EHRM, 05-12-2013, nr. 52806/09, nr. 22703/10

From the age of sixteen Mr Vilnes worked as a seaman for periods, pursued studies in mechanics and underwent secondary education and served as a marine soldier in the army until 1974. During the latter period he worked as a diver. From 20 May to 9 September 1975 Mr Vilnes 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.

Mr Muledal worked as a North Sea diver from 1978–89. He performed saturation dives for periods totalling approximately 500 days and also performed approximately 200 bounce dives. In a medical assessment by Haukeland University Hospital dated 28 June 2005, it was stated that on two or three occasions he had suffered from bends in the joints. He had also suffered several diving accidents and had had near accidents. On a number of occasions, he had been exposed to a gas-cut while diving. He had recovered several dead bodies in the sea following the accident on the Alexander Kielland drilling rig (which capsized during operations in the Ekofisk field in March 1980, killing 123 people).

Mr Muledal participated in a test dive known as ‘OTS III’ at a depth of 360 metres which lasted twenty-eight days (see paragraph 109 below). He lost seven kilos because he could not eat properly during the dive and has suffered from stomach problems since. He also suffered from High Pressure Neurological Syndrome (HPNS).

As a consequence of contracting chronic obstructive lung disease, he lost his diving licence in 1987. For that reason, his former employer, Aker Comex, terminated his employment in 1989. The said disease constituted a 15% disability. He may also have PTSD. He sustained damage to his hearing which may increase his degree of disability. In addition, he is suffering from encephalopathy, which represents a 20% disability.

From 1990 he received a 50% disability pension with occupational injury benefits and, from November 2008, a 100% disability pension.

Under the special compensation schemes described under paragraphs 16 to 18 above Mr Muledal received in total NOK 3,646,635 (approximately EUR 480,000) in compensation (including NOK 150,000 in Immediate Aid from Rogaland County Social Security Office; NOK 375,000 in support from Statoil; NOK 200,000 in ex gratia compensation from Parliament; NOK 2,057,230 plus another NOK 364,405 from the Special Compensation Board; and NOK 500,000 for loss of licence).

Mr Lindahl served as a North Sea diver from 1970–1993. He stated that thereafter he worked as an inshore construction diver on a significantly lower salary in a job that was easier to handle, despite his health problems. Because of chronic obstructive lung disease, he lost his medical certificate for diving in 2002. In a medical report on him by Haukeland University Hospital dated 26 February 2003 and an undated psychologist's report, it was noted that he had suffered from decompression sickness twenty times, with skin bends, mostly in the early phase of his career, and that these incidents had not been treated in a decompression chamber. It was further noted that he had been treated a number of times for decompression sickness involving skin bends and joint bends, and once, in 1981, for vestibular decompression sickness after diving at depths ranging between 120 and 150 metres on a North Sea saturation dive. As a result of the latter his hearing became impaired.

During his first saturation dive in 1974, Mr Lindahl and several colleagues experienced sudden decompression and error in gas supply due to power failure, leading to unconsciousness among the divers. Mr Lindahl also suffered from generalised convulsions. He submitted that incompetence and routine failings had caused the incident. Mr Lindahl had recovered bodies of people who had died in accidents. He had also experienced uncontrolled decompressions and near-accidents in which heavy objects had almost hit him while diving.

Mr Lindahl participated in the Deep Ex I test dives to 300 metres and Deep Ex II to 504 metres. During Deep Ex I, he experienced decompression sickness, and Doppler tests revealed gas bubbles in the artery.

According to a specialist medical statement dated 11 May 2008, diving in the North Sea caused him injury, including reduced lung capacity, producing a medical disability of 20%. Furthermore, he was 30% disabled by PTSD. Since 2003 he has received a 100% disability pension with occupational injury benefits, the occupational injury being assessed to have been originally sustained in 1985.

Under the special compensation schemes described under paragraphs 16 to 18 above Mr Lindahl received various sums totalling NOK 3,066,739 (approximately EUR 403,000) in compensation (including NOK 200,000 in Immediate Aid from Rogaland County Social Security Office; NOK 315,619 in support from Statoil; NOK 2,351,120 from the Special Compensation Board, which amount included NOK 200,000 in ex gratia compensation for non-pecuniary damage).

Mr Sigurdur P. Hafsteinsson was employed as a North Sea diver from 1978–90. After his medical certificate for diving was withdrawn in 1990, he worked as a dive supervisor and did other similar jobs. From 2001 his health gradually worsened, and from 2003 he was found to have 100% occupational disability.

According to a medical statement by Haukeland University Hospital of 2 May 2003, he had participated in two deep dives at 350 and 400 metres and had spent more than 300 days in saturation. He had suffered bends on three occasions (in his right knee). On several occasions he had witnessed fatal accidents and experienced near accidents.

For instance, he related an incident in 1982 when, while on a saturation dive at a depth of 150 metres, he and three fellow divers had just returned to the chamber when an unskilled worker was about to loosen a clamp that connected the diving bell to the diving chamber. Fortunately, the supervisor had heard the noise and managed to intervene just in time. Had this operation not been stopped, the divers would have been subjected to an explosive decompression. A similar error had led to the death of five people and seriously injured a sixth person in a diving bell on the Byford Dolphin rig in 1983.

On one occasion, in 1984, Mr Sigurdur Hafsteinsson's umbilical and the diving bell wire had been trapped in drilling wires and had been damaged. On another occasion, when working at a depth of seventy metres, there had been a powerful explosion which had caused sudden pain to his head and ears and possibly unconsciousness. He had been bleeding from the ears. Following this accident, he had suffered from impaired hearing. He had taken part in recovering bodies from the Alexander Kielland accident (see paragraph 43 above).

According to Mr Sigurdur Hafsteinsson, in 1983 and 1985, he had participated in test diving at NUTEC. In the first test dive, called Statpipe, divers had been taken down to 350 metres. In the second test dive, called Troll (the name of the rig), divers had been taken down to 450 metres. At 450 metres, he could hardly breathe and panicked. One of his colleagues had collapsed and had to be revived. In 1990, his diving licence was revoked. The medical expert declaration from Haukeland Hospital concluded that diving had caused him to suffer from an obstructive lung disease constituting a 25% medical disability. A medical expert in psychiatry had concluded that he suffered from PTSD representing a 35% disability and that he was 100% disabled.

