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Bubon v. Russia
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The European Court of Human Rights held that a failure to provide professional divers with relevant information on the risks involved in their work was an infringement of the right to respect for private life, and awarded damages to the divers. The case was brought by seven individuals who had worked as professional divers in the North Sea between 1965 and 1990 and who had suffered damage to their health as a result of their diving activities. After unsuccessful legal proceedings in Norway, the divers approached the European Court of Human Rights. The Court reasoned that a failure to provide the divers with decompression tables which contained essential information for divers to assess the health risks involved in operations meant that the divers had been unable to give informed consent to the taking of the risks inherent in the work.
This case analysis was contributed by Right2Info.org.
Between 1965 and 1990 a number of Norwegian professional divers were engaged in diving operations in the North Sea. As a result of these activities, the divers suffered damage to their health resulting in disabilities and the divers argued that their disabilities had rendered them unable to work. Although the government of Norway had set up a compensation scheme ex gratia (that is, not out of legal obligation) which awarded divers a disability pension, the divers sought the establishment of strict liability and an award of compensation accordingly and approached the domestic courts for relief. Some of the divers had received compensation from other sources, such as the state oil company Statoil.
The Norwegian Supreme Court concluded that a sufficiently close connection between the State and the harmful activity could not be established to hold the State strictly liable and that the law on employer’s liability did not require the state to adopt relevant safety regulations backed up by effective implementation, inspection and supervisory mechanisms.
The divers then brought a case before the European Court of Human Rights, arguing that the state’s failure to provide information about decompression tables and the risks involved in diving operations violated article 8 of the European Convention on Human Rights (which protects the right to respect for one’s private and family life).
The European Court of Human Rights had to determine whether the failure to provide the divers with information about the potential risks their activities carried was an infringement of the right to respect for private life.
At the outset the Court affirmed that the state has a positive obligation under article 8 “to provide access to essential information enabling individuals to assess risks to their health and lives” (para. 235). The Court noted that the “public’s right to information” should not be confined to information concerning risks that had already materialized, but should also apply to the sphere of occupational risks as a preventive measure (para. 235).
The Court accepted that the decompression tables contained essential information for divers to assess the health risks involved in operations and therefore give informed consent to the taking of such risks. Considering the uncertainty and lack of scientific consensus at the time regarding the long-term effects of decompression sickness, the Court believed that the authorities should have taken precautionary measures, including to have provided the divers with decompression tables which would have enabled them to assess the risks and give informed consent.
The Court concluded that as the authorities had not provided the divers with this information, the state had not fulfilled its obligation to secure the applicants’ right to respect for their private life (para. 244). The Court awarded between €48 000 and €58 000 to the divers (Court Order para. 6).
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