TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): This proves that even at the very beginning of the applicants' careers in the North Sea, the state itself considered that the disclosure of decompression tables would result in a harmonization.
AP2 (Applicant): So our conclusion on question two as a whole is that we are of the opinion that the failure to require disclosure of tables represent a breach of the authorities' duty to safeguard, and that we see this primarily as an integrated part of a breach constituted by the failure to harmonize tables.
AP2 (Applicant): Regarding question three, the applicants never consented to any use of rapid tables, nor have they ever been asked to approve the use of any kind of table, or been asked to elect or empower any representative to do this on their behalf.
AP2 (Applicant): There is nothing to support that any elected representatives ever consented to anything regarding use of tables.
AP2 (Applicant): They may have consented to longer work hours or extended saturation time, and in some cases, maybe even longer umbilicals, but there's nothing to support that they were ever asked about tables.
AP2 (Applicant): For instance, Mr. Villes has not been presented with or explained
AP2 (Applicant): the principles of a table intended to be used on him before signing up for a dive, and he has not been informed that the tables were rapid or aggressive or risky.
AP2 (Applicant): Quite to the contrary, when he had any questions regarding safety in general, he was always reminded that everything had been pre-approved by the authorities as prudent.
AP2 (Applicant): This is similar for the other applicants.
AP2 (Applicant): Regarding other operational conditions and tables, the divers had a chance to detect the most obvious deviations from prudent diving.
AP2 (Applicant): And on the diving vessel Tender Comet, Mr. Villes therefore
AP2 (Applicant): complained to every possible instance, including his leaders, the diving company, the ship owner, the oil company, and the oil directorate.
AP2 (Applicant): Regarding tables and other diving medicine, the applicants naturally didn't stand a chance to detect the malpractice.
AP2 (Applicant): They were completely at the mercy of the approving authorities.
AP2 (Applicant): I shall add that if they had been asked for their consent, then such a request would have had no meaning because of the vast difference in information and insight between the authorities and the industry on one side and the applicants on the other.
AP2 (Applicant): The existence of a consent would, in my view, have required preceding information and comprehension of the high risk of decompression sickness connected to the relevant tables and the grave immediate injuries these tables could cause, and above all, of the permanent health damage that could occur years after the use of the rapid tables.
AP2 (Applicant): If the information that we have mentioned on the question one had been provided, it could have been meaningful to ask for consent, but that was not the case.
AP2 (Applicant): This argument is actually also supported by the Supreme Court's judgment, which even states in item 63 that the risk for the North Sea divers clearly exceeded what they must have been prepared for, and in item 64 that under Norwegian law, there exists no concept of acceptance of risk for occupational injuries.
AP2 (Applicant): In the present case, we argue that the same could apply to the interpretation of convention rights because the differences in power and knowledge were so huge, because the motives of the diving industry and the consequences to the divers' health were so immoral, and because the divers' health was exposed to an exceptional additional risk that was so unnecessary.
AP2 (Applicant): Mr. Wieners is certain that he has never
AP2 (Applicant): given any consent to the use of rapid tables or said or done anything that could be taken as such consent, and even the state has never claimed that he has done so by himself or through a representative.
AP2 (Applicant): And this, too, is similar for the other applicants.
AP2 (Applicant): What the divers consented to was only to dive according to tables that they heard were prepared by medical experts and approved as prudent by the state authorities.
AP2 (Applicant): And they were told that even if they felt pain, it wouldn't result in any lasting damage.
AP2 (Applicant): What happened to them turned out to be quite the opposite.
AP2 (Applicant): The tables produced large numbers of decompression sickness.
AP2 (Applicant): All the cases of decompression sickness could, under the circumstances, cause permanent damage, and the authority control was not real.
AP2 (Applicant): The tables were both confidential and incomprehensible to the applicants, and they didn't know the true and fair view of the risks involved in using wrongful tables.
AP2 (Applicant): So to conclude, it could not be said that they had consented.
AP2 (Applicant): Replying to the court's question four, it is submitted that the applicant's health has been adversely affected by applying the rapid decompression tables, both by suffering the immediate and prolonged symptoms of decompression illness and by the long-term illnesses which have caused occupational disability.
