Divinginfo.mt would first of all like to express again condolences to the Family of Ms Christine Gauci who died following a dive in Mgarr ix-Xini, Gozo in January 2020. Unfortunately her relatives and friends may have been brought back the ugly memory of the incident and her unfortunate demise and no person should underestimate how grief may have been rekindled after the court sentence of the 18th November 2022, in which her buddy was judged to have been negligent.
A key point that has to be made is that as per a news item today, that judgement may be appealed.
The judgement is online – accessible here. It is written in Maltese, with references to some case law and legal opinions in Italian and English, as is the practice in Maltese Courts.
Because of several comments in social media and other sites that divinginfo.mt has seen and identified in some instances to have been grossly mismatching to the judgement, it is important however that some things are made clear on the judgement for those who have been misinformed, may not be able to read it, have been unable to do so or are not familiar with the Maltese court procedures.
The below is a summary. It compresses the 44 page judgement to something close to 5 pages, hence you do not get a full complete picture of who said what, but its aim is to identify all key testimonies, considerations and the actual decision as reported within it. It is meant to inform further, but in no way to attribute guilt or make comments on the judiciary’s process. We have not commented at all (except to indicate where certain data was missing from the judgement) and we have tried to make the summary as close as possible to the the judgement’s details and tone of voice. The judgement may be appealed and it is probable that this will be done as stated in news media.
Whilst we tried to stick to the original content as far as possible, if you wish to point something as incorrect – contact us and we will recheck against the full judgement. We have already made a few edits due to feedback. We’re not perfect!
The Dive and the main protagonists
The facts of the case as recounted by witnesses and experts indicate that several key mistakes have been attributed to Christine (a certified Diving Instructor and a Diver serving within the Maltese Armed Forces), mainly:
- diving when tired – she had just finished a 24 hour work duty shift,
- used a drysuit that was too large for her,
- failing to stop the dive when asked by her buddy if she wanted to continue the dive or not following multiple buoyancy control issues, her fin getting entangled in a fishing net which caused a measure of distress, etc.
Unfortunately, she is not able to tell us her version. Below is the buddy’s version and in some parts this has corroborated by other divers and other non-divers on site.
Accused and Witness’ statements in the inquiry and court
Prior to the dive, other people in the group of divers and their friends at Mgarr ix-Xini had suggested to Christine to not dive due to tiredness. She rebutted by stating that the sea will freshen her up. Another diver asked her if she was well-hydrated and she replied in the affirmative. She had also stated that this was not her first time diving after a night shift.
The buddy (the accused in this case, a Mod 3 Recreational Technical Diver able to dive beyond 100m and who had dived with Christine over the preceding year), throughout various statements and in his court testimony indicated that he had asked the diver whether she wanted to return back multiple times during the dive.
He also assisted by physically helping her to release air from her wing when she appeared to have buoyancy issues in the first part of the dive (where she ascended 14m), later when she got her fin entangled in a fishing net at 28m (in another part of the judgement this was stated to have been stated to have occurred inside a cavern) and went up by about a metre, and later still by donating weights to her (she also picked a rock to keep herself down) in the latter part of the dive when again, she experienced buoyancy issues. A few gas checks were also carried out during the dive that according to the buddy, did not show conspicuous use of air.
After the buddy had donated his weights, Christine was ok to continue swimming in. The buddy stated that he turned his head momentarily and when turned his head again Christine was seen almost at the surface, having ascended from 15 to 17m depth. The buddy saw her clutching her 50% bailout cylinder ready to grab the second stage and he could not reach her. After this, he did not have eye contact with her nor he saw her any more. In his live testimony to the court, he also stated that he assumed all would be well since she had the bailout and that she would follow him in from the surface.
He stated that because at this point he was underweighted ( due to having donated his weights to her), he could not safely surface so he swam further in until at 8 or 10m depth inside the bay, he could not hold his buoyancy and surfaced as well. When he surfaced, he saw someone with a black drysuit on shore with the back turned towards him whom he assumed was Christine but turned out later to be another diver.
When he arrived on shore, another diver asked him about Christine and they realised she had not yet returned. They waited 5 minutes and then they called the 112 emergency number and started looking for her from land and some others went back in the sea looking for her with masks and fins.
Christine was noticed to be floating face down by the shore close to the Mgarr ix-Xini Tower. The Divers who assisted her (the two members of the group who at had been searching for her on the surface) noted her to be unconscious, one of them confirming she was frothing from her mouth. At the same time when the divers arrived, an Armed Forces of Malta RHIB had just arrived as well in response to the emergency call. They attempted to fill her dry suit with air to help getting her up in the RHIB but it was noted that no air was going into the suit through the inflator valve.
