Judge rules against Scapa liveaboard
A SCAPA FLOW CHARTER SKIPPER HAS been ordered to pay £ 290,000 compensation to the nine-year-old son of a diver who lost his life during a dive off Cape Wrath in 2012 .
Technical diver Lex Warner died after a fall on the deck of the dive boat MV Jean Elaine , owned by Orkney-based Scapa Flow Charters .
Lord Sandison , the presiding judge at the Court of Session in Edinburgh , has now ruled that Scapa Flow Charters ’ proprietor , Andy Cuthbertson , had not done enough to minimise risks to divers moving around the Jean Elaine while wearing fins .
Mr Warner , 50 , from Sutton Coldfield , was on board the Jean Elaine for a week-long wreck diving trip when he fell on deck in full diving kit and sustained what was later found to be an injury to his liver .
The June court session heard that the boat skipper Andy Cuthbertson asked Mr Warner if he wanted to sit out the dive , but he decided to proceed . During the dive , Mr Warner , who was described as an experienced diver , made an emergency ascent from 80m , in an ‘ anxious and ultimately panicked state ’.
During the ascent , Mr Warner fell unconscious and lost his mouthpiece . Despite resuscitation attempts on board the Jean Elaine , Mr Warner could not be revived . An inquest verdict of accidental death caused by drowning and traumatic liver injury was recorded .
Mr Warner ’ s widow , Debbie , raised the civil action on behalf of their son , Vincent , who was nine months old at the time of his father ’ s death . The Warner family ’ s legal team claimed the Jean Elaine ’ s skipper , Andy Cuthbertson , did not do enough to minimise the risks from divers walking on board boats while wearing fins .
However , Scapa Flow Charters ' lawyers countered that Mr Warner had chosen to carry on with the dive and once kitted-up and wearing fins , he had a duty to walk across the deck carefully .
In his ruling , which was released on the 3 Sept , presiding judge Lord Sandison wrote that Mr Cuthbertson was ‘ guilty of fault and neglect ’ in that he had failed to recognise that the arrangements on his boat “ permitted or even encouraged divers to walk on deck in fins , and that that was an inherently risky activity ”.
The judge also highlighted that the Marine Accident Investigation Branch ( MAIB ) had records of divers who sustained accidents from walking in fins on board boats .
Lord Sandison concluded that “ had a system for the promotion of safer fin practices been in place , the likelihood is that it would have performed its intended function of eradicating or minimising the risk of falling and that Mr Warner would not have fallen at all , or if he did , he would not have sustained a serious injury such as he in fact sustained .”
SCUBA comment : This landmark legal case will have ramifications for the UK dive charter boat industry . Charter operators have been following the case intently ; many have privately expressed surprise and consternation at its verdict . Some have argued that the decision is symptomatic of a legislative system that often seems stacked against them . In an industry that must cope with UK weather and tidal conditions in addition to already stringent safety requirements , the ruling appears harsh indeed .
However , it was Lord Sandison ' s duty to apply the letter of the law dispassionately to the evidence presented , regardless of any perceived industry norms . Already , we have seen boat briefings amended to include more information on deck safety and how to enter the water . Similarly , I gather several businesses have updated their risk assessments and signage as a result of this case , some before the final ruling . Our reporter approached the representatives of the Jean Elaine to give them the opportunity to comment , but they have not responded . Simon Rogerson , Editor
Towing tests kicked into touch
THE GOVERNMENT HAS announced new rules for towing a trailer , and it ' s good news for divers wanting to tow RIBs .
BSAC recently advised members about the government ’ s consultation on proposed changes to the testing requirements for towing a trailer ( B + E ) for drivers who passed their test after 1 January 1997 .
The consultation closed on 7 September 2021 , and the government has now announced new rules .
What do the new rules mean for divers who drive ?
The changes mean that later this year , anyone who passed their car driving test after 1 January 1997 will no longer be required to pass a test to tow a trailer of more than 750kg . The date for the change has yet to be confirmed , so affected drivers should continue to follow the existing requirements until that time . The change may be welcomed by many divers and their clubs as it may increase the number of drivers able to tow boats .
However , driving a vehicle towing a trailer with a large RIB has implications for the driver and other road users . It strongly advised that you take training from a driving instructor if you want to start towing a larger trailer .
Check out the new government rules at bsac . com / towingupdate
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