VILNES v. NORWAY

FOURTH SECTION

Application no. 52806/09
by Dag VILNES
against Norway
lodged on 24 September 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Dag Vilnes, is a Norwegian national who was born in 1949 and lives in Tønsberg. He is represented before the Court by Mr E. Ludvigsen, a lawyer practising in Tønsberg.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. General background

After the adoption of the 1958 Convention on the Continental Shelf, the Norwegian Government proclaimed in a Royal Decree of 31 May 1963 Norwegian sovereignty over the seafloor and the ground beneath the seafloor outside Norway. This was followed up with the 1963 Act on the Exploration and Exploitation of Sub-Sea Natural Resources (kontinentalsokkelloven). Drilling in the North Sea area started in June 1966. In this connection diving operations were carried out in part in sheltered waters from barges and smaller boats, for example in relation to the construction and equipment of drilling platforms, in part in the open sea. During the first years the depths involved were not particularly great. At the Ekofisk Oil Field the sea was approximately seventy metres deep, at the Statfjord Oil Field it was approximately 150 metres. To begin with diving took place from oil rigs, supply ships, drilling ships or pipe-laying ships. From the mid-1970s specially built diving support vessels, operational regardless of weather conditions, were used and, after a while, became the usual means.

For dives down to 50 metres, air gas was used and decompression took place either in the water or at the surface.

For professional North Sea diving, deep and relatively short diving jobs (rarely more than 1 hour) were described as bounce diving. This was normally performed with a diving bell and a surface decompression chamber. Two divers would access the diving bell at the surface under regular atmospheric pressure. The diving bell would be lowered into the water and down to the work location at the seabed. When the diving bell was located at the work location and the necessary tools had been lowered, the diving bell would be put under the same pressure as the work location, normally within minutes. The diver could leave the diving bell and do the job.

Both the diving bell and the diver would be supplied with gas from tanks attached to the diving bell (normally heliox). One of the divers would perform the job while the other would serve as a combined “tender” and stand by diver in the event that something went wrong. When the job had been completed the diver would return to the diving bell. Then, the diving bell would be lifted to the surface and connected to a decompression chamber, where the divers would complete their decompression. Heliox would normally be replaced by air when the diving bell pressure was similar to a water pressure at fifty metres. Generally, bounce diving was perceived as stressful because divers had little time to do the job on the seabed and felt thermal uneasiness (first the increased temperature when the diving bell was put under pressure and then hypothermia when entering the water which was five to seven degrees Celsius).

North Sea dives of longer duration were performed as saturation diving. The divers entered chambers at the surface (on the rig or on the diving support vessel) and were put under a pressure similar to that which existed on the seabed work location. Then the chambers were connected to a diving bell. Two divers would leave the chamber in order to enter the diving bell, which would be lowered to the work location. The divers and the diving bell would be supplied by gas from the surface. The divers would normally wear warm water suits supplied with warm water from the surface. It normally took several hours from when the diving bell left the chamber at the surface until it was reconnected. Subsequently, the divers were locked back into the chamber. This way of diving ensured continuous work on the seabed, while the divers could rest, sleep and eat in a chamber. After a period of work of several days or weeks, the divers were decompressed.

Until 1 April 1978 the Norwegian Labour Inspection Authority (Arbedistilsynet) was the public authority empowered and entrusted with the task of administrative supervision of diving operations and the granting of authorisation for such operations. Thereafter these functions were vested in the Petroleum Directorate (Oljedirektoratet).

The applicant was one of the between 350 and 400 persons who were permanently linked to Norway and who took part in diving related to the petroleum industry during the pioneer period (commonly defined as 1965 to 1990). After a while it became known that many of them had contracted health problems. Long term studies carried out at the University of Bergen, the Norwegian Underwater Technology Centre and Haukeland Hospital showed possible connections between diving and injuries to the central nervous system. As it transpired that available compensation arrangements only to a limited degree covered the North Sea divers’ situation, the Ministry of Municipal Affairs appointed a commission (Kronbergutvalget) which on 2 November 1993 submitted a report with recommendations. It was left to another commission (Habberstadutvlaget) to follow-up and coordinate their implementation.

On 27 November 2000 the Ministry of Social Affairs and Health proposed in a note to Parliament that divers who had experienced permanent health injuries should be accorded an amount of up to NOK 200,000 in lump sum compensation, whilst emphasising that the State could not be regarded as having acted unlawfully or in a manner open to criticism, bearing in mind what was known at the time when the diving had taken place. On 13 June 2000 Parliament requested the Government to set up an independent inquiry commission to assess all matters related to diving in connection with the oil activities in the North Sea during the pioneer period. The Commission of Inquiry, which the Government had appointed on 2 March 2001, was led by High Court Justice Mr P.A. Lossius. On 31 December 2002 it presented its report entitled “The Pioneer Divers in the North Sea” (Pionerdykkerne i Nordsjøen), Norges Offentlige Utredninger (“NOU” Official Norwegian Report) 2003:5. An English summary of the report included inter alia the following observations:

“7.7.4 Assessments and conclusions after the survey

Although the Commission of Inquiry could have hoped for a better basis for their assessments of the pioneer divers’ state of health, it considers that the data obtained permit a qualitatively useful description of the situation. What is most striking is the wide variation: many subjects have managed well, indeed some very well, while a not insignificant share are struggling with serious medical problems.

However, a large number, about three out of four, have experienced diving accidents or diving disorders. More than half have suffered decompression sickness, many of them a number of times. The fact that one in five divers has lost consciousness during dives is very serious. This can trigger post-traumatic stress syndrome in genetically predisposed individuals.

A disturbingly large number of divers are on disability pension. The fact that relatively young people, aged around 40, are affected is especially significant. This, together with the relatively large number with mental disorders, suggests that many divers have had to deal with heavier stress than most people encounter in the ordinary world of work.

In common with findings on the British side, the number of suicides among divers on the Norwegian shelf is disturbingly high. As in the case of other suicides, it is difficult to comment on causes. However, it is not inconceivable that the long-lasting and heavy pressure that divers had to endure may have been a significant factor in the process.

When assessing the state of health of North Sea divers it is important to remember that many of them started out as a specially selected and well-trained group of young men. After an average of about 14 years in the North Sea, the majority are in a satisfactory state of health based on the information they have supplied. However, a relatively high proportion have acquired appreciable health problems, illustrated by the fact that almost one-fifth are disabled, and that a number of divers complain of concentration, memory and hearing impairments. The same symptoms are documented in Norwegian and foreign investigations alike. It seems probable that the extreme stress to which many North Sea divers have been exposed at work has been a significant factor behind the disorders that a number of them have developed.

[...]

7.8 Liability issues

7.8.1 Liability for damages under Norwegian law

Under Norwegian law liability for damages may be imposed with a basis in the non-statutory concept of negligence or with a basis in strict liability. The main idea behind strict liability is that the risk entailed by an activity should be borne by the party in whose interest the tortious act is committed. Strict liability is grounded in a balancing of interests where the issue is who is closest in terms of bearing the risk. There are no clear-cut dividing lines between negligent and strict liability.

In addition to the basis for liability (negligent or strict), there must be an adequate causal relationship and a financial loss.

7.8.2 Liability for damages on the part of the Norwegian State

When considering the Norwegian State’s liability it is expedient to take a basis in strict liability. Through the State’s declaration of its sovereignty over the Norwegian continental shelf, the State has acquired a limited ownership position over the shelf with proprietary rights to the subsea petroleum deposits and exclusive rights to resource management. By virtue of its ownership the State has overarching responsibility for activities on the Norwegian continental shelf.

The State, as sovereign authority, also has the power to make laws and collect taxes in respect of activities on the shelf.

