Crawford Lennan v Cabaral (DBA Advanced Diving) and Tucker
| Jurisdiction | Belize |
| Judge | Legall, J. |
| Judgment Date | 30 September 2010 |
| Court | Supreme Court (Belize) |
| Docket Number | 581 of 2006 |
| Date | 30 September 2010 |
Supreme Court
Legall, J.
581 of 2006
Mr. Fred Lumor SC for the claimant.
Mrs. Ashanti Arthurs-Martin for the defendants.
Tort - Negligence — Fatal accident — Claimant administratrix of deceased estate brining action for damages under Torts Act — Boat carrying passengers malfunctioning — Whether latent defect — Small craft warning of which first defendant not aware — Deceased leaving boat due to malfunction to swim to nearest island resulting in her death — Whether intervening cause or act — Whether contributory negligence — Whether waiver in diving application effective — Whether first defendant vicariously liable for neglect and negligence of second defendant employee — Liability proved — Damages assessed — Judgment for claimant.
Dr. Abigail Drake Brinkman was born on 7th October, 1977 at Columbus Indiana, U S.A. She loved scuba diving. She was unmarried and did not have children. At the tender age of 16 years, she obtained a certificate in scuba diving. She was also an accomplished swimmer and a member of a swim team at elementary school and was able to swim a mile at age 11 or 12.
At the age of 20 years, as a pre-medical student, she visited Belize in 1997 with other students. She fell in love with Belize. On her return to the U.S.A., she continued her medical studies and completed a Master's Degree in Chemistry and Bio-Physics and received an award as the top student in Child and Adolescent Psychiatry. After successfully completing her medical studies at the university, she took the Indiana Medical Licensing Board Examination, so as to be certified as a medical doctor. Before obtaining the results of the examinations, she returned to the Belize she loved so much on 1st October, 2005 to do a paper on tropical medicine at the Hillside Health Care International Center at Punta Gorda, Toledo District, Belize.
Roger L. Brinkman was born on 7th April, 1946. His wife Janet F. Brinkman was born on 11th December, 1946. They are the parents of Dr. Brinkman and are both American citizens who live in the U.S.A. Roger is employed as a Psychiatric Emergency Coordinator in Indiana, U.S.A. and will retire when he attains the age of 66 years. His wife is a real estate broker in Indiana U.S. and she will retire at age 67.
Vance Cabral, the No. 1 defendant, is the owner and manager of a Dive Shop named “Advanced Diving” situate at Placencia Village in Belize, which rents to customers diving and snorkelling gears. He is also the owner of a boat named “Advance 1” which is a boat that takes tourists for scuba diving and snorkelling. He holds a boat captain licence. The No. 1 defendant carries on a business of taking tourists at a fee for diving and snorkelling tours at locations in the Caribbean sea off the coast of Belize, one of which is a place named Silk Caye which is part of Belize. Mark Tucker, the second defendant is a freelance diver and trained dive master, was employed by the No. 1 defendant to assist on a dive and snorkelling tour with tourists, scheduled for 22nd October, 2005.
John Bain, an American citizen and an attorney-at-law, arrived by plane at the Phillip Goldson International Airport, Belize on 15th October 2005 on vacation. He was fifty years old. He travelled, as part of his vacation, to various parts of Belize; and eventually arrived on 21st October, 2005 at Placencia Village where the first defendant carried on his scuba diving and snorkelling business and Dive Shop. Bain also loved scuba diving. He enquired about a diving shop in the village for purposes of going on a diving tour. He found the No. 1 defendant's Diving Shop at about 7:30 a.m. on the 22nd October, 2005. There he paid the required fees to the No. 1 defendant for going on the diving tour and rented diving gears or equipment, such as a buoyancy compensator and regulator from the first defendant. On the said date Dr. Brinkman had paid her fees to the said defendant to go on the said tour.
The diving tour was scheduled to leave at about 8:30 a.m. on the said 22nd October, 2005 from a dock at Placencia. Bain went to the dock and met about ten other persons, including Dr. Brinkman with the same object of going on the diving tour. Some of the persons were interested in snorkelling, while others were interested in scuba diving. Among the persons interested in diving was Dr. Brinkman. She was one of the scuba divers. All the persons entered the No. 1 defendant's boat, Advance 11 including the No. 1 defendant and his assistant Mark Tucker, the No. 2 defendant. They left the dock and headed to the snorkelling and diving sites.
