Son of diver who died loses £290,000 payout
Boat firm will not have to pay boy after father’s death
THE 10-year-old son of a Sutton Coldfied man who died while diving in Scotland is said to be devastated after a decision to award him £290,000 compensation was over-turned.
The ruling by judges at Edinburgh’s Inner House of the Court of Session appears to bring to an end the long, complex legal battle surrounding the death of Lex Warner. For his widow Debbie and Vincent it has been a fraught journey.
Mr Warner died during a 2012 expedition to Cape Wrath, Britain’s most northwesterly point.
He and a team were exploring a boat wreck 15 miles off the Cape.
The 50-yearold fell on deck, suffering abdominal injuries, while preparing to dive from the MV Jean Elaine. He was helped to his feet and continued with the dive, but got into trouble while submerged.
Mr Warner reached a depth of 88 metres – he had planned to dive to 95 metres – when he began to feel unwell and desperately tried to reach the surface.
By the time he was hauled back onto the 73-tonne chartered boat, he had stopped breathing.
Attempts by crew members and coastguards flown out to the vessel, proved unsuccessful. His body was brought back from the waters near Cape Wrath, Britain’s most northwesterly point, 15 hours after the tragedy.
Mr Warner was not a beginner and was a member of the elite Dark Star diving team and taught the sport.
Mrs Warner sought damages on behalf of herself and her son in 2015,
He was heartbroken to find it was over-turned. Vincent struggles with memory of his dad and felt he had won justice for his dad. He is heartbroken.
claiming her husband’s death was the result of negligence by charter company Scapa Flow Charters. Her case was scrubbed on the grounds it was time-barred.
But in 2018, the Supreme Court ruled Vincent’s claim could proceed.
Last year, a judge at the Court of Session, in Edinburgh, ruled the captain of the Orkney-based dive boat did not do enough to minimise risks associated with divers walking on board boats while wearing fins.
Lord Sandison said that had a “system for the promotion of safer fin (flipper) practices been in place”, it would likely have eradicated or minimised the chances of Mr Warner falling and injuring himself internally.
Vincent was awarded the huge compensation figure.
But the Inner House of the Court of Session has now agreed with appeal submissions from the boat firm.
Scapa Flow Charters had adequate safety measures and Mr Warner had decided not to use them and made an “informed choice”.
Lord Carloway wrote: “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.
“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.”
A close friend of Mrs Warner, who runs a power wash company, said the decision had hit Vincent hard.
“He was heartbroken to find it was over-turned,” she said.
“Vincent struggles with memory of
his dad and felt he had won justice for his dad.
“He is heartbroken. He is angry. “This is something that has been with him for all his life. He was at the Supreme Court when he was six. I know Debbie’s very proud of him.”
Since that terrible day – August 14, 2012 – Mrs Warner, 50, from Minworth, has striven tirelessly to make sense of the accident.
Four days before Mr Warner made his last dive, she had called him to let him know that she was pregnant.
Tragically, she lost the baby weeks after her husband’s death.
A 2013 inquest was told that Mr Warner suffered “chronic injuries” after falling in full gear on the boat. The tops of cylinders attached to his thighs crushed his abdomen.
But accident reports state that he still wanted to dive, assuring skipper Andrew Cuthbertson and other members of the team that he was OK.