Lex Warner drowned during a diving expedition on 14 August 2012. The Lord Ordinary determined that the defenders were responsible for his death: see Warner v Scapa Flow Charters [2021] CSOH 92 (CMI1598). Earlier proceedings had held that the pursuer’s claim was not time-barred under art 16.1 of the Athens Convention 1974: see Warner v Scapa Flow Charters [2018] UKSC 52 (CMI358). The defenders now reclaim (appeal) the first instance decision.

The principal question concerns the standard of care. Did the defenders' duty of care to those on board extend to prescribing, monitoring, and controlling the manner in which the divers put on their equipment and made their way from their seated positions to the exit point? A subsidiary question arises whether it was sufficient that a safe method of walking on deck had been provided by way of handrails and a deckhand, even if it was not strictly enforced by the defenders, and not always adopted by the divers?

Held: The reclaiming motion is allowed and a decree of absolvitor pronounced.

There are significant flaws in the Lord Ordinary’s reasoning. Defining the standard of reasonable care requires the judge, as the hypothetical reasonable person in the position of the defenders, to weigh various elements. The equation notably, but not exclusively, involves evaluating the risk of any accident occurring, the seriousness of any potential injury, the practicality of any specific precaution, and the effect of any prohibition on the activity in question. It is in carrying out this exercise that the Lord Ordinary erred.

First, the Lord Ordinary does not appear to have given the practice of the divers in walking, what was (at least in Mr Warner's case) a very short distance to the exit point in fins, any weight at all. Although by no means determinative, evidence of what those experienced in diving operations regarded as appropriate in the knowledge of the risks involved cannot be ignored. Where persons of skill and experience consider that a reasonably safe course is to walk in fins for a short distance, preferably using a handrail and possibly with the assistance of a deckhand, rather than walking without fins and pausing at the exit point to put them on, that must be of some value in the equation. It ought to be given some weight. 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 that 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 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.

Secondly, the Lord Ordinary held that the defenders' risk assessment did not recognise sufficiently that walking on deck in fins was inherently risky. It is far from clear why the Lord Ordinary did not consider that, given the defenders' limited role of carrying out their own operations on board, navigating with reasonable care, and providing a safe vessel for the dive, the steps taken by them did not meet the required standard of care. This is especially so given the absence of any assumption by the defenders of any greater responsibility.

The fundamental question remains whether the standard of care extended to prescribing, monitoring, and controlling the manner in which each member of a group of highly skilled and experienced technical divers put on their diving gear and moved to the exit point. Even if it did, was it sufficient that the defenders did provide a safe means of reaching the exit point, albeit one which Mr Warner elected not to use? The risk of falling, when walking in fins, was obvious to the divers, albeit that the prospect of sustaining a serious injury was not high. There was evidence of some previous falls. The risk was limited to a person falling over himself onto a deck. This risk would obviously increase if an available handrail and/or deckhand assistance were not used. As with the other divers, Mr Warner knew this.

Some assistance on the standard of care, which is required outside the sphere of employment and in relation to known risks when engaging in leisure pursuits, can be gained from Tomlinson v Congleton BC [2004] 1 AC 46. A question arose of 'whether people should accept responsibility for the risks they choose to run' when a person is 'freely and voluntarily undertaking an activity which inherently involved some risk' [44]. Lord Hoffman said [46]:

A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine or informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger … or the despair of prisoners which may lead them to inflict injury on themselves.

This Court, while being aware of the comments on the use of this dictum more recently, but in other contexts, in both England and Wales (eg White Lion Hotel v James [2021] QB 1153) and in Scotland (eg Phee v Gordon 2013 JC 379), broadly agrees with Lord Hoffman's approach. The defenders had a duty to assess the risks of injury to persons on board their vessel. The statutory assessment, in so far as relevant to non-employees, related to risk arising from the defenders' acts and omissions. An assessment of the risk of a diver falling, as a result of tripping over his own fins, would have had to take into account the fact that the risk of tripping was not great and that of serious injury was even less. More importantly, it would have had regard to the fact that the persons best placed to assess and deal with any risk were the technical divers themselves and not the defenders. In assessing the actions of the divers, the defenders did not have the requisite knowledge or experience to dictate the manner of gearing up or the extent to which movement in fins ought to be permitted when wearing or carrying specialist diving gear on deck. The suggestion that the divers, going about their leisure activity, would subscribe to the uninformed views of the skipper of the vessel which they had chartered, is unrealistic, and places an undue burden upon him.

It was sufficient in the exercise of reasonable care for the defenders to have 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 a deckhand. They did this. Mr Warner, who was well aware of what was an obvious and inherent risk, chose not to use the provided means. That was a matter for his choice in the context of a leisure pursuit in which he, and not the defenders, was the skilled and experienced person. The defenders were not required to give such a person 'frequently repeated warnings' about a risk of which he was already aware. Mr Warner made an informed choice to put his fins on at his seat, and to walk in them across the deck to the exit point without using the handrails or the deckhand. In these circumstances, this Court disagrees with the Lord Ordinary on what was required to meet the standard of care to be applied on the facts. Fault or neglect on the part of the defenders in terms of art 3.1 of the Athens Convention is not established.