Inner House overturns £290,000 award to child of man who died in diving accident

About this case:

• Citation:
  [2022] CSIH 25
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

The action was originally raised by the man’s wife, Debbie Warner, on behalf of their young son Vincent, in the Outer House, where the Lord Ordinary found Scapa Flow Charters to be in breach of its duty of care to Lex Warner. The defenders appealed on the ground that the Lord Ordinary had erred in determining the scope of that duty.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Woolman and Lord Pentland. Smith QC appeared for the defenders and reclaimers and Milligan QC and Pugh, advocate, for the respondent.

Invariable practice

On 14 August 2012 Mr Warner, an experienced technical diver, was on a diving expedition on a chartered vessel, captained by Mr Andy Cuthbertson, to an unnamed wreck north-west of Cape Wrath. Prior to entering the water Mr Warner tripped on the deck of the vessel while wearing fins and heavy diving gear and unknowingly suffered a serious injury to his liver. During the dive, the pain of the injury caused him to panic, and he drowned while attempting a rapid ascent to the surface.

The pursuer’s case against the defender was based on Mr Cuthbertson having failed to carry out a suitable risk assessment in respect of persons walking on deck in diving equipment and there being insufficient handrails to assist divers when moving. The deck of the vessel had handrails and a deckhand had been present, although use of the rails was not strictly enforced.

It was concluded by the Lord Ordinary that the defenders had a duty to carry out a risk assessment in relation to persons on board and had failed to identify the risk caused by walking on deck in fins. Had a policy minimising this risk been in place, there was a strong likelihood that Mr Warner would not have fallen at all.

Counsel for the defenders submitted on appeal that the Lord Ordinary had wrongly concluded that walking in fins was an unacceptable risk. The unchallenged evidence of the experienced divers made it clear that putting on fins last was almost invariable practice due to the difficulty of getting them on later in the kitting up process while wearing heavy diving gear. Additionally, he had failed to recognise that the defenders had followed generally accepted practice and could not be expected to monitor participants who brought their own equipment and had a high degree of experience to an unacceptable degree.

Informed choice

Lord Carloway, delivering the opinion of the court, began: “Defining the standard of reasonable care requires the judge, as the hypothetical reasonable person in the position of the defenders, to weigh various elements. The equation notably, but not exclusively, involves evaluating the risk of any accident occurring, the seriousness of any potential injury, the practicality of any specific precaution, and the effect of any prohibition on the activity in question. It is in carrying out this exercise that the court considers that the Lord Ordinary has erred.”

Explaining this reasoning, he continued: “The Lord Ordinary does not appear to have given the practice of the divers in walking, what was (at least in Mr Warner’s case) a very short distance to the exit point in fins, any weight at all. Although by no means determinative, evidence of what those experienced in diving operations regarded as appropriate in the knowledge of the risks involved cannot be ignored.”

Addressing whether the standard of care extending to actively monitoring the divers, Lord Carloway said: “It was sufficient in the exercise of reasonable care for the defenders to have provided a safe means of moving from the seat to the exit point in the form of a non-slip and unobstructed deck, handrails and a deckhand. They did this. Mr Warner, who was well aware of what was an obvious and inherent risk, chose not to use the provided means. That was a matter for his choice in the context of a leisure pursuit in which he, and not the defenders, was the skilled and experienced person.”

He concluded: “The defenders did not require to give such a person frequently repeated warnings about a risk of which he was already aware. Mr Warner made an informed choice to put his fins on at his seat and to walk in them across the deck to the exit point without using the handrails or the deckhand. In these circumstances, the court disagrees with the Lord Ordinary on what was required to meet the standard of care to be applied on the facts found proved. Fault or neglect on the part of the defenders in terms of Article 3.1 of the Athens Convention is not established.”

The reclaiming motion was therefore allowed, and decree of absolvitor pronounced in favour of the defenders.