Supreme Court opens way for action six years on

Jean Elaine. It had been hired for the week from Scapa Flow Charters (SFC) in Stromness by recreational dive team Dark Star.

Lex, an experienced diver who had held his 100m diving certificate for three years, was on his second trip with them.

The sail out to Cape Wrath was delayed by bad weather but went ahead later in the day

At 4.07pm, minutes before entering the water Lex, in full diving gear, fell on deck and had to be helped up.

He nodded that he was OK to dive and began his descent to 100m for the first time since gaining his certificate.

He got into trouble at a depth of 88m and, despite help from other divers who brought him back up, was pronounced dead.

A Marine Accident Investigation Branch (MAIB) inquiry made recommendations regarding safety on board the Jean Elaine. Their 2013 report said “appropriate action” had been taken.

But a post-mortem found Lex died from injuries inconsistent with diving. Lex, of Sutton Coldfield, West Midlands, drowned but had “significant” internal injuries the medical examiner attributed to the fall on deck.

The MAIB disagreed. They said he died of decompression sickness after coming to the surface from depth.

Ultimately, both doctors agreed Lex’s internal injuries were a medical emergency in their own right. In 2014, an inquest returned a verdict of accidental death.

MAIB inspector Captain Gavin Pritchard said the Dark Star divers had not been warned of the dangers of walking on deck in full diving gear.

In 2015, Debbie raised an action against SFC claiming her company director husband’s death was due to their negligence.

SFC successfully argued the case was time-barred under the Athens Convention, a 1974 maritime treaty.

The Court of Session backed SFC’s position. The Inner House then reversed this in a separate action. SFC’s insurers went to the Supreme Court in London where yesterday judges dismissed their appeal.

SFC did not respond to a request for comment.