When the Norwegian State by virtue of owning the Norwegian continental shelf chose to start production of oil and gas resources on the shelf, it did so by issuing licences to private actors who operate the activity for their own account, but at the same time undertake to leave a portion of the oil and gas resources free-of-charge to the State. The Commission does not investigate the relatively difficult questions of private and public law that bear on the State’s position on the continental shelf. Suffice it to say that at all events the State earns substantial revenues on the shelf activities. This is the «direct State involvement in the petroleum industry», which is attended to by the State-owned company Petoro.

The State’s substantial revenues must be viewed in light of the substantial risk of damage and injury that shelf activities entail, and that accidents can readily assume large-scale proportions. There are grounds for asserting that since the State has initiated activity on the shelf that entails a constant risk of damage and injury, it is reasonable to expect the State to contribute to bearing the financial liability for damages and injury arising out of the oil activity. As owner of the petroleum resources, the State is usually closer in terms of bearing this liability than is the individual injured party.

Hence the notion of risk distribution that underlies strict liability suggests that to some extent the State has a strict liability for aspects of the activity on the shelf. Any demarcation of the State’s liability in relation to the North Sea divers, who have had central and important tasks in connection with oil production, cannot be deemed necessary.

In the Commission’s view considerable emphasis must, when assessing the State’s liability, be given to the fact that the State’s position as owner means that the State has a certain duty to ensure that activities on the shelf are operated in a proper manner. Moreover, responsibility for basic safety in the field of worker protection rests with the State.

From the foregoing review of the Labour Inspection’s role up to 1978, it is clear that in the view of the Commission the lack of supervision resulted in greater burdens being imposed on divers than on most other categories of employees. The virtual absence of rules and appropriate diver training also contributed. These factors were familiar to the State administration for several years without being remedied.

A further factor is that in the following period, when jurisdictional and ministerial conflicts were in progress, the authorities cannot have focused fully on safety work in the North Sea. The Commission finds it probable that the safety effort was delayed. It is probable that also this too contributed to divers being exposed to greater occupational stress than other categories of employees.

The fact that complete knowledge of the injuries that diving could entail was lacking, and that opinions on the injury situation are divided, cannot be regarded as decisive.

The Commission believes that a link exists between some divers’ workload and their present health situation.

All in all, there is in the Commission’s view much to suggest that the State has a legal liability and should therefore bear the financial liability for injuries sustained by divers as a result of diving in the North Sea and for disorders that may develop (late effects).

7.8.3 Liability for damages on the part of other players

Any liability on the part of the diving companies would seem to be primarily justified in terms of negligence, although, here too, there are arguments in favour of strict liability. The key point when assessing liability is the divers’ workload in the broad sense combined with their fear of being sent onshore, along with the prevailing work ethos according to which decompression sickness with the necessary treatment was acceptable. Reference is also made to the fact that decompression tables were an element in the competition among the companies.

The particular factors associated with the licensee/operator’s controlling position and financial interest in the activity could suggest that they should be held liable on a strict basis irrespective of whether a basis for liability rests with the diving company or not. The observations on risk distribution that justify strict liability for the State also apply in the main in relation to the licensee/operator.

What in the Commission’s view specifically justifies legal liability for the operator/licensee is the divers’ workload coupled with their fear of being sent onshore and the emphasis on speed during diving operations. A further element is the fact that the work ethos prevailing in much of the period investigated by the Commission accepted decompression sickness with ensuing treatment (recompression) as part and parcel of diving. This is assumed to have been familiar to licensees/operators too. All in all there is reason to believe that these factors have contributed to the injuries sustained by a number of divers.

In general the injured parties’ own circumstances carry little weight in employment relationships and in the Commission’s view cannot be assigned importance in light of the health situation of many North Sea divers.

7.8.4 Recommendations

The Commission of Inquiry recommends the establishment of a scheme under the following guidelines in respect of North Sea divers with disorders:

Compensation should be granted for financial loss

The scheme should be established and funded by the State

Licensees/operators should be invited to participate in such funding.”

The Commission’s report was sent for comment to the different institutions and organisations concerned. The legislation department of the Ministry of Justice expressed the view that the State did not have a sufficient connection to the oil activity for it to be liable on the ground of strict liability and that employers’ liability for the State was difficult to envisage, a matter to be considered by the Ministry of Employment and Administration. After the latter had expressed its views the Government expressed in a note to Parliament that the pioneer divers who had done ground breaking work in the North Sea from 1965 to 1990, should receive the compensation for non-pecuniary and pecuniary damage they deserved. Although the State was not liable from a legal point of view, the Government considered that it had a particular moral and political duty vis-à-vis the divers. It proposed that a special compensation scheme be put in place to be administered by a board.

After parliamentary approval the Government, by a Royal Decree of 4 June 2004, set up a board empowered to deal with compensation claims from divers under a State-budget financed scheme. The payments were to be adjusted in accordance with the person’s disability degree according to the assessment made by the social security authorities in their decision on disability compensation and to be linked to the latter’s basis amount (grunnbeløp – “G”), with 40G or approximately NOK 2,300,000 (EUR 292,000) being the maximum. In addition, divers were granted NOK 200,000 (EUR 25,000) in compensation for non-pecuniary damage.

Pending disbursements under the above scheme, by a Royal Decree of 27 June 2003, it was decided to take emergency measures to compensate divers who were in a precarious financial situation. According to an individual assessment, they could thus be granted amounts of up to NOK 200,000 (deductible from any award made under the scheme mentioned above). This ceiling was later raised to NOK 300,000.

In addition to the above, there existed two further compensation schemes. One, adopted by Parliament on 13 June 2000 (when it had requested the Government to appoint the Commission of Inquiry) and in effect since 1 July 2000, which had consisted of lump sum payments in amounts of up to NOK 200,000 to divers who were receiving a disability pension and who had a disability degree of 50% or more.

Another had been set up by Statoil on 1 November 2001, under which divers could apply for compensation regardless of whether they had been employed by the company. Under the latter, amounts of up to NOK 750,000 (EUR 95,000) could be granted.

2. The factual circumstances underlying the applicant’s complaints

From the age of sixteen the applicant worked as a seaman for periods, pursued studies in mechanics and underwent secondary education and served as a marine soldier in the army for a period until 1974. During the latter he carried out diving. From 20 May 1975 to 9 September 1975 the applicant was employed by the diving company ThreeX Diving LTd., where he first worked as a diver and then as a diving team leader. Thereafter, he pursued further education in Switzerland. For a period, he took on diving jobs in parallel to studying.

(i) Incidents at Arctic Surveyor

From early 1976 until 27 June 1978 the applicant was employed by Deep Sea Diving and was assigned to carry out work for the diving company Scan Dive AS. He worked off shore on board the diving vessel Arctic Surveyor (“the Arctic Surveyor”) at the Ekofisk Oil Field in the North Sea. The diving was carried out at approximately a depth of seventy-five metres. The work consisted amongst other things of installing and repairing transport structures through the Ekofisk Oil Field to Teeside in England and Emden in Germany.

The applicant submitted that during this period he had been exposed to several incidents in diving operations endangering his life and health. For instance, in 1977 he had been exposed to serious spinal decompression sickness owing to an excessively rapid decompression. This had most probably been the cause of his permanent brain and spinal injuries.

The applicant had further experienced that the umbilical supplying him with breathing gas and several other necessities had been pinned under a cement block weighing several tons that had been lowered from the sea surface. He had also experienced being pulled by the umbilical as the vessel had moved in a drift. The applicant was not injured but, he pointed out, such drift had been particularly dangerous because of the presence of a number of installations and devices on the seafloor in which he could have been caught up or which could have led to the umbilical being torn off and, probably, death.

