DIVING LAWYER: Red tape or Lifeboat, part two

In this, the second in this series of articles, lawyer Andrew Tonge, continues his review of the 2nd Edition of the Approved Code of Practice for Recreational Diving Projects (ACOP) to the Diving at Work Regulations 1997 (DWR).
In my first article, Red Tape or Lifeboat, I looked at the legislative and regulatory framework and the legal status of the ACOP.  I looked at who was subject to the ACOP and when. I considered the central concept of a diver at work and the type of recreational diving which is covered by the ACOP.
This article, as with other articles I have written and will write, is not legal advice, but is simply by way of illustration.  Each case or set of circumstances is wholly different and before any steps are taken, a diver that is unsure of his or her legal position should take specialist legal advice.
In this article I will look at the first parts of the role and duties of the diving contractor. There are numerous duties; I will highlight some of the more salient aspects of those duties and how the ACOP deals with them.
I will assume that the diving to be undertaken falls within the scope of the ACOP.  In other words, I will assume that the diving involves the training or supervising of recreational divers within the 12 miles limit of British territorial waters and that some or all of the divers are divers at work (including volunteers, paid employees and those divers on courses or under supervision and guidance).
The ACOP does not provide an all-encompassing definition of a diving contractor.  Instead, the identity of the diving contractor has to be looked for across the ACOP.
For example, regulation 5(2) of the DWR, states that the diving contractor shall be the employer of the divers in the diving project or shall be a diver who dives in the project as a self-employed diver.
The ACOP appears to be looking for conventional employment or persons paid to carry out work. Of course, in recreational diving, divers are often not in paid employment or self employment.
For example, a situation can arise where a limited company is the legal entity which is paid by the customer and which is contractually responsible for for the delivery of the training. Those owning and controlling the limited company (its shareholders and directors) may not be employees of the company, nor self-employed.  If they are, they may not be divers taking part in the diving project.   Similarly, some of the divers involved in the project may be volunteers.
The ACOP having referred to employed or self-employed divers, that some divers taking part in the project are not employed or self-employed, appears from the remaining wording of the ACOP, not to matter.
What matters is that someone is appointed as diving contractor, as required under regulation 5(1) of DWR.  Indeed, no recreational diving project may go ahead unless a diving contractor has been appointed in writing. This may be done in a number of ways including within the diving project plan.

What is clear from the ACOP is that any type of legal entity may be the diving contractor, such as a company or indeed an individual.

The ACOP does allow for the diving contractor to appoint a competent person to carry out some of the specialist duties of the diving contractor during the diving project.  It is important that the diving contractor and the appointed representative know exactly the parameters of their duties, which should of course be recorded in writing along with the appointment itself.

It is important to note that a diving contractor which appoints another person to carry out some of the duties of the diving contractor (such as may a limited company), does not absolve itself from ultimate responsibility for the performance of all of obligations as diving contractor.
Similarly, there are certain duties that cannot be delegated.  For example, the diving contractor (not its delegated representative) must appoint the diving supervisors – those in charge of each diving operation (each dive).
In the case of a limited company, whether appointing a representative or diving supervisors (or anyone else involved in the diving project), it is likely that the directors of the company would be required to make such appointments in accordance with the constitution and rules of the company, contained usually in its Articles of Association. Some Articles of Association are standard but some are amended and changed to ensure issues such as health and safety are dealt with by competent persons.
It is important that such appointments and indeed other actions of the company are made in accordance with the Articles of Association or other requirements of the company’s constitution.  To fail to do so, may invalidate the appointments or actions.   Assuming that the affairs of the company, including appointments, can be undertaken by the directors, the directors in question must be sufficiently competent and qualified to make any such appointment. If not, they must take appropriate legal advice.
In appointing a person to act as the contractor’s, the diving contractor is under a duty at common law, emphasised by the ACOP, to appoint someone who is competent, having sufficient qualifications and experience of the issues that relate to managing the diving project in place of the diving contractor.  By law it may not be enough to simply satisfy oneself that the appointee has seemingly suitable paper qualifications. The courts require anyone making such appointments which affect health and safety to go much further, to satisfy themselves that the person can actually do the job, safely and within the parameters of the law and suitable risk assessments.
A professional appointor (such as a diving contractor) would most likely be required to make appointments after detailed, diligent, enquiries and testing of the person to be appointed, possibly even by engaging the to-be-appointed representative in a shadowing role before full autonomous appointment.
It is also advisable for the diving contractor to ensure that the appointed representative adheres to the diving project plan and reports to the diving contractor in circumstances required by law, such as under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), so that the diving contractor may in turn report to the appropriate authority. There may also be requirements for reporting matters as required by professional bodies, such as PADI, which the appointed representative will need to be aware of.
There are a number of other issues which the diving contractor will wish to consider in making an appointment of a representative, which will turn on a case by case basis.
Should such competence of a representative ever be tested in a court of law, the ACOP provides that evidence of having organised diving projects in the past, safely and effectively, and with appropriate qualifications, would be ways of demonstrating competence.
Of course, whilst attaining advanced diving qualifications, such as at the level of divemaster or dive leader and instructor, may mean that in general terms, the appointed diver has undergone some training in dive site and diving emergency management, such qualifications alone, without necessary experience of dive site and diving emergency management, along with an understanding of the DWR and ACOP, may be far from sufficient in demonstrating competence.When it comes to analysis in a court room, in circumstances where somebody may have lost their life or suffered serious and life changing injuries, it is unlikely to be a defence to charges which may result in imprisonment, to simply show the appointed representative to be paper-qualified and well meaning.