About ten minutes, or about 2 miles into the journey, the No. 1 defendant decided to return to the dock to get a larger boat because the boat Advance 11 was overcrowded. So the No. 1 defendant along with the passengers returned to the dock; and the passengers, as well as their equipment and other facilities, were transferred to a bigger boat, owned also by the No. 1 defendant named Advanced 1. After obtaining gasoline for the bigger boat from the gasoline station, they left once again to the snorkelling and scuba diving sites.
There were 14 persons on board — eight snorkelers, four scuba divers and the two defendants. The snorkelers were going to snorkel at a site called Silk Caye about twenty-two miles from the dock at Placencia, while the divers were to dive at a site called White Hole which was about 1 1/2 miles from Silk Caye. About halfway on the journey to Silk Caye, the outboard Yamaha engine of the boat Advance 1 ceased to function, and developed problems. The No. 1 defendant then began to take measures to get the engine functioning again. While taking these measures, the boat began to drift in the rough waters of the Caribbean sea. It drifted about three miles, when the No. 1 defendant was able to restart the engine. He had explained that water had gotten into the filter of the engine and caused the engine to cut off. With the engine now functioning again, the boat proceeded to Silk Caye.
On arrival at Silk Caye, the No. 1 defendant and the eight snorkelers got off the boat, leaving the No. 2 defendant and the scuba divers, namely, attorney John Bain, Nancy Masters, Yutaka Maeda and Dr. Abigail Brinkman. The boat then left Silk Caye at about 11:15 a.m. on the same day with the divers, and the second defendant for the diving site at “White Hole.”
About halfway to “White Hole,” the engine developed problems again, “went dead” according to the second defendant in his witness statement. The engine stopped functioning. With the captain of the boat left at Silk Caye with the snorkelers, it was left for the freelance diver, diver master and tour guide, the second defendant, to solve the engine problem and get it working again. In spite of his continued efforts, the engine failed to function and the boat continued to drift in the rough waters of the sea. The previous problem of water in the filter of the engine had re-occurred.
There is a dispute about some of the events that occurred after the boat began drifting the second time. I saw the witnesses who testified and who were present at the scene, namely, the defendants and John Bain. I observed their demeanour and I examined their evidence. I believe John Bain as to what occurred when the engine stopped working for the second time and the boat began to drift.
According to Bain, as the boat drifted, the No. 2 defendant and himself tried to get the engine started, and to send out some communication for help, but to no avail. Bain said that he tried to get the radio on the boat to work but it did not. He said in evidence that he strongly disagreed with the suggestion by learned counsel for the defendants that the radio on board was working. As the radio was not working no message for help could be sent. The boat continued to drift amidst the raging waters. Bain then suggested to the No. 2 defendant to drop the anchor. He dropped the anchor, but the boat continued to drift because the chain or rope attached to the anchor snapped or broke. The chain was rusty. The anchor became ineffective in stopping the boat from drifting. The drifting continued in the open sea.
Dr. Brinkman and Nancy Masters then decided to swim to the nearest island, which was visible to them and which did not appear to them very far away. Bain and Yutaka also decided to swim. I believe Bain when he said that the No. 2 defendant then assisted all the divers to put on their diving and swimming apparel and assisted them to go to the edge of the boat and fall backwards into the water. They began swimming to the nearest island at about 11:30 a.m. on 22nd October 2005. The intention was to swim and to have the option to scuba dive to the nearest island.
I further believe Bain when he said that the No. 2 defendant did not tell them not to swim and they did not act contrary to his advice. All divers were now in the sea swimming to the nearest island. Bain said, and I again believe him, that he underestimated the depth and the current of the sea and the distance he was from the nearest island when the decision was made to swim to it. I believe the other swimmers also underestimated the distance to the nearest island.
The divers having left, on board the boat alone was the No. 2 defendant. He remained on the boat until about 4:00 p.m. the next day, 23rd October, after having tried unsuccessfully once again to get the engine started, and to get communication for help through the radio. He then, like the other divers, put on his swimming gear, abandoned the drifting boat and began swimming just after 4:00 p.m. on the said 23rd October to Glovers Reef, which destination he reached more than two hours later.
The divers who had left the boat at 11:30 a.m. on the 22nd October was still in the water...
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