A widow whose husband drowned on a diving expedition off Cape Wrath is “delighted” after their six-year-old son yesterday won the right to sue an Orkney charter firm hired for the trip.
But Debbie Warner also said she was “bemused” following the landmark ruling as her son was left being “dragged through the courts in a bid to get justice” for her husband Lex, 50.
The West Midlands building company director died while diving off the Sutherland coast in August 2012.
Mrs Warner, 47, had sought damages from Stromness-based Scapa Flow Charters (SFC), on behalf of herself and her son, but the Court of Session in Edinburgh originally found the legal action was time-barred.
She appealed – although her own case did not go forward due to an oversight – and the court ruled in favour of her son, Vincent, to proceed with the case.
SFC then also appealed this decision, but five judges at the Supreme Court in London yesterday upheld her appeal result and the company will now have to defend the legal action.
Mrs Warner, who attended the hearing, said afterwards: “This is a huge relief. I am delighted at the outcome but a bit bemused as it is shocking because it has resulted in a six-year-old being dragged through the UK courts in a bid to get justice.
“But this decision is very much welcome and we can now move forward. It has been seriously traumatic over the last six years.”
>> Keep up to date with the latest news with The P&J newsletter
She also called criminal proceedings, claiming her husband is one of four divers to die while on expeditions with SFC since 2007, adding: “This is about justice. The only way it gets sorted is for the facts to be placed before a judge.”
Mr Warner and a team of divers had chartered the vessel Jean Elaine, operated by SFC, for the week of August 11-18, 2012.
As he prepared to dive to a wreck at the bottom of the sea 15 miles north-west of Cape Wrath he fell on the deck. He was helped to his feet and then went ahead with the dive.
But he got into trouble and was brought back to the surface, but could not be revived.
Mrs Warner claims her husband’s death was the result of SFC’s negligence.
The company lodged a defence that the case was time-barred under the an act known as the Athens Convention, which sets out laws relating to the carriage of passengers at sea.
The Court of Session in Edinburgh ruled in favour of the firm. But it was decided on appeal that six-year-old Vincent’s claim be allowed to proceed.
Scottish law provides for “the grounds of suspension and interruption of limitation periods” that would allow time limits for action to be extended.
Delivering judgement at the Supreme Court yesterday Lord Hodge said: “In my view, the words in article 16(3) of the Athens Convention … are sufficiently wide to cover domestic rules which postpone the start of a limitation period, as well as those which stop the clock after the limitation period has begun.
“I conclude that Mrs Warner’s claim as Vincent’s guardian is not time-barred by the Athens Convention.”
An inquest held in 2014 returned a verdict of accidental death.
It found Mr Warner had a heart condition he’d not been aware of. He also suffered injuries in the fall on the boat.
The Marine Accident Investigation Board made recommendations regarding safety on board the Jean Elaine. Their 2013 annual report said “appropriate action” had been taken.
A Police Scotland spokesman said: “Police Scotland can confirm that a report was submitted to the Procurator Fiscal in connection with the death of Lex Warner in August 2012, as is standard practice with all sudden deaths.”
Divers lost to the waters
Diving in the north of Scotland has claimed a number of lives in recent years.
Scapa Flow in Orkney is world-renowned for attracting divers following the scuttling of the German Naval Fleet in WWI. A total of 52 of the 74 interned vessels sank.
A 49-year-old died while exploring a wreck in July this year. The man, who was not from the islands, was not named.
In 2007, Dutchman Martin Voordouw died whilst diving the German battleship Konig in Scapa Flow.
His body wasn’t recovered until 2010 when a group of divers also diving off the Jean Elaine found him and pulled him up.
Stuart MacCormac, from Cardiff, died in 2011 whilst diving the Dresden, a World War One German cruiser scuttled in Scapa Flow.
The German High Seas Fleet was interned there under the terms of the Armistice while negotiations took place over the fate of the ships.
Fearing that all of the ships would be seized and divided amongst the allied powers, the German commander, Admiral Ludwig von Reuter, decided to scuttle the fleet.
The scuttling was carried out on June 21,1919. Intervening British guard ships were able to beach a number of the ships, but 52 of the 74 interned vessels sank.
Many of the wrecks were salvaged over the next two decades and were towed away for scrapping. Those that remain are popular diving sites.
It is understood that the average number of diving deaths in the UK is between 11 and 13 a year.
