Diving Risk Managment: Tempting Probability – by Al Hornsby, owner, Al Hornsby Productions, Singapore Recently retired after more than 42 years as a senior executive with PADI and is regarded as one of the industry’s most experienced risk management litigation executives. BUSINESS EDU
In last month’s column, we began ex- ploring dive accidents and the difficulty of defending them when litigation arises. This time, we’ll look more closely at the root causes of why many such accidents actually occurred. First, let’s again remind ourselves that diving
1. Not getting a diver medical form when required or allowing a negative answer to be changed (“Well, he told me he was healthy and that he often participated in sports…”). 2. Leaving inexperienced and/or uncertified dive participants alone (“I only looked away for a moment…”) or deliberate choices to do so. 3. Deliberate over-weighting (“It made it easier to supervise because they were less likely to quickly swim off…”). (And yes, these have all been heard in dive cases.) Also, as to the likelihood of litigation, plaintiffs’ attorneys, like most people, tend to pursue the easiest and most winnable cases rather than the more difficult ones. In dive litigation, evidence of any sort
is an activity that has inherent risks, which means that no matter how careful we are, and no matter how closely we follow stan- dards, educational protocols, and supervisory protocols, the risk of something happening can never be brought to zero. The fact is that inherent risks exist in adventure sports, and
our behaviors and choices can help control and minimize those risks or, conversely, expand them to the point that an accident becomes a likely, even- tual outcome. And let’s also keep in mind that the likelihood of a lawsuit being filed as the result of an accident increases exponentially when obvious violations of standards and/or community prac- tices are found to be directly involved. So, the over- all risks—both of an accident in the first place and the probability of a lawsuit being filed—are both
of training or supervisory standards violations significantly encourages a lawsuit being filed— as well as the likelihood of it being successful— even if the standards violation had nothing to do with the accident. In diving’s “real world,” as common sense would suggest, most of the worst accidents and lawsuits over our history have all involved sig- nificant, obvious violations of standards and/or
good community practice. And all too often, such violations were not one-offs but were shown by plaintiffs’ counsel to have been common practice by the stores and/or dive pros involved,
significantly increased when stores, dive educators, and super- visors slip into the habit of ignoring established standards and protocols. And it’s sad to note that some of the most common causes of accident litigation not only involve standards violations but simple common-sense issues as well. Some of the seemingly most common:
participating in “a culture of neglect and cutting corners.” As such, the defense of such cases be- comes extremely difficult, also inviting a plaintiff’s demand for punitive damages, which are often not covered by insurance.
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