AP2 (Applicant): It is for all the applicants except one undisputed that they have suffered from decompression sickness.
AP2 (Applicant): The submitted medical expert declarations and the Oslo city court judgment conclude that the applicant's permanent injuries have been caused by not sea diving.
AP2 (Applicant): And when the most conservative table became effective in 1990, the occurrence of decompression sickness vanished for all practical purposes.
AP2 (Applicant): This proves that the applicants would not have suffered the short-term and long-term consequences of decompression sickness had the state taken appropriate and effective measures to control the use of rapid tables.
AP2 (Applicant): Post-traumatic stress disease, or PTSD, may not be directly caused by decompression sickness.
AP2 (Applicant): On the other hand, physical brain and nerve damage, lung damage, and in some cases, hearing impairment, are probable consequences of rapid tables and subsequent decompression sickness.
AP2 (Applicant): Mr. Wielnäs' hearing damage and his psychological damage
AP2 (Applicant): have probably not been caused directly by the tables in question.
AP2 (Applicant): His spinal cord damage was caused directly by one specific decompression on the diving vessel Arctic Surveyor in 1977 that inflicted a spinal bend on him.
AP2 (Applicant): This damage cannot have been caused by lighter cases of decompression sickness or by anything else.
AP2 (Applicant): The physical brain damage was caused by the same decompression and or by other lighter decompression sicknesses on the Arctic Surveyor and or the tender comet.
AP2 (Applicant): On the tender comet, he was also subjected to extreme humidity, temperatures, and exhaustion that the inspectors from the oil directorate refused to put an end to.
AP2 (Applicant): Mr. Wielnäs felt pain and malaise after decompression
AP2 (Applicant): a lot of times without getting diagnosed or treated for decompression sickness.
AP2 (Applicant): The High Court also found specifically that his brain and spinal cord damage were probably caused wholly or partially by the combination of a too rapid table and the absence of a doctor for treatment.
AP2 (Applicant): This appears from page 150 in appendix 2 to Wielnäs' application number 1.
AP2 (Applicant): Mr. Muldal has experienced decompression sickness
AP2 (Applicant): in the joints on two or three occasions and suffered from encephalopathy and severe chronic lung disease, which probably have been caused by rapid decompression tables.
AP2 (Applicant): I refer to the Losius report, page 33 and 35.
AP2 (Applicant): Mr. Muldal also felt pain and malaise
AP2 (Applicant): after decompression many times where he was unable to walk the stairs because of pains in the joints.
AP2 (Applicant): He may also have PTSD.
AP2 (Applicant): Mr. Lindahl has experienced decompression sickness
AP2 (Applicant): many times.
AP2 (Applicant): One of them was a severe case on one of his test dives.
AP2 (Applicant): He suffered from neuropsychological and neurophysiological changes, as well as reduced lung capacity.
AP2 (Applicant): The medical expert declaration also states that his hearing impairment is a consequence of decompression sickness in 1981.
AP2 (Applicant): He also has PTSD.
AP2 (Applicant): Mr. Hufsteinsson has suffered decompression sickness
AP2 (Applicant): on three occasions and is suffering from obstructive lung disease.
AP2 (Applicant): His neurophysiological exams reveal findings similar with those of other North Sea divers and are also probable results of decompression sickness.
AP2 (Applicant): He also suffers from PTSD.
AP2 (Applicant): Mr. Nygaard is suffering from chronic obstructive lung
AP2 (Applicant): disease, encephalopathy, PTSD, ringing in the ears, and diver's hands.
AP2 (Applicant): Encephalopathy and chronic obstructive lung disease probably result from the use of rapid tables.
AP2 (Applicant): Mr. Nerstall has suffered from decompression sickness
AP2 (Applicant): on four occasions.
AP2 (Applicant): On a saturation dive in 1985, he suffered from neurological symptoms and acute dizziness compatible with decompression sickness.
AP2 (Applicant): He is suffering from dizziness, depression, and anxiety.
AP2 (Applicant): Mr. Jacobsen suffered from decompression sickness
AP2 (Applicant): in the form of bends in the joints many times and in the skin one time.