The applicant had also experienced the gas being cut off at a depth of seventy metres. In a diving operation in 1976 Arctic Surveyor had been damaged in a hurricane while he and other divers had been undergoing saturation. The applicant and the other divers had had no possibility of leaving the vessel and had had to remain in the saturation chamber while the ship was taken to shore for repairs and had returned to the stormy sea so that work could continue.

While assigned to the Arctic Surveyor, the applicant performed bounce diving and saturation diving. He spent altogether 200 days doing saturation diving, which lasted nineteen days and nights on average, twenty-six days and nights at the most.

On 27 June 1978, after a conflict with his superior, the applicant was dismissed from his job with Scan Dive AS.

From March 1979 to October 1981 the applicant worked with a Danish company Tage Nielsen & Co. K/S on a project aimed at developing particular foam for use in rescue operations. Until 1983 he took part in a number of other projects.

(ii) Incidents at Tender Comet

In 1983 the applicant was employed by the diving company Wharton Williams Taylor(2W), which had been hired by the then Mobil Oil to carry out diving operations inter alia in connection with repairs of a buoy at the Statfjord Oil Field on the Norwegian Continental Shelf. The diving operations were carried out from the diving vessel Tender Comet (“the Tender Comet”) down as far as a depth of one hundred and eighty metres.

During the period from 10 to 29 June 1983 the applicant had taken part in a saturation dive which had been planned to last for approximately two weeks. The dive had been shorter than planned as the applicant had experienced a very serious breach of the safety requirements pertaining to divers and had chosen to discontinue the dive. He had amongst other things suffered from earache and severe pain during decompression. He submitted that the diving from the Tender Comet had been conducted with tables, routines and equipment that had been dangerous and harmful to him. It had caused him suffer Post Traumatic Stress Syndrome (“PTSD”) and buzzing in the ears.

A few days before the applicant had boarded the Tender Comet, the Petroleum Directorate had taken part in an inspection on board the vessel, formally as an observer of the diving company’s internal quality control. The medical logbook had indicated that a number of incidents of sores and infections had occurred, that seven persons had had earache or infection in their ears (one of which could have been due to the overuse of tablets), that one person had had eye problems, that two persons had turned ill in the diving bell and had had to interrupt the diving and four instances of decompression sickness involving two persons.

According to the applicant, the humidity inside the decompression chamber had been at a stable level of 90 to 100%; communication between the diving bell and the diving vessel had been deficient so as to make it impossible for divers to obtain contact when communication took place between a diver and the diving bell. He had thus risked not being heard in the event of a crisis, at a depth of 180 metres.

The diving bell had also had shortcomings. For example the spring lifting the door at the bottom of the bell had been broken so that divers had had to lift the door by their own effort.

The decompression had not stopped during night hours while divers were asleep, thereby increasing the risk of bubbles accumulating in the absence of any movement in their joints. This had led to unnecessary and considerable pain. In addition, the applicant had suffered earache during the dive, making decompression even more painful.

The Norwegian authorities had approved the diving operation and had granted a dispensation with regard to the maximum length of the umbilical and the saturation time.

The applicant complained to the Petroleum Directorate and filed complaints with the police on 17 October 1983 against the diving company. In response, the Petroleum Directorate carried out an inspection on board the Tender Comet, which revealed several shortcomings regarding divers’ safety.

Moreover, the police interviewed several divers of the Tender Comet. In February 1984 the police communicated the matter to the Petroleum Directorate, which in May 1984 asked the police to carry out further interviews. After having done so, the police again communicated the case for comment to the Petroleum Directorate, which on 26 March 1985 made a statement to the police. In May 1985 the police proposed to the State Prosecutor to drop the case on the ground that it was time-barred. On 18 September 1985 the police telephoned the applicant and informed him that the case was time-barred.

The applicant complained to the State Prosecutor of Rogaland and to the Petroleum Directorate about their handling of his police complaint of 1983 which as a result of having been sent back and forth between them had become time-barred. This led to an internal inquiry in the Directorate and an inquiry report, and subsequent criticism of the report expressed by an officer of the Directorate.

After the above-mentioned dive at Tender Comet the applicant finished his career as a diver. From 1984 to 1986 he was employed at the State Diving School and then decided to terminate his employment after a disagreement with the management. From 1988 until 1 June 1989 the applicant was employed at Borregaard Engineering AS. From 1990 onwards he was employed by his own limited liability company and did various jobs. The applicant has not worked since 2000.

(iii) Decompression tables

According to the applicant, the State had omitted to harmonise decompression tables and/or to require that treatment be provided by medical doctors on-the-spot. Despite the fact that the State clearly ought to have known that divers were routinely subjected to serious decompression sickness during diving operations, it had not ensured nor set requirements that a safe and adequate medical apparatus be present to treat and examine divers before, during or after treatment for decompression sickness. Whilst incidents of decompression sickness had been acute, divers could only obtain access to medical assistance onshore.

The treatment of decompression sickness had in itself been risky. When divers had not received adequate treatment, the consequences could be fatal. At an early stage it had become clear that if not treated in an appropriate manner decompression sickness could lead to brain damage and serious damage to the nervous system. Even it treated correctly the illness could lead to brain damage and injury to the nervous system. Although the State had been aware or ought to have been aware of this, it had omitted to ensure that medical doctors and personnel with sufficient expertise were present. The divers had been treating themselves according to their own tables. There had been no medical control of whether the treatment had been appropriate or successful.

In addition to being exposed to danger of loss of life or permanent injuries due to decompression according to excessively rapid tables, the divers had been exposed to a danger to their lives and risk of permanent damage due to the absence of medical personnel during critical treatment of decompression sickness.

According to the applicant, appropriate medical coverage had not been available before the State had authorised diving operations.

It had been this combination of excessively rapid decompression tables and the absence of medical assistance that most probably had caused, in whole or in part, the applicant’s brain damage and spinal injury in 1977.

The State had been aware that the rapid decompression tables had been a central factor in competition between diving companies, a factor that the State could have eliminated already during the pioneer period by requiring inter alia the standardising of tables and/or the setting of conditions in connection with the approval of individual diving operations.

According to information provided by diving companies, decompression sickness occurred at a rate of 5%. It followed that a diver would contract the illness after every twentieth decompression. If on average four divers took part in every diving operation, decompression would occur every fifth operation. Accordingly, most divers would contract the illness in the course of their career.

Decompression sickness had been practically eradicated in 1990 after the introduction, on the initiative of diving companies, of standard requirements for diving tables. All the companies had been positive. As a consequence, diving tables had no longer been a competitive factor.

(iv) Requirements to professional qualifications, equipment and practices in granting dispensation

Unlike workers employed by industrial building- and construction companies operating onshore, there had been no requirements regarding the professional qualifications of divers operating in the North Sea. The diving companies had been free to recruit whoever they wanted, the only condition being that they had a medical certificate. By omitting to introduce qualification requirements the State had put divers’, including the applicant’s, lives in danger and had exposed them to unnecessary and avoidable additional risk. There had been no reason for not setting requirements as to professional qualifications for offshore work, where the risks had been many times higher than onshore. There been no eligibility requirements for the recruitment of leaders of diving teams. According to the applicant, the State had been aware of the need to impose craft certificate requirements for the same types of activities offshore as onshore. There had been no specific requirements pertaining to diving procedures as such or to chamber operators or diving leaders, as a condition for prior authorisation or to the equipment to be used in diving operations.

A combination of deficient diving qualifications, unsuitable or poorly adapted equipment had increased the risk for divers’ lives and the danger of permanent personal injury.

The risk had also been increased by dispensations being granted routinely.

Pursuant to the 1978 safety regulation, the saturation period for saturation diving should not exceed 16 days. However, the Petroleum Directorate could authorise an extension of the period to twenty-four days and, exceptionally, to thirty-two days, provided it had been agreed between the diving companies and the divers’ representatives. Such dispensation arrangements had their background in the fact that certain operations took more than sixteen days and that avoiding sending in a second team permitted a reduction in certain risks.

