How are instructors/trainers dealing w/liability?

[tylerz]

Now, does anybody have the answer to do you have to be a resident of the country of the insurer? Can you be a foreigner and get insurance for activity in the insurer's country?

Nobody has mentioned a solution employed in North America yet, anything?

[Haydn]

It always bothers me when instructors make you sign a waiver before a course. Not just freediving, but virtually any course. I believe you instructors are the experts and if you cause through negligence: ie parachute instructor not clipping in the static line, driving instructor forgetting to remind the student to put on the safety belt, flying instructor not telling you to approach the aeroplane from the rear so you dont walk into a rotating prop, freedive instructor........(you fill in the blanks), and your student hurts themselves because of your lack, then you are liable, even if your student signed a document saying they release you from liability.

Then we have to ask ourselves, is it fair for the student who is now injured, to have to prove you were negligent, before they can be compensated for your mistakes or forgetfulness or down right dangerous methods.

I am not certain that the signed waiver will protect you and that is why you must be insured. Then again, is there anything in your insurance policy that restricts a pay out, particularly if you are shown that the accident was due to your negligence. However, even if the accident was the instructors fault, it is still a question of whether that fault was an accident or a negligent act. Its a real minefield and I have signed so many waivers. The problem is that the waivers are generally handed out during the first morning of a course, its difficult at that point to decide not to sign and fly home instead. And if they did decide not to stay, would you reimburse their course fee?

[naiad]

Originally Posted by Haydn

It always bothers me when instructors make you sign a waiver before a course. Not just freediving, but virtually any course.

Same with me. It just feels like I am signing away all liability for anything which might happen. Of course I accept that I may be taking risks, and that if an accident happens it may not be anyone's fault, but if someone gives me equipment which is known to be faulty, fails to tell me about safety procedures or threatens me with loss of job, waste of money, etc if I refuse to do something dangerous, then I want to know that someone is accountable. I may have chosen to do a sport or job, but I did not choose to put myself in unreasonable or unexpected danger.

I have been in the situation where I am not allowed to do a simple task because it 'may be dangerous', and also where I am asked to do a ridiculous and dangerous task with apparently no regard for my safety.

Originally Posted by Haydn

I am not certain that the signed waiver will out during the first morning of a course, its difficult at that point to decide not to sign and fly home instead. And if they did decide not to stay, would you reimburse their course fee?

That is true. I think it would be fair to reimburse the course fee, but I don't know if this is done.

Lucia

[fcallagy]

I know where you are coming from but this all happened imho due to a lot of spurious claims in any sports/activities and life in general think mcdonalds hot coffee and winnebagos cruise control law suits as an extreme example. I think if we expect to do "dangerous sports" it should be at our own risk if you think someone is doing something dodgy like sending me to 100m on a sled on my first freediving course i think i would say no rather than trust their expertise. I have done 3 courses now and on all of them I was well looked after and never pressureised to do something i felt was beyond me.
As for the course fee you should be made aware of the waiver before you book it but from the instructors point of view they may have incurred costs laying on the course should they just have to suffer those costs ?

[Yidaki]

In Florida, we have liability insurance from Vicencia Buckley (might be other companies but I don't know cos PADI works with this company)and health insurance for ourselves and our students from DAN. So, DAN doesn't cover for liability...

[efattah]

For those of you who don't like to sign liability waivers, keep in mind that without them, there would be no courses at all. There would be no freediving courses, no skydiving or paragliding courses, no surfing or scuba diving courses. There would be no courses in anything which had any risk in it. Why not? Because those few instructors who would risk it, would eventually get sued (even if they did nothing wrong). This would deter other honest instructors, and the end result would be no teachers for anything. People would have to just 'try and die' on their own, without any instructor. So what is better -- 'try and die' on your own, or have some sort of instructor (with a waiver?)

[tylerz]

Yes, waivers are not generally employed to avoid taking responsibility for negligence, but to ensure that differing views can be expressed of what is the instructor's responsibility vs. what is the student's responsibility.

