Success for pursuer in Scottish fatal diving accident claim

In this blog post, Lois Aldred of 12 King’s Bench Walk considers a new and perhaps conclusive development in the long-running litigation in Warner v Scapa Flow Charters [2021] CSOH 92.

The case is best known for its trip to the Supreme Court on limitation in 2018. Readers may recall that the Supreme Court allowed the claim brought for the benefit of Mr Warner’s son to proceed despite it being issued after the two-year limitation period of art. 16(1) of the Athens Convention.

The law of the forum governing a period of “suspension” or “interruption” of a limitation period under art. 16(3) of the Athens Convention was held to be wide enough to include Scottish legal provisions postponing a limitation period in the claim on behalf of the son, so that it was allowed to proceed.

The trial of the claim has now been heard by the Outer House of the Court of Session, the decision giving some comfort to the family of Mr Warner who sadly died following a diving trip out of the vessel (MV  Jean Elaine) skippered by the Defenders.

Background

Mr Warner was part of a group of nine recreational divers to be taken by the Defenders on a technical exploratory dive to a shipwreck off Cape Wrath. Technical diving is a type of diving, which involves diving to substantial depths with heavy and cumbersome specialist equipment. 

The Defenders facilitated the trip and skippered the boat during the trip.

After arriving at the dive site, Mr Warner, along with the others in his party, put on their gear. Mr Warner was positioned centrally in the dive boat when he put his on, and then stood and started to walk in his cumbersome gear, including diving fins. He had a fall which caused him, unknowingly, to suffer internal injuries. Stating that he was fit to dive, he started his dive.

Unfortunately during the dive, Mr Warner got into difficulties, and made a rapid surface ascent due to the pain of his internal injuries. By the time Mr Warner surfaced, his breathing apparatus was no longer in situ and he drowned.

The decision

The court made a number of findings of fact. Most significantly for present purposes:

  1. The cause of Mr Warner’s fall was him tripping over his fins while attempting to walk from his preparation seat to the dive gate. Mr Warner was not holding a handrail when he tripped.
  2. As to the link between the initial injury and death, the court stated: ‘The injury suffered by him in the fall materially contributed to the sequence of events leading to his death’.

The material issue of interest to lawyers involved in Athens Convention cases were as follows:

  1. Did Mr Warner’s injury arise from or in connection with a defect in the MV Jean Elaine? This would invoke the presumption of fault and neglect of the Defenders under art. 3(3) of the Athens Convention. The answer to that question on the facts was no. There was no evidence to suggest either the slope of the deck or configuration of handrails were anything other than compliant with generally accepted standards.
  2. Did Mr Warner’s injury occur due to the Defenders failing to make assessment of the risk attending the diver support operations carried out by them?

The court appears to have found a statutory duty to carry out a risk assessment of those on board under reg. 7 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997. But, after doing so quickly moved its focus to a belt-and-braces general duty to exercise reasonable care for the health and safety of those onboard and a positive obligation to assess risk.

Lord Sandison, giving the judgment, put it this way at para. 125:

In any event, and perhaps more to the point given that what is being considered is the existence of fault and neglect in terms of Article 3 of the Athens Convention rather than whether a domestic statutory provision was complied with, even if there had been no specific statutory obligation to carry out a risk assessment, there would in any event have been a duty on the defenders, in the exercise of reasonable care for the health and safety of those invited by them on board, positively to consider whether any aspect of the environment on board, or the way in which it was proposed to carry out the planned dive support operations, gave rise to any risk to the safety of such persons, what the extent of any such risk was, and what if anything should be done to minimise it.

The court rejected the analogy of the Defenders that their position was akin to that of owners and occupiers of open spaces where the activities to be carried out by those on board cannot be controlled. 

The true analogy is with the operators of other facilities to which access is restricted and activities of a particular kind are proposed to be carried out which can be supervised and controlled, as in, for example, skating rinks, golf ranges, indoor swimming pools and enclosed sports arenas. In such situations, the operator ought in the exercise of reasonable care to carry out an assessment of whether the proposed activity may be carried out in a way which poses a risk to the safety of the person doing it or others, and, if so, take appropriate steps to control any such risk, as by having rules of conduct and enforcing them.

The court found that there was a risk assessment by the skipper, albeit not written down or recognised as such.  Evidence to support this conclusion was found in the skipper only operating under suitable weather conditions, steadying the boat for divers entering the water, and providing a non-slip, unobstructed deck that could be used, providing a deck hand to assist, and the court speculated that he would have intervened if seeing divers doing something positively dangerous onboard.

The deficiency in the risk assessment was failing to recognise that walking on the deck in fins is an inherently risky activity particularly with the cumbersome and restrictive equipment used by technical divers. The court commented at para. 128:

I accordingly conclude that Mr Cuthbertson was guilty of fault and neglect in terms of Article 3 of the Athens Convention, in that he failed to recognise that the system of dive preparation he had set up or allowed to develop (i.e. with most kitting-up places remote from the dive gate and it being left entirely to the divers how and at what stage of preparation they made their way from their seats to the gate) permitted or even encouraged divers to walk on deck in fins, and that that was an inherently risky activity to the extent that consideration should have been given to putting in place mechanisms apt to eliminate it or at least bring it under close control.

Given the known risk of falls while walking in fins, particularly given the equipment worn by technical divers, and the unavailability of swift medical assistance onboard, there should have been put in place proper precautions to mitigate the risk. The duty found was to agree a system to minimise the risk with divers before each trip, recognising that the requirements of each trip would differ.

Accordingly, the court found that if such system had been in place it would have worked and Mr Warner would not have fallen at all, or he would have had his fall broken by holding on to a handrail or being supported by a deckhand.

Comment

There are a number of interesting take-home points for me.

The Court of Session found the skipper of a boat in the case was analogous to the occupier of a space who invites persons to visit for specific purposes. Those operating boat trips cannot see themselves simply as providing taxi services without control over what their passengers are up to. They have an active duty to take appropriate steps to minimise risk for each journey.

This case is a demonstration of the court’s potential flexibility when it comes to breach of duty founded on failure to undertake a proper risk assessment. I have not seen the pleadings of the Pursuer in this case, but the judgment does not reveal any specific criticisms of the Defenders save the alleged defects in the handrail provision and gradient of the deck. The focus of the court’s attention was the general allegation of failure to undertake proper risk assessment relating to falls on deck and a system to reduce the risk of falls on deck while walking in fins. This was amplified in the evidence.

As a pleading point, specific allegations of fault are always to be encouraged but the deficient risk assessment pleading is a useful device for a claimant to leave open a route for a variety of criticisms of the defendant’s conduct to be made by way of expert evidence about what a suitable risk assessment would have concluded.  Of course, ambush is not OK, so defendants will have to be alive to requiring the claimant to pin their risk assessment colours to the mast at an early stage of proceedings. If a claimant is not ultimately willing to be specific about what risk assessments would have achieved, a court is not going to speculate on his or her behalf.

All is perhaps not lost for defendants and insurers of small maritime operations. Risk assessments need not be formal affairs and the court’s conclusion in this case was quite a common-sense one that a risk assessment had been done perhaps unwittingly (seemingly sufficiently evidenced by the fact the skipper took some steps to minimise dangers for his passengers). However, the danger of the dynamic risk assessment is that court might struggle to find that a risk had been properly assessed and minimised in the absence of evidence of more formal procedures if the risk that should have been identified in the assessment did in fact materialise.

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