The safety regulation further provided that diving from a diving bell was not permitted if the divers’ umbilical was longer than twenty-nine metres and that the umbilical of the diver remaining in the bell should not exceed thirty-one metres. This made it possible to reduce the risk of the diving vessel and the diving bell getting too close to the oil platform.

In both respects, the Directorate practiced a liberal policy in granting dispensations.

It would have been possible to address the above, for instance by legislative or administrative measures, including in administrative orders or the setting of conditions for the grant of administrative authorisations or dispensations or by means of public supervision of the implementation of relevant requirements.

3. Particulars regarding the applicant’s disability

The applicant was one of several divers who were examined by Haukeland University Hospital in August 2002. According to a specialist statement of 20 February 2004 from the department of professional medicines, the applicant suffered from a “pathological SER” potentially related to his feeling of laziness in his left leg after spinal bends in 1977. His medical invalidity resulting from slight encephalopathy was assessed at 20%. Buzzing in the ear and reduced hearing had entailed a 5 % reduction. His other neurological symptoms were so unspecific that they could not be verified. An eventual PTSD had to be the subject of another assessment.

According to a psychiatrist’s statement of 10 June 2004 the applicant clearly suffered from work injury, physically and psychologically. He had a delayed development of PTSD becoming more and more apparent and present. His condition had been chronic and was difficult to treat in way other than the applicant adapting himself to his own capacities. Since his condition was unstable it was difficult for him to plan and he could not therefore occupy an ordinary job where he had to fulfil conditions and meet expectations. He needed flexibility. He needed to use his remaining capacities for himself in order to manage the exigencies of daily life. His psychological incapacity was assessed at 34%.

On 16 August 2005 the Social Security Office granted the applicant work injury benefits considering that his injury dated back to 1 January 1985. On an appeal by the applicant, the Social Security Court (trygderetten) maintained the latter date by a judgment of 7 July 2006. It held that his medical invalidity amounted to 40%, covering a low degree of encephalopathy, reduced hearing, buzzing in the ear and PTSD.

Under the various compensation schemes described under sub-title “1” above the applicant received various sums totalling NOK 3,600,000 (EUR 462,700) in compensation.

4. Proceedings before the City Court

On 25 February 2005 the applicant instituted proceedings against the State before the Oslo City Court (tingrett), claiming additional compensation on the grounds of negligence (subjektivt erstatningsansvar), violations of Norway’s obligations under international human rights instruments – notably Articles 2, 3, 8 and 14 of the Convention and strict liability (objektivt ansvar).

On 30 December 2005 Mr Muledal whose application (no. 22703/10) under the Convention is being dealt with simultaneously with the present one, together with Mr J. and Mr K. and twenty-eight other North Sea divers, also brought compensation proceedings raising similar claims.

On 31 March 2006 Messrs Engebretsen and Eng, who have also lodged an application with a number of other claimaints (no. 24329/09), lodged compensation proceedings against the State before the City Court.

After a preliminary session on 7 August 2006 the City Court decided to join all the above cases. On 21 January 2007, after a change of lawyer by Messrs Engebretsen and Eng, it disjoined the action brought by them from those lodged by other claimants.

By a judgment of 10 August 2007 the Oslo City Court, sitting in a single judge formation and after having held a hearing between 26 February and 29 March 2007, ordered the State to pay the applicant NOK 6,527,302, plus NOK 4,880,479 in default interest (Mr Muledal was awarded NOK 3,123,420 plus interest, Mr K. was awarded NOK 5,946, 939, plus interest, whilst Mr J.’s claim was rejected).

As regards the scope of the State’s obligations under Article 2 § 1 of the Convention, the City Court took note of the European Court’s case-law (L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III); Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998‑VIII; Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004‑XII). Against this background, the City Court considered that it would be decisive whether the State knew or ought to have known of a real and immediate risk to life and had done everything that it could reasonably be expected to do in order to avoid that risk.

The City Court found it obvious that the Norwegian authorities had been aware of the real and immediate risk to life which professional diving in the North Sea had entailed. The dangers that variations in pressure could cause for divers and that a too rapid decompression could be life-threatening had been known, as had the dangers involved in errors in pressure and in composition of the breathing gas and the fact that the umbilical supplied divers with indispensable breathing gas, communication and heat. They had been aware that working on the seafloor as such had been life-threatening and that in the event of an emergency saving the divers could be problematic. On the whole, the various risks meant that divers had a particularly dangerous profession. A minor error, whether human or technical, could be life-threatening. This had been known both to the authorities and to the divers themselves.

Of relevance was the authorities’ knowledge and duty to take measures during the period from 1974 to 1989, when the plaintiffs had been professionally active.

The City Court found that during the period under consideration the authorities had taken measures that could reasonably be expected of them in order to secure the divers’ lives. It pointed to the legislative framework aimed at protecting the divers’ lives. The City Court had regard to the supervision carried out as from 1969 by the Labour Inspection Authority and subsequently by the Petroleum Directorate and the work with decompression tables. Making an overall assessment, having regard also to the authorities’ practices, in granting dispensations, the lack of State education in diving and divers work and employment conditions, the City Court found that the State had taken measures that it could reasonably be expected to take in order to protect divers’ lives. Accordingly, there had been no violation of Article 2 of the Convention. The City Court also rejected the plaintiffs’ argument that their right to protection of private life and health under Article 8 of the Convention had been violated. Regard was had to the Court’s case-law (in particular López Ostra v. Spain, 9 December 1994, Series A no. 303‑C, Fadeyeva v. Russia, no. 55723/00, ECHR 2005‑IV; and Ledyayeva and Others v. Russia, nos. 53157/99, 53247/99, 53695/00 and 56850/00, 26 October 2006).

As to the question whether the State was liable on strict liability grounds, the City Court considered inter alia that any right to compensation for divers could not be curtailed with reference to the argument that they had accepted the risks involved. A broader assessment had to be made, having regard to the interests of the parties to the case and to superior interests of a public character. A central question in any such assessment was to determine the entity who was the nearest to the risk that had triggered the damage and for that reason should be held liable. This was a question that ought to be based on a natural and reasonable weighing of interests, whether there was a need for strict liability in such matters or whether strict liability would lead to a reasonable outcome.

In the present case, a small group consisting of approximately 400 strong, healthy young men had taken on jobs as professional divers at the beginning of what ought to be described as Norway’s oil adventure. Even though the divers had had a very good salary, the City Court found that many of them had paid an unexpected price in respect of their health. The City Court noted the observation in the Loussius Commission’s report (NOU p. 102) that a disturbing number of divers had been on disability pension and that relatively young people, even persons who were in their forties had been affected. This, together with the great number of cases of psychological damage, had suggested that many divers had carried a heavier burden than most people had to bear in their professional lives.

Whilst finding irrelevant as a starting point how much Norwegian society had benefitted from oil revenues, the result of the oil adventure, that Norway had become one of the world’s richest nations had been relevant in the balancing of interests. Even though the State’s links to diving activities would be stretched beyond what was clearly covered by judicial practice, the City Court found that, on the whole, making the State liable for the damage to the diver’s health would be reasonable and equitable. In light of these considerations, the City Court found the State liable on objective grounds. It was therefore not necessary to consider whether it was liable also on subjective grounds.

5. Appeal to the High Court

The State appealed against the City Court’s judgment to the Borgarting High Court (lagmannsrett). The applicant and Mr Muledal lodged an appeal (as did also Messrs J. and K.) arguing that the amount of compensation awarded had been too low and maintained their request for a judgment holding that the Convention had been violated. The Offshoredykkerunionen (Offshore Divers Union) and IndustryEnergy intervened in support of Mr Muledal and other plaintiffs (but not the applicant).

