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October 2021    Download the Entire Issue (PDF) Vol. 47, No. 10   RSS Feed for Undercurrent Issues
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Wearing Fins on Deck Proves Fatal

and the British boat captain is found liable

from the October, 2021 issue of Undercurrent   Subscribe Now

A surprise court ruling has shocked the British scuba diving industry. In a landmark decision, a Scottish judge at the Court of Session in Edinburgh has awarded 290,000 ($395,000) to the nine-year-old son of a 50-year-old diver who lost his life while diving from MV Jean Elaine. The vessel was owned by Orkney charter diving businessman Andy Cuthbertson and Scapa Flow Charters. The boy was a baby when his father died. The case will have far-reaching consequences for the British diving industry.

In 2012, Lex Warner, an experienced technical diver and businessman from near Birmingham, U.K., was diving from the vessel off Cape Wrath in Scotland, an area known for its turbulent seas. The weather was pretty good that day, with winds perhaps 4-8 knots. It was the third day of the trip.

While loaded down with a rebreather and multiple bail-out tanks and wearing his fins, he tripped and fell on the deck before a dive, moving from his seat to the nearby diving exit. He did not use the handrails beside him and chose a different route without the handrails to walk directly toward the diving exit.

After Warner fell, skipper Andy Cuthbertson assisted him to his feet and asked if he wanted to sit out the dive, to which Warner replied, "No, no, no, let me in the water. Get me in the f***ing water." No one forced Warner to make the dive. It appears he was adamant about doing the dive, fall or no fall, and there was nothing Cuthbertson could do to prevent him from diving, short of physically restraining him.

So, asserting he was unhurt, Warner made the dive.

So, asserting he was unhurt, Warner made the dive, during which the pain of an internal injury he'd received when he fell caused him to ascend hurriedly from a depth of more than 290 feet. He got into difficulty and dropped his rebreather mouthpiece.

Three of his fellow divers attempted to increase his buoyancy and administer breathing gases; however, Warner did not resume breathing. They attached him to a lift bag and raised him to the surface from 213 feet. Despite further medical treatment onboard the Jean Elaine and later by the emergency services, he could not be revived and was pronounced dead that evening. The injury sustained in his fall had led directly to his death.

The judge, Lord Sandison, ruled that the vessel's captain, Cuthbertson, had not done enough to minimize the recognized risk to divers who carried heavy equipment and walked about on deck while wearing fins. Warner's fall had caused an abdominal injury that led to the emergency ascent from depth in "an anxious and ultimately panicked state," during which he became unconscious and lost his mouthpiece. Lord Sandison ruled that had safer fin practices been in place, Mr. Warner would not have been seriously hurt even if he had fallen. The injury he sustained was, therefore, due to the fault and neglect of Scapa Flow Charters.

"Although the skipper was aware of the demands of his working environment, there was no evidence of a formal assessment of the risks for a fully dressed diver moving from his seated preparation area to the point of entry into the water."

Before the dive, Scapa Flow Charters had not provided a written risk assessment to include the risks of falling while wearing fins on deck or the failure to use the handrails.

The other divers who had been present gave evidence in support of the captain. Paul Mee, 49, a company director, had dived from the Jean Elaine since 1995. In his testimony, he said, "Mr. Cuthbertson was a very safe skipper, a genius at what he did, and he had no concerns about the safety of the boat as a dive platform, or about the number or position of the handrails. No boat in the world had handrails guiding you all the way to the exit point, and this boat had more than many others did."

In an added dimension to the case, another diver, Neil Plant (47), a critical care medic, who was onboard the MV Jean Elaine at the time of the incident, contacted the police, alleging Warner's family had threatened him after he made a statement that he had no safety concerns about the boat or the competency of its skipper, Andy Cuthbertson. He said that before the 2012 accident, he had made dives from Cuthbertson's boat in four consecutive years and did not have any concerns about safety on the boat. (Plant sold his equipment and never dived again after the incident.)

It was also discovered that Warner had been prescribed antibiotics and advised not to dive by his medical practitioner only a week before the dive trip, but the Court summarily dismissed this fact.

The ramifications of this ruling, and any precedents set, are yet to be felt in the U.K industry. Many suspect an oncoming price hike for operator's insurance, which will be reflected in an increase in the price of diving charters.

The familiar mantra, "A diver in the water without fins is in danger just as a diver out of the water with fins on is in danger" appears to have been ignored by the judge.

A search of the Marine Accidents Investigation Branch database from 2002 to 2011 revealed eight reported accidents involving falls by divers in or from boats; none were fatal.

Full details of the MV Jean Elaine incident can be found at https://tinyurl.com/5ezjt9f4. Details of the Court ruling are found here: https://tinyurl.com/57uj2mdn

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