The Lex Warner civil case, which revolves around the extent to which a skipper can be expected to take responsibility for the safety of scuba divers on his boat, has been protracted still further.
Appeal judges at Scotland’s highest civil court have now heard a legal challenge to the awarding of £290,000 compensation to Warner’s young son following the technical diver’s death in 2012, but they have reserved their decision. This means that they have retired to decide on the evidence and the outcome of the case at a later date.
The news that Scapa Flow Charters was contesting the pay-out appeared on Divernet in early January. The award had eventually been made some nine years after the incident involving the charter operator’s Orkney-based dive-boat Jean Elaine.
However, Scapa Flow Charters argued that Lord Sandison, the judge who had made that ruling in the Court of Session in Edinburgh last September, had failed to apply “correct” legal tests in his deliberations, and had “reached a conclusion that was not open to him on the facts”.
The one-day appeal hearing took place on 25 March before 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.
Warner, 50, from Sutton Coldfield near Birmingham, died on an 80m dive off Cape Wrath after having sustained an abdominal injury caused by a fall while he was still on deck. He had insisted on going ahead with the dive. His widow Debbie later brought the action for compensation on behalf of her son Vincent, who had been only nine months old when his father died.
Lord Sandison had found Andy Cuthbertson, proprietor of Scapa Flow Charters and Jean Elaine’s skipper, negligent in that he had failed to minimise risks to divers moving around the boat while wearing fins. The counter-argument had been that Cuthbertson had no reasonable basis for attempting to interfere with Warner’s actions.
More details of the original incident and its legal ramifications can be found on Divernet.