Between 12 August and 18 September 2008 the High Court held an oral hearing at which the parties with their representatives were heard, as were interveners and forty-three witnesses and certain expert witnesses.

In a judgment of 28 November 2008 the Borgarting High Court found for the State and dismissed the compensation claims brought by the applicant and the other plaintiffs.

(i) Issue of strict liability

The High Court first examined the issue of whether the State could be held liable on the ground of strict liability. It reiterated that this would depend on an overall assessment having regard to the interests of the parties and the superior interests of a public character, based on a balancing of interests in which the requirement of an adequate or foreseeable causal connection ought to be fulfilled. The damage ought to have resulted from a risk created by an activity, business, thing or installation and to which the allegedly liable person had a sufficiently strong link. In order to be covered, the risk ought to be constant, typical and extraordinary.

The High Court considered that many factors suggested that diving activity in the North Sea had involved a constant, typical and extraordinary risk for the divers but saw no need to assess this further since in any event it did not consider that there was a sufficient link between the State and this activity.

In this regard the High Court observed the following. The requirement of a link implied that strict liability lay with the proprietor of the risky activity. However, liability could also be founded on other circumstances. What those circumstances were was unclear but would depend on an overall assessment in which the question was whether the link was strong enough to make liability reasonable.

In the counter-appellants’ view, it was the overall role of the State in the petroleum sector that had made its link to the diving operations sufficiently strong. The State had owned the oil resources, had initiated the oil extraction, and had itself conducted oil extraction through companies owned by or dominated by the State such as Statoil and Norsk Hydro; it had regulated the activities by issuing legislation and regulations and could authorise dispensations; it had been empowered to grant licences and to act as a supervisory authority and had received considerable revenue through taxes and levies and the Direct Financial Participation by the State (Statens direkte økonomiske engasjement – “SDØE”). In sum, it had both a decisive control of the oil industry and the greatest interest in oil extraction.

In this regard, the High Court observed that the State had not been the proprietor of the risky activity. The State had held a property right in respect of submarine oil resources, but it was the licence holders who had become the proprietors of the extracted oil. The State had not carried out oil extraction or diving operations in the North Sea. None of the counter-counter-appellants had ever been employed by the State as divers or had carried out diving for the State. Strict liability therefore ought to be grounded on other factors.

The High Court did not disagree with the counter-appellants that the State was in a position to influence the level of security. Such influence did not concern exclusively the activities in the North Sea but any matter falling within security legislation. By issuing licences for oil extraction the State had in a sense contributed to setting in motion an activity which, by experience, soon or later led to accidents.

Nonetheless, the position of the State as legislator and considerations based on equity vis-à-vis the divers could not be decisive in relation to the compensation issue. The State’s role in connection with diving did not differ in principle from that in relation to other activities. Diving in the North Sea was not the only perilous activity in society. Nor was it decisive that the State harvested considerable financial profits from such activities. All activities could in principle be subject to regulation and State control. Oil extraction did not depend on divers alone but on many other professional groups. Also, there were many other activities that depended on personnel with specific professional competence. That it had been the State which had initiated the oil extraction was not peculiar to this sector.

Nor could the State’s ownership interests in Statoil and the SDØE justify strict liability for the State. Statoil had been a separate legal entity and the relationship between the State and the company had been governed by the Act on limited liability companies (Aksjeloven). With a few modifications the same had applied to the State’s relationship with the SDØE.

As regards Messrs Muledal’s and K.’s claims regarding test diving at the NUI AS (Norsk Undervannsintervensjon - Norwegian Underwater Intervention Ltd, “the NUI”), the High Court pointed out that this had been an independent legal entity and there was no evidence to suggest that the test diving had been initiated by the State in any other way than by the latter requiring documentation that diving could be performed at great depths in order for authorisation to be issued for certain works. Nor had the State contributed significantly to the financing of the test dives. That the divers stress and the State’s revenues had both been considerable could not alter the issue of principle.

Many had regarded it as unfair and unreasonable that divers, who had risked their lives and health, and had thereby made it possible for the State and Norwegian society as a whole to harvest oil revenues from the North Sea, should not be compensated when they had sustained damage. The High Court, whilst considering that it was insignificant for ascertaining liability, added that divers had had a right to health care and social security benefits like the rest of the population and that they had in addition received not insignificant amounts under various compensation schemes described above, after Parliament, regardless of the rules on compensation, had assessed the matter weighing divers’ interests against those of the public. Thus, approximately NOK 3,600,000 (corresponding to EUR 455,000) had been paid out to the applicant (NOK 3,280,000 (approximately EUR 417,000) to Mr Muledal, NOK 3,500,000 to Mr K. and NOK 5,250,000 to Mr J.). Whether they should receive additional compensation from the State, irrespective of the latter’s legal obligations, was a political question that was not for the courts to decide.

In the High Court’s view, it had been unnecessary for the counter-appellants to sue the State for compensation. All of the diving companies in question still existed, in a merged or restructured form. In addition, under section 10-9(1) of the Petroleum Act 1994, the oil companies were liable jointly and severally together with the wrongdoer. Corresponding rules had applied throughout the period during which the counter-appellants were diving in the North Sea. Both the employers and the operating companies could be sued. Whilst the most expedient course of action was for the counter-appellants to sue the State, such a consideration could not be given much weight in the assessment of whether the State could be held liable.

The High Court considered that it was still the case that the starting point ought to be that any business should be operated at its proprietor’s risk and expense. Since the State’s role in relation to diving activities did not in principle differ from that in any other risky business, holding the State strictly liable in the present instance would most probably mean that it could be held liable for damage in most other areas where the proprietor of a risky business was responsible on strict liability grounds. The law in its current state did not lend support to expanding the scope of the State’s strict liability to such an extent. Whilst there were certainly arguments for and against such an expansion, this was not a matter for the courts to decide.

(ii) Issue of employer’s liability

The High Court next considered the issue of liability of the State under section 2-1 of the Damage Compensation Act 1969, according to which an employer was liable for damage caused with intent or negligence by an employee in the performance of his or her duties. It was not necessary to identify the employee who had committed the fault or to link the damage to a specific act. The liability covered the overall effect of individual acts even though the effect of each act was not sufficient to establish liability. As a starting point, the ground also covered acts carried out in the exercise of public authority. However, Parliament’s legislative and budgetary activities were not covered. The State could not be viewed as a private-law entity for these purposes.

Nonetheless, a number of the matters raised by the divers could have been taken up in connection with the security assessment made by control- and supervisory bodies prior to their authorising specific diving operations. For example, they could have set as a condition that slow diving tables be used with caution.

The High Court considered that in the main the State had been aware of the conditions in the North Sea, including divers’ working conditions. However, because of deficient reporting they had probably not had a complete picture of the extent of near-accidents and other undesirable occurrences. The State had also been aware of divers’ demands for improvements.

The risk had been part of diving activity and the purpose of supervision and control had been to reduce this risk. In any event, regardless of any shortcomings in the system of supervision, those who had exercised the activities had had the responsibility for ensuring that the oil business, including diving, was performed in a secure manner in accordance with the applicable rules (see sections 10-6, 10-1, 10-9 of the Petroleum Act). In the High Court’s view, a business ought to be conducted at the risk and expense of the entity carrying it out. Earnings and responsibilities ought to be placed in the hands of the same legal entity. The purpose of supervision had never been to reduce wrongdoers’ liability. The circumstance that an operation should not have been authorised could not automatically lead to liability for the State for accidents caused by the operation.