The law and the courts require that any person acting as a diving contractor (or its representative) carries out the role to full effect, maintaining the safety of everyone concerned, with no exceptions.
Showing that proper steps were taken in making any appointment can be difficult and it is always a good idea to have complete written records including, for example, minuting the reasons for the appointment, due-diligence, pre-appointment testing and assessment.
It is no secret in the legal profession, that the courts are coming down hard on breaches of health and safety law in general.  This is so, even where those charged may not have caused the accident, but may simply have failed to appoint competent people.
Regulation 4 of the DWR creates an overarching duty on anyone involved with the diving project or who’s acts or omissions could affect anybody involved in the diving project, to take such measures (as are reasonable for a person in their position) to ensure compliance with the DWR; in other words to make sure that everyone else carries out their duties in accordance with the DWR.
The ACOP states that this duty definitely applies to diving contractors.
To discharge this duty of ensuring that everyone abides by the DWR, the DWR says a person has to take steps as are reasonable. The ACOP refers to this duty as applying to matters under one’s control.   
Following the ACOP, in relation to the regulation 4 duty, the questions arise, as to what is reasonable and as to what is under one’s control.
Reasonableness has been the subject of legal debate for many years and in the absence of case law to the contrary, lawyers assume that reasonableness is of an objective standard. That is to say, the standard of a reasonable diving contractor; reasonable supervisor, etc.
The comments in the ACOP might suggest that the test of reasonableness is subjective, to some extent, but until a precedent setting court (usually the Court of Appeal of Supreme Court) deals with charges brought under this DWR regulation, the matter remains uncertain.
Safety says, as regards acting reasonably, act always at the highest standard of the reasonable person in question (diving contractor, for example), which is likely to be that of an experienced and qualified person, taking into account specialist knowledge and skill.
An analogy can be drawn in cases like this to that of a learner or new driver on the roads.  The test for civil negligence is failure to act as would the reasonable driver, not the reasonable learner or new driver. That a learner or new driver is not as experienced and qualified as the reasonable driver is not a defence per se.
Secondly, the ACOP seeks to limited the duty of ensuring that others comply with the DWR, to matters under one’s control. That concept does not appear in the DWR. The idea is at odds to some extent with the other parts of the ACOP.  For example, a vessel operator is required to update the dive contractor regarding hazards and weather etc. Such matters may not be in the control of any person (certainly not the weather!) but must be considered by the diving contractor in compiling and monitoring the diving project plan.
The ACOP goes on to say that the duty under regulation 4 – on anyone involved with the diving project or who’s acts or omissions could affect anybody involved in the diving project, to take such measures (as reasonable for a person in his position) to ensure compliance with the DWR – extends to those indirectly involved in the diving project. It gives an example of a dive site operator.
What is unknown from the ACOP is what amounts to ‘indirect involvement’? Must a diving contractor ensure that, say, a dive site operator complies with the DWR including regulation 4? In other words, must everyone police everyone? If not, which things are or are not within each person’s control? Each case will no doubt turn on its own facts.
The ACOP could be said to have created a watered down version of the duty provided by DWR regulation 4; when involved in a diving project, to take such measures as are reasonable in relation to matters under one’s control.
One must always be careful where guidance (such as in the ACOP) appears to water down the regulations (such as the DWR). The regulations are the law. The ACOP is not the law, despite its stating that complying with the ACOP is likely to be compliance with the DWR.  Whilst compliance with the ACOP is advised, it may be open to a court to follow the law (DWR) to the letter.
Paragraph 30 of the ACOP deals with the components of the duty under DWR regulation 6(1), to manage and conduct the diving project.
DWR regulation 6(3) requires that any person taking part in the diving project ensures that all others taking part, comply with the relevant statutory provisions and the diving project plan. That may, to some extent, overlap with duties under regulation 4.
