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Dive operator set to contest £290k award

Debbie, Vincent and Lex Warner.

An appeal is underway against the decision to award £290,000 compensation to the family of technical diver Lex Warner, who died following an incident on the Orkney-based dive-boat Jean Elaine nine and a half years ago.

Scapa Flow Charters, the vessel’s owner, is appealing against the pay-out ruling. It claims that Lord Sandison, the judge who awarded the sum following his damning judgment in the Court of Session in Edinburgh last September, failed to apply “correct” legal tests in his deliberations. 

Advocate Andrew Smith QC voiced the operator’s concerns at a virtual hearing before Lord Pentland at the Inner House of the Court of Session, Scotland’s highest court, reported in The Press & Journal. Smith asserted that Lord Sandison had “reached a conclusion that was not open to him on the facts”.

In a 2021 judgment believed likely to cause serious ramifications for dive-charter businesses, Lord Sandison found that Andy Cuthbertson, proprietor of Scapa Flow Charters and Jean Elaine’s skipper, had done too little to minimise risks to divers moving around on board the boat while wearing fins.

Fifty-year-old Lex Warner, from Sutton Coldfield near Birmingham, died on an 80m dive off Cape Wrath on Scotland’s north coast on 14 August 2012, after sustaining an abdominal injury caused by a fall while still on deck. He had insisted on going ahead with the dive.

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His widow Debbie later brought the action for compensation on behalf of her son Vincent, who was a baby when his father died. More details of the incident and the ruling can be found on Divernet here.

According to Smith, had Lord Sandison applied the correct legal test in determining negligence on Cuthbertson’s part, he would have concluded that Warner’s conduct was “objectively reasonable – ie, walking with fins on – and the skipper had no reasonable basis for attempting to stop him”.

Lord Pentland has now a date of 25 March for the appeal to be heard in full.

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