In a world of flippant lawsuits, an instructor would be silly not to employ a waiver. The laws in America and most likely Europe do not allow a waiver to hold up as a complete waiver of responsibility because they recognize that the position of instructor/guide without taking responsibility for students is a contradiction. Therefore why are we talking about waivers for instructors? Because they offer a function in the interaction between instructor and student. They create a relationship where it is understood that the student is undertaking something dangerous and has a degree of responsibility as well. Therefore if it goes to court, instead of a student being able to claim any injury to themselves during the course is the responsibility of the instructor/guide, the court will be able to use the waiver to judge to what degree of negligence occurred on behalf of the instructor, if any. Essentially the waiver shifts the degree of responsibility into a more reasonable frame under the circumstances. It is reasonable to assume (in North America at least) that if you are signing these waivers and the instructor sends you down on an old sled that was not hooked up incorrectly, then the court would side with the student. Likewise, due to the waiver, if it was documented that the equipment was fine and the student was proven to have purposefully undone their safety gear irresponsibly, then the courts would side with the instructor.

Anyhow, that is my understanding. And I agree if there were no waivers there would not be any instructors. Without the waiver the instructor is taking on way too many potential situations that they can not foresee and would not agree to be responsible for.

[Haydn]

I just dont think a waiver has any legal merit. The real issue though, is this: You have been injured, the instructor is insured, but the insurance company will not pay out unless you can prove negligence. You expect to be covered by some insurance, but as a student you are not covered. Its the instructor who is covered. So you go home very injured, your holiday insurance does not pay out because of the activity which caused the injury, and you can only sue the instructor. The summons is passed to the insurance company and you have a big fight on. Of course, if the instructor is not insured, you simply sue him. A much easier fight but if you are seriously hurt, you may not get sufficient settlement, if for instance you are paralised and need constant care for the rest of your life: say £2,000,000.

Instructors: Get insurance that gives you AND your student protection AND advise your students to be personally insured too. Send them specialist policy details which they could buy before the course.

How about this though: What is the position of the student causing an accident to a) the instructor and to b) other course members. eg Instructor doing a deep rescue, the student gets back alive, nobody saves the instructor. He half drowns and spends a few weeks in hospital and a year off work.

[tylerz]

If I am reading what you wrote correctly it implies you think that no matter what a person does they deserve to be covered by insurance? You state "You expect to be covered by some insurance...", but why do you expect to be? Insurance is an optional thing, not our right... at least in our current societal structures.

Your conclusion for instructors is the problem we are trying to resolve. It has traditionally not been available and we are trying to learn where and under what conditions it is. But whether you have insurance or not, the waiver still plays a critical role in identifying the relationship and nature of the activity. It DOES have legal merit because anything that proves reasonable can be considered in a legal case. As much as a student may want protection from any scrape and scratch they incur while doing volatile activities, instructors have their career and reputation to protect. Being insured does not protect it. Losing a court case for something silly can have a lasting impact psychologically and harm your career and reputation. Waivers can assist to protect these while not endangering the rights of the student.

[tylerz]

I just realized that maybe some of the differences of opinion here are due to intermixing ideas of waivers and disclaimers. Technically they are not the same thing and a waiver may be conjuring up the association that you are "waiving your rights", those that are reasonable. My references to waivers and ideas on them is in the context of where they are disclaimers of instructor's responsibilities, which are reciprocally waivers of the rights of the student to hold the instructor responsible. For some activities what the instructor is responsible for is different than other activities, therefore the disclaimers/waivers are used to reflect this awareness in a reasonable fashion. Therefore, the student is not waiving reasonable rights, but instead is intended to be waiving unreasonable rights.

[fcallagy]

Something else to consider as I heard it in relation to a different business, hypothetically I sign a waiver and have an accident and am left in a bad way I don't sue but my spouse does as I can no longer provide she/he has signed no waiver but has been directly affected by the accident. I wonder where the insurance issue would lie there. My Irish life assurance won't cover me when freediving. I had sevral companies reject me outright and others then with a disclaimer if I had said it was just snorkelling they would not pay out due to non disclosure.

[Haydn]

Tyler may be right waiver v disclaimer, but I am absolutely certain, UK law Unfair Terms in Consumer Contracts: that the waiver or disclaimer is not worth the paper it is written on IF the instructor is negligent. You cannot introduce a term in a contract (ie the student agrees not to sue the instructor if the student gets hurt) if that term attempts to limit the instructors liability if the instructor fails to safely instruct and by any NEGLIGENT failure causes harm. You cannot contract your way out of negligence.

The question is whether the instructor A) was negligent and B) more importantly, whether the student can prove it.