Under the special compensation schemes described under paragraphs 16 to 18 above Mr Sigurdur Hafsteinsson received various sums, totalling NOK 5,901,120 (approximately EUR 776,000) in compensation (NOK 2,551,120 from the Special Compensation Board, which amount included NOK 200,000 in ex gratia compensation for non-pecuniary damage; NOK 2,750,000 from Chartis Insurance; and NOK 600,000 for loss of licence).

Mr Nygård worked as a North Sea diver from 1987–94. He carried out more than 200 air dives and saturation dives totalling approximately 200 days. He experienced numerous accidents and near-accidents as a North Sea diver. For instance, in 1988 he was almost hit by a crane ball (the massive hook on the vessel's main lifting crane, weighing between 100 and 300 kilos) while working at a depth of 150 metres, and just barely escaped death. His supervisor had apparently removed his headset and had not heard Mr Nygård's message of ‘all stop’ and therefore had not told the crane operator to stop the crane.

In 1990, while working at thirty metres in saturation, an oxy-arc (cutting tool) had exploded in his hand, hitting him hard in the chest, because a riser (a pipe conducting oil and gas between the sea bed and the oil rig) which Mr Nygård was burning had not been emptied of water, although the supervisor had confirmed several times that there was no water pressure in it. Consequently, the water pressure had blown the flame, sparks and oxygenic gas back at the oxy-arc that Mr Nygård was holding, which had thus exploded in his hands.

Mr Nygård further stated that in 1995 his medical certificate for diving had been revoked, as a result of his being diagnosed with chronic obstructive lung disease. For most of 1995 he had been on sick leave, and between 1995 and 2000 he had received retraining benefits as part of his re-adaptation funded by social security after he had quit diving. He obtained a degree in economics, and worked for a couple of years until he became incapacitated by his health problems.

According to a medical expert opinion dated 24 October 2005, mainly due to diving in the North Sea, Mr Nygård suffered from several medical disabilities, of which chronic obstructive lung disease amounted to 15%, PTSD to 34% medical disability, diver hands to 10%, and encephalopathy to 14 %. With effect from 1 October 2003 he was granted a 100% disability pension with occupational injury benefits. He submitted to the Court that his encephalopathy and chronic obstructive lung disease probably resulted from the use of rapid (dive) tables.

Under the special compensation schemes described under paragraphs 16 to 18 above Mr Nygård received various sums totalling NOK 6,773,935 (approximately EUR 891,000) in compensation (including NOK 3,651,560 and NOK 1,130,968, respectively for past and future loss of income from Vesta Insurance under the Workers' Compensation Act; NOK 1,254,196 from the Special Compensation Board, which amount included NOK 200,000 in ex-gratia compensation for non-pecuniary damage, and after deduction of the amount granted for future loss by Vesta Insurance; plus a further NOK 242,796 from the board, NOK 57,999 plus NOK 136,416 in compensation for permanent injury, and NOK 300,000 for loss of licence).

Mr Nesdal worked as a North Sea diver from 1982 to 1994. In parallel he also worked as an assistant diving attendant. In 1988 and 1989 he experienced dizziness on several occasions while diving and when off work. His health gradually deteriorated and in 1994 he quit diving. He later qualified to work as a sheet metal worker, which enabled him to pursue gainful employment until 2001, when he was granted a disability pension.

According to a medical statement by Haukeland University Hospital of 27 January 2005, he had experienced bends in his left elbow and had on two occasions suffered from decompression sickness assessed as bends in his lymph. On all three occasions the symptoms had disappeared following treatment in a compression chamber. He had later suspected that the bends in his lymph could have related to something else.

He experienced neurological symptoms on a saturated dive in 1985 and dizziness and nausea in several subsequent dives. On a number of occasions he had been exposed to life-threatening incidents while diving in the North Sea. Once he had been stuck in a shaft while hearing on the inter-communication system that divers should immediately revert to the diving bell because the diving vessel was drifting away. Mr Nesdal had observed the diving bell moving and had at the last minute managed to get released from the shaft and returned to the bell.

Another near accident had happened when he participated in the testing of a ROV (Remote Operated Vehicle, an unmanned submarine operated from the surface), weighing several tons. His umbilical had got hooked on to the ROV which had drifted away, stretching it almost to the point of bursting. Mr Nesdal had also witnessed two divers getting caught in the propeller behind the vessel, one of whom had died. Because of the great variations in the level of competence of surface crew, he had sometimes felt unsafe when receiving assistance from its members.

According to a medical statement from Haukeland University Hospital, dated 25 February 2005, no organic causes had been found for his episodes of dizziness. which most probably related to his depression and anxiety. a condition caused by diving and which represented a medical disability degree of 15–20%. The social security authorities first regarded him as having 60% incapacity for work, then in 2004 he was granted a 70% disability pension. His disability was found to date back to 1994.

Under the special compensation schemes described under paragraphs 16 to 18 above Mr Nesdal received various sums totalling NOK 2,945,786 (approximately EUR 388,000) in compensation (including NOK 160,000 in Immediate Aid from Rogaland County Social Security Office; NOK 410,651 in support from Statoil; NOK 200,000 in ex gratia compensation from Parliament; and NOK 2174,786 from the Special Compensation Board).

Mr Jakobsen worked as a North Sea diver from 1975–83. At the end of this period he also worked as a diving supervisor and diving superintendent, as he also did from time to time thereafter until he definitively left the diving industry in 1992. He then briefly served as project manager in a subsea project and in the following years he tried to make a career in business. Because of reduced working capacity and health problems he ceased working in 2004 and was granted a 100% disability pension in 2005. Norwegian social security set the date of the occupational injury at 1980.

According to a medical statement by the Haukeland University Hospital, dated 21 December 2005, he had experienced bends on fifteen to twenty occasions (once in his skin, on other occasions in his joints — the right shoulder and elbow).

