13-year-old diver’s parents sue Malaysian resort over death 

A negligence lawsuit has been brought against a Malaysian diving resort and two of its employees, in connection with the death in 2022 of a 13-year-old diver. Along with his father, their instructor and another guest, he was left adrift in the South China Sea after becoming separated from their dive-boat. 

It was four days before the survivors were located after drifting towards Indonesian waters. The incident was originally reported in a sequence of accounts of the incident on Divernet (see below).

Also read: Divers left at sea consider negligence action

The lawsuit includes a number of concerning details, such as that after the incident the family were asked by the resort to pay the equivalent of nearly £6,000 for the rescue boat, and that the boy’s mother had been asked to check her husband and son out of their chalet while they were still missing at sea. 

There had also allegedly been unnecessary delays in reporting that the divers were missing on the part both of the boat-skipper and the resort manager. The plaintiffs, the boy's parents, are now seeking the equivalent of £66,000 plus interest in damages.

Three months after the incident, the resort pleaded guilty to a Malaysian Maritime Enforcement Agency charge of operating a dive-boat without an adequate crew and was given a 5,000 ringgit fine – the equivalent of about £830. Local police say that they have investigated but that their missing-person case in relation to the 13-year-old diver remains open.

Signed up for AOWD course

The civil action is being brought against the private limited company Winter Snow, trading as Sea Gypsies Village Resort, on Sibu Island off the coast of Johor, and individually cited are resort manager Richard Wills and boat-skipper Kamil Bin MD Kassim.

As well as the resort, Wills managed its dive-centre Dan’s Nasty Frogmen. Kassim had only recently been employed by the resort to drive its passenger and dive-boats.

To be heard at the High Court of Malaya in Johor Bahru, the lawsuit claims that the resort breached its duty of care, resulting in the death of Nathen Chesters, physical and psychological injuries to his father Adrian Chesters and psychological injuries to the boy’s mother Andrea Van Der Zee, who had also been staying at the resort with her daughter.

Adrian Chesters is a British national and general manager of Shell Petroleum in Kuala Lumpur. He and his wife live in Malaysia, where Nathen was born. Like his mother, the teenager was a Dutch citizen. 

His father had paid in advance for Nathen and himself to take the resort’s PADI Advanced Open Water Diver course. They arrived on Sibu island on 2 April, ready to train over the four days from 4-7 April.

On 6 April the two joined resort diving instructor Kristine Groedem from Norway and French guest Alexia Molina and headed out on the dive-boat with Kassim for an initial dive before moving on to a second site.

At around 11.40am Groedem took the Chesters, with Molina as Adrian’s buddy, for a dive to a maximum depth of 17m. Strong currents required them all to ascend after only 11 minutes, but the instructor told Kassim to transfer to a different location while the divers hung onto a line from the boat.

Separated from the boat

They reached the new site at around 12.10pm and dived again, this time to around 21m for 23 minutes, but again were forced to surface because of what were described as very strong currents. At this point the boat was some 500m away and, although they could see Kassim clearly, they were unable to attract his attention as they drifted further away and out of sight.

Groedem left the other three divers and tried to swim to a nearby island for help, but was defeated by the current. Found drifting in a weakened state the following morning, the instructor was picked up by the crew of an Indonesian boat. 

The other three divers had tied themselves together with a rope to avoid separation but were unsuccessful in their attempts to signal to passing boats. Late on 8 April, Adrian Chesters realised that his son had died, thought to have been the result of severe dehydration, hunger and extreme exhaustion. 

He held onto the body through the night before finally falling asleep, later waking to find that his son had drifted away. His body was never found.

On 9 April, Chesters and Molina drifted onto a fish-farm and its owner rang the Sea Gypsies resort, which sent a hired boat from Singapore to pick them up and take them to hospital in Johor Bahru. According to the lawsuit, Chesters was later charged by the resort for the services of this rescue boat.

The allegations

The resort is claimed to have been vicariously liable for its employees’ alleged failures and to have failed in its own statutory duty to manage a diving course and accompanying boat transport. 

It is also said to have failed to provide safety equipment or facilities for divers as set out in PADI guidelines, such as housed VHF radios or GPS tracking systems. 

The resort is also alleged to have failed to supply other reasonable safety equipment to each diver, or to provide a skipper trained and experienced for the tasks related to their training programme. Neither Wills nor Kassim had been trained in emergency management, according to the suit, and official weather and sea-current warnings had been ignored.

Sea Gypsies was said to have been conducting diving activities at odds with its official registration status, and lacked the required insurance cover.

Wills is accused of failing to ensure that the boat crew was trained, healthy, competent and sufficient in number; and of failure to comply with statutory obligations in offering and conducting the course. 

According to the suit he had not ensured that the boat was equipped with communications and tracking devices; had not briefed Kassim on the dive-sites to be used; had not ensured that the skipper had sufficient training and experience in handling divers, or in emergency management, that he could communicate with divers in English or that he carried adequate safety equipment. 

Wills is also said to have failed to notify the authorities of the incident within a reasonable time, instead instructing a third party to make the emergency call – which is said not to have been made until more than two hours later.

Kassim had not held the necessary boat-driving licence or handled a passenger-boat before, and is said to have been careless in keeping track of the divers.

He had failed to carry equipment that could have been used to track them either under water or at the surface, say the plaintiffs, had not ensured that the dive location was correct and safe and had failed to inform Wills of the situation sufficiently quickly. 

Kassim had also been operating under the influence of drugs – police at the time reported that he had tested positive for methamphetamine and charged him accordingly, fining him 2,000 ringgits (around £330) for that offence.

Effects on the plaintiffs

Nathen Chesters was said to have experienced extreme trauma and pain before his death, while his father had aggravated sunburn, dehydration and exhaustion as well as continuing trauma and anxiety that made it difficult for him to sleep, and had required psychiatric treatment.

Andrea Van Der Zee is claiming for the nervous shock of being told by Wills that Adrian and Nathen were missing at sea but then, she says, receiving no subsequent updates from the resort. She also says that while the father and son were still missing, Sea Gypsies had asked her to check them out of their chalet.

She is also claiming for the “untold physical and mental sufferings” of her son over three days while suffering from hunger, thirst, dehydration and extreme sunburn.

The plaintiffs are looking to recover costs of 395,300 ringgits (about £66,000) in special damages, as well as interest. Their legal team, Azlina A Aziz & Co of Kuala Lumpur, say that the family’s main objective is to highlight shortcomings and persuade Malaysia's Ministry of Tourism to clarify regulations and guidelines for safe diving in the country’s waters. 

Immediately after the fatal incident, a number of Malaysian dive professionals had called for a diving regulatory body to be introduced by the government, as reported on Divernet.

Both Wills and Kassim are still understood to work for Sea Gypsies. Training agency PADI conducted an investigation following the incident, as a result of which it suspended the dive operation for three months and required staff retraining, including in emergency management. The resort is since understood to have purchased GPS tracking systems and housed VHF radios for use by divers.

The negligence lawsuit was delivered and acknowledged by the defendants on 24 April but, according to the plaintiffs’ lawyers, they did not respond within the required timeframe, claiming to be in continuing discussions with their insurer. An initial review of the case has been set for 13 June.

Also on Divernet: Instructor rescued – 3 trainees missing off Malaysia, Missing boy died beside father on Malaysia drift, £900 fine for operator that lost four divers, Dive pros call for Malaysian regulatory body