Lois Aldred of 12 King’s Bench Walk previously blogged about the decision of the Outer House of the Court of Session in Warner v Scapa Flow Charters. That decision – in favour of the pursuer – has since been overturned by the Inner House.

The litigation in summary concerns the standard of care required of the operator of a technical dive trip in relation to the safety of the participants, specifically while they are moving from a seated position to the exit point of entering the water.

In this blog post, Lois considers the latest instalment in the litigation and its implications for future cases involving dives and water sports.

At first instance the claim succeeded. The Outer House found that the defenders had been negligent in having in place a system of dive preparation whereby most places reserved for divers to don their gear (including fins) were remote from the exit point and it was left to the divers how and at what stage they made their way from their seats to the exit point.

The defender’s criticism of the judgment below was manifold, albeit the summary provided by the Inner House suggests that every argument going was deployed in this appeal, the most significant being:

  1. The method of putting on fins was a matter of individual judgment for the divers participating in a leisure activity, where both methods posed risk and the divers were experienced technical divers.
  2. The requirements of the risk assessment the Lord Ordinary had judged should have been carried out were unrealistic and unworkable, not put to the diver witnesses, and not supported by the experts.
  3. The risk and gravity of injury and the relationship of the boat operators to the users ought all to be taken into account when considering the steps to be taken to reduce the risk.
  4. The Lord Ordinary’s approach would require the organiser of a leisure activity for experienced participants using their own equipment to monitor the participants’ behaviour to an unacceptable degree.

The Court of Session accepted as a starting point that the Lord Ordinary did apply the correct test. Specifically, he

did apply the standard of reasonable care. In order to do so he had to put himself, as he attempted to do, in the role of the defenders, decide what risks arose from their operation of the vessel and determine what mitigatory measures out to be taken in exercise of their duty to take reasonable care for those on board

We were also reminded at this point of the court’s sovereignty in determining the standard of care in negligence notwithstanding any contrary views of an expert:

The Lord Ordinary was not bound by the views of any expert. As he pointedly commented, it was not for an expert to express a view on what the standard of care required.

On an evidential matter of particular interest to advocates, the Inner House rejected the contention that it was always necessary to put the elements of the specific standard the court was considering to relevant witnesses for comment:

There is little difficulty in understanding what the Lord Ordinary decided about the various expedients and how they could have been implemented. He regarded these as feasible even if the divers considered them to be impracticable. There was no need, given the evidence the divers had given, for the Lord Ordinary to have put his view on what expedients should have been adopted specifically to them. The fact that implementing the safety measures might result in the defenders’ operation being less popular was not a point he regarded as having much significance.

The Inner House also affirmed the ability of the court to reject evidence of standard practice as determining the standard of care if that practice was sufficiently dangerous to require it to be prohibited.

Nonetheless, the Inner House allowed the appeal as the Lord Ordinary had failed, in the course of the balancing exercise of determining the standard of reasonable care, to give proper weight to the practice and views of experienced divers regarding walking a short distance to the exit point of the boat:

There is a sense of unreality in an untutored skipper of a vessel being expected to devise a system of finding out which diver was a ‘fins first’ person, which was ‘fins last’ and taking it upon himself to allocate seats at relative distances from the exit point, telling experienced divers how and when to walk on their fins and ensuring the services of a deckhand were used even if they were neither required nor wanted. These divers were far better placed than the skipper to decide upon what constituted a reasonably safe system of moving a very few metres along an unobstructed and non-slip deck which was provided with adequate handrails.

The Inner House found that it was sufficient in the exercise of reasonable care that the defenders provided a safe means of moving from the seat to the exit point in the form of a non-slip and unobstructed deck, handrails, and deckhand. It was ultimately the choice of Mr Warner, who was aware of an obvious and inherent risk, not to take up the safe means. No frequent or repeated warning about a risk of which Mr Warner was already aware was necessary.

Comment

Those operating and insuring water sport leisure activities will take some comfort from a lowering of the high-water mark of the Lord Ordinary’s decision. It is clear that particular regard will need to be had to the level of experience and expertise of participants in leisure activities at sea and more generally.

For activities requiring or involving a considerable degree of skill and autonomy of participants, such as professional sportspersons or known knowledgeable amateurs using specialised equipment, the burden on those facilitating the transport to and providing the physical means of access or arena for their sport or activity is likely to extend to provision of safe means of access and facilities. But it may not go so far as to dictate the way in which participants use the safe facilities available.

Clearly the decision in this case will have less relevance to the operators of touristic dive boats and water sports where the skill level of participants is variable but often minimal. Such participants may not be aware of the inherent risks of activities in which they are participating. In such instances it is still likely that operators will have a duty to provide enforced rules and more in-depth safety briefings that mandate how participants safely gear up and prepare for their sport while still aboard a vessel.

Expert evidence as to safe practice or even quasi expert evidence of witnesses as to standard practice may be important in cases involving more technical equipment, notwithstanding the court’s need to form its own assessment of the appropriate standard of care in cases of alleged negligence.

James Beeton Cross-Border

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