How are instructors/trainers dealing w/liability?

[trux]

Originally Posted by Haydn

... 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. ...

I understand your arguments, Haydn, but the case you describe is the exact thing why disclaimers and waivers are needed. Blaming the instructor for falling from the boat at landing, is as lame as as suing a restaurant for not warning you that coffee is a hot drink. You are adult (I assume), and you do not need an instructor to estimate whether it is safe enough to jump from the boat (regardless if the motor just stopped or not). It would be different, if you were a kid and the instructor let you get out of the board when it was not perfectly safe, but every adult must be sufficiently able to act for himself in such case, and does not need any special training or instructions for it. If you fell, the only person you can blame is yourself and nobody else. Of course such stupid accidents can happen to everyone, but trying to shift the guilt on the instructor for your own stupidity is exactly why they need the waivers.

[tylerz]

Originally Posted by Haydn

that the waiver or disclaimer is not worth the paper it is written on IF the instructor is negligent. ... 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...

In my previous responses I attempt to emphasize agreement to these statements. I have been talking about when the instructor does not believe they are negligent and would not have taken responsibility beforehand for the incident if they were aware of its inevitable outcome and details.

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.

If the instructor believe they could do this, then I am in total agreement with you. But what I have been pointing out is based on the idea that they do NOT believe this or utilize the waiver for these intents.

So, I think we are talking about the same thing in most ways, the difference just lies in I am trying to emphasize, "The intentions behind why instructors use them and the limits of use", and you are trying to protect from, "How instructors MAY unfairly use them and what are the limits of use".

Cheers,

Tyler

[tylerz]

Originally Posted by naiad

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.

In this case a waiver would not have been able to stop the pool from being responsible for such negligence if the information was available and accessible that such levels were significantly dangerous to human health. So, once again the waiver is fine in that it does not take away this right of yours.

[naiad]

Tyler, thanks for explaining - it is good to know that a waiver does not cover things like that.

[GreekDiver]

People sue for anything. If they know they can get money for it, they will sue reguardless of whos fault it was. Thats a fact.

[Sergiu]

great debate! I intend to give freediving courses in a distant future as there is a tiny yet growing market in my own country and no instructors yet.

From what i see, the best combination of documents to secure a good coverage for trainer would be:
- Trainee medical certificate - basically to be covered in case of existing medical conditions which were not declared or detected at the time of evaluation.
- Waiver - a statement in which the trainee acknowledges the risks of undertaking the course, however it would not prevent a possible lawsuit in case of gross negligence of either of parties (a way both parties as i am thinking of a possible situation in which the trainer may get injured by negligence of a trainee!)
- Accident and liability insurance - which can be both in one (e.g DAN Europe) or separate from two providers to cover the the trainer in case of accident for himself and/or liabilities resulted from an accident to the trainee.

Would these set up suffice? And another question as i havent seen it yet written down - how much would be such an annual accident/liability insurance for an instructor?

thanks,
serge

[Nikkey]

I think insurance is necessary for the best protection of all parties. I have been in courses where "incidents" have happened that might have been preventable but I have never seen a student act against the instructor(s). Maybe they felt it was their fault or it was just the risk of the sport, or they simply did not want to cause controversy. I just hope it wasn't that they thought they couldn't do anything about it. I think waivers are a positive thing because they do inform people of the total risk they are taking but I wish more people did understand that it does not mean they have no rights. Either way I think having personal insurance is always a great idea when your involved in sports with some risk although it can be challenging to find and it isn't free.

[Haydn]

My experience of stepping off the boat, was as near as I could get to using a very marginal argument. A simple accident caused by the instructor who is responsible for the safe disembarking of his students. Almost the same as if I (in my shop) left a corner of the carpet upturned and a responsible adult fell over it. But there are other examples which would be far more weighted to blame, but which a waiver could be used by the insurance company to limit the liability. Remember, it is the insurers you would be fighting. Quality insurance is the answer, not waivers and disclaimers.

[samdive]

technically the paperwork we use is not a waiver, it is called an "Assumption of Risk" and indicates that the student understands the risks involved and accepts them. The instructor is of course duty bound to do everything they can reasonably do to mitigate those risks.

"waivers" as such are illegal in most countries and even the "assumption of risk" would not necessarily get the instructor off scotfree in the event of an incident - but it does show that the student was aware of the risks and took them on.

S

[Haydn]

Sam is exactly right. As students, we do assume an element of responsibility towards the risks. But if, despite being aware of the risks, an accident happens to the student, the student is not covered by insurance. The student can only claim against the insurance company and hope to negotiate a settlement. NO SETTLEMENT will be offered unless the student PROVES negligence (fault, blame etc). The waiver will be used by the insurers to reduce their liability to settlement. Of course the instructor is insured against their negligence, but that doesnt help the student who remains uninsured and injured.....regardless of blame. My message remains the same: If you take money from students, the least you can do is ensure they are covered as well as you.

[fcallagy]

Bumping this thread a bit.
Is the simplest way to get all your students to get Dan indidual insurance at E68 each. They are then covered for all eventualities and are claiming on their own insurance. I realise its another unwelcome cost but would it solve these matters once and for all ?

[kelp princess]

Originally Posted by tylerz

In this case a waiver would not have been able to stop the pool from being responsible for such negligence if the information was available and accessible that such levels were significantly dangerous to human health. So, once again the waiver is fine in that it does not take away this right of yours.

as an instructor i have several levels of insurance, i have my own basic DAN membership insurance as a diver ( and it covers my family because i chose that option), i have another level of "preferred" DAN insurance because it covers me at ANY depth - please be advised that the basic DAN insurance does not cover all diving at all depths! go for the preferred it will probably be worth the extra premium some day. i also have liability coverage as a dive instructor that is the most expensive for me every year - $600 US.

when i teach at a pool, usually the shop i am working through or the pool facility i use carries their own insurance. since we act as contractors I believe the liability insurance we carry covers us but in the case of a student getting sick from too high chlorine leves i would have taken that up with the pool manager directly to recompensate the student. any good pool will carry insurance for these types of events and i don't think a students should have to forfeit his or her health because they sign a waiver.

that's what insurance is for...in CASE of an emergency

kp

[tylerz]

Originally Posted by fcallagy

Bumping this thread a bit.
Is the simplest way to get all your students to get Dan indidual insurance at E68 each. They are then covered for all eventualities and are claiming on their own insurance. I realise its another unwelcome cost but would it solve these matters once and for all ?

I don't believe this would work, because it covers the interests of the students certainly, but does nothing for the instructor. When a claim is made the insurance company basically takes on the role of the claimant as a victim and attempts to sue whoever they can to recover costs. Insurance does not work with the idea that simply because the student paid the insurance fees and if a valid claim is made, the insurance companies pays up and moves on. The underwriters always look for a guilty party and takes action on that.

[samdive]

Tyler's right. Even if the students are insured for their own personal accident/diving accident, the instructor still needs liability insurance.