Judges overturn boy’s £290,000 payout for father’s diving death

Senior judges have overturned a decision which forced a shipping 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 judgement delivered in September 2021 at the Court of Session in Edinburgh. His mother Debbie raised an action on Vincent’s behalf at Scotland’s highest civil court regarding how his dad father lost his life off Cape Wrathinthenorthcoastofscotland 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 Elainevesselinthehoursbefore his death.

Both Vincent and Debbie sued the boat’s owners - Orkney based Scapa Flow Charters -for£500,000.thecasecentred onhowmrwarnerfellonboard themvjeanelainewhilstwalking in fins and sustained an abdominalinjury.thediverlatergotintotroublewhenhewas in the water. Lawyers for the family claimed that the ship’s captain Andy Cuthbertson did not do enough to minimise the risks which came from divers walking on board boats whilst wearing fins.

In a judgment published last year, Lord Sandison agreed with the submissions made by the Warner family’s legal team.

He concluded that Mr Cuthbertson failed to put in place proper health and safety measureswhichwouldhaveprotected Mr Warner from falling.

This prompted lawyers for Scapaflowcharterstogotothe Inner House of the Court of Session.appealjudgeslordcarloway,

Lord Woolman and Lord Pentland were told that their colleaguewaswrongtofindmr 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.

Lord Carloway also concluded that Mr Warner chose not to use the safety measures which wereputinplacebyscapaflow Charters 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 theformofanon-slipandunobstructed deck, handrails and a deckhand. They did this.”