Orkney boat firm welcomes decision on fatal dive award

Lex Warner's wife Debbie took legal action on behalf of their son Vincent

A boat company sued by the young son of a diver who died off Cape Wrath has welcomed a decision to overturn an award of £290,000 in compensation.

Lex Warner, 50, from Sutton Coldfield, near Birmingham, was injured in a fall on a Scapa Flow Charters' boat before he made his fatal dive in 2012.

His son Vincent, nine, was awarded compensation last year, but appeal judges have overturned that decision.

Scapa Flow Charters said the move brought clarity for its industry.

The Warner family have not commented on the latest development in the case at this stage.

In a statement, Orkney-based Scapa Flow Charters said it welcomed the decision of the Inner House of the Court of Session in Edinburgh. The appeal judges' decision was published on Tuesday.

The company said it had been absolved of any liability "in connection with the tragic death of Lex Warner".

Scapa Flow Charters said: "As a member of the recreational dive boat community we believe the decision provides much needed clarity on the duties of skippers and crew of recreational dive boats.

"Nevertheless, the fact remains that this was a fatal accident involving the loss of a husband and father and our sympathies remain with Mr Warner's family."

• Judges overturn boy's £290,000 diving death payout

• Boy, 9, wins compensation over father's dive death

• Dive boat firm appeals boy's compensation award

Scapa Flow Charters was sued by Vincent through a legal action raised by his mother Debbie.

But judges at the Inner House of the Court of Session agreed with appeal submissions from the boat firm.

Lord Carloway wrote that Scapa Flow Charters had put in place adequate safety measures, before Mr Warner fell on the boat while walking in fins.

He concluded that Mr Warner chose not to use the safety measures in place and had made an "informed choice".

Mrs Warner and Vincent outside the UK Supreme Court in 2018

Mr Warner and a group of friends had been making a deep water technical dive off a wreck, on board Scapa Flow Charters' boat MV Jean Elaine.

Mr Warner's widow won a case at the UK Supreme Court in 2018 to be allowed to raise the civil court action on their son's behalf.

The case centred on how Mr Warner fell while on the boat. He sustained an abdominal injury and later got into difficulty when he was in the water.

Lawyers for the family claimed the boat's captain Andy Cuthbertson did not do enough to minimise the risks which came from divers walking on board boats while wearing fins.

In a judgment published last year, Lord Sandison agreed with the submissions made by the Warner family's legal team.

He concluded Mr Cuthbertson failed to put in place proper health and safety measures which would have protected Mr Warner from falling.

But lawyers for Scapa Flow Charters told appeal judges Lord Carloway, Lord Woolman and Lord Pentland that Lord Sandison was wrong to find Mr Cuthbertson at fault.