The judge who awarded a young boy £290,000 compensation following his diver dad’s death off the north coast failed to apply “correct” legal tests in his deliberations, a court has heard.
Advocate Andrew Smith QC said Lord Sandison didn’t properly assess evidence in proceedings brought last year to the Court of Session by Vincent Warner’s mum Debbie.
The nine-year-old was awarded the sum following a judgement delivered by Lord Sandison in September 2021.
His mother Debbie raised an action on Vincent’s behalf at Scotland’s highest civil court.
The family wanted compensation for how Vincent’s dad Lex lost his life off Cape Wrath on the north coast of Scotland in August 2012.
Mr Warner, 50, from Sutton Coldfield, near Birmingham, and a group of friends had been making a “deep water” technical dive off a wreck.
He was onboard the MV Jean Elaine vessel in the hours before his death.
The proceedings centred on how Mr Warner fell on board the MV Jean Elaine whilst walking in fins and sustained an abdominal injury. The diver later got into trouble when in the water.
Lawyers for the family claimed that the ship’s captain Andy Cuthbertson didn’t do enough to minimise the risks which came from divers walking onboard boats whilst wearing fins.
However, Scapa Flow Charters disagreed with Lord Sandison’s decision and have launched an appeal at the Inner House of the Court of Session.
‘He has reached a conclusion that was not open to him’
On Thursday, Mr Smith – who is acting for the company – told Lord Pentland that his colleague came to the wrong conclusion in the case.
Mr Smith told the virtual hearing: “This case is all about negligence. What the Lord Ordinary has failed to do is to apply the correct legal test in determining negligence on the part of the defender.
“He fails to explain why there was negligent conduct on the part of the skipper.
“If the Lord Ordinary correctly addressed the issue he’d have been properly drawn to the conclusion that the deceased’s conduct was objectively reasonable – i.e. walking with fins on – and the skipper had no reasonable basis for attempting to stop him.
“He has reached a conclusion that was not open to him on the facts.”
The procedural hearing held on Thursday is the latest development in a long-running legal case. Mr Warner’s widow had previously made a claim on her own behalf but it was ruled to be time-barred.
However, judges at the UK Supreme Court ruled that Vincent could bring a compensation case.
During proceedings, the court heard how Mr Warner decided to dive after falling. The dive required complex, heavy equipment.
It was contended during the hearing that the decision to dive resulted in him experiencing increased levels of abdominal pain due to underwater pressure which in turn led to him rapidly ascending and his eventual death on August 14 2012.
Appeal to be heard in March
During the action, Mr Warner was described as a very experienced, careful diver who would call off even if he had a “small sniffle”.
In a written judgement explaining his decision, Lord Sandison wrote: “The injury he in fact sustained can therefore properly be said to have arisen from or in connection with the fault and neglect of the defenders previously identified.”
On Thursday, advocate Richard Pugh, who is acting for the Warner family, said his clients wanted the appeal heard as soon as was possible.
He added: “The pursuer’s position is that simply she would like to get this reclaiming motion into court as quickly as possible.”
Lord Pentland arranged for the appeal to take place on March 25 2022.
