DATELINE :- 5th May 2000
DIVER SUED
Buddy wins action after widow files negligence claim
A sport Diver has been exonerated in a landmark legal case, after the widow and daughters of a buddy who perished off Devon took him to court in pursuit of compensation, on the grounds that he negligently caused the other's death. But in a surprise twist, the judge has awarded 50 per cent of the costs against him.
Had it succeeded, the action - which pivoted on the question of whether two buddies had a duty to ascend face to face - would have had considerable repercussions for leisure divers and anyone else who might be argued to have breached a duty of care.
Defendant Peter Milner faced questioning described by the judge as "hostile" over an incident that had been put down to misadventure at inquest five years ago.
In March 1995, Milner and Dominic Rowbottom, who had dived together more than 100 times as members of Torbay BSAC, joined members of Brixham BSAC to dive the Sevilla, four miles off Berry Head at 42m.
After exploring the wreck, the men were about 16m from their shotline when Rowbottom signalled that they should surface, and cut his distance line.
Milner offered his line as a buddy line but after a few seconds Rowbottom dropped this and gave another thumb-up signal.
The men ascended 10m without difficulty, Milner moving slightly ahead before seeing Rowbottom descend rapidly and out of sight in visibility of only 2-3m. Milner returned to the seabed to search without success for Rowbottom, before ascending with decompression stops.
On surfacing, he suggested to other divers that Rowbottom be given five minutes to appear, during which time the lost diver's fins and wooden line reel arrived at the surface.
None of the divers was in a condition to dive in search of Rowbottom. The rescue services were contacted and a surface search undertaken.
Nine days later, Milner and other club divers found the body by the wreck, minus mask and weightbelt. Cause of death was uncertain due to the time spent under water.
At the inquest, it was noted that this was Rowbottom's first dive to such a depth, and his first of the season (in fact it was his second). He was wearing a new ABLJ with controls on the opposite side to gear previously worn, so he might have inadvertently dumped air from his drysuit by using the wrong controls.
Rowbottom's GP suggested that nitrogen narcosis might have led to disorientation and impaired judgment.
Milner heard no more after the inquest until mid-1998, when he was served a High Court writ to the effect that Rowbottom's widow Debra and her three daughters sought compensation on the grounds that he had caused his death by negligence. Writs, withdrawn soon after, were also issued against the BSAC, its Torbay branch and Brixham Diving Club, and the dive marshal on the boat from which the men had dived.
The case was heard at Exeter District Registry of the High Court in mid-March this year and details supplied to Diver by Lorraine Burns, the defendant's solicitor at S J Cornish of Tiverton.
Giving evidence for the claimant, Crawford Logan, a professional diver, argued that Milner should have deduced that Rowbottom was in difficulties when he cut his line and dropped Milner's.
He said Milner should have taken hold of the other man and guided him to the surface, keeping him in sight in case he lost consciousness. That, he said, was the basis of the buddy principle.
Milner was also criticised for undergoing a full decompression procedure; for allegedly failing to give a distress signal on surfacing; and for suggesting that Rowbottom be given five more minutes to surface.
Under cross-examination, Logan agreed that the key question was whether Milner's judgment that his buddy was capable of a free ascent was a view he could reasonably have held, as an amateur diver who might have been affected by nitrogen narcosis.
In response, for the defence, diving consultant Dr John Bevan said Rowbottom had given no distress signals and Milner had no reason to suspect that he had a problem until he sank from view, by which time he was unlikely to be able to do anything.
During ascents, said Bevan, it was not uncommon for divers to be up to 2m apart. He also said Milner had been responsible in undertaking deco stops to avoid a second emergency situation, and that his advice at the surface to wait five minutes was also justified, as separated divers usually appeared in that time.
Bevan also criticised Rowbottom, a relatively inexperienced deep diver, for having undertaken a 42m dive without building up progressively to such a depth.
He believed that, with no thermal layer inside his drysuit and a neoprene hood of "poor quality", he could have suffered chilling and also increased effects of nitrogen narcosis.
Of Rowbottom's sudden descent, Bevan noted from a photograph produced at the trial that he had used ankle weights secured by straps, the buckles of which were not functioning. It was possible that, finning upward, the fins had been pushed off by the loose weights.
Bevan also noted that Rowbottom was unfamiliar with the workings of his ABLJ; that he seemed not to have topped up his pony cylinder; and that his ABLJ inflation cylinder was empty.
Summing up, Judge Overend said he had "little hesitation" in preferring the evidence of Bevan to that of Logan, who he said had judged Milner by standards more applicable to commercial divers.
The judge found Milner "not responsible in any way" for his buddy's death. He said Rowbottom had made free ascents after cutting his shotline on two previous occasions, and while Milner had been right to offer his own reel line, he had had no reason to think he was in trouble. This conclusion, he said, was regardless of whether Milner was suffering from nitrogen narcosis.
The problem came during the free ascent, when Milner found himself moving ahead of his buddy. But the judge said the law did not "impose an absolute obligation on one sports diver to his buddy, such that any error of alignment, juxtaposition or synchronisation amounts to an automatic finding of negligence."
The law required only "the taking of reasonable care to ensure the safety of the buddy diver, which in turn implies a reasonable attempt to ascend in parallel, facing each other."
He could not see that Milner's admission that he allowed his buddy to be 2m below him amounted to negligence. "All divers who gave evidence agreed that it was not easy to synchronise a free ascent, and further, that losing contact with a buddy is a common enough occurrence, particularly in water with poor visibility."