Why Documented Training Standards Matter in Dive Litigation by Al Hornsby

Four Ways to Avoid Litigation in Dive Training

by Al Hornsby, owner, Al Hornsby Productions, Singapore

Al is regarded as one of the industry’s most experienced risk management litigation executives.

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In the majority of dive risk management articles, discussions are about direct supervision and/or a dive operation’s or instructor’s related training activities. And, this makes sense, because those situations typically involve supervised, in-water incidents, where the instructor’s or dive guide’s immediate actions or prior training activities likely will be claimed to have played a role in the accident occurring. And, if litigation results, the overall fact trail may become the principal target of the case.

However, it should also not be forgotten that a significant number of dive litigation cases do not involve a dive leader’s related, immediate, in-water actions and obligations. As well, a non-supervised accident may be blamed on the content of a victim’s prior dive training, or the perceived quality of advice previously received from a dive center or dive professional. Such cases are not rare, and they may create a very different set of needs when it comes to defending litigation.

In such cases, the instructor’s or store’s historically established procedures likely may come under criticism, especially if they are inconsistent or vulnerable to challenge because of long-term inconsistency or poor quality. Because of this, the operation’s record keeping and documented practices also can play a significant role in the defense of such litigation. And, it goes without saying that a documented history of excellent standards and procedures adherence will hold up under legal scrutiny far more effectively than anything that can appear, even incorrectly, to have involved habitually inconsistent or shoddy practices.

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In this, the industry’s legal case history shows clearly that:

1) The consistent use of historically validated and documented dive training programs generally fared far better under legal scrutiny than do inconsistently provided courses or those not backed by well-established, third-party standards and training materials, such as programs that specifically meet industry and training organizations’ published standards.

2) Conversely, home-designed or frequently changeable dive course content and dive procedures simply may not have the documented validity and defensibility necessary to provide an adequate response when poor course content or practices are alleged and blamed for an accident having occurred.

3) Similarly, inconsistent adherence to industry standards, whether involving dive training, gear maintenance and repair, or supervisory practices, can create questions and difficulties in establishing a clear, defendable history of excellence and good practice.

4) Conversely, when a store and its instructional staff clearly adhere to a training organization’s and/or equipment manufacturer’s guidelines and practices, they are not standing alone if an unfortunate accident does occur. This typically also means that whatever industry standards might be in play have been met by the store’s staff as well.

When a dive accident and related litigation occur, the suing party will need to establish that the accident was caused or worsened by improprieties in how the dive and/or training was conducted, and/or that the content of such training provided to the victim had been lacking or otherwise faulty. Home-designed programs, or other programs that do not specifically meet established industry standards and guidelines or have a well-proven track record of effectiveness, are subject to criticism and can be directly taken advantage of by plaintiffs in a dive fatality or injury.

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