He submitted to the Court that he had been exposed to a life-threatening situation in 1979 when using surface-supplied breathing gas in a dive in the North Sea. He had been diving alone inside a rig construction on the seabed, checking the welding, when he suddenly heard a crack. The hawser attaching the vessel to the rig had torn apart and the vessel had pulled backwards, dragging him along by the umbilical. He risked being caught in the propeller and losing air from the umbilical. Fortunately he managed to locate the diving basket on the seabed and climb into it and receive decompression treatment there. During that same period a colleague of his had been crushed to death by a container during a crew change.

On several occasions he had experienced a loss of seal on the diving bell, causing it to lose pressure and mist over. Losing the seal on the diving bell during a dive was always life-threatening. Gas was streaming out of the bell. Reacting quickly and going down to deeper waters inside the bell, with the surface crew lowering the bell back to working depth to maintain pressure was the only way to survive. The divers' lives had depended entirely on their knowledge of how to address the problem and on the skills of diving management at the surface. During a saturated dive in 1978, Mr Jakobsen had experienced the diving bell wire being torn apart and the bell falling to the sea bed. He had been in the chamber while his fellow workers had been under the bell. They had received a new wire and had been rescued.

In 1980 Mr Jakobsen had participated with a colleague in the recovery and identification of the deceased after the above-mentioned accident at the Alexander Kielland drilling rig. They had spent sixteen days in saturation under the platform, an extremely dangerous operation, and had recovered many corpses. After that incident his colleague had quit diving altogether, whereas Mr Jakobsen had continued.

An expert in psychiatry had concluded on 3 June 2005 that he found it probable that Mr Jakobsen had experienced numerous critical situations and suffered from traumatic stress caused by dangerous and sometimes life-threatening incidents. He suffered from PTSD mainly caused by stress connected to North Sea diving. On account of psychological injury his medical disability was assessed at 35% and he was 100% disabled. The findings as to his medical disability were confirmed by a medical expert statement from the Haukeland University Hospital dated 21 December 2005.

Under the special compensation schemes described under paragraphs 16 to 18 above Mr Jakobsen received various sums totalling NOK 2,627,960 (approximately EUR 346,000) in compensation (including NOK 300,000 in Immediate Aid from Rogaland County Social Security Office; NOK 200,000 in ex gratia compensation from Parliament; and NOK 2,024,465 plus another NOK 303,495 from the Special Compensation Board).

Pursuant to the 1978 safety regulation, the saturation period for saturation diving should not exceed sixteen days. However, the Petroleum Directorate could authorise an extension of the period to twenty-four days and exceptionally to thirty-two days, provided this had been agreed between the diving companies and the divers' representatives. Such dispensation arrangements had to be seen against the background that certain operations took more than sixteen days, and that avoiding sending in a second team permitted a reduction in certain risks involved in subjecting a new diving team to pressure in order to complete the work (NOU 2003: 5, p. 80).

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. Dispensations were sought for safety reasons, notably in order to reduce the risk of the diving vessel and the diving bell getting too close to the oil platform.

In both respects, the Directorate practised a liberal policy in granting dispensations. The Lossius Commission observed that the granting of dispensations appeared to be almost automatic; this was a practice which was criticised by divers' organisations. At the same time, the Commission stated:

The diving companies using tables involving shorter decompression time and therefore lower labour costs had a competitive advantage over other companies operating with longer saturation periods. In order to strengthen their own competiveness, the companies treated the decompression tables which they used as confidential information that should not be disclosed to other diving companies or to the Norwegian authorities.

A letter of 10 July 1969 from The University of Newcastle Upon Tyne (M.R.C. Decompression Sickness Central Registry) to the Norwegian Labour Inspection Authority states:

At the initial phase tables for bounce diving developed by the US Navy were being used. The Labour Inspection Authority had no access to tables used in saturation diving. In 1972 it took the initiative to develop Norwegian tables. A German research body was contacted but cooperation proved to be difficult.

In section 5.7.4 of the above-mentioned 2003 Lossius report, the following observation may be found under the title ‘Work on diving tables offshore’:

In a letter of 21 June 1984 to the Diving Medical Advisory Committee, the Petroleum Directorate stated:

In a report of February 1986 prepared for the Norwegian Petroleum Directorate, Mr H.V. Hempleman stated, inter alia, that ensuring the safety of divers during the decompression phase of a saturation dive involved the examination of a very wide range of techniques and practices. He explained that there was a lack of knowledge which had led to an uneasy feeling amongst many people closely connected with diving work that perhaps the current procedures could be causing long-term damage to sensitive tissues, particularly the nervous system. The situation was not helped by persistent rumours that divers had suffered serious and permanent memory impairment and personality changes as a result of their employment as divers. Deciding whether such psychological changes had occurred and if so whether they were attributable to diving activities was a task of great complexity, and it would undoubtedly take many more years of intensive effort to establish an agreed answer. He then pointed out:

Mr Hempleman highlighted the various factors explaining the lack of hard data in this area. Nearly all relevant knowledge concerning saturation diving had been obtained using human volunteers; a saturation dive was defined as a dive where at least twenty-four hours had been spent at depth before decompression commenced, the costs of mounting a series of definitive experimental saturation dives were huge, each experiment requiring a large pressure chamber facility, and it was useless to expect any statistically significant results from fewer than ten trials with three men per trial; one single experiment would occupy the whole chamber complex for at least a year to settle just one point. He added:

Under the heading ‘Data collection and analysis’, Mr Hempleman pointed out that because diving was a relatively safe practice the number of decompression sickness incidents in any tests would be small, and errors in small numbers could be seriously misleading. After explaining further the difficulties involved, he stated:

The report moreover gave an analysis of the particular features of the ‘Hyperbaric Environment’, a presentation of ‘Units of Measurement’, as well as series of detailed ‘Safety Recommendations’ and concluded:

In 1990, the Petroleum Directorate initiated a programme of standardisation of compression- and decompression routines. The standardised diving tables that were introduced in 1991 used as a basis the most conservative diving tables that existed in the industry, on the assumption that this would optimise the safety of divers.

In a report of January 1991 comparing the saturation diving tables and assessing the preparation of conditions for standardisation, the Petroleum Directorate stated that a common framework of diving tables would significantly optimise divers' safety, provided that a common and simple system of reporting injuries and illnesses sustained in saturation diving was developed in parallel.

