Widow of drowned diver has damages claim dismissed as ‘time-barred’

The Court of Session heard that Lex Warner was killed in a diving accident off Cape Wrath in August 2012, having chartered a vessel for a one week diving trip.

The pursuer, Debbie Warner, alleged that her late husband’s death was due to the fault and negligence of the defenders, Scapa Flow Charters, owners of the MV Jean Elaine.

But Lord Boyd of Duncansby upheld the defenders’ preliminary plea in law, which was to the effect that the action was time-barred under article 16 of the Athens Convention relating to the Carriage of Passengers and their luggage by Sea 1974, which states that any action for damages arising out of the death of or personal injury to a passenger shall be time-barred after two years.

The court heard that the deceased had chartered the vessel for one week commencing 11 August 2012, three days before the accident, when he fell on board and suffered a severe injury to his liver, before diving instructors gave him the go-ahead to jump into the water where he experienced serious difficulties.

The pursuer’s agents wrote to the defenders by letter dated 17 April 2013 intimating a claim for damages on behalf of the pursuer and the couple’s son “for the failures of your skipper, Andrew Cuthbertson” and the action was signetted on 14 May 2015.

Counsel for the pursuer argued that article 16.3 provides that the law of the court seized of the case shall govern the grounds for suspension and interruption of limitation periods, and that accordingly, the court should look to section 18(2) and 18(3) of the Prescription and Limitation (Scotland) Act 1973.

He pointed to section 18(2)(b), which provides that the commencement date shall be the date on which, in the opinion of the court, it would have been reasonably practicable to be aware of the fact that the injuries were attributable to an act or omission and that the defender was a person to whose act or omission the injuries were attributable.

The pursuer pleaded that she was not and could not have become aware that the death of the deceased was due to an act or omission attributable to the defender until the publication of the MAIB report in December 2013.

Counsel for the pursuer submitted that the ordinary rule was that the time starts to run when the cause of action accrues, and that the cause of action accrued when the MAIB report was published.

His second argument was to the effect that the claim by the pursuer on behalf of her son was suspended and interrupted by “nonage” in terms of section 18(3).

But counsel for the defenders argued that Article 16 was a limitation period not a prescription and did not extinguish the right.

It was submitted that an action for damages under the Athens Convention, which regulated the start dates for the running of the time period, must be brought within two years, in terms of article 16.1, and that date was calculated from the date of disembarkation, in terms of article 16.2.

Accordingly, the action became time barred on 18 August 2014 and the action should be dismissed.

It was also argued that section 18 of the 1973 Act did not apply to these times and had no application in this case.

Even if he was wrong in all of these submissions, the letter written by the agents in April 2013 demonstrated knowledge that the injuries of the deceased were due to an act or omission and that to the defenders, and accordingly the action would still be time barred as the two years would start to run on 17 April 2013.

In a written opinion, Lord Boyd of Duncansby said: “This case is brought under the Athens Convention. Article 16.1 provides that an action for damages shall be time barred after a period of two years. Article 16.2 provides the starting point in the calculation for the time period. Applying these periods this action was time barred on 18 August 2014.

“Article 16.3 provides that the lex fori shall govern the grounds of suspension and interruption. Mr Allardice argues that the provisions of section 18(2) and (3) of the 1973 Act govern the suspension and interruption of the time period under article 16. I do not accept that argument.

“In the first place the commencement of the time period is governed by article 16.2 and not by section 18(2) of the 1973 Act. To hold otherwise would be to invert the rule of statutory construction…

“Secondly section 18(2) sets out commencement dates from which the three year time period runs. It does not set out to suspend or interrupt a time period which is already in train…

“Turning to section 18(3) this subsection relates to the computation of the time period in section 18(2). It does and cannot apply to other stand-alone provisions in other enactments.

“In any event I cannot accept that nonage is a suspension or interruption of a time period already in train. At best it is a deferment of the start of the time period.

“Had it been necessary to do so I would have taken the view that the letter by the pursuer’s agents dated 17 April 2013 demonstrated the requisite knowledge for the purposes of section 18(2) before the publication of the MAIB report in December 2013. For these reasons I hold that the action is time barred.”