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issued by the Registrar of the Court   ECHR 340 (2013)   05.12.2013   Norwegian authorities failed to provide deep sea divers   with essential information about risks associated with their employers’ use   of rapid decompression tables   In today’s Chamber judgment in the case of Vilnes and Others v. Norway (application no. 52806/09),   which is not final1, the European Court of Human Rights held, by a majority, that there had been:   a violation of Article 8 (right to respect for private and family life) of the European Convention on   Human Rights on account of the failure of the Norwegian authorities to ensure that the applicants   received essential information enabling them to assess the risks to their health and lives resulting   from the use of rapid decompression tables;   no violation of Articles 2 (right to life) or 8 as regards the remainder of the applicants’ complaints   about the authorities’ failure to prevent their health and lives from being put in jeopardy; and   no violation of Article 3 (prohibition of inhuman or degrading treatment);   The case concerned former complaints by divers that they are disabled as a result of diving in the   North Sea for oil companies during the pioneer period of oil exploration (from 1965 to 1990).   As regards the applicants’ complaints concerning the authorities’ failure to prevent their health and   lives from being put in jeopardy, the Court considered that the authorities had taken a wide range of   measures in order to ensure the protection of divers’ safety, thus complying with their positive   obligations under Articles 2, 3 and 8. However, the Court also found that the authorities had failed to   comply with their obligation under article 8 to provide access to essential information enabling   individuals to assess the risks to their health and lives. Indeed, although there had been a lack of   scientific consensus regarding the long-term effects of decompression sickness, diving companies   had been allowed to keep their respective diving tables secret merely in order to have a competitive   advantage over other companies. Therefore, divers had been denied access to essential information   on rapid decompression times and on the consequence that this could have on their health and   safety. As a result, they had been unable to fully assess the risks involved and give their informed   consent.   This case is of interest because it complements the Court’s case-law on access to information under   Articles 2 and 8, notably in so far as it establishes an obligation on the authorities to ensure that   employees receive essential information enabling them to assess occupational risks to their health   and safety.   Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution   Principal facts   The applicants are five Norwegian nationals living in Norway, Dag Vilnes (born in 1949 and living in   Tønsberg), Magn Håkon Muledal (born in 1953 and living in Førde), Bjørn Anders Nesdal (born in   and living in Kristiansand), Knut Arvid Nygård (born in 1961 and living in Tananger) and Per   Arne Jacobsen (born in 1954 and living in Larvik); and, a Swedish national, Mr Lindahl (born in 1942,   and living in Avaldsnes, Norway) and an Icelandic national, Sigurdur P. Hafsteninsson (born in 1953   and living in Jersey, United Kingdom).   They were all former deep sea divers who had taken part in North Sea diving operations for the   petroleum industry during what was known as the pioneer period (from 1965 to 1990). All alleged   that they had developed health problems and had become disabled as a result of both bounce   (short) and saturation (longer duration) diving jobs. Most were still suffering from obstructive lung   disease, encephalopathy, reduced hearing and Post Traumatic Stress Disorder (PTSD). They   particularly alleged that shortcuts taken in their working conditions and safety had put their health   and lives in jeopardy. Dispensation arrangements from safety regulations had often been authorised2   , such as extending the maximum period of a saturation dive as well as the maximum length of the   divers’ umbilical (the breathing gas supply). Furthermore, decompression tables used for the return   of divers to the surface had not been standardised until 1990, allowing oil companies to reduce the   decompression time, lower their labour costs and have a competitive advantage over other   companies.   As a result, most of the applicants had experienced decompression sickness and the bends. Notably,   Mr Vilnes claimed that he had been involved in an incident when working on board the diving vessel   Arctic Surveyor in 1977 when he had been exposed to serious decompression sickness causing him   permanent brain and spinal damage. He further complained of another incident when, working on   the Tender Comet in 1983, he had experienced earache and severe pain during decompression and   decided to discontinue a dive. Lastly, the last six applicants also provided detailed accounts of the   harm caused to them by test diving in which they participated – without their informed consent – in   Bergen and the Norwegian fjords with NUI AS/Nutec AS (Norsk Undervannsintervensjon – Norwegian   Underwater Intervention Ltd and Falc Nutec safety company).   