After the introduction of standardised tables, decompression sickness became a rare occurrence.

As can be deduced by interpreting the columns illustrating the annual occurrence (from 1978 to 2002) of decompression sickness, in a statistical table prepared by the Petroleum Directorate (dated 5 November 2003), there were almost fifty-five incidents in 1979, forty in 1979, fifteen in 1980, nine in 1981, twelve in 1982, eleven in 1983, ten in 1984, three in 1985, 1986 and 1997, almost eight in 1988 and nine in 1989, one in 1990, none in 1991 and 1992, three in 1993, none from 1994 to 2001, and one in 2002.

The Labour Inspection Authority, which was responsible for supervising diving activity in the North Sea until 1978, had one employee specifically entrusted with the task of supervising the entire petroleum industry inshore and offshore. He was educated as a civil engineer and had many years' experience as an inshore construction diver before he carried out inspections in the North Sea. The inspections conducted were directed at technical devices rather than diving methods and routines.

The Lossius Report included the following observation (on page 76):

In a letter to Statoil dated 23 March 1990 the Petroleum Directorate observed:

With regard to the Labour Inspectorate supervision of diving, the Lossius Commission stated (section 5.7.5, penultimate paragraph):

As regards the supervision of the use of diving tables, the Lossius Commission made the observations in section 5.7.4 quoted in paragraph 83 above, notably in the penultimate paragraph (‘[14]’) of the quote.

Pioneer divers were critical of the Labour Inspection's competence and supervision. The Lossius Commission confirms their criticism to some degree, stating that:

An additional staff member was hired during the last period of the Labour Inspectorate's supervision of North Sea diving, before the Norwegian Petroleum Directorate took over the responsibility and supervision in 1978, starting with five staff members.

The applicants pointed out that in addition to having satisfactory knowledge and equipment to stay under water, professional divers needed to perform numerous duties such as welding, localisation, installation, dismantling and guiding of equipment, and so on. (Lossius Report, section 4.3.2, pp. 56 and 57).

Despite the varied and demanding work, the Lossius Report stated that there was no organised training of North Sea divers in the first years of the petroleum industry. The Labour Inspection Authority's only requirement for professional divers was an approved medical certificate (Lossius Report, section 4.3.3, first paragraph, p. 57).

The first diving certificate requirements entered into force in 1979, and in 1980 the State opened a diving school.

According to the applicants, a culture of under-reporting of accidents and near accidents prevailed in North Sea diving. The Government took no adequate steps to address the under-reporting, and accepted that accidents and near accidents were not investigated. Therefore, oil companies and diving companies did not suffer any consequences as a result of malpractice. They were not compelled to address the cause of accidents and near accidents. On this matter the Lossius Commission stated (section 5.11, p. 89 of the report):

The applicants submitted that divers had been exposed to dangerous chemicals that existed in, for instance, drilling mud and breathing gas, as well as bacterial growth in decompression chambers. For nearly forty years the matter had not been the subject of any scientific research, and only in 2006 was a study produced. The study, known as the ‘Thelma Report’, concluded that divers had been exposed to organic pollution and that the diving bell was the most polluted system. Whilst the testing and monitoring of chemical exposure had not complied with applicable procedures laid down by the industry itself and its contractors, it had not been possible to calculate the full level of pollution and health risk in hyperbaric activities. This should be a priority in the future.

Furthermore, the report stated that no survey was available of the amount of activities that had taken place in polluted areas and that increased knowledge of seabed pollution would facilitate the estimation of risk and level of health-damaging pollution in the diving bell (possibly because divers carry mud with them from the seabed into the diving bell). Consequently, necessary preventive measures could be implemented prior to an operation or the use of the diving bell.

The Thelma Report concluded that there was a lack of knowledge relating to the effects of divers' exposure to chemicals. However, North Sea divers continued to live with those effects, and with the uncertainty as to which chemicals had caused them.

First, in considering whether the State could be held liable on the basis of the general principle on strict liability, the Supreme Court observed, inter alia, that the fact that diving was a risky activity ought to be the starting point for any assessment. Nonetheless, it had been clear that the risk to which the North Sea divers had been exposed exceeded what they had the right to expect. When the diving had taken place, uncertainty had prevailed as to the injuries that later materialised. The view that many deep-sea dives could lead to neurological injuries had emerged only gradually. Even when the Lossius Commission had produced its report at the end of 2002, it had concluded that well controlled research on delayed effects was missing (NOU 2003:5, p. 43). Under these circumstances, the divers could not be regarded as having accepted the risk of after-effects that were unknown to them.

The salient point in the assessment was whether there was a sufficient link between the State and the harmful activity. Since the point of departure in Norwegian law was that only the owner or proprietor of the relevant activity could be held liable, and since in this case the State was not the owner or proprietor of the diving businesses, the decisive matter would be whether other sufficient links existed. In this context the Supreme Court thoroughly examined in turn the various arguments advanced by the claimants to establish the existence of such a link, observing notably the following:

The Supreme Court 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. Its assessment comprised the following reasons:

To the above, the Supreme Court added that many of the factors pointed out by the divers, such as too-rapid decompression tables or equipment defects, might very well have caused considerable additional strain for many divers. However, this could not imply any liability on the part of the Labour Inspection Authority or the Norwegian Petroleum Directorate, as long as they did what could reasonably be expected of them in carrying out their supervision.

Finally, the Supreme Court examined the complaint made, inter alia, by Mr Muledal regarding test diving in relation to his participation in the OTS III dive, which had lasted for twenty-seven days from 6 November 1986, and in which the deepest dive had gone down to 360 metres. It noted that test dives had taken place at a research institution, NUTEC, which was an independent legal subject, separate from the State (see paragraph 108 above) and that, accordingly, any compensation claim ought to be directed at NUTEC. The test dives had not been commissioned by the State, but had been initiated and primarily financed by the oil companies. The appellants' suggestion that by contributing to making feasible work (the laying of pipelines and oil production) at great depths the test dives had served the interests of the State could not result in the State being held liable

Any such liability would have to be founded on the authorities' responsibility for supervision of test dives. The Supreme Court noted that the test dives had raised complicated medical and technical diving questions. In view of the procedures in place, the thorough examination by the competent bodies before the test dives were authorised, as well as the advance information provided to the divers (that it was voluntary and that they could withdraw) and the supervision by medical doctors, it found no basis for holding the Labour Inspection Authority liable for negligence in its authorisation and supervision thereof. To the extent that the agreed procedures had not been adhered to during or immediately after each dive, any claim for damages would have to be addressed to the companies or institutions that had implemented the dive, not against the State's supervisory authorities.

