Judges overturn £290k payout for dead diver’s son, 9
SENIOR judges have overturned a decision that forced a boat rental company to pay £290,000 compensation to the son of a diver who died in tragic circumstances.
Judge Lord Sandison awarded the sum to nine-year-old Vincent Warner in a judgment delivered in September 2021 at the Court of Session.
His mother Debbie raised an action on Vincent’s behalf at Scotland’s highest civil court regarding how his father Lex lost his life off Cape Wrath, Sutherland, in August 2012.
Mr Warner, 50, from Sutton Coldfield, near Birmingham, and a group of friends had been making a ‘deep water’ technical dive off a wreck. He was on board the MV Jean Elaine vessel in the hours before his death.
Both Vincent and his mother sued the boat’s owners – Orkney-based Scapa Flow Charters – for £500,000.
The case centred on how Mr Warner fell on board the boat while walking in fins and sustained an abdominal injury. The diver later got into trouble when he was in the water.
Lawyers for the family claimed the ship’s captain, Andy Cuthbertson, did not do enough to minimise the risks which came from divers walking on board while wearing fins. In a judgment published last year, Lord Sandison agreed and concluded that Mr Cuthbertson failed to put in place proper health and safety measures.
This prompted lawyers for Scapa Flow Charters to go to the Inner House of the Court of Session.
Appeal judges Lord Carloway, Lord Woolman and Lord Pentland were told that their colleague was wrong to find Mr Cuthbertson at fault.
In a judgment issued at the court yesterday, the judges agreed with the submissions made to them by Scapa Flow Charters’s legal team.
Lord Carloway wrote that Mr Cuthbertson and the firm put in place adequate safety measures. He also concluded that Mr Warner chose not to use the safety measures which were put in place and that he made an ‘informed choice’.
He 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. They did this.
‘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, not the defenders, was the skilled and experienced person. The defenders did not require to give such a person frequently repeated warnings about a risk of which he was already aware.
‘Mr Warner made an informed choice to put his fins on at his seat and to walk in them across the deck to the exit point without using the handrails or the deckhand.’
During proceedings, the court heard how Mr Warner decided to dive after falling on board the boat. It was contended that the decision resulted in him experiencing increased levels of abdominal pain due to underwater pressure which in turn led to him rapidly ascending and his eventual death on August 14, 2012.
During the action, Mr Warner was described as a very experienced, careful diver.
‘He made an informed choice’