Three senior judges in the Court of Session, Scotland have overruled the Opinion of Lord Sandison issued on 3 September 2021.
Scotland's highest civil court published their Opinion of the Court on 10 May 2022, and ruled that fault or neglect on the part of Scapa Charters "is not established".
The Opinion states "The Lord Ordinary wrongly concluded that walking in fins represented an unacceptable risk...The inference drawn by the Lord Ordinary was unreasonable. The divers' unchallenged evidence made it clear that putting on fins and then walking to the exit point was almost invariable practice.
But now senior judges in Scotland’s highest civil court have over-ruled that. In an Appeal decision published today, they say it was the divers' responsibility to move safely across the deck and they found Lex Warner and the others in his party were "highly skilled and experienced" - and that the risk of walking in diving fins was "obvious" to them.
They also find that the boat operators, Scapa Charters, did not have the requisite technical knowledge or experience to dictate the way the divers put on their gear and moved about the deck and that to expect the skipper to be responsible was unrealistic, and would place an undue burden on him. So, the judges ruled fault or neglect on the part of Scapa Charters "is not established".
Not every accident is someone's fault. Court of Sessions, 10 May 2022
Scapa Flow Charters Statement
Andy Cuthbertson of Scapa Flow Charters provided XRay Mag with the following statement.
"Scapa Scapa Flow Charters welcomes the decision of the Inner House of the Court of Session, absolving the company of any liability in connection with the tragic death of Lex Warner.
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."
