Lex Warner chartered the M/V Jean Elaine, a motor vessel operated by Scapa Flow Charters (SFC), for a week. He died while diving, after tripping and falling on the deck before a dive. Mr Warner's widow, Debbie Warner, sued SFC, alleging that her husband's death was the result of SFC's negligence. She sought damages, both as an individual, and as the guardian of their young son, Vincent.

In 2016, the Court of Session (Outer House) ruled that the claim was time-barred by art 16 of the Athens Convention 1974 (CMI124). This decision was upheld by the Court of Session (Inner House) (CMI385). In 2018, the Supreme Court held that the claim was not time-barred by the Athens Convention (CMI358), and remitted the claim to the Court of Session (Outer House) for trial.

Held: Judgment for the pursuer. The defender is liable to make reparations to the pursuer in terms of art 3.1 of the Athens Convention 1974 in the sum of GBP 290,000.

If Mr Warner’s injury is shown to have arisen from, or in connection with, a defect in the MV Jean Elaine, a presumption of fault and neglect on the part of the defender arises in terms of art 3.3 of the Athens Convention 1974. The only features of the MV Jean Elaine that were criticised in this respect were the slope of the deck and the arrangement of the handrails at the time of the fall, in particular the lack of handrails at the bench where Mr Warner prepared for his dive.

It is possible that the slope of the deck contributed to Mr Warner’s trip and fall. However, there was no suggestion at all in the evidence that it fell below any applicable standard, that it was inherently dangerous, or indeed that it should, or could, have been configured otherwise. In relation to the provision of handrails, the difficulty for the pursuer is that Mr Warner’s fall occurred in the vicinity of a handrail which he could have used, but did not do so. There was no defect in the MV Jean Elaine, and, in any event, Mr Warner’s injury did not arise from, or in connection with, any such defect. Therefore, the pursuer cannot take the benefit of the presumption of fault and neglect provided for by art 3.3, and must prove fault and neglect from some other cause.

The evidence shows that the defender failed to recognise the system of dive preparation that it set up, or that it allowed to develop (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 their diving fins (ie flippers attached to their feet), and that this 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 to bring it under control.

Had a system for the promotion of safer fin practices been in place, the likelihood is that this would have eradicated or minimised the risk of falling, and Mr Warner would not have fallen at all; or if he did, he would not have sustained such a serious injury. The injury that he in fact sustained can therefore properly be said to have arisen from, or in connection with, the fault and neglect of the defender.

For these reasons, the defender is liable to make reparation to the pursuer.

[For the successful appeal to the Inner House, see Warner v Scapa Flow Charters [2022] CSIH 25 (CMI1856).]