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?)
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How are instructors/trainers dealing w/liability?
- Thread starter tylerz
- Start date
Thread Status: Hello
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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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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.
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
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.
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.
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
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
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.
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.
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
"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
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.