI was willing to discuss the issue openly.

Its marketing director, Steve Lewis, says the agency spends a lot of time upfront on risk management, educating its members on how to conduct dives and their business practices so as to avoid deaths and injuries. "We require our facilities and instructors to have professional insurance." If a bad event happens, "the first line of contact is the instructor, who goes through a set procedure, including notifying the agency and the insurance firm about the incident." Should there be a lawsuit, Lewis says, "our insurance company will appoint counsel. Provided the instructor followed our standards, he or she has our support. Then we have a very good track record of helping them out."

TDI/SDI is considered the most transparent agency in investigations. Attorney Rick Lesser says SDI has fewer claims than other dive agencies because of its more thorough training and front-end risk management. "Regarding the larger dive agencies, basically their role is to cover up stuff, do damage control, sweep issues under the rug and convince the other people that it's their own fault."

Would dive death investigations improve with government oversight? Gilliam thinks the U.S. system works pretty well, although it is far from perfect. "The diving industry is charged with policing itself and when accidents occur, the civil court system allows complaints to be brought and litigation to go forward. Nearly 90 percent of civil litigation settles out of court. I've worked over 235 cases since 1973 as an expert witness and trial consultant, and conclude that the system is better than any alternative. Most of the costs are burdened on the plaintiffs and defendants, not the government, and recoveries are generally covered by insurance policies or the personal assets of the defendants. Of course, the insurance companies aren't happy about frivolous claims, and some defendants that act appropriately get dragged into extended lawsuits simply because they have insurance or "deep pockets" to chase for a monetary payout."

There is no formal inquest system in the U.S. to gather information just to investigate the causes of a death to improve diver safety. Rarely do police investigate and indict, and whether they do varies by jurisdiction. Not every coroner is a medical examiner -- some are funeral home directors, local sheriffs, even justices of the peace. So when someone dies, it's up to whoever's in charge. In popular dive areas, the medical examiner evaluates all cases in the same fashion. But in places where there's not a lot of diving done, with maybe one dive-related death every five years, medical examiners often don't know what to do with it. And combined with tight government budgets, exams often lead to a quick ruling of death by drowning -- up to 90 percent of cases-- and no autopsy.

A more formal investigative process may not happen because of the U.S.'s dislike of government oversight, says SDI/TDI's Lewis. "In the dive industry, there is a preference not to have restrictions and regulations imposed by local governments. Look at Quebec, which mandates that if you want to dive in the province you must have a special license and be checked out by a dive instructor, meaning the government takes responsibility for the regulation of diving. That would not be a popular here."

Perhaps not, but if dive training agencies won't open up about their investigation processes and share them with government officials, then who is supposed to look out for divers?

Peter Meyer, senior vice president of Willis Insurance, which provides coverage for divers worldwide, says "A proper investigative process would help the dive industry by eliminating the regular sequence of rumor, conjecture and innuendo following a dive accident. Lawsuits, to a great degree, are pursued because the families of the deceased get no answers from the industry, and they have to take legal action to get those answers. That's a sad state of affairs."

P.S.: Once upon a time, the University of Rhode Island issued annual reports of dive death investigations. It was all done by one man, John McAniff, and though he relied on newspaper clippings, coroner reports and reports filed by witnesses, his annual report revealed significant causes of death. In the 1980s, DAN took over that function and their reports began to focus more on medical causes and less on equipment, training, and the roles of the dive buddy and the instructor. Eventually, most of the ancillary information disappeared from the DAN reports, and while today they may report that a diver died of an embolism, the significant events leading to that embolism go unmentioned. It would be a great step forward if DAN could return to the reporting done 30 years ago by John McAniff.

- Vanessa Richardson and Ben Davison

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