AP2 (Applicant): He is also suffering from PTSD.
AP2 (Applicant): His symptoms are similar to those suffering from neuropsychological changes, which is closely linked to decompression sickness.
AP2 (Applicant): Consequently, we argue that the applicant's cases of brain, nerve, and lung damage have been caused by the tables in question, as well as the case of Mr. Lindahl's hearing impairment.
AP2 (Applicant): Our conclusions are that the state had information duties that were not fulfilled, that also the failure to demand disclosure of tables was inconsistent with the duty to take accessible safeguarding steps in general, that disclosure would have been necessary together with a risk assessment of the tables to fulfill the state's general safeguarding duty, that required disclosure was necessary and central to harmonize tables, that the divers have not consented to the risk of rapid tables, and that the tables have caused substantial health damage to the applicants.
AP2 (Applicant): And if the court should be in doubt, we must always remember that the Norwegian petroleum diving was not something that was originally carried out by private parties and that the state would have to catch up with and actively subdue.
AP2 (Applicant): It was the other way around.
AP2 (Applicant): The oil under the seabed was owned by the state.
AP2 (Applicant): Petroleum diving was necessary for the state to get it up.
AP2 (Applicant): And the state itself interjected private entities between themselves and the risky operations to actively organize away from the risk.
Nina Vajić (JudgeP): Thank you very much, Mr. Ludvigsen.
Nina Vajić (JudgeP): I would like now to invite the judges to put any questions they may have to the parties.
Nina Vajić (JudgeP): Yes, Judge Sicilianos, please.
Linos-Alexandre Sicilianos (Judge): I have two questions, one for the applicants and one for the government.
Linos-Alexandre Sicilianos (Judge): To the applicants first, because it concerns the exhaustion of domestic remedies, you are certainly aware of our case law in this matter, and more precisely of the Akdivar versus Turkey case.
Linos-Alexandre Sicilianos (Judge): In this case, summing up our case law, the court has said that mere doubts about the outcome of a case is not sufficient, and that the applicant has to prove that the exercise of a remedy would be obviously futile.
Linos-Alexandre Sicilianos (Judge): Obviously futile.
Linos-Alexandre Sicilianos (Judge): So in response to question number five, you have spoken about legal issues which were similar.
Linos-Alexandre Sicilianos (Judge): They were similar, or were they essentially identical?
Linos-Alexandre Sicilianos (Judge): This is my first question.
Linos-Alexandre Sicilianos (Judge): My second question to the government, if agent, if I understood you well, you said in substance that the Norwegian state exercised the role of a mere regulator and supervisor of the activities on the continental shelf.
Linos-Alexandre Sicilianos (Judge): You also pointed out to the fact that the applicants were working for private companies, and consequently, that acts or omissions by such private companies, including the non-disclosure of the decompression tables, are not to be attributed as such to the Norwegian state.
Linos-Alexandre Sicilianos (Judge): This is, in a nutshell, if I understood you well, your main thesis.
Linos-Alexandre Sicilianos (Judge): Well, you are certainly aware of the articles on state responsibility by the International Law Commission, the UN International Law Commission, codifying this matter, as recognized by a number of actors, including by the International Court of Justice.
Linos-Alexandre Sicilianos (Judge): According to Article 5 of those articles, if an act or omission of a private entity can be attributed to the state if such entity exercises elements of governmental authority, elements of governmental authority.
Linos-Alexandre Sicilianos (Judge): So my question is, do you think that this condition is fulfilled in the present case, elements of governmental authority?
Nina Vajić (JudgeP): Any other questions? No.
Nina Vajić (JudgeP): Do you think, both parties, that you could answer immediately or you would prefer maybe to have a break?
Nina Vajić (JudgeP): Okay.
Nina Vajić (JudgeP): So the court will now rise for 15 minutes and following that we'll come back and return to the second round of short pleadings and the answers to the questions.
Nina Vajić (JudgeP): So we'll resume the hearing now and I give the floor to Mr. Emberland.
Nina Vajić (JudgeP): You have the floor, sir.
