Jennifer Rowlinson | Associate

Warner v Scapa Flow

The recent Supreme Court decision in Warner v Scapa Flow Charters is a significant decision for Scottish Personal Injury Law.

Mr Warner fell onto the deck of a vessel that he had chartered through Scapa Flow while dressed in diving gear. Despite his fall, he later went on a dive to a wreck off Cape Wrath in the north of Scotland. Tragically, Mr Warner got into difficulty, and despite being taken back to the vessel, he died as a result of his injuries. Mr Warner died on 14th August 2012.

Normally, in a personal injury case, an injured party has three years from the date of the negligent act to raise and serve court action. This is provided for by the Prescription and Limitation (Scotland) Act 1973. There are special rules relating to children, and the time-bar does not start running until their 16th birthday.

Accidents on vessels however are governed differently, and the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea must also be considered. The Athens Convention generally allows for a 2 year time bar under Article 16 which provides “Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.”

Mr Warner’s wife sued Scapa Flow, both in her own right and as the guardian of her son alleging that Mr Warner’s death was as a result of the negligence of Scapa Flow. Mrs Warner raised court action in the Court of Session in around May 2015, almost three years after the accident.

The Outer House of the Court of Session dismissed the case on the basis that the action was time-barred. Mrs Warner appealed to the Inner House of the Court of Session, and the decision was partially reversed insofar as the action raised by Mrs Warner as guardian of her son was not time barred.

Scapa Flow then appealed this decision to the UK Supreme Court. The appeal has now been dismissed. The decision was a unanimous decision of the 5 judges that heard the case.

Scapa Flow argued that the Athens Convention did not allow for any claims to be brought after 3 years. The Supreme Court had to interpret the Athens Convention, alongside the Prescription and Limitation (Scotland) Act 1973. It noted that “the Athens Convention also provides that the law of the court seized of the case – in this case, Scots law – governs “the grounds of suspension and interruption of limitation periods”

The main issue in question was whether the definitions of suspension and interruption of limitation periods meant that the claim for Mrs Warner’s son was also time-barred, and should fall to be dismissed. Should the court take a strict interpretation of the wording? The Supreme Court noted that “…In interpreting an international convention, national courts must look at the objective meaning of the words used and the purpose of the convention as a whole.” In short, the court did not accept that the words “suspension” and “interruption” should be held to a strict definition. To do so would create serious difficulties because in a technical sense there were varying degrees of effect that suspension and interruption could have. The supreme Court has decided that Mrs Warner’s claim, as the guardian of Mr Warner’s son is not time-barred and should be allowed to proceed. This particular case highlights that while, on first reading of legislation, be it domestic or international, something may appear to be cut and dried, it is up to the courts to interpret the meaning of the wording of the legislation, and the intention of the drafters when making a decision. In particular, the Supreme Court should also look to the negotiation of a treaty, how it has been interpreted by foreign courts and the writings of jurists.

The Court concluded that the Prescription and Limitation (Scotland) Act 1973 did not postpone the start of the period when a claim becomes time-barred, but instead it extended the period when a claim becomes time-barred, due to the fact that Mrs Warner’s son was a child – in essence it postpones the expiry date for the time-bar as opposed to the start date.

Mrs Warner’s son’s claim will be allowed to proceed, and we will await the final outcome of the case when it has been decided.

Jennifer Rowlinson

Jennifer Rowlinson

Personal Injury Team

“I particularly enjoy being involved in court hearings and helping my client’s feel supported through the court process from beginning to end”

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