It is noteworthy, however, that ACOP paragraph 30 does not refer to the way in which a diving contractor complies with the regulation 6(3).  It is a very wide ranging duty, in effect meaning that as far as reasonably practicable the diving contractor (and others) has to ensure that everyone taking part in the project complies with all relevant laws including but by no means limited to the DWR and ACOP.
This includes all law relating to the project, such as those relating to manual handling of plant and equipment, noise and protection from other noxious substances and as I mention above, RIDDOR.  It is one thing for the diving contractor to know which laws apply, outside of the DWR and ACOP. It is entirely another thing to make sure that everyone else knows and complies with them!
It is likely also that the diving contractor is duty bound under section 3 of the Health and Safety at Work etc Act 1974, to ensure the safety of everyone, including diving and non-diving staff through to members of the public, that may come into contact with the diving project. This may also include the safety of dive site operators and vessel owners and others.
The cost of ensuring compliance with laws and health and safety regimes, in general and in relation to diving, can be very expensive.  It must be understood that a lot of the laws outside of diving, relating to health and safety, do not require formal employment for the obligations to bite.  Because some divers in the dive team may be volunteers or even be on courses, does not mean that a diving contractor will not be obliged to comply with those additional laws.
What is clear from the ACOP is that the duty to carry out safe diving is very heavy.  Even if no one is injured, it is very easy to fall foul of the various laws and rules.
The ACOP goes on to repeat the requirement (as was in the 1st edition of the ACOP) for the diving contractor to draw up, based on a risk assessment, a diving project plan, to cover all diving operations (in other words all dives).  The task of compiling the project plan can be delegated to an appointed supervisor but it seems safer for the diving contractor to compile it.  The contractor will presumably know about each diving operation in more detail than will the supervisor of only one or some of those operations, along with wider issues such as the provision of emergency safety equipment.
The ACOP, at paragraphs 32 through 41, gives helpful guidance on the project plan and risk assessment. It’s sets out a non-exhaustive list of issues to be taken into account in carrying out the risk assessment.
It states very clearly at paragraph 40 that the supervisor must keep the plan under review. Remember that whilst the supervisor may be seen by the ACOP as having the duty of reviewing the plan, the diving contractor has an overarching duty to look after everyone’s safety and to ensure that everyone complies with the rules.
It is sensible therefore, for the diving contractor (or its representative) to also review the plan and liaise with the supervisors and all other people necessary to ensure that the plan is updated and regularly disseminated, and that all diving is safe, throughout the diving project.
The final point to make in this article about the duties of a diving contractor, is that at paragraph 41, the ACOP states that a risk assessment under the DWR will negate the need for a general risk assessment under the Management of Health and Safety at Work Regulations 1999 (Management Regulations), so long as it covers the points required in a risk assessment under the Management Regulations.  If it doesn’t, then a separate risk assessment will be required to cover those additional points.  It is beyond the scope of this article to cover the requirements of the Management Regulations, but this is another good example of the need for a diving contractor to be aware of the laws outside of the DWR and ACOP.
In the next article I will look at the remaining duties of the diving contractor relating to supervisors, dive teams, first aid, plant and equipment and dealing with emergencies.
Andrew Tonge is a lawyer and director at Nexus Solicitors Limited, Manchester, where he advises a number of businesses in the diving and subsea industry.  He is also a PADI technical diving instructor and experienced diver. All views shared within this article are his own.

Mark Evans

Mark Evans

Scuba Diver's Editor-in-Chief Mark Evans has been in the diving industry for nearly 20 years, and has been diving since he was just 12 years old. 30-odd years later and he is still addicted to the underwater world.

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