It has been known for some time that the 350 to 400 pioneer divers, including the applicants, had   developed health problems from diving. Long term studies showed possible connections between   diving and injuries to the central nervous system; and, in December 2002, a report from an   independent inquiry (the “Lossius report”) suggested that the State had legal and therefore financial   liability for the injuries sustained by North Sea divers and recommended that the divers be granted   compensation. The Government, although not accepting liability from a legal point of view,   considered that it had a moral and political duty to compensate the divers and a special   compensation scheme was set up.   Mr Vilnes has a disability pension and work injury benefits and, under the State compensation   scheme, has received 3,600,000 Norwegian krone (462,700 euros). The other six applicants each   receive disability pensions and some of them – like Mr Vilnes – have received compensation from   the State and the oil companies, Statoil/Hydro. In February 2005 Mr Vilnes brought proceedings   against the State claiming additional compensation and in December 2005 Mr Muledal and the other   five applicants brought similar claims. All the cases were subsequently joined, the third to seventh   applicants’ claims being adjourned pending the outcome of the proceedings brought by Mr Muledal.   Initially, in August 2007, Oslo City Court found for Mr Vilnes and Mr Muledal. Although the State had   taken all measures that could reasonably be expected to protect divers’ lives (meaning no breach of   Article 2 of the European Convention), when balancing the various interests (the disturbing number   By the Norwegian Labour Inspection Authority (until April 1978) and subsequently the Petroleum Directorate, the public authorities   entrusted with supervising and authorising diving operations.   of disabled divers compared to the fact that Norway had become one of the world’s richest nations   thanks to oil), it found on the whole that it would be reasonable and equitable to make the State   liable for the damage to divers’ health.   Later, however, in judgments of November 2008 and October 2009 the High Court and the Supreme   Court both found against the first and second applicants. As concerned Mr Vilnes’ complaints about   specific incidents at the diving vessels Arctic Surveyor in 1977 and Tender Comet in 1983 the courts   found no basis for holding the State responsible on strict liability ground in the absence of a   sufficiently close connection between the State and the alleged harmful activity. Nor could the State   be held liable according to the law on employer’s liability having regard to the measures taken by   the authorities to ensure the adoption of relevant safety regulations backed up by effective   implementation, inspection and supervision mechanisms.   Complaints, procedure and composition of the Court   Relying in particular on Articles 2 (right to life), 3 (prohibition of inhuman and degrading treatment)   and 8 (right to respect for private life) of the Convention, all the applicants complain that the State   failed to take appropriate steps to protect deep sea divers’ health and lives when working in the   North Sea and, as concerned three of the applicants, at testing facilities. They all also allege that the   State failed to provide them with adequate information about the risks involved in both deep sea   diving and test diving.   The application was lodged with the European Court of Human Rights on 24 September 2009.   Judgment was given by a Chamber of seven judges, composed as follows:   Nina Vajić (Croatia), President,   Peer Lorenzen (Denmark),   Khanlar Hajiyev (Azerbaijan),   Mirjana Lazarova Trajkovska (“the Former Yugoslav Republic of Macedonia”),   Julia Laffranque (Estonia),   Linos-Alexandre Sicilianos (Greece) and,   Dag Bugge Nordén (Norway), ad hoc Judge,   and also Søren Nielsen, Section Registrar.   Decision of the Court   Articles 2 (right to life) and 8 (right to respect for private and family life)   As regards the applicants’ general complaints concerning the authorities’ failure to prevent their   health and lives from being put at risk, the Court mainly agreed with the assessments made by both   the Supreme Court and the High Court. Notably, it confirmed that the regulatory framework put in   place by the Norwegian authorities had sought to protect divers’ safety responsibly and that the   public funded supervision had not been organised in an irresponsible manner.   The Court then examined Mr Muledal’s, Mr Lindhal’s and Mr Hafsteinsson’s complaints related to   test diving. Referring to the Supreme Court’s findings, it considered that the divers had been   sufficiently informed about the test dives, which had been previously approved by the competent   bodies after a thorough examination according to relevant medical norms and in the light of   information available at the time. It also found that, by their very nature, the test dives had involved   certain risks which made it difficult to compare them with other North Sea diving operations.   Therefore, the Court found that the Norwegian authorities could not be held responsible for any   violation of Articles 2 and 8 with regards to test diving.   