Lastly, 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 life but also when in the circumstances there was a threat to physical integrity (see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 146, ECHR 2008(extracts)). 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 (ibid., §§ 128–31, 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., cited above, (health hazards from atomic explosions); and Öneryıldız, cited above, (methane gas explosion at a rubbish heap). The Supreme Court observed that none of these cases had concerned threats to life occasioned by professional risk. On the latter subject, as 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 (see Budayeva and Others, cited above, §§ 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 the 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 appear 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 search 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 it.

The plaintiffs had also prayed in aid case-law concerning health risks 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:

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 cited 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 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 was covered by Article 8 but not 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 Mr Vilnes, could amount to inhuman and degrading treatment in the sense of Article 3.

As regards 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 produced, 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 Mr K. were attributable to these test dives. The tests had been carried out in the 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, the United Kingdom, 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 Mr Vilnes's complaint of violation of Article 14 of the Convention on the ground that the protection level for diving in the oil sector had been lower than for work in other sectors. This provision only applied to differential treatment that was deemed unjustified in relation to rights that were protected by the Convention. His complaint was of a general nature and did not specify which rights that he — or possibly other divers — had been deprived of. To the extent that he could be considered to complain that divers for a period did not fall within the 1977 Working Environment Act (arbeidsmiljøloven), his argument could not succeed.

The Court is unable to accept the Government's argument, based on Makaratzis, that Article 2 was inapplicable. That case concerned, inter alia, the use of force by police officers in a hot-pursuit operation which had not in the event been lethal. Irrespective of whether the police had actually intended to kill him, the applicant was found to be the victim of conduct which by its very nature had put his life at risk, even though he survived. The Court found there that Article 2 was applicable and sees no reason for arriving at a different conclusion in the present case.

In applying this provision to the instant case, the Court will have regard to the general principles stated in Öneryıldız and further elaborated in Budayeva and Others, both cited above, as summarised in Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, §§ 157–161, 28 February 2012:

The Court cannot but note that, apart from the seriousness of the applicants' allegations under the Convention, the present case is characterised by a high degree of complexity and the presence of a number of imponderable factors. Not only are the facts complained of extensive and dating far back in time, the grievances alleged by the applicants also concern a wide range of alleged failures by the authorities of the respondent State to protect them against occupational injuries raising issues of a highly technical nature.

The Supreme Court pointed out that diving was a risky activity and that this ought to be the starting point for the assessment. Nonetheless, the Supreme Court continued, it had been clear that the risk to which the North Sea divers had been exposed exceeded what they had the right to expect. When the diving had taken place, uncertainty had prevailed as to the injuries that later materialised. The view that many deep sea dives could lead to neurological injuries had emerged gradually. Even when the Lossius Commission had produced its report at the end of 2002, it concluded that well controlled research on later and delayed effects was missing (NOU 2003:5, p. 43). Under these circumstances, the divers could not be regarded as having accepted the risk of after-effects that were unknown to them. (see paragraph 145 above). The Supreme Court also stated that since under the applicable regulations it had been the task of the authorities to consider whether the diving could be carried out in a safe manner, they had been actively involved in the matter and had been in a position to prevent a given diving operation from taking place (see paragraph 147 (b) above). At the same time, regard ought to be had to the knowledge possessed at the material time — an assessment of liability ought not to be based on hindsight — and the fact that, as already mentioned, diving was in itself a risky activity, especially deep-sea diving related to the development of oilfields (see paragraph 147 (c) above).

The Court will take the above-mentioned considerations as a starting point for its own examination of the case under the Convention. Unlike the national courts, who examined the matter from the angle of national compensation law (see the summary of the Supreme Court judgment at paragraph 146), it sees no need to consider in detail the degree of involvement of the respondent State in the hazardous activity in question, since the Convention obligation applies to ‘any activity, whether public or not’ (see Kolyadenko and Others, cited above, § 158).

Having regard to the careful and thorough review carried out by the national courts at three levels of jurisdiction, notably in their examination of the questions of liability under domestic compensation law, the Court would be cautious about substituting its own assessment of the facts for theirs (see, mutatis mutandis, Klaas v. Germany, 22 September 1993, §§ 29 and 30, Series A no. 269); it sees no reason to call into doubt the following assessments made by the Supreme Court and also the High Court (the latter especially on some points not admitted for review by the Supreme Court):

The Court also notes that, after a detailed assessment of, inter alia, Mr Muledal's complaints regarding the test diving, the Supreme Court found no basis for holding the Labour Inspection Authority liable on account of negligence in respect of its authorisation and supervision thereof (see paragraphs 149 and 150 above) nor did it find the authorities responsible for any breach of Articles 3 or 8 of the Convention (see paragraph 160 above). The divers had been informed about the test dives beforehand, the test dives had been approved by the competent bodies after a thorough examination according to relevant medical and ethical norms and guidelines and in the light of information available at the relevant time. There was no support for holding that the delayed injuries sustained by Mr Muledal were attributable to these test dives. The Court finds no grounds to arrive at a different conclusion. Nor does it find any grounds to regard differently the complaints made by Mr Lindahl and Mr Sigurdur P. Hafsteinsson in respect of the test dives in which they had participated (see paragraph 109 above). The suggestion that the Deep Ex I dive had been implemented before approval by the ethics committee is not borne out by the documents presented to the Court, from which it appears that the recommendation of approval pre-dated rather than post-dated the beginning of the dive (see paragraph 109 above, item (e)).