As regards the legal framework, the Diving Regulation of 1978 could possibly have been adopted earlier. Any delay could be explained by the number of public bodies assuming responsibilities in the North Sea and by cooperation being unsatisfactory at times. However, diving had not been a lawless activity even before then. The 1967 Safety Regulation had contained specific provisions in its section 121 about diving, according to which diving was to be carried out in a secure manner and after prior authorisation. After England, Norway had been the first country in the North Sea area to introduce rules on diving. England had adopted its rules in 1975, the USA in 1981 and Denmark in 1995. The High Court could therefore not accept that the 1978 Regulation had set aside requirements that could reasonably be imposed to such an extent that the State could be held liable.

Nor could the High Court find that the manner of organisation of the supervision and control by the State had been deficient and could give rise to liability for the State. The extent of resources made available had been a matter that depended on budgetary decisions by Parliament. The Labour Inspection Authority, which authority had assumed responsibility for supervision until 1 April 1978, already had such responsibility with respect to most businesses, not only divers in the North Sea. Despite this, one person had been assigned to this particular task. Bearing in mind the other risky activities that existed and the funds allocated, the High Court could not find that this was negligent. Nor could the fact that the incumbent had been an engineer with technical competence who was more focused on technical installations rather than diving medical matters be viewed as negligence. The fact that divers had wished for more extensive supervision could not be decisive. Within the Petroleum Directorate, a diving section with five employees had been set up.

With the benefit of hindsight, the High Court could agree with the counter-appellants that it might seem as if the applicable rules had not always been implemented. In certain instances authorisation had been granted after the operations. A practice had been developed whereby dispensation had been granted on the basis of agreements between the operator, the divers, the divers’ unions and the safety deputy. This practice had had the drawback that the individual diver had been in a weak negotiating position because of a risk in certain instances of being moved onshore when he was perceived as being difficult. Time-limits for applications and working hours had not always been respected. The High Court also agreed that under certain provisions of the 1978 Regulation and its Appendix, divers could demand the production of the diving table used in a given diving operation. Whether it was safe to use a table had been something that should have formed part of the basis for authorising a diving operation. It did not seem reassuring that tables had not been reviewed because employees of the Petroleum Directorate had not understood them.

However, the assessment of what requirements could reasonably be imposed on the service and the activities had to be made in the light of the then prevailing perceptions of the risk involved in diving. The only possibility of removing all risk would have been to impose a total prohibition on diving. That had never been in question either in Norway or in any other countries. The prevailing view had been that diving was justified even though diving led to fatal and other serious accidents. The question for a supervisory authority had therefore always been centred on the level of risk that was justifiable. Whether to grant authorisation for a given diving operation depended on a balancing of interests. Those of the divers weighed heavily, but were not the only ones. There was reason to display judicial restraint in reviewing this balancing exercise, especially after such a long lapse of time and changes in perceptions.

The High Court pointed out that the assessment of what could be regarded a justifiable risk ought to be based on the knowledge and perceptions of this matter at the time in question. That sudden changes in pressure could have a great impact on the organism and could in the worst case be life-threatening had been known for a long time. However, there had been less knowledge about the long-term effects. On the evidence the High Court found it established that it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Where such illness had only involved temporary pain, notably after treatment in a compression chamber, the condition had also been regarded as relatively risk free. It appeared that decompression sickness had been regarded as a part of diving, an inconvenience to be avoided but one which had to be accepted. It had been treated with recompression and had been regarded as finally treated in this way (NOU 2003:5, p. 76).

Opinions about the long-term effects of diving had not been entirely unequivocal. A number of reports, scientific opinions, medical statements, articles, etc on the possible long-term effects had been adduced before the High Court and the parties had relied on those opinions that supported their own views. The High Court observed that present-day knowledge was of no importance for the assessment of liability to pay compensation in respect of events that had occurred many years ago. It was not possible, nor necessary, for the High Court to take a stance on the disagreement between scientists and in the scientific milieu. It was sufficient to note that there existed a disagreement. The High Court found it established that in the context of the issue of liability to pay compensation there had been scientific support for the perceptions of the State as to the possibility of long-term effects. That there were other scientists who held other views could not be decisive.

The High Court found it established that the psychological effects of extreme, life-threatening and, especially, repeated incidents had been known. All the counter-appellants had described incidents that involved such a degree of stress that their condition could be regarded as Post Traumatic Stress Syndrome (PTSD). The High Court found it most probable that Mr Muledal and C had developed PTSD. The applicant had suffered minor brain damage and had in this connection developed an organic personality disorder. The High Court agreed with the divers that the State ought to have been aware of these aspects of diving activities and that a number of divers most probably would suffer psychological damage. The Labour Inspection Authority expected that diving at ever greater depths might lead to psychological problems for divers. A stricter implementation of the requirement that diving should be safe would most probably have contributed to reducing the stress level. Nevertheless, a certain level of danger and stress had to be accepted if diving was to take place. It had been impossible to say to what extent the stress burden could have been reduced and whether such reduction would have been sufficient to prevent the counter-appellants from sustaining psychological damage. A certain level of stress had in any event been inevitable.

The High Court moreover found no evidence in support of the argument that, apart from increasing the stress level, exposure to noise, pollution, chemicals and other inconveniences had entailed any financial damage for the counter-appellants.

As regards the question of the grant of administrative dispensation from security requirements, the High Court observed that account had to be taken of the risks involved if no dispensation was given. For instance, the burden of prolonging the saturation time (metningstid) for a diver team already in operation had to be compared with the inconvenience of placing a new team under compression. The danger of prolonging an umbilical had to be compared to the danger of the diving vessel being positioned closer to the installations, etc. Even though practices had developed in such a way that a dispensation would be granted if all the interests involved, including when the divers and their representatives had accepted it, the High Court had no basis for holding that the Petroleum Directorate had disregarded the interest of protecting divers’ safety or that the assessments made had otherwise been unjustified. Also, the dispensation practices ought to be considered in light of the legal framework. In Norway it had been decided to opt for rules that had been relatively restrictive on the assumption that dispensations would be used more extensively rather than for a scheme with less strict rules and a lesser need for dispensations (NOU 2003:5, p. 81). Even though the Petroleum Directorate had regularly granted dispensations in summary form, it had not been sufficiently shown that the control had been of no reality.

The High Court agreed with the counter-appellants that, according to present day opinions, it might seem imprudent to have authorised diving operations involving the use of decompression tables that had previously led to accidents. However, at the time, those tables had been commonly in use, not just in the Norwegian part of the North Sea. No other country with the exception of Norway had introduced standard decompression tables. The accidents that had occurred had never given rise to legal proceedings against the State. While it might have been desirable that the supervisory authorities had applied a stricter practice with regard to the authorisation of rapid decompression tables, in light of the conditions at the time the High Court did not consider that this could justify liability.

Nor did the High Court find that the way in which the authorities had acted in handling licensing matters had disregarded safety in a manner giving rise to liability, even though from the divers’ point of view it would have been desirable that their interests had been better protected.

The State’s ownership of the petroleum resources could not justify liability for accidents related to oil extraction. It had been the position that the licence holders had acquired ownership of the petroleum produced (see section 3-3(3), second sentence, of the Petroleum Act), thereby absolving the State from liability as owner, and that the ownership of the State had been limited to the oil resources under the sea floor.

Even though the supervisory authorities had committed certain errors, there was no support for holding that that divers’ working environment on the Norwegian continental shelf had been regarded as worse than that in other countries extracting oil in the same maritime area. The accident rates had not been significantly higher in the Norwegian area.

The test diving at the NUI had not been the responsibility of the State. The NUI had always been a separate legal entity without any links to the State. The latter had not commissioned the tests. In connection with its prior approval of a pipeline crossing the Norwegian trench (Norskerenna), the State had required documentation that it was possible to carry out diving in such deep waters. The State had participated in the financing of one of the test dives. However this could not make the State liable.

