Outer House awards £290,000 in damages to family of man who died in diving boat accident

Debbie Warner, the widow of the late Lex Warner, raised the action following her husband’s death in 2012 on behalf of the couple’s nine-month- old son, Vincent. She maintained that the operators of the vessel, Scapa Flow Charters, operated by the boat’s skipper as a sole trader, were liable under the Athens Convention for the accident.

The case was heard by Lord Sandison. The pursuer was represented by Milligan QC and the defender by Smith QC. Quantum of damages had been agreed in the event that fault was found on the part of the defenders.

Heavy equipment

On the day of Mr Warner’s death, he had travelled to a dive site approximately 15 miles from Cape Wrath along with eight other divers on board the Jean Elaine, skippered by a Mr Andy Cuthbertson. After putting on his diving equipment, including fins, the deceased fell onto the deck of the boat. Unknown to anyone at the time, the fall caused internal injuries to the deceased, who stated afterwards that he was still fit to dive.

At a depth of about 88m, the deceased unexpectedly commenced an ascent. He was assisted to the surface, by which time he had stopped breathing. A post-mortem was carried out at Stornoway hospital, which recorded his cause of death as “drowning due to or as a consequence of recreational technical diving and traumatic hepatic injury with haemoperitoneum resulting from fall on dive boat”.

Evidence was given that the group of technical divers Mr Warner had been with was a very experienced group who had been hiring the Jean Elaine once a year for around 10 years. Mr Cuthbertson testified that he had given a safety briefing to the group after they had boarded the vessel and had assessed risks on board.

It was submitted for the pursuer that the deceased had fallen as a result of neglect on the part of the defenders. No handrails were provided despite the slope of the boat being cambered, and the defenders ought to have been aware of the risk of injury to divers from falls from deck. Further, the defenders ought to have been aware that fins should be put on immediately before entering the water and should have had a system in place to reduce the risk of falls from walking on deck in fins.

In response, it was submitted for the defenders that the cause of the fall was unknown and could have been attributed to the weight of the diving equipment rather than walking in fins. Without this information, it was futile to speculate on what might have prevented his fall. Further, the boat had been equipped with handrails, and therefore the deceased was likely, or ought to have been, holding it at the time of his fall.

Inherently risky activity

In his decision, Lord Sandison observed that he generally found all the witnesses to be credible and reliable, with one exception, of which he said: “I do not accept that Mr Cuthbertson frequently repeated warnings to hold onto the handrails to divers on the fatal trip. On the basis of the evidence I heard, it is not easy to see that anything occurred from which Mr Cuthbertson could genuinely have persuaded himself that he did give such repeated warnings. I do not find his evidence that he did so to be credible.”

On the cause of Mr Warner’s fall and subsequent death, he said: “I find that Mr Warner fell because he tripped on his fins while attempting to walk from his preparation seat to the dive gate. He did not overbalance while or immediately after rising from his seat. He was not holding any handrail when he fell. This was not a case where the fall in question was unwitnessed. There was one witness, Mr Stanger, who saw it happen directly in front of him.”

He continued: “I have little difficulty in holding on the balance of probabilities that the pain from the injury sustained in the fall caused the decision to make the emergency ascent, and that the anxiety and pain which was probably being experienced by Mr Warner during that rapid ascent, together with the effect which the circumstances of the ascent was having on his ability to control his breathing and movements, caused him to become unable to retain his mouthpiece and thus to drown.”

Turning to the liability of the defenders, Lord Sandison said: “Mr Cuthbertson did indeed carry out some form of risk assessment in relation to the dive support operations being carried out by the defenders, even though he may not have called it by that name, written it down, or recognised it for what it was. Despite his self-description as a maritime ‘taxi driver’, it was clear that Mr Cuthbertson was doing much more than simply taking dive groups to wherever they wanted to go.”

He went on to say: “What his risk assessment omitted to do, however, was to recognise sufficiently that walking on deck in fins is an inherently risky activity. That was a well-recognised fact in maritime and diving circles. The diving organisations PADI and BSAC simply and straightforwardly advised against it. To the extent that that advice was aimed only at inexperienced divers (and it is not clear to me that it was) that did not indicate that there was no or lesser risk for experienced divers, merely that their experience would already have instructed them about that risk.”

Lord Sandison concluded: “Had [a] system for the promotion of safer fin practices been in place, the likelihood is that it would have performed its intended function of eradicating or minimising the risk of falling and that Mr Warner would not have fallen at all, or if he did, he would not have sustained a serious injury such as he in fact sustained, because the force of any fall would probably have been broken by him holding on to a handrail or being supported by the deckhand.”

For these reasons, Lord Sandison found the defenders liable to make reparations to the pursuer.