The Court went on to examine Mr Vilnes’ complaints about the incidents which had occurred on the   diving vessel Arctic Surveyor in 1977 and on the Tender Comet in 1983. Apart from his allegation that   he had been exposed to serious decompression sickness owing to the use of excessively rapid   decompression tables, the Court found that Mr Vilnes’ submissions concerning other incidents were   too vague to determine whether they could be imputable to the Norwegian authorities. Accordingly,   this part of his complaint was rejected as manifestly ill-founded.   The Court reiterated that all the applicants had had the possibility to have the merits of their   compensation claims heard by national courts. Moreover, the Norwegian authorities and Statoil had   also set up special compensation schemes under which divers had been eligible to apply for   substantial amounts of compensation, which all seven applicants had done successfully. Therefore,   by taking a wide range of measures, the Norwegian authorities had put significant effort into   securing the protection of the divers’ health and safety, thus complying with their obligations under   both Articles 2 and 8.   However, the Court found it probable that the applicants’ health had significantly deteriorated as a   result of decompression sickness. It was also very likely that this had been due to the use of   excessively rapid decompression tables by diving companies. Indeed, following the standardisation   of decompression tables by the Petroleum Directorate in 1990, significantly fewer divers had   suffered from decompression sickness. Therefore, had the Norwegian authorities intervened earlier,   they probably could have removed what appeared to have been a major cause of excessive risk to   the applicants’ health and safety.   Since none of the applicants had been exposed to life-threatening experiences owing to any failure   on the part of the State, the Court did not analyse the matter in the light of Article 2. However, it   reiterated the State’s obligation under Article 8 to provide access to essential information enabling   individuals to assess risks to their health and lives. It found that decompression tables could be   viewed as a relevant source of information allowing divers to assess the risks to which they could   have been exposed. Yet neither the Labour Inspection Authority nor the Petroleum Directorate had   required diving companies to produce their decompression tables in order to assess their safety   before granting them authorisation to carry out individual diving operations. As a result, diving   companies had been allowed to keep decompression tables secret and to reduce decompression   times for competitive purposes.   Although there had not been a scientific consensus as to the long-term effects of diving, it had also   been widely acknowledged that decompression tables contained essential information for the   assessment of health risks within the framework of diving operations. For instance, in a letter of June   to the Diving Medical Advisory Committee, the Petroleum Directorate had expressed its   concerns about the difference between the slowest and the fastest decompression tables used in   the North Sea. However, the authorities had neither informed the applicants as to the possible   impact of such differences nor told them their concerns as regards their health and safety.   Moreover, a long period had elapsed until such time as the authorities had required oil companies to   assume full openness about the decompression tables.   Considering the authorities’ role in monitoring diving operations and in ensuring their safety, as well   as the lack of scientific consensus at the time regarding the long-term effect of decompression   sickness, a very cautious approach should have been adopted. Indeed, the authorities should have   taken steps to ensure that the applicants had received essential information regarding rapid   decompression tables, thus enabling them to assess the risks to their health and safety. Had the   authorities done so, they might have helped to eliminate sooner the use of excessively rapid   decompression tables as a means for diving companies to promote their own commercial interest   regardless of the divers’ health and safety. By failing to do so, the Norwegian authorities had not   fulfilled their obligation to ensure the applicants’ right to respect for their private life, in violation of   Article 8.   Article 3 (prohibition of inhuman and degrading treatments)   The Court referred to its previous findings that the authorities’ failure had been confined to a failure   under Article 8 to provide access to information regarding risks involved in the use of excessively   rapid decompression tables. Therefore it did not find that there had been a violation of Article 3 in   this case.   Just satisfaction (Article 41)   The court held that Norway was to pay 8,000 euros (EUR) to each applicant in respect of non-   pecuniary damage, EUR 40,000 to Mr Vilnes in respect of costs and expenses, and EUR 50,000 to Mr   Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen jointly in   respect of costs and expenses.   Separate opinions   Judge Lorenzen expressed a partly dissenting opinion.   Judges Nordén and Lorenzen expressed a joint partly dissenting opinion.   These opinions are annexed to the judgment.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. 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