The ethical aspects of the test dives had been considered and approved by the Council for Medical Research (Rådet for medisinsk forskning). There had been no requirement that the Labour Inspection Authority give prior authorisation. Employees of the Petroleum Directorate had been present as observers but not in a supervisory capacity. It would have been difficult for them to intervene if the tests had not been carried out in accordance, as alleged by Mr Muledal and A, with the description in the request to the Council or with other rules.

Nor could the research carried out lead to liability on the part of the State.

Similar considerations had applied to divers’ demands for training. The High Court acknowledged that training and competence building would generally contribute to reducing the risk of diving and the accident rate. The applicant had pointed to several concrete accidents which in his view had all been due to a lack of training. The High Court found it established that doubts about the level of competence of fellow divers and superiors had contributed to increasing the burden of stress and for this reason training had been desirable. However, this had been a question of allocation of resources and a regulatory framework would have had to be introduced had training been made obligatory.

The High Court did not share the applicant’s view that the State had been the actual wrongdoer. The wrongdoers had been those who had conducted the diving activities. In addition, the licence holders had been jointly and severally liable for the damage (section 10-9 of the Petroleum Act). That diving – especially North-Sea diving in its earlier phase – had involved extreme risks called for no further explanation. The purpose of putting in place supervision and a legal framework had been to reduce that risk. An alternative for the State would have been to avoid liability by doing nothing. It did not follow from the fact that the State by taking different measures had sought to reduce the risks involved in a lawful, but dangerous activity that the State had thereby taken on the responsibility for ensuring that such measures were at all times sufficient. The fact that the State had contributed significantly to the accident rate decreasing over time did not mean that the previous situation had been unjustifiable.

The applicant had invoked certain specific incidents at the diving vessel Arctic Surveyor in 1977, where he had been exposed to serious decompression sickness, and at the diving vessel Tender Comet in 1983, relating to dispensation from the maximum length of the umbilical.

As regards the first incident, the High Court did not find it possible to ascertain whether the security level of the operation had departed from what had normally been perceived as safe diving in 1977 according to section 121 of the Safety Regulation. The applicant’s injuries had been diagnosed later. In the High Court’s view there had been no basis for holding the State liable for having authorised the diving operation in question.

As regards the diving operation from Tender Comet, the High Court noted that the applicant’s criticism had been upheld and that in 1983 employees of the Petroleum Directorate had disagreed on whether the operation should have been authorised or stopped. However, if the Petroleum Directorate had committed faults, this had not necessarily meant that those requirements that could reasonably be set for their services had been ignored. In this regard, responsibility had also lain with the operator and the diving company and authorisation had not meant that the State had taken over financial responsibility for any faults imputable to them. Even though it was established that the Petroleum Directorate should not have authorised the operation, this would not suffice to make the State liable.

In light of the above, the High Court found that there was no basis for holding the State liable on subjective grounds.

(iii) Issue of liability on grounds of human rights violations

The High Court then went on to examine the counter-appellants’ allegations of violations of human rights conventions, notably of Articles 2, 3, 8 and 14 of the Convention. It observed that even thought the State could not be held liable under national law in respect of Parliament’s legislative measures and budgetary practices, the State could be held accountable under the Convention.

In this regard, the High Court noted that the Convention case-law prayed-in-aid by the counter-appellants had concerned damage inflicted on individuals and property in their personal sphere. However, the High Court had not been aware of any case-law of the European Court or of any other tribunals concerning the application of the Convention in respect of parties engaged in professional activities. It had therefore been difficult to determine the scope of the Convention obligations to take measures to reduce risks in this area. The same applied to test diving at the NUI.

As a starting point it had been up to the industrial parties to agree on conditions of employment, including on the matter of risk by paying higher salaries or by taking risk-reducing measures. The High Court assumed that Contracting States ought to be accorded a wide margin of appreciation in the choice of measures they were required to take in order to reduce professional risks. The State was probably less obliged to interfere in the relationship between an employer and an employee than with regard to businesses that posed a danger to third parties. The High Court found no support for holding that the diving activities on the Norwegian shelf had been more dangerous or that the working environment had been worse there compared to diving activities in other comparable areas.

6. Appeal to the Supreme Court

The applicant appealed to the Supreme Court complaining that the Norwegian authorities had given prior approval to diving operations carried out from the vessels (1) Arctic Surveyor and (2) Tender Comet, (3) had authorised dispensation from the requirements regarding the maximum length of the umbilical used in a diving operation from Tender Comet and (4) had omitted to stop diving operations from Tender Comet. He maintained that, regardless of whether there had been any negligence, the State was liable to pay him compensation on the ground that these acts or failure to act had been in breach of the applicable rules requiring that diving take place in a safe manner (section 121 of Royal Decree of 25 August 1967). In the alternative, he submitted that, regardless of whether the said acts or failure to act had been unlawful, they had involved a failure on the part of the State to comply with its obligations under Articles 2, 3, 8, and 14 of the Convention. In the further alternative, the applicant argued that the legal framework as such had entailed a violation of the Convention. In a further submission he submitted that the State had been liable as an employer under section 2-1 of the 1969 Damage Compensation Act. Also in this context, he invoked the Convention. Finally, he argued that the State had been responsible on grounds of strict liability for the damage he had sustained from the diving operations.

On 24 March 2009 the Appeals Leave Committee of the Supreme Court (a) refused the plaintiffs leave to appeal with respect to the assessment of the evidence regarding the question of liability whilst allowing them to adduce certain supplementary evidence and (b) refused the applicant leave with regard to his liability claims concerning points (1) to (4) above. As for the remainder the Appeals Leave Committee granted the plaintiffs leave to pursue their appeal. It further decided that the appeal proceedings should be limited to the issue of grounds for liability and postponed the issues of causality and assessment of damages to a later stage.

By a judgment of 8 October 2009 the Supreme Court unanimously rejected their appeals. On reasoning similar to that of the High Court, it concluded that the circumstances adduced, whether considered on their own or together, did not involve a sufficiently close connection between the State and the harmful activity to justify holding the State liable on the basis of the general principle of strict liability. While it was true that the State had been actively involved in the oil sector there was no difference of principle between this and a number of other areas. As regards deep-sea diving, the State’s role had been limited to supervision and control. This was not something which created a close connection and could not be distinguished from other instances of public supervision and control.

Nor did the Supreme Court find that the State was liable as an employer for negligence, under section 2-1 of the Damage Compensation Act 1969, notably on account of the activities performed by the Labour Inspectorate and the Petroleum Directorate. The Supreme Court had regard to the development of the relevant regulations aimed at safeguarding security, the manner of organising the control and implementation of the safety rules, the practice of giving dispensations, inspections, training, diving equipment. The Supreme Court found no basis for holding that either of the above instances had been passive.

Finally, the Supreme Court considered whether there had been a violation of the Convention.

As regards the plaintiffs’ complaint under Article 2 of the Convention, the Supreme Court observed that this provision was applicable not only in the event of loss of lives but also when in the circumstances there was a threat to physical integrity (Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 146, ECHR 2008‑...). This provision further obliged States to refrain from deprivation of life and to take appropriate steps to safeguard lives. This obligation to safeguard lives entailed above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. This applied in the context of any activity, whether public or not, in which the right to life was at stake (Ibidem, §§ 128-131, a case which concerned a landslide). The Supreme Court also took note of Guerra and Others v. Italy (emission of poisonous gases) (19 February 1998, Reports of Judgments and Decisions 1998‑I.); L.C.B. v. the United Kingdom (health hazards from atomic explosions) (9 June 1998, Reports of Judgments and Decisions 1998‑III), Öneryıldız v. Turkey (methane gas explosion at a rubbish heap) ([GC], no. 48939/99, ECHR 2004‑XII). The Supreme Court observed that none of these cases had concerned threats to life occasioned by professional risk. On the latter subject, in so far as the Supreme Court was aware, there were no judgments delivered by the European Court, though its statements of principles had been formulated in such a general way that it could not be excluded that it would at least to some degree apply Article 2 on such matters. It was not necessary to go further into this since there had in any event been no breach of this provision in the present case.