Equipment
The Equipment used by Christine was stated to have been 2x 7Ltr 300bar cylinders with manifold filled with Air and a 7Ltr Nitrox 50% with Apeks regulators. Air fills were done by the buddy who had his own compressor. Except for the Dry suit worn by her, all equipment was owned by the buddy but was on loan to Christine for some four to six months and it had been regularly serviced. At no point during the dive did she indicate that she had finished her air supply. In the sentence another diver is quoted to have testified that Christine had told him 2 weeks before that she found difficulty controlling the Dry suit and he had recommended her to dive conservatively and obtain proper training. An Armed Forces of Malta witness also stated that Christine had not been trained in Dry Suit diving as they did not use them in their work duties.
The buddy was using a Rebreather and had a bailout filled with air. It is understood that he was wearing a dry suit as well.
Court Experts’ Reports and Opinions
Equipment expert
The equipment expert’s report conclusion, as quoted in the sentence, stated that:
In conclusion the diver had problems in controlling her buoyancy due to the malfunctioning dry suit inflator and lack of enough lead weights. This may also had been a contributing factor in what eventually happened. We cannot be certain if the regulators’ Venturi switch being set at maximum had any impact since during our tests the regulators did not free-flow but they might have done so underwater. The twin set being completely empty is another question. An experienced fit diver can handle any of the afore-mentioned problems and would know better than to breathe the main cylinders completely empty before switching to the 7 lt with the Nitrox mix.
If she had ran completely out of air at the end of the dive at 10mts depth, she had a number of relatively safe options to resort to in order to make it safely to the surface:-
Switch over immediately to her deco cylinder and start the ascent;
Make the out of air signal to her buddy and buddy breath to the surface. Till this stage of the dive her buddy had been near her all the time. His dive profile matches hers exactly except at the end (DOC3).
Grab her buddy’s deco cylinder’s regulator and breath from it.
(As a last resort) make a free controlled ascent to the surface.The deceased took none of these actions but made an uncontrolled ascent to the surface.
It is possible that in this case, the diver was faced with the perfect storm of a number of physical and technical problems. These might have proved too much for her to handle at that time when one considers that:-
Equipment Expert Report as quoted in the judgement
She had been at work on twenty-four hours duty prior to the dive – she must have been tired.
She had problems in controlling her buoyancy throughout the whole dive :- resulting in fatigue and exhaustion.
She made a fast ascent from 7 mts to the surface on the 17th minute – possibly due to dry suit over inflation or maybe some physical problem.
She was consuming a lot of air during what should have been a fairly easy and relaxed dive : breathlessness possibly caused by arrhythmia (which could have been the reason why she suddenly shot up to the surface, lose consciousness and drown).”
Furthermore, the expert testified that from the computer data, it was noted that Christine had twice surfaced fast, at the 17th minute of the dive and at the end of the dive. The expert could not test the dry suit as it was cut up during the rescue, however the inflation valve was found to be defective and self-inflating whilst the discharge valve was noted to have been open at the time of inspection. The expert noted that the twinset was found completely empty but the bailout had 185 bar which indicates it had not been used. He also stated that she missed decompression (though in the judgement it is not stated how much she missed). The bailout was in good working order. Venturi valves were found in the high flow setting, possibly because she was tired and required more air. The equipment expert also confirmed that the buddy at the point of the ascent of Christine had also a decompression requirement and if he had gone up immediately, there would have been two accidents. The whole dive had taken 75minutes.
He also remarked critically on the use of the drysuit due to its large size, which required more air and was found to be defective. Furthermore, she had not been trained in its use. He stated that normally when he had buoyancy issues he would have cancelled the dive.
Pathologists
The Autopsy Pathologists stated in their report that Christine died due to “natural causes, namely seawater drowning and coronary artery atheroma”
Hyperbaric medicine expert
The physical and mental fatigue of an antecedent 24 hour work shift is not congruent with or ideal for proceeding with a dive within the next 24 hours.
Extracts from the Hyperbaric expert’s opinion as reported in the judgement
….Use of second-hand, possibly poorly-fitting, drysuit by Ms Gauci, without prior training in its use and buoyancy, is a significant factor towards causality in this incident.
…Use of unfamiliar equipment is a contributing factor towards this incident. Compressed air for diving purposes must never be supplied by an unlicensed operator with questionable maintenance on compressor.
…although the diving computer’s setting is not overtly dangerous in itself, its setting at its most aggressive setting speaks to the diver’s general demeanour towards risk taking.
…An experienced, level-headed and properly trained instructor would have ended the dive at this point, seeing the blatant issues with buoyancy control and overuse of gas supply.
…The whole scope of the diving buddy system is for the two divers to be close to each other to assist each other in any untoward event during the dive. The assumption that Ms. Gauci was safe on the surface and swimming back to shore, when no such contact and reasoning was made between the two divers, proved to be highly significant as it ensured the omission of a rescue attempt.
….This case exemplifies a diving fatality where multiple contributing variables ended up summating to one unfortunate, but predictable, outcome. Fatigue, unfamiliar equipment and compressed air for diving purposes provided by an unlicensed third party, and drysuit use without prior training in its function resulted in buoyancy issues during the dive, together with overuse of a finite gas supply during the dive.