This is why the student must be insured by the course organiser. It is not good enough that the instructor insures himself only and then attempts to unlawfully waive the rights of the student by shoving a carefully worded disclaimer under their nose at the commencement of the course.

Effectively, you can see the instructor causing the accident and saying to the student afterwards "tough luck you signed the waiver and cannot sue me for your devasting injuries". The waiver will not stand up in Court because it is an illegal document.

What might constitute negligence in a freediving accident. How about no oxygen on the boat? The question relating to minor accidents is interesting though. When I was in xxxxxxx on a freediving course, the session had just ended and we had motored back to the "marina" wall. The instructor placed the bow of the boat against the wall at a 90 degree angle, so we could all step off the bow onto the wall. I carried a couple handfulls of kit and stepped off the bow. Unfortunately at the same time, the instructor turned of the motor. This caused me to kick the boat backwards with my step and rather than propel me forwards onto the wall, I simply stepped straight into the water. Kit floated away and we all had a great laugh. I didnt notice the blood coming from the tip of my nose immediatly. But a chunk of skin had been grazed down the wall, it was that close. However, if I had managed just 1 inch further, the wall would have smashed the complete underside of my nose and the bones in my nose could have penetrated my brain. If I had managed 4 inches further, my chin would have taken the impact and maybe broken my neck. Of course 6 inches further and my foot may have made first contact and all would have been well.

The issue is, how on earth do you sue your best friends who may already feel stupid for contributory actions causing your accident. Forget the disclaimer for a while. This is why insurance must be watertight. My message is again to instructors to insure themselves and their students. Then in the case of an accident, the instructor can breath a sigh of relief knowing that despite the cause of the accident, despite his or the students stupidity, the student will have some cover, without having to prove who was negligent and who was liable. The insurance simply pays out.

[fcallagy]

I know where you are coming from Haydn and glad you only got a scrape I suppose I have a problem with insurance in general with the scuba dive club we recently were asking questions about what was covered what not etc. Seems we are insured until we make a claim. Insurance companies by their very nature will try to avoid paying out on a claim they have professionals to try to get out of a claim. Our club boat insurance sucks at present seems we are insured when moving the boat when its on the trailer I asked what happens if the boat or trailer becomes detatched and was told it was a grey area so great news there. When is an instructor negligent I would agree about not having O2 kit nearby at least or on the boat but the fact is say the instructor limits the depth to 25m and the student detatches their lanyard and goes a bit deeper and has a problem. The student is at fault but the instructor would still have a duty of care in the eyes of the law and could possibly be held responsible. Imho the law will nearly always side with the student first and get the defendant to prove they were not negligent. There is also a lesser burden of proof in a civil case " the balance of probabilities" versus "beyond a reasonable doubt" in criminal procedings.

[SnuFPunK]

Originally Posted by tylerz

Therefore why are we talking about waivers for instructors? Because they offer a function in the interaction between instructor and student. They create a relationship where it is understood that the student is undertaking something dangerous and has a degree of responsibility as well.

This is absolutly correct.
A Waiver is my way, as an instructor, to make sure that you, as a student, are fully aware of the fact that what we are about to do is dangerous.
And, as mentioned before, waivers are not worth the paper they are written on in court, they are merely a way to protect the instructor from a lawsuit in which the student claims "I was not aware of the dangers and been mislead by the instructor - and that is the cause of my injury".

~ Snuf.

[naiad]

Originally Posted by tylerz

Therefore why are we talking about waivers for instructors? Because they offer a function in the interaction between instructor and student. They create a relationship where it is understood that the student is undertaking something dangerous and has a degree of responsibility as well.

I agree with that. I would not blame anyone for an accident if it was my fault, unexpected circumstances, or their fault but a normal human error - forgetting to do something etc. What I am concerned about is maybe not so relevant to freediving, but more to things that I have experienced at work and in leisure activities like swimming. In more than one pool where I used to go swimming, the chlorine level was unacceptably high, in at least one case well over the legal limit. This caused me long-term health problems. I would not have gone swimming if I had known of this risk. Although I know this is not possible, I feel I deserve compensation for the illness and stress caused. It was caused by long-term negligence, not a one-off accident.

I am very much in favour of personal freedom, and do not think that people should be banned from risky activities. That is why I think instructors should have some kind of disclaimer, so students will not blame them for any accidents that may happen.