The Court is equally not persuaded by their argument that the experiences in the Deep Ex I and II dives had been presented as trouble-free to those who had later participated in the Troll dive (see paragraph 110 above) or that the authorities were responsible for any misleading information being given about those experiences by the employers to the divers on the latter occasion.

In the Court's view, it was in the nature of things that test dives, whether they were experimental diving or verification diving (see paragraph 107 above), involved certain risks which made it difficult to compare that kind of activity with North Sea diving operations generally.

As regards Mr Vilnes' complaints about what he described as the authorities' four acts or failures to act in relation to certain incidents at Arctic Surveyor in 1977 and at Tender Comet in 1983 (in respect of which he was denied leave to appeal by the Supreme Court) (see paragraph 143 above), the Court observes that his submissions that on the former occasion he had been exposed to serious decompression sickness owing to excessively rapid decompressions were quite specific and reasonably clear, as was his allegation regarding decompression tables used on the latter occasion. The Court will return to these matters below.

On the other hand, most or all of Mr Vilnes' remaining submissions concerning other incidents at the Arctic Surveyor in 1977 were too vague as to what he considered had caused them and, in particular, to what extent they had been imputable to any of the specific shortcomings for which he criticised the State, to enable the Court to pronounce any view on the matter. This was the case, for instance, in respect of his account of the umbilical being pinned under a cement block; his being pulled by the umbilical as the vessel moved in a drift; the gas cut; and the vessel being damaged in a hurricane while he was undergoing saturation (see paragraphs 24 and 25 above). Nor is it clear to what extent Mr Vilnes had been personally affected by the various other deficiencies at the Tender Comet which he criticised in a general way (see paragraphs 31 to 37 above) and which the High Court noted (see paragraph 140 above) had been upheld. However, when viewed from the angle of the State's positive obligations under Articles 2 and 8 of the Convention, the Court considers that Mr Vilnes' grievances under these headings are unfounded.

230. Thus far, the Court sees no reason for disagreeing with the findings of the national High Court and the Supreme Court in respect of Mr Vilnes and Mr Muledal (see paragraphs 129 to 140 and 146 to 160 above), which it finds equally valid for those five applicants who were awaiting the outcome of those proceedings.

What is more, when considering the regulatory framework referred to above, it ought to be relevant that it was possible under national law to establish liability to pay compensation, that Mr Vilnes and Mr Muledal had the merits of their compensation claims heard by the City Court, the High Court and the Supreme Court, and that this opportunity was also available to the remaining five applicants. Furthermore, regardless of the national law on compensation, the respondent State and Statoil had set up special compensation schemes under which divers were eligible to apply for substantial amounts of compensation, which all seven applicants did successfully (see paragraphs 17 to 19 above).

Having regard to all of the above considerations, the Court finds it established that the authorities of the respondent State went to some lengths in their efforts to secure the protection of the divers' safety and health by taking a wide range of measures, and that in so doing they acted in a manner that was consistent with their positive obligations not only under Article 2 but also Article 8 of the Convention.

It remains, however, that the Court is less convinced that, as argued by the Government, the respondent State bore no responsibility for the fact that diving companies continued to use rapid decompression tables for as long as they did. It observes that the High Court found that Mr Vilnes' decompression sickness in 1977 had most likely been caused by the facts that the diving company had used too rapid a decompression table and there was no medical doctor who could assist him. This incident had probably been a strong contributory cause of his brain and spinal injuries (see paragraph 139 above). Mr Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nesdal and Mr Jakobsen all submitted specialist medical statements indicating that they had suffered from various forms of bends (see paragraphs 39, 40, 43, 48, 51, 65 And 71 above). Mr Nygård, whose grievances mainly focussed on accidents and near-accidents, as did the relevant medical expert statement, also described experiences of decompression sickness when seeking compensation at the national level (see paragraph 62 above), and the Court accepts his account. All seven applicants furnished evidence of disability, including medical evidence and the grant of disability pensions (see paragraphs 41, 46, 51, 53, 57, 62, 68, 70, 75 above). The Court, having regard to the parties' arguments in the light of the material submitted, finds a strong likelihood that the applicants' health had significantly deteriorated as a result of decompression sickness, amongst other factors. This state of affairs had presumably been caused by the use of too-rapid decompression tables. In this regard it cannot but note that, as observed by the Supreme Court, standardised tables had not been achieved until 1990, following a project financed by the Petroleum Directorate, and that decompression sickness had since then become an extremely rare occurrence. Thus, with hindsight at least, it seems probable that had the authorities intervened to forestall the use of rapid decompression tables earlier, they would have succeeded in removing more rapidly what appears to have been a major cause of excessive risk to the applicants' safety and health in the present case.

A preliminary question is whether it would be appropriate to review such an omission under Article 2 of the Convention. From the findings stated in paragraphs 224 to 230 above it follows that the applicants were not personally exposed to life-threatening experiences as a result of any shortcomings on the part of the respondent State. Since the core problem relates to the long-term effects on human health of the use of excessively rapid tables, not to sudden changes in pressure that could have lethal effects, it would seem more appropriate to deal with the matter from the angle of the State's positive obligations under Article 8 of the Convention.

In this regard, the Court reiterates that since Guerra and Others, cited above, §§ 57–60; developing López Ostra, cited above, § 55; see moreover McGinley and Egan, cited above, §§ 98–104; and Roche, cited above, §§ 157–69), the Court has affirmed a positive obligation for States, in relation to Article 8, to provide access to essential information enabling individuals to assess risks to their health and lives. In the Court's view, this obligation may in certain circumstances also encompass a duty to provide such information, as can be inferred from the concluding paragraph 60 (concerning Article 8) in Guerra and Others, (cited above) and the affirmation of the ‘public's right to information’ with reference to the latter in the context of Article 2 (see Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132). It does not follow from the foregoing that this right ought to be confined, as suggested by the Government, to information concerning risks that have already materialised. In relation to Article 2 the Court has held that ‘among [the] preventive measures [to be taken] particular emphasis should be placed on the public's right to information’ (emphasis added here) (see Kolyadenko and Others, cited above, § 159, quoted at paragraph 220 above), and the position in relation to Article 8 can hardly be different. Nor does it follow that the right in question should not apply to occupational risks, another argument advanced by the Government which is not supported by the decision they cited (see paragraph 204 above).

