We recently acted for a saturation diver who had been referred to us by his Trade Union. He was deep-sea diving with a colleague at an oil field in the North Sea in the course of his employment.
A cherry picker (a type of small crane) was being used to lower a basket containing a chain hoist to the divers from a diving support vessel. It had become apparent on a previous shift that the cherry picker wire was too short to reach the sea bed. However, on this occasion, the cherry picker operator allowed the cherry picker to descend beyond its short mark and the cherry picker wire came off the drum winch as a result. The work basket fell to the sea bed. Our client had been waiting on the top of a manifold (a table-like platform) for the basket to descend and to recover the chain hoist whilst his colleague worked on the sea-bed. He moved towards the basket and grasped the wire but noted that it was still descending. He quickly dropped down off the manifold roof and took shelter under it. About 175 metres of heavy wire, weighing over a tonne, then dropped down and piled up on the sea bed.
Our client initially was terrified that his diving buddy had been seriously hurt or even killed by the falling basket and wire. Fortunately, his colleague was unharmed. However, our client recognised that serious physical injury or death could have resulted had the wire struck him or his diving colleague on the seabed. He subsequently developed a psychiatric disorder in consequence of this "near miss" incident and was unable to return to diving. His psychiatric condition could have put himself and any diving-buddy at risk in the life-critical deep-sea setting.
His claim was brought against the employers of the cherry picker operator who had negligently allowed the wire to come off the drum and fall to the sea-bed. Those employers were considered to be vicariously liable for their employee's actions.
On behalf of our client, we claimed damages for his psychiatric injury and for the loss of earnings and pension rights which he had suffered as a result of being unable to continue to dive. Although he was fit to carry out work onshore, he was unable to earn the lucrative wages he had enjoyed as a deep-sea diver. He claimed, therefore, for the difference between the earnings he would have earned as a diver and the earnings he was, in fact, able to earn onshore, and the impact that that had on his future pension rights.
The principal dispute between the parties was in relation to our client's wage loss claim. Our client's position was that he would have continued diving for as long as he was fit to dive but the defenders argued in negotiations that it was unlikely that he would have stuck with a career in diving and that the average retiral age of a deep-sea diver was 48 years of age. We were able to identify many divers who are continuing to dive well into their 50s and 60s and, in fact, such men are in high demand by employers for their wealth of experience. The defenders also argued that our client could earn much more onshore than he actually was.
Our client's claim was litigated in the Court of Session but ultimately was settled out of court for a significant sum following negotiations between the parties' respective legal teams.