Safety in Deep Sea Diving: Stephen O’Malley

Louise Ellman Excerpts

Wednesday 25th November 2015 Commons Chamber

[Mrs Louise Ellman (Liverpool, Riverside) (Lab/Co-op)]

In opening this Adjournment debate, I would like to pay tribute to my constituent Nicola Braniff, the partner of the late Stephen O’Malley, and her father Joe for their dedicated work in unearthing vital information about the circumstances surrounding the tragic death of Stephen and for their tireless campaign for justice.

On 3 May 2012, Stephen O’Malley, a UK citizen, was employed as a contracted commercial deep-sea diver for SubC Partner, based in Denmark. Servicing wind farm turbines in the North sea on the Alpha Ventus offshore wind farm in German waters, he was on a routine dive from the Blue Capella vessel. Stephen did not return from that fateful dive alive. There is documentation of what happened; I viewed with mounting horror the helmet camera recording of the unfolding tragedy.

Stephen’s first distress call came less than two minutes into the dive, as he complained that his neckdam was too tight. I have a neckdam with me here, and I think it is clear to see how it is designed to sit closely on the neck. If it fits too tightly, however, there can be horrendous consequences. I repeat that Stephen’s first distress call came less than two minutes into the dive, as he complained that his neckdam was too tight:

“I can’t breathe with the neckdam. It’s choking me. It’s restricting my breathing.”

After four minutes and 28 seconds into this horrendous video, Stephen is heard to cry:

“Get me up. I can’t breathe.”

The final call for help from Stephen came after 6 minutes and 25 seconds, yet it was nine minutes from the start of the dive before a rescue diver was sent down. He made valiant efforts, but Stephen became entangled in the umbilical air cord. There were also problems locating the C clip on his jacket, which was necessary for him to be hoisted up. It took 15 minutes from the start of the dive to bring him on deck—and I ask Members to remember that it was within two minutes of that dive that Stephen was heard on the video to call for help, very clearly. It took longer still to remove his helmet. Still more time passed before he was brought up, and more time passed before resuscitation began.

One hour later, a doctor was flown out from Germany and pronounced Stephen dead. There was no sense of urgency, and it is unclear whether the crew were made aware of what was happening. The company issued a statement that Stephen had died of a heart attack.

I am deeply disturbed both by the horrendous manner of Stephen’s untimely passing, and by the absence of any comprehensive health and safety investigation of what had taken place. Yes, there were post mortems in Denmark and in Liverpool, but there has been no comprehensive investigation. I have spoken to a number of people with knowledge of the sector and of this tragic event, and a great deal of very detailed work has been done by my constituent Nicola Braniff herself. There are grave concerns about the condition of the vessel, the absence of a basket to facilitate rescue, the tangled cord and the over-tight neckdam, and the management of the rescue attempt.

Had this calamity occurred under British jurisdiction, in British waters or within a British zone, the Health and Safety Executive would have been responsible for investigating, but as the vessel sailed under the Danish flag, in German waters, Denmark is held responsible. To date, the actions of the Danish authorities have been deficient. For reasons that I will identify later, they have declined to conduct an investigation.

I commend the diligence and sensitivity of André Rebello, the Liverpool and Wirral coroner who conducted the UK inquest in Liverpool. I also thank Merseyside’s Detective Chief Inspector Griffiths for his hard and conscientious work. The British consultant forensic pathologist Dr Brian Rodgers conducted the Liverpool post mortem. In his report, he concluded:

“The problems with the neckdam ring and/or the dry suit were crucial in this man’s death and I would record the cause of death as compression of the neck by an overtight neckdam”.

André Rebello’s verdict rejected the Danish post-mortem conclusion that Stephen had probably died as a result of an undiagnosed heart condition as “fanciful in the extreme”. He found that

“on the balance of probabilities Mr O’Malley has suffered a cardiac arrest as a result of hypoxia caused by his respiratory function being impaired by him hyperventilating as a result of difficulty in breathing from the compression on his neck from the neck dam ring. There is no evidence of any previously undiagnosed cardiomyopathy having any role in his death.”

The coroner issued a regulation 28 report to SubC Partner, the company that had employed Stephen, to prevent future deaths. The report stated:

“The court has been advised that rescue of Mr O’Malley from the sea was delayed because the standby diver could not locate the c-clip on the back of his harness which was to facilitate hoisting him from the water. The Court has heard that checking this c-clip is free and accessible is not part of the standard checks before a dive. Should such a check be part of the pre-dive protocol checks?”

The company must reply to the coroner giving its views.

André Rebello wrote to me, after I had a detailed conversation with him, to say:

“I am restricted by law to what I can do and find. I am only permitted to determine who has died, when and where the death occurred and how the death occurred. I also have regard to the fact that the authorities overseas retain primacy and that they might revisit the circumstance of this tragic event”.