In applying the above principles to the present case, the Court considers that the decompression tables used in diving operations may suitably be viewed as carriers of information which is essential in enabling the divers to assess the health risks involved, in the sense that diving carried out in accordance with the tables would be assumed to be relatively safe, whilst diving which did not respect minimum decompression standards would be deemed unsafe, a perception likely to be reinforced by diving operations being subject to prior administrative authorisation. Thus, the question arises whether, in view of the practices related to the use of rapid decompression tables, the divers received the essential information needed to be able to assess the risk to their health (see Guerra and Others, cited above, §§ 57 to 60, Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132) and whether they had given informed consent to the taking of such risks. This question, it is noted in passing, was among a very broad range of other issues raised in substance before the national courts, albeit without featuring at the centre of the national pleadings, unlike in the Convention proceedings.

The Court is not persuaded, as suggested by the Government, that by virtue of Article 121 of the 1967 Diving Regulation the authorities had already required the diving companies to provide information about the diving tables to be used, and that the companies had complied. As observed by the Supreme Court (while making reference to pp. 74–76 (section 5.7.4) of the Lossius Report), ‘the Labour Inspection Authority did not have access to tables for saturation diving and in late 1972 took the initiative to develop their own Norwegian tables’ (see paragraph 147 (h) above). Moreover, in section 5.7.4 of the said report it was stated that ‘the Norwegian authorities gradually gained access to decompression tables for saturation diving [emphasis added]’ (see paragraph 83 [14] above). The High Court noted that under certain provisions of the 1978 Regulation (Article 3.4 (1) in conjunction with Article 3(k) of its Appendix), the Petroleum Directorate could demand the production of the diving table used in a given diving operation (see paragraphs 128 and 168 above). The High Court commented in response to this that whether it was safe to use a table should have formed part of the basis for authorising a diving operation, and that it did not seem reassuring that tables had not been reviewed because employees of the Petroleum Directorate had not understood them (see paragraph 128 above).

It rather appears therefore that neither the Labour Inspection Authority nor the Petroleum Directorate required the diving companies to produce the diving tables in order to assess their safety before granting them authorisation to carry out individual diving operations. It seems that the diving companies were left with little accountability vis-à-vis the authorities, and were allowed to deal with the tables as their business secrets and thus enjoyed for a considerable period a wide latitude in opting for decompression tables that offered competitive advantages serving their own business interests. According to the Lossius Report (section 5.7.4), regard for divers' health thus ran counter to strong commercial interests, and this issue was well known to the oil companies, the diving companies, divers themselves, diving doctors and the Norwegian authorities (see paragraphs 83 above). The relevant supervisory authorities were aware that the diving companies kept the tables confidential for competitive reasons (see paragraphs 111 to 112 of the Supreme Court judgment quoted at paragraph 147 (k) above).

In this connection the Court agrees with the view of the High Court, endorsed by the Supreme Court, that the assessment of what could be regarded as a justifiable risk ought to be based on the knowledge and perceptions of this matter at the time in question (see paragraphs 129 to 130 and 147 (c) above). As regards the effects of diving, the Supreme Court reiterated that it had been known that sudden changes in pressure could have a great impact on the body (and, as pointed out by the High Court, those effects could in the worst cases be life-threatening) but there had been less knowledge about the long-term effects. At a consensus conference in Stavanger in 1983, American, British and French specialists in diving medicine had held that diving in accordance with the regulations had been safe. Others, including Norwegian researchers, had not been convinced of this (see paragraph 147 (f) above). At the consensus conference held ten years later at Godøysund the position was largely the same, with a leaning towards the possibility that diving under these conditions might have neurological and psychiatric after-effects. In 2002 the Lossius Commission had concluded that there was no clear evidence that could answer the question (ibid.). The Supreme Court noted that on the evidence the High Court had 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 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 this treatment had been regarded as final (NOU 2003:5, p. 76) (ibid.). The Court sees no reason to call this assessment into doubt. In similar vein, it appreciates that scientific research into the matter not only required considerable investment but was also very complex and time-consuming (see paragraphs 85 to 88 above).

At the same time, the Court finds it equally unquestionable that the prevailing view was also that decompression tables contained information that was essential for the assessment of risk to personal health involved in a given diving operation. That this was the raison d'etre of such tables was well illustrated, for example, by the letter of 10 July 1969 from the University of Newcastle-upon-Tyne to the Norwegian Labour Inspection Authority (see paragraph 81 above) and by the letter of 21 June 1984 from the Petroleum Directorate to the Diving Medical Advisory Committee (see paragraph 84 above).

In the last-mentioned document it was stated that the Petroleum Directorate had recently gone through most of the diving tables available and at that time used in the North Sea, and had found ‘the difference between the slowest and the fastest table disturbing. The difference in decompression time from 1,000 feet [was] close to a week when comparing the fastest and the slowest table. In fact, the fastest table … considered [was] faster than the Duke Emergency Decompression profile from saturation dive. This Duke table [was] in other companies used as the dive profile for aborted dives in serious emergencies. … The … Directorate [was] concerned about these differences and problems as they [were] considered to relate directly to the health and safety of divers’ (see paragraph 84 above).

However, it does not appear that the authorities took any measures with a view to bringing to the attention of the applicants, or to other divers like them, information enabling them to appreciate whether a table used in a diving operation was comparatively fast or whether it was conservative. As already mentioned above, a considerable period elapsed without the authorities requiring the diving companies to assume full openness about the tables. Nor does it seem that the authorities informed the applicants and other divers of their concerns about the differences between tables and the problems this posed with regard to divers' health and safety.

The Court has taken note of the Government's argument that a diver would normally be acquainted with the table he would use in carrying out a diving operation for a given company, and might also be in a position to compare tables when working for other companies. However, whilst it cannot be excluded that some comparative information regarding decompression tables could have reached the applicants in this way, this would only have been at random and could hardly be regarded as sufficient for the purpose of enlightening them about the risks and to enable them to give an informed consent to the taking of such risks.

