ECHR Article 8
Positive obligations
Article 8-1
Respect for private life
State’s failure to ensure that essential information regarding risks associated with use of decompression tables were available to divers: violation
Facts – The applicants were former divers engaged in diving operations, including test dives, in the North Sea. They were recruited by diving companies used by oil companies drilling in the Norwegian Continental Shelf during the so-called ‘pioneer period’ from 1965 to 1990. As a result of their professional activities they suffered damage to their health resulting in disabilities. They received a disability pension and ex gratia compensation from the State; some applicants received compensation from other sources, such as the oil company Statoil, which awarded compensation regardless of whether the divers had been employed by it. The applicants brought proceedings against the State for compensation on grounds of negligence, violations of Norway’s obligations under international human rights instruments and strict liability. The Supreme Court found that the State could not be held strictly liable in the absence of a sufficiently close connection between the State and the alleged harmful activity. Nor was it liable under the law on employer’s liability having regard to the measures taken by the authorities to ensure the adoption of relevant safety regulations backed up by effective implementation, inspection and supervisory mechanisms. The Supreme Court also found that the circumstances of the case did not amount, inter alia, to a breach of Articles 2, 3, 8 or 14 of the Convention.
Law – Article 8 (obligation to ensure that the applicants received essential information enabling them to assess the risks to their health and lives): There was a strong likelihood that the applicants’ health had significantly deteriorated as a result of decompression sickness, amongst other factors. That state of affairs had presumably been caused by the use of too-rapid decompression tables. Standardised tables had not been achieved until 1990. Decompression sickness had since then become an extremely rare occurrence. Thus, with hindsight at least, it seemed probable that had the authorities intervened to forestall the use of rapid decompression tables earlier, they could have removed what appeared to have been a major cause of excessive risk to the applicants’ safety and health sooner.
Since the core problem related to the long-term effects on human health of the use of the tables, not to sudden changes in pressure with potentially lethal effects, it seemed more appropriate to deal with the matter from the angle of the State’s positive obligations under Article 8. The ‘public’s right to information’ should not be confined to information concerning risks that had already materialised, but should count among the preventive measures to be taken, including in the sphere of occupational risks.
Decompression tables could suitably be viewed as essential information for divers to assess the health risks involved. The question therefore arose whether, in view of the practices related to the use of rapid decompression tables, the divers had received the essential information they needed to be able to assess the risk to their health and whether they had given informed consent to the taking of such risks.
Neither the Labour Inspection Authority nor the Petroleum Directorate had required the diving companies to produce the diving tables in order to assess their safety before granting them authorisation to carry out individual diving operations. The diving companies had apparently been left with little accountability vis-a-vis the authorities and for a considerable period had enjoyed a wide latitude to opt for decompression tables that offered competitive advantages serving their business interests.
The assessment of what could be regarded as a justifiable risk had to be based on the knowledge and perceptions at the time. It was known that sudden changes in pressure could have a great impact on the body but it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Scientific research into the matter not only required considerable investment but was also very complex and time-consuming. At the same time, the prevailing view had been that decompression tables contained information that was essential for the assessment of risk to personal health involved in a given diving operation. The Petroleum Directorate had gone through most of the diving tables available and found the differences between the slowest and fastest tables disturbing. However, a considerable period had elapsed without the authorities requiring the companies to assume full openness about the tables and they did not appear to have informed divers of their concerns about the differences between the tables or the problems they posed to health and safety.
In the light of the authorities’ role in authorising diving operations and protecting divers’ safety, and of the uncertainty and lack of scientific consensus at the time regarding the long-term effects of decompression sickness, a very cautious approach had been called for. It would have been reasonable for the authorities to take the precaution of ensuring that companies observed full transparency about the diving tables and that divers received the information on the differences between the tables and on the concerns for their safety and health they required to enable them to assess the risks and give informed consent. The fact that these steps were not taken meant that the respondent State had not fulfilled its obligation to secure the applicants’ right to respect for their private life.
Conclusion: violation (five votes to two).
Articles 2 and 8 (remainder of the applicants’ complaints): As regards the applicants’ general complaints concerning the authorities’ failure to prevent their health and lives being put at risk, the Court mainly agreed with the assessments of both the Supreme Court and the High Court that the regulatory framework put in place by the Norwegian authorities had sought to protect divers’ safety responsibly and that the public funded supervision had not been organised in an irresponsible manner. All the applicants had had the possibility to have the merits of their compensation claims heard by national courts. Moreover, the Norwegian authorities and Statoil had also set up special compensation schemes under which divers had been eligible to apply for substantial amounts of compensation, which all seven applicants had done successfully. The Norwegian authorities had, through a wide range of measures, put significant effort into securing the protection of the divers’ health and safety, thus complying with their obligations under both Articles 2 and 8.
Conclusion: no violation (unanimously).
The Court unanimously found no violation of Article 3.
Article 41: EUR 8,000 each in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
Citations:
22703/10 – Chamber Judgment, [2013] ECHR 1240, 52806/09, 22703/10 – Legal Summary, [2013] ECHR 1362
Links:
Statutes:
European Convention on Human Rights
Jurisdiction:
Human Rights
Cited by:
Cited – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 28 April 2022; Ref: scu.519695
