Last Updated on August 8, 2023 by Divernet
Debbie Warner brought a claim for negligence after her husband Lex, 50, died off Cape Wrath in Sutherland in August 2012. He was part of a dive-group that had chartered the vessel mv Jean Elaine from Scapa Flow Charters for a week.
Lord Boyd of Duncansby made his ruling at the Court of Session, Scotland’s supreme civil court in Edinburgh, according to a report in Scottish Legal News. The judge upheld Scapa Flow Charters’ plea that, under the Athens Convention on carrying passengers by sea, any action for damages arising from a passenger’s death or injury should be time-barred after two years.
Lex Warner was kitted-up and moving from his seat to enter the water when he fell and sustained what later turned out to have been a severe liver injury. Diving instructors then gave him the go-ahead to enter the water, where he experienced serious difficulties.
Debbie Warner’s lawyers wrote to Scapa Flow Charters on 17 April, 2013 intimating a claim for damages “for the failures of your skipper, Andrew Cuthbertson” – but her action was not booked in until 14 May, 2015, more than two years after the event.
Warner’s counsel argued that she could not have known that her husband’s death was due to an attributable act or omission until the Marine Accident Investigation Branch (MAIB) published its report at the inquest in December 2013 – so the two-year period should have started at that point.
However, the judge ruled that under the articles of the Athens Convention the action became time-barred on 18 August, 2014, and should be dismissed.
At the original inquest, Birmingham Coroner’s Court was told that Warner, an experienced diver and instructor, had dived to around 88m following his fall. When he began to feel unwell, he had tried to return to the surface.
He had stopped breathing by the time he was hauled onto the boat by the skipper, and despite attempts to resuscitate him was pronounced dead before reaching hospital. Cause of death was given as drowning combined with a traumatic liver injury, and an accidental death verdict reached.
A MAIB inspector had told the inquest that there was no evidence of a formal risk-assessment for a kitted-up diver moving between seat and entry-point. However, the skipper had stated that he was satisfied with safety measures on the boat, and didn’t feel that anything could have been done differently.
The MAIB also stated that Warner's injury was serious enough that his condition would still have reached emergency level even had he not dived.