What is the situation concerning such a potential investigation by those overseas authorities, which, as André Rebello points out, apparently retain primacy? I have made representations to a wide range of organisations in this country and across Europe, including to Ministers in the Department for Transport and the Foreign and Commonwealth Office and to the Health and Safety Executive. They explained that they themselves were not in a position to investigate, but I thank Ministers and the HSE for their thoughtful responses. In particular, I thank the Secretary of State for Transport and the Under-Secretary of State for Transport, the hon. Member for Scarborough and Whitby (Mr Goodwill), for the care they took in responding to my queries and the consideration they took in acknowledging my concerns.

I would like to look now at the authorities overseas, including the authorities that the Liverpool and Wirral coroner stated have primacy and that we have to have regard to because they may wish to return to the issue. The Danish maritime investigation branch stated that the case was outside its jurisdiction as it considered that Stephen’s death was

“not directly in connection with the operations of the ship”,

which, it says, European directives require to be the case before it can investigate. The Danish maritime authority did not conduct a formal investigation because it believed that Stephen died of natural causes. Southern Denmark police have discontinued their investigation on the ground that

“it is not reasonable to presume that a criminal offence has been committed”.

The Danish maritime authority’s findings are illuminating. I quote from its report:

“the video footage shows it took too much time to get the people in distress out of the water but this is attributable to a combination of several unfortunate coinciding circumstances. That the rescue line was not immediately available, that the person in distress was entangled in the umbilical air supply line and that the hoist was slow and accordingly there are no grounds for establishing which regulations were violated.”

The maritime authority adds:

“the diverging medical information does not change the previous view of the maritime authority.”

I have read that report again and again, particularly the section that I have read out to the House. My conclusion is that those findings are precisely why there must be a comprehensive investigation. The combination of factors cited by the Danish maritime authority in relation to Stephen’s death suggests serious deficiencies in relation to both the equipment available to Stephen and the unsuccessful rescue attempt. Taken together, they were lethal.

Grave concerns about the implications of a “too tight neckdam” have already been identified. In this country, the HSE issued a special warning note in 2012 about neckdams following another fatal accident involving a deep-sea diver. I commend the HSE’s action in relation to that. The warning that the HSE issued to help to improve safety for deep sea divers—certainly those within British jurisdiction—reads as follows:

“A neck seal that is too small can cause severe breathing problems leading to unconsciousness and, if not acted on quickly, death.”

Again, I am holding up a neck seal.

The current impasse relating to Stephen O’Malley’s sad passing is totally unacceptable, and I ask the Minister to pursue my request for a full investigation into his death with the relevant Danish authorities, possibly on a joint basis with the UK. This is what my constituent Nicola Braniff, her father Joe and many others are seeking. I ask the Minister for an assurance that he will pursue this matter. In doing so, I draw his attention to the United Nations convention on the law of the sea, which states that the flag state—in this case, Denmark—and the other state, the UK, should co-operate in cases such as these. I quote from the convention:

“Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any marine casualty or incident of navigation.”

The National Union of Rail, Maritime and Transport Workers and the Divers Association are acutely aware of the importance of safety in deep-sea diving, and I thank both organisations for their work and support. They have pointed out at least two other instances of the deaths of deep-sea divers employed in the sector, in disturbing circumstances in which full inquiries have not been held.

Deep-sea divers are contract workers who may be reluctant to pursue individual safety issues because of concern that this could jeopardise their future employment. This places the onus firmly on official bodies. Stephen was a British national. Had he been working in British waters, the Health and Safety Executive would have investigated his death. It is because he was working in German waters under a Danish flag that this impasse has arisen. Other commercial deep-sea divers will continue to work in similar circumstances, and I ask the Minister to pursue my request as a matter of urgency. We owe that to Stephen O’Malley as well as to the commercial deep-sea divers of the present and of the future.

--- Later in debate ---

[Justin Tomlinson]

I would here like to acknowledge the hon. Lady’s keen interest throughout the coroner’s investigation and inquest. I know she was deeply involved at every stage. I would also like to pay tribute to Stephen’s partner Nicola and his brother Andrew, who I understand showed considerable dignity throughout the coroner’s investigation and inquest despite their recent grief at their sad loss. At the end of the inquest hearing, the senior Liverpool and Wirral coroner sent a report to Stephen’s Danish employer, SubCPartner, suggesting action it might take to prevent further deaths. I understand that SubCPartner has now responded.

On seeking to re-open the case into the death, the UK Government do not have the power to request the Danish authorities to re-open an investigation. I will go into that further, but I hope that at the very least a copy of this debate is raised directly with them. The hon. Lady mentioned the United Nations convention on the law of the sea. My officials have sought legal advice on this specific point and consulted the Maritime and Coastguard Agency. They have concluded that the UK does not have jurisdiction in this case. This is frustrating and I wish it were otherwise.

The advice centres on the definition of a “marine casualty” in the convention. Stephen was diving from a ship that was acting as a diving platform for a diving project not related to the ship. If Stephen had been working on a marine activity directly connected with the ship, for example working on the deck or diving on the ship’s hull, the convention would apply.

[Mrs Ellman]

Does the Minister accept that the manner in which Stephen died, shown graphically on the horrendous video, suggests that this situation cannot be left like this and further action must be taken?