Having regard to all of the above-mentioned considerations, in particular the authorities' role in authorising diving operations and in protecting the safety of such operations as well as the lack of scientific consensus at the time regarding the long-term effects of decompression sickness and the uncertainty about these matters which existed at the time (see paragraph 147 (h) above), in order to minimise the possibility of damage a very cautious approach was called for (see paragraph 85 above). In the Court's view it would therefore have been reasonable for the authorities to take the precaution of ensuring that the companies observe full transparency about the diving tables used and that the applicants, and other divers like them, receive information on the differences between tables, as well as on their concerns for the divers' safety and health, which constituted essential information that they needed to be able to assess the risk to their health and to give informed consent to the risks involved. This the authorities could have done when, for example, granting authorisation of diving operations and upon inspections. Had they done so they might conceivably have helped to eliminate sooner the use of rapid tables as a means for companies to promote their own commercial interests, potentially adding to the risks to divers' health and safety. By failing to do so the respondent State did not fulfil its obligation to secure the applicants' right to respect for their private life, in violation of Article 8 of the Convention. There has accordingly been a violation of this provision.

245. In sum, the Court concludes that there has been a violation of Article 8 of the Convention on account of the failure of the respondent State to ensure that the applicants received essential information regarding decompression tables enabling them to assess the risks to their health and safety. Having reached this conclusion, the Court considers that no separate issue arises under Article 2 and sees no need for it to consider whether there has also been a violation of the latter in this respect.

The applicants claimed the following sums in respect of pecuniary damage:

Mr Vilnes's claim represented his loss of earnings per year, with interest, for twenty-eight years, up to the retirement age of 67 (using his income of NOK 265,500 for 1978 as a starting point and increasing the annual figure in accordance with nominal wage growth). This was a hypothetical income based on his probable natural career without the injuries. He agreed that deduction should be made of the NOK 3,613,657 (approximately EUR 476,000) he had received under the various special compensation schemes (see paragraph 41 above).

Mr Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen explained that the above-mentioned amounts had been calculated on the basis of deduction being made of the amounts that they had received in compensation under the said compensation schemes, except that the NOK 200,000 received in ex-gratia compensation ought not be taken into account (see paragraph 47, 52, 58, 63, 69, and 76 above). As a result of diving in the North Sea they had sustained injuries and health damages. Some had been able to do other work for some years until their health problems had manifested themselves in an occupational disability, while others had never worked again. However, all of them had suffered major loss of income compared to what they would have earned had they stayed healthy and continued diving in the North-Sea until the age of 55. Thereafter they would have continued in other petroleum-related occupations, such as for example as diving supervisor or superintendent, a common career path, until the regular retirement age of 67. Any benefits provided by the State, such as sickness and disability benefits, had been deducted from their claims. In addition they claimed interests.

The Government pointed out that the general tenor of the applicants' view was that they had sustained injuries and damage to their health as a result of diving in the North Sea. That was not the same, however, as demonstrating to the Court's satisfaction that their health issues were the result of a violation of the Convention.

The Government maintained that the applicants had not furnished the Court with requisite evidence that there was indeed a causal link between the financial loss for which compensation was now being sought and the alleged breaches by the Norwegian authorities. Their health problems might be the result of their diving activities carried out on the Norwegian Shelf not involving rapid tables, or of activities as divers outside the jurisdiction of the Norwegian authorities, or they could be the result of the applicants' taking risks which Norwegian authorities could not sensibly have been able to forestall.

On this basis the Government asked the Court to reject the applicants' pecuniary damage claims.

In any event, the sums received by the applicants in ex gratia compensation from the Norwegian authorities and from Statoil ought to be deducted if the Court made an award under Article 41, and the sums claimed were excessive.

The Court reiterates that the well-established principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he or she would have enjoyed had the violation of the Convention not occurred (see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV, and Muñoz Díaz v. Spain, no. 49151/07, § 85, ECHR 2009). Furthermore, the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link between the damage alleged and the violation found (see Nikolova v. Bulgaria [GC], no. 31195/96, § 73, ECHR 1999-II, and Muñoz Díaz, cited above).

However, bearing in mind its findings above, regarding notably the prevailing perceptions and lack of precise knowledge at the material time about the possible long-term effects of decompression sickness, the Court is not able to speculate on what the applicants' position would have been had the violation found of Article 8 of the Convention not occurred. The evidence before it does not show a sufficient causal link between the respondent State's failings as described in paragraph 244 above and the applicants' losses in past and future earnings. In any event, even assuming that parts of the losses claimed are attributable to decompression sickness, the state of the evidence is not such as would enable the Court to make an equitable award under the Convention that exceeds the amounts that they have already received under the various national compensation schemes and which would have to be deducted from any such award. It therefore rejects the applicants' claims under this heading.

In respect of non-pecuniary damage Mr Vilnes claimed NOK 5,000,000 (approximately EUR 658,000) and the other six applicants each claimed NOK 64,000 (approximately EUR 8,400), the latter referring to Roche (cited above, § 179) where the Court had awarded EUR 8,000 in comparable circumstances. The applicants maintained that they had suffered feelings of frustration, uncertainty and anxiety.

The Government asked the Court to reject the applicants' claim for compensation for non-pecuniary damage. The latter had not furnished the Court with any documentary evidence that they had suffered feelings of frustration, uncertainty and anxiety as a result of any breach of the Convention by the Norwegian authorities. The amount claimed by Mr Vilnes, in particular, was clearly excessive. In any event, having regard to the amounts already granted to the applicants by way of compensation under the special compensation schemes, a finding of violation by the Court would constitute adequate just satisfaction for the purposes of Article 41.

The Court considers that the applicants must all have experienced psychological problems on account of anguish and distress as a result of the violation found of the Convention and that this finding will not suffice as ‘just satisfaction’ for the purposes of Article 41. The Court notes that an amount of NOK 200,000 (approximately EUR 26,000) had already been granted to each of the applicants in ex gratia compensation for non-pecuniary damage by Parliament or the Special Compensation Board (see paragraphs 42, 47, 52, 58, 63, 69, and 76 above). Deciding on an equitable basis, it awards each applicant EUR 8,000 under this heading, plus any tax that may be chargeable on that amount.