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September 2016    Download the Entire Issue (PDF) Available to the Public Vol. 42, No. 9   RSS Feed for Undercurrent Issues
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Diving Death Compounded by Poor Payout

from the September, 2016 issue of Undercurrent   Subscribe Now

After ruling on the case brought by the family of a Taiwanese tourist who lost her life while scuba diving off New Zealand's Coromandel Peninsula two years ago, a judge in Hamilton set a penalty fine and reparations at $191,000, but took into account the defendant's financial capacity, reducing the fine to zero and the damages to only $70,000.

Aside from inadequate supervision, the woman was fitted with a BCD that was too large and made it difficult for her to lift her head out of the water to breathe. She swam out of the enclosed bay where the dive was taking place, exhausted her air supply and was found hours later floating face down in the water.

WorkSafe chief inspector Keith Stewart says the death was entirely preventable if the dive operator, Cathedral Cove Dive Ltd., had given her appropriately sized gear and supervised her in the manner required. He says water-related activities always come with the risk of drowning, and CCDL should have managed this risk and been vigilant with their clients, especially groups where the participants have no experience. "Sadly, a woman has lost her life and a family have lost a mother because of failures by the company and its director to meet their legal obligations."

CCD Ltd. and director Russell Cochrane had earlier pleaded guilty to three charges under the Health and Safety in Employment Act for failing to keep the woman safe.

To us, that seemed like a paltry sum in American terms, so we asked David G. Concannon, a highly regarded Pennsylvania lawyer who specializes in scuba litigation, for his opinion. He told us, "If this case had been heard in the U.S., the damages awarded would be based on the victim's age and earning capacity until she reached the age of 65 (reduced to present value). So, if she were a 35-year-old engineer earning $100,000 per year, the economic damages would be $3 million reduced to present value, or roughy $2 million. Pain and suffering would be added to the economic damages, usually in an equal amount, so that's another $2 million. In rare instances, punitive damages could be added, too, perhaps an additional $1 million to $3 million. There would be no reduction for the defendant's inability to pay."

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