[Justin Tomlinson]

I absolutely agree. At this point, we are looking at whether it is us, the Government, who can lead on that. That is why we sought legal advice on whether we had jurisdiction, whether through the Health and Safety Executive, which I am representing tonight, or the Government as a whole. There are options, however. The family could pursue this matter privately through the proper channels in Denmark. I understand that the Foreign and Commonwealth Office has provided a list of English-speaking Danish lawyers who may be able to do that on their behalf with the appropriate authorities through the proper Danish legal channels.

I will take a moment to explain the regulations for diving at work in the UK and why the Health and Safety Executive cannot investigate this case even jointly with the Danish authorities. In Great Britain, the Health and Safety Executive, under the Health and Safety at Work etc. Act 1974, is responsible for investigating diving accidents in Great Britain and UK territorial waters. In Great Britain, the 1974 Act applies to all work activities within Great Britain—separate, parallel legislation applies in Northern Ireland. This is extended to the territorial waters and designated areas of the continental shelf by the Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 2013.

The Diving at Work Regulations 1997 also apply to all diving projects at work in Great Britain and UK territorial waters, and also to diving projects conducted in UK-designated areas of the continental shelf associated with offshore installations and energy structures, including wind farms. The regulations place duties on diving contractors, divers, clients and others whose acts or omissions could adversely affect the health and safety of those engaged in a diving project. The law is supported by five approved codes of practice, detailed guidance documents and industry safety forums, which ensure a high standard of safety for deep-sea divers working in Great Britain. The detailed guidance requires the diving contractor to plan and prepare for reasonably foreseeable emergencies, including the need to recover an unconscious diver from the water and a diving supervisor to ensure that the dive is conducted safely.

In 2013, in response to concerns raised during discussions with industry, HSE also issued a safety notice about the dangers of tight neck seals. That was widely distributed and discussed with representatives from all diving-at-work industry sectors, including diver training schools. On the specific point about whether HSE has rules in place regarding neck dam tightness, diver training is regulated, and the fitting of the neck dams is on the training syllabus. The helmet operating instructions also stress that the correct fitting of the seal is critical, and we check awareness of this during HSE inspections. A safety alert on this subject has also just been released.

Investigating diving fatalities in the UK is an important area. Since agreeing to take this debate, I have spoken directly to my officials in HSE and I am assured that if such an accident occurred in the UK, we have processes and procedures in place to fully investigate the incident. The first stage of any fatal accident is undertaken by the police, supported by HSE. The police must decide whether the death resulted from a manslaughter offence. If that is likely, they will continue to investigate, supported by HSE. If the police conclude that manslaughter is not an issue, they will hand the investigation over to HSE. These investigations will include taking breathing gas samples, removing equipment for testing, and examining qualifications, medical records and dive project records. If appropriate, HSE will alert the pathologist to the need for a diving pathologist or diving expertise for the post-mortem. The evidence will then be drawn together in an investigation report, which makes recommendations for any further action, including enforcement.

As for European regulations, there is no EU directive covering diving at work, and the UK’s Diving at Work Regulations 1997 are solely national regulations. There is a wide variation in the standards of regulation of commercial diving across the EU, although countries with an established offshore oil and gas industry generally have more developed regulations for diving. However, the UK is a member of the European Diving Technology Committee, which promotes safe diving practice in Europe. The UK diving industry and HSE play a key role in this European committee to improve safe diving practice here in the UK and in Europe. I will ask HSE, through its membership of the EDTC, to ensure that lessons are learnt from this tragic case, not just here, but across Europe.

As I have said, I know that the family have asked whether HSE can investigate Stephen’s death, but because Stephen died working abroad, outside UK territorial waters and outside the area where HSE has enforcement powers, unfortunately HSE has no powers to directly investigate Stephen’s death.

[Mrs Ellman]

I appreciate the Minister’s comments and the care he has clearly taken in preparing for this debate, but would he or the relevant Minister make further representations to the appropriate authorities, which I assume are the Danish authorities, to reopen this case? I am making my own representations, my constituent is making her representations, and it would certainly be helpful to us if the appropriate Minister could assist by doing that.

[Justin Tomlinson]

I am happy to do that. As I said, I hope that these authorities will see this debate—we will make sure a copy is sent through to them—and I will raise that and ask them. I cannot make them do something—I make that qualification. From the tragic circumstances, from the way this has been described and from what we have seen, I can say that if it had occurred in this country, that is the very least we would be expecting to do.

Again, I wish to commend the work that the hon. Lady has done right from the beginning in providing that support at these incredibly difficult times, even more so because this did not happen here in the UK. Commercial diving is clearly a hazardous occupation, but we know that when risks are controlled by complying with regulations and industry best practice, such incidents can be prevented. I am, or HSE officials are, happy to meet her if she would like to know more about the safety regime in the UK. In the UK, I am confident that the diving industry is well regulated and, as mentioned, I will ask HSE, through its membership of the EDTC, to ensure that lessons are learnt from this tragic case. I have genuinely taken a real personal interest in this case. The circumstances were awful. We will do what we can. I am as frustrated as she is about the legal position, but we can act directly only where we have jurisdiction.

Question put and agreed to.