The applicants were former divers engaged in diving operations, including test dives, in the North Sea during 1965 to 1990. As a result of their professional activities they suffered damage to their health resulting in disabilities (para. 14). The Government of Norway considered that it had a particular moral and political duty vis‑à-vis the divers and set up a compensation scheme whereby divers received a disability pension ex gratia (that is, not out of legal obligation) (para.17); some applicants received compensation from other sources, such as the state oil company Statoil. The applicants submitted that they were disabled and had lost their capacity to work as a result of North Sea diving, they requested establishment of strict liability and award of compensation accordingly. The Supreme Court concluded that a sufficiently close connection between the State and the harmful activity could not be established to hold the State strictly liable (para. 146). Nor was it liable under the law on employer’s liability having regard to the measures taken by the authorities to ensure the adoption of relevant safety regulations backed up by effective implementation, inspection and supervisory mechanisms. The applicants argued in front of the ECtHR that the state’s failure to provide information about decompression tables and the risks involved in diving operations violated Article 8 of the Convention (para. 186).
The Court at the outset affirmed that the state has a positive obligation under Article 8 “to provide access to essential information enabling individuals to assess risks to their health and lives” (para. 235). The Court noted that the “public’s right to information” should not be confined to information concerning risks that had already materialized, but should also apply to the sphere of occupational risks as a preventive measure (para. 235).
The Court accepted that the decompression tables contained essential information for divers to assess the health risks involved in operations and therefore give informed consent to the taking of such risks (para. 240). Considering the uncertainty and lack of scientific consensus at the time regarding the long-term effects of decompression sickness, the Court believed that the authorities should have taken precautionary measures, including to have provided the divers with decompression tables which would have enabled them to assess the risks and give informed consent (para. 244). The fact that this step was not taken meant that the state had not fulfilled its obligation to secure the applicants’ right to respect for their private life.
Judgment of the Court