The end result was a fast rapid ascent due to buoyancy issues, followed by a second rapid ascent, precipitated by an out-of-air scenario seeing the rapid and uncontrolled consumption of the air supply, with an ensuring final event on the surface, most probably cardiac, resulting in final loss of airway and subsequent drowning.
Although the primary and contributing factors are mostly, alas, attributable to the diver herself, the provision of air and unfamiliar equipment, followed by a negligent omission of a rescue attempt and assumption of safety when no assumption could or should have been made, made the final outcome inevitable. Although actus reus or mens rea cannot be implied, negligence and omission are still evident from [Diving Buddy]’s side.”
Court references to the issue of negligence
The Court included in its judgement various references to past judgements and legal principles related to the main charge:
“25.(1) Whosoever, through imprudence, carelessness,unskilfulness in his art or profession, or non-observance ofregulations, causes the death of any person, shall, on conviction, beliable to imprisonment for a term not exceeding four years or to afine (multa) not exceeding eleven thousand and six hundred and forty-six euro and eighty-seven cents (€11,646.87).”
Art 225 (1), Chapter 9 of the Laws of Malta
From the references made, which consisted of about 12 pages of the judgment, two key points were highlighted multiple times through different judgements and legal texts:
- Negligence occurs if there is active disregard of precautions, laws, regulations or discipline which might affect others;
- Negligence is a voluntary action that results in an unwanted consequence which could have been predicted and that with normal due attention could have been avoided;
The amount of prudence or care which the law actually demands is that which is reasonable in the circumstances of the particular case. This obligation to use reasonable care is very commonly expressed by reference to the conduct of a ‘reasonable man’ or of an ‘ordinarily prudent man’, meaning thereby a reasonable prudent man: “negligence”, it has been said, “is the omitting to do something that a reasonable man would do, or the doing something that a reasonable man would not do” … What amounts to reasonable care depends entirely on the circumstances of the particular case as known to the person (Carrara, Programma, § 87n.) whose conduct is the subject of enquiry. Whether in those circumstances, as so known to him, he used due care – whether he acted as a reasonably prudent man – is in general a mere question of fact as to which no legal rules can be laid down.”” (Lectures in Criminal Law (First Year), p. 71.)
One of the many references made in the judgement with regard to the act of negligence
Judgement
The Magistrate stated that after it evaluated all the evidence presented, it agreed that the prosecutions’ requirement of establishing that the accused had been negligent, and thus involuntarily caused the death of the victim had been met and therefore the court decided that it found him guilty of the charge.
The Magistrate further stated that the accused’s knowledge of the issues identified and in which he helped the victim during the dive did not result in the dive being called off. His assistance was deemed as his obligation as a buddy as that is why that system is in place, so that divers take care of each other. Whilst the court noted that in most of the dive he did fulfill that obligation, he did not do it at the end of the dive and did not establish eye contact and had only seen her clutching the nitrox bottle.
The Magistrate further stated that he did not check with her again whether she had air even though according to the Magistrate there was an indication she was breathing heavily. She also put an emphasis on the fact that he was diving a rebreather system, which the Hyperbaric expert stated created a “discrepancy which will persist throughout the dive and affected the final outcome.” as he did not need to check his own air supply. Furthermore the Magistrate emphasized the following part from his report:
The third and final event during the dive occurred at 77 minutes into the dive, when Ms Gauci ascended to the surface rapidly for the second time within the same dive. According to Mr. [Diving buddy], he looked up, saw her reach for the regulator of her Nitrox 50% deco cylinder, and never established eye contact or saw her again. He cites having a deco obligation and being light, hence the reason for not following her. This is disproven by his decompression computer – a 2 minute deco obligation at 5 minutes is never an impediment to seek a lost diving buddy.
Extract from Hyperbaric expert’s report as quoted in the sentence
The Magistrate criticised that after the 77th minute of the dive, the accused had made certain assumptions and had not looked after Christine after the separation even though he had had rescue diver training. The fact she was an instructor according to the court did not relieve his obligation as buddy diver and argued that he should have looked after her more. The court stated that it was convinced that the lack of action by him when assuming that she was safe resulted in her death, which according to the court, could have been prevented had he taken action.
The court also identified that the victim herself had exercised contributory negligence which resulted in her death. However, since according to the court this was not the only factor which resulted in her death, the accused was still to be found guilty.
When considering the punishment, the court considered the contributory negligence by the victim and that since this was an unfortunate accident, there was no need to sentence the accused to an effective jail term to reform himself. In view of this, she decided for a punishment of 2 years in jail, suspended for four years (which means that unless the accused does a criminal act within the next four years he will not have to report to jail), as well as 2/3 of the expert witness expenses incurred by the court.
Whilst we tried to stick to the original content as far as possible, if you wish to point something as incorrect – contact us and we will recheck against the full judgement. We are not perfect and as of time of last update (13:07CET on the 22/11/2022), we have corrected certain sentences (and removed a part) above in response to contacts we received.
