The Strength of Indemnities
The High Court in Western Cape ruled, during December 2014, that indemnities used by dive businesses / operators are indeed not beyond reproach.
(https://www.news24.com/SouthAfrica/News/Victory-for-widow-in-shark-cage-dive-case-20141228 ).
In 2008, a vessel, carrying tourists on route from a shark diving trip was hit by a wave. It capsized and 3 people drowned.
The court ruled that a defense based on the fact that a tourist signed an indemnity was not sufficient and held the company and the skipper, liable. The cause of action revolved around the negligence for failing to notice deterioration in sailing conditions.
Although there are early indications of an appeal to the Supreme Court of Appeal, the legal fraternity has (in our view correctly so), already added: “It is forcing businesses to rethink their indemnity methods”. From our earlier discussions (available in the Alert Diver Magazine - http://goo.gl/JAkBQM page 40), the strength of total reliance on an indemnity has already been questioned. This decision lends strength to that thought. In our view, liability for negligence cannot just be indemnified by an agreement.
The business / operator and its staff still need to take due care, more so given the fact that we are in the high risk business of diving. At this stage the actual law report is not yet available. It will be fully discussed and commented on in our next edition. However, if you have any enquiries or questions, you are most welcome to address them to DANSA, who shall respond to them as comprehensively as possible.
From a practical standpoint, we would like to encourage Dive Operators, Resorts and Businesses to participate in the DAN Dive Safety Partners (http://www.dansa.org/industry-partners.htm ) and DAN Hazard Identification & Risk Assessment programmes (http://goo.gl/nOQZcC ). This will allow them to address potential safety issues pro-actively and objectively – not only to reduce their potential liability, but also towards achieving the greater objective of making diving safer and incident-free.
(https://www.news24.com/SouthAfrica/News/Victory-for-widow-in-shark-cage-dive-case-20141228 ).
In 2008, a vessel, carrying tourists on route from a shark diving trip was hit by a wave. It capsized and 3 people drowned.
The court ruled that a defense based on the fact that a tourist signed an indemnity was not sufficient and held the company and the skipper, liable. The cause of action revolved around the negligence for failing to notice deterioration in sailing conditions.
Although there are early indications of an appeal to the Supreme Court of Appeal, the legal fraternity has (in our view correctly so), already added: “It is forcing businesses to rethink their indemnity methods”. From our earlier discussions (available in the Alert Diver Magazine - http://goo.gl/JAkBQM page 40), the strength of total reliance on an indemnity has already been questioned. This decision lends strength to that thought. In our view, liability for negligence cannot just be indemnified by an agreement.
The business / operator and its staff still need to take due care, more so given the fact that we are in the high risk business of diving. At this stage the actual law report is not yet available. It will be fully discussed and commented on in our next edition. However, if you have any enquiries or questions, you are most welcome to address them to DANSA, who shall respond to them as comprehensively as possible.
From a practical standpoint, we would like to encourage Dive Operators, Resorts and Businesses to participate in the DAN Dive Safety Partners (http://www.dansa.org/industry-partners.htm ) and DAN Hazard Identification & Risk Assessment programmes (http://goo.gl/nOQZcC ). This will allow them to address potential safety issues pro-actively and objectively – not only to reduce their potential liability, but also towards achieving the greater objective of making diving safer and incident-free.
Posted in Alert Diver Summer Editions, Dive Safety FAQ
Tagged with Liability releases, Indemnity form, Courtactions, Legal advice
Tagged with Liability releases, Indemnity form, Courtactions, Legal advice
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2021
March
Old Habits Die HardSave a Diver, Save YourselfCylinder SafetyUndercover CrabsReef safe sunscreenPhysics, Biophysics and Decompression SicknessModels and Marine LifeSunscreen and CoralCristina Mittermeier: Commitment to ConservationDiving After a StrokeCurrent DivesThis Bites: Prevention TreatmentEnvironmental Considerations for Disinfection
April
Aqua Pool Noodle ExercisesUnderwater Photographer and DAN Member Madelein Wolfaardt10 Simple Things You Can Do to Improve Your Underwater PhotographyCOVID-19 and Diving: March 2021 UpdateDiver Return After COVID-19 Infection (DRACO): A Longitudinal AssessmentGuidelines for Lifelong Medical Fitness to DiveExperienceFitness Myth or Fitness Fact?The Safety of Sports for Athletes With Implantable Cardioverter-DefibrillatorsCardiovascular Fitness and DivingHypertensionPatent Foramen Ovale (PFO)Headaches and DivingMiddle-Ear Barotrauma (MEBT)O’Neill Grading SystemMask Squeeze (Facial Barotrauma)Sinus BarotraumaInner-Ear Barotrauma (IEBT)Middle-Ear EqualisationAlternobaric VertigoDecompression IllnessOn-Site Neurological ExaminationTreating Decompression Sickness (The Bends)Top 5 Factors That Increase Your Risk of the BendsHow to Avoid Rapid Ascents and Arterial Gas EmbolismUnintended Rapid Ascent Due to Uncontrolled InflationUnexpected Weight LossFlying After DivingWisdom Tooth Extraction and DivingYour Lungs and DivingScuba Diving and DiabetesDiving after COVID-19: What We Know TodaySwimmer’s Ear (Otitis Externa)Motion SicknessFitness for DivingDiving After Bariatric SurgeryWhen to Consult a Health-Care Provider Before Engaging in Physical ActivitiesFinding Your FitnessHealth Concerns for Divers Over 50Risk Factors For Heart DiseaseJuggling Physical Exercise and DivingSeasickness Prevention and TreatmentMember to Member: Guidelines for SeniorsHigh-Pressure OphthalmologyOver-the-Counter Medications
May
Due Diligence for Parents and Young DiversThe Deepest Scuba Dive - Part 1Macro Photography 101 with Kate Jonker - Part 1Pregnancy and DivingPregnant and Still Freediving Macro Photography 101 with Kate Jonker - Part 2How Old Is Too OldHow To Clean Your Scuba EquipmentNew Gear OrientationAre 6351-T6 Alloy Scuba Cylinders Safe to Use?Invisible CrystalsHose FailureGear Maintenance: Protect Your Investment and Prevent Dive AccidentsAvoiding Panic After Regulator FailureExperience MattersDive Accident Coverage Vs. Medical & Travel Insurance: Do You Need Both?Medical Emergencies AbroadDive Operations and COVID-19: Prepping for Return FAQsWhen Should I Call My Doctor?
July
Pack Your Camera Equipment for a Dive TripMagic in the GulfAn Insider’s Guide to RoatánShooting in a Turbid EnvironmentSurviving Triple Dangers in the MaldivesShallow-Water Arterial Gas EmbolismsKnow the RisksThe Case of Catastrophic Kelp LossCOPD: Incompatible With DivingHiatal HerniaReturn to Freeding after Cancer TreatmentOuter- and Inner Ear InfectionsExercising After a BreakHazards in Wreck DivingAw InspiredOperation Rising SunDCS in Cozumel
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