GR1 (Government): Madam President, Honourable Court, as to the question from Judge Sicilianos, whether, as far as I understood the question, whether the activities in question could be considered as elements of governmental authority within the meaning of the articles on state responsibility, the answer for...
GR1 (Government): The government's answer to this is no.
GR1 (Government): And this is explained by the fact that the state itself did not undertake any petroleum activities as such, nor even in the exploitation of resources.
GR1 (Government): It was the diving companies that were doing this.
GR1 (Government): They were private parties, all of them.
GR1 (Government): That also includes the Norwegian state oil company, Statoil, which was, from the very beginning, a private entity.
GR1 (Government): The involvement of the government was limited to controlling the activities and supervising the activities.
GR1 (Government): That being said, the government does not deny that the state may be responsible under the Convention by virtue of the positive obligations doctrine, in the sense that the government may be liable, even in the sphere of individuals between themselves.
GR1 (Government): As the Court states many times in this case law.
GR1 (Government): But the government submits, in our case, that that form of positive obligations would not lead to a violation of the Convention in this case.
GR1 (Government): Three points in response to the applicants' intervention.
GR1 (Government): First, briefly, as to whether the Court was required to disclose confidential business information, as has been maintained now in the Court today.
GR1 (Government): I would like to recall the judgment of Gaskin versus the United Kingdom from the 1980s, where the Court stated that it is not in itself a violation of the Convention to withhold sensitive information.
GR1 (Government): It is a legitimate interest to protect confidential information, and that interest has to be taken into account in the balancing that must be taken when assessing possible violations of, in this case, Article 8.
GR1 (Government): As regards to harmonization of decompression tables, when harmonization was effected in 1990, the time was ripe, so to speak.
GR1 (Government): Then there was more knowledge and more experience than before.
GR1 (Government): The government does not have any reliable information to state that this could have been a success 20 years earlier.
GR1 (Government): The argument posed by the applicants in this respect is, in the government's view, a pure hypothetical thought.
GR1 (Government): And finally, as regards knowledge of risks, it must be recalled that all governmental work with health and safety in the North Sea is aimed at controlling risk.
GR1 (Government): All efforts and regulations, development of standards, and tripartite cooperation is aimed at improving this and controlling risk.
GR1 (Government): And this is an ongoing work even today.
GR1 (Government): I thank you, Mr. President, for your attention.
Nina Vajić (JudgeP): I call Ms. Hellum-Lilleengen.
Nina Vajić (JudgeP): Now it will be Mr. Ludvigsen.
AP2 (Applicant): Madam President, distinguished members of the court, I will just connect a few short comments to the submissions made by the government, and the question from the court will be answered by my colleague.
AP2 (Applicant): I will first say that all the efforts made after 1991 mentioned by the government is, in our view, completely irrelevant.
AP2 (Applicant): The alleged breaches happened before 1990, and our main argumentation is that the government should have done something earlier.
AP2 (Applicant): Secondly, I will say that, as a comment to the government's allegation that many people doubted earlier in the diving adventure, that decompression sickness was dangerous and damaging.
AP2 (Applicant): That doubt rested completely upon the condition and assumption of correct, immediate treatment.
AP2 (Applicant): It was on that condition that someone doubted that it would be damaging.
AP2 (Applicant): And the diving doctors in the North Sea, they were not in the diving systems, and they were not on the diving ships.
AP2 (Applicant): They were not even in the North Sea, in most cases.
AP2 (Applicant): They were on land without any possibility of getting to the patient, or vice versa.
AP2 (Applicant): And there was no video conference links or other systems, as we know today, for remote treatment or diagnosing.
AP2 (Applicant): The doctors were for office work and not for treatment.
AP2 (Applicant): So it must have been obvious to the authorities, when they pre-approved the operations, that correct, immediate treatment was impossible and that decompression sickness had to lead to permanent damage.
AP2 (Applicant): Thirdly, I will mention that the government once again mentions the conferences in Godøsund and Stavanger.
AP2 (Applicant): But these conferences were about correctly conducted, flawless diving.
AP2 (Applicant): And it has never been any doubt in the medical circles that diving with free decompression tables were very risky and dangerous.
