The Press and Journal (Inverness, Highlands, and Islands)
Boy, 6, can sue over death of diver dad
Mum’s relief at Supreme Court judgment after tragic incident on north coast
A SIX-YEAR-OLD boy whose father died off the north coast in a diving tragedy has won the right to sue the charter firm hired for the trip.
West Midlands building company director Lex Warner, 50, died while on an excursion with Orkney-based Scapa Flow Charters in August 2012.
His widow Debbie raised civil court action against the firm in her name and that of her son, Vincent, who was aged under one at the time of his diver dad’s death.
Judges at the Supreme Court in London yesterday made a landmark ruling stating the case on behalf of Vincent could go ahead.
Mrs Warner said: “This is a huge relief.
“I am delighted. It has been seriously traumatic.”
Awidow whose husband drowned on a diving expedition off Cape Wrath is “delighted” after their six-year-old son yesterday won the right to sue the Orkney charter firm hired for the trip.
But Debbie Warner also said she was “bemused” following the landmark ruling as her son was left being “dragged through the courts in a bid to get justice” for her husband Lex, 50.
The West Midlands building company director died while diving off the Sutherland coast in August 2012.
Mrs Warner, 47, had sought damages from Stromness-based Scapa Flow Charters (SFC) on behalf of herself and her son, but the Court of Session found the legal action was time-barred.
She appealed – although her own case did not go forward due to an oversight –- and the court ruled in favour of her son, Vincent, to proceed with the case.
SFC then also appealed but five judges of the Supreme Court in London yesterday upheld her appeal and the company will now have to defend the legal action.
Mrs Warner, who attended the hearing, said: “This is a huge relief. I am delighted at the outcome but a bit bemused as it is shocking because it has resulted in a six-year-old being dragged through the UK courts.”
She also called for criminal proceedings, claiming her husband was one of several divers since 2007 to die while on expeditions with SFC.
Mr Warner and a team of divers had chartered the vessel Jean Elaine for the week of August 11-18, 2012.
As he prepared to dive to a wreck at the bottom of the sea 15 miles north-west of Cape Wrath, Mr Warner fell on the deck. He was helped to his feet and then went ahead with the dive. But he got into trouble and was brought back to the surface, but could not be revived.
Mrs Warner claims her husband’s death was the result of SFC’s negligence.
The company lodged a defence that the case was time-barred under the an act known as the Athens Convention, which sets out laws relating to the carriage of passengers at sea.
The Court of Session in Edinburgh ruled in favour but it was decided on appeal that Vincent’s claim be allowed to proceed. Delivering judgment at the Supreme Court yesterday Lord Hodge said: “In my view, the words in article 16(3) of the Athens Convention . . . are sufficiently wide to cover domestic rules which postpone the start of a limitation period, as well as those which stop the clock after the limitation period has begun.
“I conclude that Mrs Warner’s claim as Vincent’s guardian is not time-barred by the Athens Convention.”
An inquest held in 2014 returned a verdict of accidental death. It found Mr Warner had a heart condition he’d not been aware of. He also suffered injuries in the fall on the boat.
The Marine Accident Investigation Board made recommendations regarding safety on board the Jean Elaine. Its 2013 annual report said “appropriate action” had been taken.
A Police Scotland spokesman said: “Police Scotland can confirm that a report was submitted to the procurator fiscal in connection with the death of Lex Warner in August 2012, as is standard practice with all sudden deaths.”
A Crown Office spokesman said: “A full and thorough investigation into the death of Lex Warner was carried out under the direction of the Scottish Fatalities Investigation Unit (SFIU).
“On completion, and after careful consideration of the facts and circumstances of the case, the fiscal concluded that no further action was required.
“The family were informed of this decision at the time.”