In a decision issued last week in the Supreme Court, Justice Oswell Legall ruled in favour of Attolene Crawford Lennan, administratrix of the estate of deceased American citizen Abigail Brinkman, who would have turned 33 years old today, and awarded damages of US$35,016 (BZ$70,032) to her parents, Roger, 64, and Janet Brinkman, 63, of Columbus, Indiana, U.S.A. and a further BZ$19,617.98 in damages for “loss of expectation of life and special damages” and costs, after finding that defendants Vance Cabral, owner of Advanced Diving of Placencia, Stann Creek District, and dive master Mark Tucker were negligent in their handling of a group of divers on a tour to Silk Caye, 22 miles east of Placencia, on October 22, 2005, in which the engines of Cabral’s Advance I failed, and the group was forced to swim to the nearest island.
Three of four divers being led by Tucker, who was in charge of the boat, made it to safety; the fourth, Brinkman, 28 at the time, apparently drowned while trying to do so.
The accident made headlines at the time and led to the suspension of Advanced Diving’s license based on repeated incidents involving the company.
Senior Counsel Fred Lumor represented Lennan and attorney Ashanti Arthurs-Martin of Courtenay, Coye and Company represented Cabral (“doing business as” Advanced Diving) and Tucker.
The late Abigail Brinkman held a masters’ degree in Chemistry and Medicine (Biophysics) from the medical school at Indiana University, Bloomington, and was said to be an accomplished swimmer since her pre-teen years and had a certificate in scuba diving. At the time of her death, she was in Belize to do research work at a clinic in Punta Gorda Town and was awaiting the results of her Indiana State Medical Licensing Board examination. It was learnt posthumously that Abigail Brinkman passed the examination, qualifying her to be titled “Dr. Brinkman,” as Justice Legall continuously referred to her in the judgment.
On October 22, 2005, at about 8:30 a.m., 12 persons— 4 scuba divers and 8 snorkelers— left the Placencia dock with Cabral and Tucker in the smaller “Advance II,” but about 10 minutes out of the village, Cabral elected to turn back for a bigger boat. The group set out again for Silk Caye, where the snorkelers would stay, while the divers would go on to White Hole, a further 1 ½ miles away.
About halfway into the re-started journey, the engine problems that would ultimately doom the trip began to surface. In testimony it came out that water had gotten into the Yamaha engine filter and cut off power, causing the boat to drift for three miles before Cabral got the engine re-started.
The group arrived at Silk Caye without further incident and split up, the divers and Tucker staying onboard for the journey to White Hole. But halfway there, water once again got into the engine and shut it down, this time for good. According to one of the divers, American attorney John Bain, attempts by him and Tucker to re-start the engine and then, when that did not work, to call for help on the Advance I’s VHF radio were futile, as the radio did not work. Further, when Tucker dropped the boat’s anchor into the water at Bain’s suggestion, the chain attached to it, apparently rusty, broke and the boat continued to drift.
According to Bain’s account of subsequent events, Brinkman and the other female diver, Nancy Masters, decided to swim toward an island that appeared to be not too far away. Bain and the fourth diver, Japanese Yutaka Maeda, agreed and Tucker did not contest their decision, helping them into the gear and watching as they jumped over.
Bain testified that he personally misjudged the depth and current of the sea and the distance of the island from the boat at the time, about 11:30 a.m., and Justice Legall said he thought the others may have done so as well.
Tucker stayed aboard Advance I, but after repeated failed attempts to re-start the engine and communicate on the radio, he too decided to swim off toward Glovers’ Reef on October 23 and made it two hours’ later. Maeda, Bain and Masters were all rescued, but Brinkman apparently died in the water, by “asphyxia due to immersion” per the official cause of death.
A wrongful death suit was filed in October of 2006 by Lennan, an office assistant for Lumor, who had been appointed under a grant of administration in 2007 (No. 262 of 2006) under the Torts Act, Chapter 172 of the Laws of Belize, which provides for damages to be given in cases of death caused by wrongful acts, neglect or similar cause that would, if death had not ensued, led to cause for damages for injury sustained, for the benefit of the deceased’s family, per Sections 9, 10 and 11 of the Torts Act.
Justice Legall found that Cabral and Tucker were guilty of negligence and neglect in their handling of the affair, and believed and found that: 1) the defendants should have returned to dock to check the engine after it shut down the first time, rather than risk it doing so again despite their suggestion that this was a frequent occurrence with “bad gas” from Mexico; 2) that it was clear that the engine, anchor and VHF radio aboard were not maintained in good and proper working condition, despite the defendants’ claims otherwise, and that had they been, the tragedy could have been avoided; 3) that the boat in all likelihood should not have been out at all that day, because a small craft warning had been issued for the coast of Belize with respect to Hurricane Wilma, though Cabral said he did not listen to that weather report before going out; 4) it was probable that the engine had other problems, in addition to water in the filter, that caused it to go down, and that this was due to the defendants’ not checking properly before going out (Tucker testified that when he tried pumping out the water in the filter as Cabral had done the first time it went out, the engine would not start for him as it did for Cabral); 5) that the defense of latent defect, argued by Arthurs-Martin, in the case of the water getting into the engine, did not qualify as that water may have gotten in by means of a defect or other means that should and ought to have been detected by the defendants before going out; 6) that Brinkman and the others deciding to swim to the island being the cause of her death (a new intervening act, according to the legal term) does not apply because that decision was more directly caused by the failure of the engine, anchor and radio, forcing to make the choice to go rather than to wait; 7) that the defense of “contributory negligence,” i.e., that Brinkman did not take care of herself and thus caused her own death applies partially, as she should have considered the danger involved, but again, because of the defendants’ negligence, she had to make that decision; 8) that a waiver said to have been signed by Brinkman before going out was sufficiently “ambiguous” so as to make it difficult to exclude the defendants from responsibility.
The initial damages are to be split half and half between the parents of the deceased, as she was not married, had no children, and there was no evidence of her future salary or expenditure. Costs were awarded to the claimant.
Cabral and Tucker had been charged criminally with negligent endangerment to life at Magistrate’s Court level in 2006, but the charges, non-indictable, were struck out as they were filed after the standard six-month period. Advanced Diving’s license was revoked by the Belize Tourism Board in the wake of the incident.
This evening we reached the Courtenay, Coye and Company offices but were told that Mrs. Arthurs-Martin was not available, leaving it open whether there will be an appeal of the decision. Lumor told us this evening that, appeal or not, Roger and Janet Brinkman have directed that any damages they receive through this case will be donated by the estate to the Hillside Health Care International Centre located in Punta Gorda, at which Abigail was researching on tropical medicine, and which is a centre for international researchers to come and study, as well as a clinic facility for underprivileged residents of P.G. and the Toledo District.