The Supreme Court observed that from the European Court’s case-law it followed that in the event that there was a real and immediate danger to life, and this danger was or ought to have been known to the authorities, the latter might be required to take special measures. In the assessment of what steps ought to be taken, the State would in principle have a margin of appreciation. An impossible or disproportionate burden could not be imposed, since the State had to make operational choices in terms of priorities and resources (Budayeva and Others, §§ 134 and 135; see also L.C.B., cited above, § 38; and Öneryıldız, cited above, §§ 100-101).

However, in the instant case, the State had in accordance with the law adopted extensive regulations on diving activities. An administrative framework had been set up and supervision of it had been entrusted to the Labour Inspection Authority and the Petroleum Directorate. Moreover, funding had been allocated to their activities according to priorities and in light of available resources. There had been nothing to suggest that the supervisory bodies in question had been passive when they had become aware that transgressions of the rules involving risk had occurred. The measures taken had been based on what they knew at the material time. Therefore, it did not emerge that Article 2 of the Convention had been violated.

As regards the plaintiffs’ complaint of violation of Article 8 of the Convention, the Supreme Court took note of their argument based on the European Court’s case-law in relation to ransacking and seizure of documents on professional premises, notably Niemietz v. Germany, 16 December 1992, Series A no. 251‑B). However, the subject-matter of such cases had been so different from that at issue in the present case that the Supreme Court could not rely on them.

The plaintiffs had also prayed-in-aid case-law concerning health risk caused by pollution. However, in this regard the Supreme Court observed that Article 8 had come into play mainly because private and family life was enjoyed in the home. On this point the Supreme Court quoted the following passage from Giacomelli v. Italy, no. 59909/00, § 76, ECHR 2006‑XII:

“Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person’s right to respect for his home if it prevents him from enjoying the amenities of his home.”

Thus, also the European Court’s case-law regarding damage to health resulting from pollution was not immediately comparable to the present case.

The Supreme Court noted that Roche v. the United Kingdom [GC] (no. 32555/96, §§ 155-169, ECHR 2005‑X). was the only judgment invoked by the parties that had concerned possible damage to health sustained in connection with professional activities. The applicant in that case had served in the British Army and had for a period voluntarily participated in experiments on mustard gas and nerve gas. He had claimed that this had caused him injuries and had demanded access to the case documents. The European Court had found Article 8 applicable and that this provision had been violated on account of the refusal to grant the applicant access to the documents in question. This judgment gave support to the view that test diving had been covered by Article 8 but not so risky diving in general. However, it was not necessary to determine this question since any obligation to take safety measures that might follow from Article 8 had in any event been complied with. In this connection, reference was made to the discussion above under Article 2.

Also, there could be no question that the conditions pertaining to diving generally, as alleged by the applicant, could amount to inhuman and degrading treatment in the sense of Article 3.

As to the test dives carried out at NUTEC, in which Mr Muledal and Mr C had participated, the Supreme Court observed that under Article 7 of the 1966 International Covenant on Civil and Political Rights, no one should be subjected without his free consent to medical or scientific experimentation. A similar protection probably followed from Article 3 of the European Convention. In the present case, it was clear that the divers had been informed about the test dives beforehand. A written guide had been elaborated and there was nothing to indicate that the test dives in question had been carried out otherwise than planned. The test dives had been approved in accordance with the Helsinki Declaration prepared by the World Association of Doctors in 1964, NUTEC practice and the guidelines of the Ministry of Social Affairs of 8 June 1984 on the mandate of regional committees on the ethics of medical research. There was no support for holding that the delayed injuries sustained by Mr Muledal and C were attributable to these test dives. The tests had been carried out in light of the information available at the time, from which it had appeared that test dives involving far greater depths had been carried out in the USA, England, France and Switzerland. Accordingly, there had been no breach of Articles 3 or 8 of the Convention or of Article 7 of the International Covenant.

Nor did the Supreme Court find any support for the applicant’s complaint of violation of Article 14 of the Convention.

COMPLAINTS

The applicant complained that the four specific acts or failure to act highlighted in his appeal to the Supreme Court constituted a failure on the part of the authorities of the respondent State to protect his right to life under Article 2 of the Convention. Also, the procedural requirements of Article 2 could have been complied with if the police investigation had not been hindered by the Petroleum Directorate.

Furthermore, under Article 2, he complained more generally that the respondent State had failed to take appropriate steps to protect divers’ lives, namely to devise an effective framework of rules coupled with supervision in order to identify and take corrective measures in respect of defects endangering human lives.

In addition, the respondent State had failed in its duty to provide him with adequate information (about the risk to which he was exposed by taking on diving jobs in the North Sea).

The applicant also complained that the State had failed to take appropriate measures to protect him against inhuman and degrading treatment, in violation of Article 3, and to protect his health, in breach of Article 8.

Finally the applicant invoked Article 14.

QUESTIONS TO THE PARTIES AND REQUESTS

1. Having regard to the amounts paid to the applicant under the various compensation schemes and to the justifications for these payments, particulars of which are requested from the parties, as well as the possibilities available under national law for establishing liability, has the applicant lost his “victim” status for the purposes of Article 34 of the Convention?

2. Having regard to factors such as:

(a)the fact that the diving operations in question had been carried out by private companies;

(b)the State’s overall involvement in the petroleum sector, as an owner of the natural resources in question, in oil extraction through companies partly or entirely owned by the State, as a legislative and administrative regulator, as a supervisor and as a collector of taxes and levies;

(c)the legislative and administrative framework put in place in order to safeguard safety in diving operations, including with regard to such matters as the planning and conduct of diving operations, professional qualifications, equipment and medical follow-up and assistance;

(d)practices of authorisation for diving operations and dispensation from requirements regarding the length of umbilicals and saturation time;

(e)the manner of administrative supervision and control of diving operations;

(f)the four specific acts or omission to act (in respect of which the applicant was refused leave to appeal to the Supreme Court), namely the prior authorisations of the diving operations from (i) Arctic Surveyor (ii) and Tender Comet; (iii) the dispensation given from the requirement as to the maximum length of umbilical used; and (iv) the omission to stop this diving operation;

did the authorities of the respondent State fail to fulfil their obligations:

(i)under the substantive aspect of the right to life under Article 2 of the Convention?

(ii)under Article 3 of the Convention to protect the applicant against inhuman and degrading treatment?

(iii)under Article 8 of the Convention on account of any failure to take appropriate measures to protect the applicant’s health?

(iv) under the procedural aspect of Articles 2 and/or 3 in relation to the police investigation into the applicant’s complaint about diving from Tender Comet?

3. The Government are requested to provide particulars on:

(a)what the authorities knew about the risk of death and serious injury involved in diving in the North Sea generally, when they acquired such knowledge and any steps taken by them in order to gain knowledge on the matter;

(b)any measures taken by the authorities to protect the North Sea divers’ lives and health and their timing;

(c)any guidelines that may have existed on the approval of decompression tables;

(d)any requirements of professional qualifications applicable to divers taking part in North Sea diving operations;

(e)the practices of granting dispensation and any safety requirements applied in this respect;

(f)the functions of the bodies entrusted with supervision and control and the human resources assigned to them to perform this role.

(g)the safety rules applicable at any given time to diving in the North Sea.

4. the Government are requested to provide an English translation of the Supreme Court’s judgment of 8 October 2009.

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