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Diver knew risks: £290k payout overturned

Lex Warner sitting at back of van
Lex Warner ‘chose not to use the provided means’

In a significant decision for dive-boat operators, the legal ruling that Scapa Flow Charters should pay £290,000 to the family of technical diver Lex Warner, who died while diving from the company’s boat Jean Elaine almost 10 years ago, has been overturned on appeal.

As an experienced and careful scuba diver, Warner knew the risks when he moved across the deck wearing fins to enter the water, senior judges ruled yesterday (11 May). His fall, which led to an abdominal injury and his subsequent death on the 80m dive, came about despite the safeguards made available to him on the dive-boat.

Warner, 50, from Sutton Coldfield near Birmingham, died following the dive off Cape Wrath in circumstances described on Divernet when the compensation was awarded last September.

Judge Lord Sandison had made the award following a £500,000 action taken by Warner’s widow Debbie in the name of her young son Vincent, who had been a baby when his father died. The judge had found that Jean Elaine’s skipper Andy Cuthbertson failed to put in place the health and safety measures that might have prevented Warner’s fall.

Scapa Flow Charters later appealed against the payout, arguing that Lord Sandison had “reached a conclusion that was not open to him on the facts”. 

And now Scotland’s most senior judge, the Lord President Lord Carloway, sitting with Lords Woolman and Pentland at the Inner House of the Court of Session in Edinburgh, has supported that view, ruling that the company and skipper had in fact put adequate safety measures in place, and that Lord Sandison had been wrong to find them at fault. 

The diver had made an “informed choice” not to use those safety measures, the judges ruled.

Obvious and inherent risk

“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, hand-rails and a deckhand. They did this,” wrote Lord Carloway in a statement explaining the decision. 

“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, and 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 hand-rails or the deckhand.

“In these circumstances, the court disagrees with the Lord Ordinary on what was required to meet the standard of care to be applied on the facts found proved. The reclaiming motion [appeal] must be allowed.”

Scapa Flow Charters operates the dive-boats Jean Elaine and Sharon Rose.

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