AP1 (Applicant): Madam President, distinguished members of the court, I'll first reply to Mr. Siciliano's
AP1 (Applicant): question regarding the admissibility criteria in the convention, Article 35. Your question
AP1 (Applicant): was whether the Supreme Court judgment in the cases of Mr. Mooladal and Mr. Vilnes,
AP1 (Applicant): in fact, prevented the other applicants from pursuing their complaint. And in fact it did
AP1 (Applicant): because the Supreme Court judgment considered the liability of the state in the cases of North Sea divers and the violation or their compensation claim. So none of the other North
AP1 (Applicant): Sea divers had a prospect of success in claiming the same liability against the state.
AP1 (Applicant): I will also make a few comments to the government's pleading. And first of all to what they say
AP1 (Applicant): about knowledge. They say they didn't know about the risks involved in the rapid tables.
AP1 (Applicant): I need to reiterate to everyone that the need for slow decompression to avoid health damage and possible death was already discovered in the 18th century when Mr. Paul Baer
AP1 (Applicant): published the book of La Pression Barométrique in 1878. So this is not a new evidence or fact
AP1 (Applicant): that decompression is dangerous or fast decompression is dangerous to people's lives.
AP1 (Applicant): This is very old and also in the 60s when the oil adventure started for Norway. Several medical
AP1 (Applicant): experts published articles about the possible long-term injuries of diving or rapid decompression. So knowledge, I mean this is something the Norwegian state was aware of.
AP1 (Applicant): Slow decompression is the main and single most important factor for safe diving. Nevertheless,
AP1 (Applicant): it did not take any action to address that particular point of the diving operations.
AP1 (Applicant): Also, my second point, I have three points also. My second point is that the state thus
AP1 (Applicant): had a substantive obligation to take to address decompression. That is my opinion.
AP1 (Applicant): And it's actually realized that it had the possibility to develop or look at these decompression tables. It looked at the state, the authorities looked at it in 1972 at the
AP1 (Applicant): Reers. However, it discussed, it sent letters, nothing happened. Nothing happened to either
AP1 (Applicant): disclose the tables, make a risk assessment comprehensible to the divers so that they could comprehend the excessive risk involved in rapid tables. The divers knew that diving
AP1 (Applicant): is probably more dangerous than many other professions, but they didn't know about the extra real level of stress that these rapid tables involved. And neither that the state
AP1 (Applicant): actually approved all these decompression procedures without knowing about the risks involved in these tables or putting a limit to it.
AP1 (Applicant): My third point is regarding causation. It is the court's practice, I refer to, for
AP1 (Applicant): instance, Budajeva, that causation is considered that the, we submit that the applicants have submitted substantial evidence. They've submitted medical records that actually
AP1 (Applicant): prove that they have sustained injuries following the diving in the North Sea operations.
AP1 (Applicant): And some of the injuries have been related directly to decompression tables, to rapid tables. We, however, we consider that also the short-term decompression illnesses
AP1 (Applicant): that were a consequence, a direct consequence of rapid tables where should be taken into account when considering causation are that in view of the Budajeva case, the causation discussion is justified as such. The court does not lay an extra burden on the applicants
AP1 (Applicant): to prove in more detail than that causation has been established.
AP1 (Applicant): So in my view, the government has not provided sufficient measures to address rapid decompression tables, even though it is the most critical factor to safe diving.
Nina Vajić (JudgeP): We have now come to the end of the hearing.
Nina Vajić (JudgeP): I would like to thank the parties for their interventions and also to their answers to the court's questions.
Nina Vajić (JudgeP): The court will now deliberate on the case, and a decision will be adopted later, of which the parties will be informed accordingly.
Nina Vajić (JudgeP): I declare the hearing closed.
Linos-Alexandre Sicilianos (JudgeP): I declare open the public hearing of the admissibility and merits in the case of Sargi and others versus Albania.
Linos-Alexandre Sicilianos (JudgeP): The application was lodged with the court on 19 February, 2016 under Article 34 of the Convention by 18 Albanian nationals and one Italian national.
Linos-Alexandre Sicilianos (JudgeP): The application was allocated to the first section of the court pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Linos-Alexandre Sicilianos (JudgeP): The application was communicated to the government on 19 April, 2016.