The legal team representing the dive resort at which the tragic death of Nathen Chesters occurred blames the ‘independent’ dive instructor and Nathen’s own father for the death of his son.
Lawyers representing the Malaysian resort being sued for negligence over the death of Anglo-Dutch teen Nathen Chesters, have laid the blame for the tragedy squarely at the feet of the dive instructor conducting the course – and the Chesters family themselves, for knowingly participating in ‘an extreme sport’.
In April 2022, 13-year-old Nathen Chesters and his father, Adrian, an executive at Shell Petroleum in Kuala Lumpur, were vacationing at Sea Gypsy Resort on Sibu Island with Nathen’s mother, Andrea, and sister, Hayley.
The pair were mid-way through their PADI Advanced Open Water (AOW) course with instructor Kristine Grodem, a Norwegian national who had conducted their PADI Open Water course a few months earlier. A French woman named Alexia Molina, aged 18 at the time, was also present on the course.
More details of the timeline emerge
On 6 April, the second day of the course, the group completed the AOW Deep Dive at Pulau Tokong Raket between approximately 10.00 and 10.45 am, before making a surface interval break and beginning the second dive of the day – the AOW Drift Dive – at around 11.40 am off Pulau Tokong Sanggol.
The group was forced to surface after 11 minutes due to strong currents, at which point Ms Grodem asked skipper Kamil Bin Kassim – who is named as a defendant in the court case – to take them to another location. They descended a second time, at around 12.10 pm, at which point the tragedy of the next three days would begin.
According to the account of events submitted by the Chesters family’s lawyer, the dive team surfaced 23 minutes later to find the boat approximately 500m distant.
In the response to the legal filing submitted by Sea Gypsy’s lawyers, a translation of which DIVE has seen, Mr Kassim says that he ‘tried to follow the … dive group for 15 minutes through their bubbles’ before losing them. When he did not see the divers surface, he called his manager who instructed him to keep looking.
Unable to locate the divers – who allege they could see him clearly in the distance when they surfaced – the document says that Mr Kassim told the authorities that he made ‘several rounds with his boat around Pulau Tokong Sanggol,’ and notified the resort and dive centre manager, Richard Wills – also a defendant in the case – who also instructed him to keep searching.
The timeline submitted in the legal filings is unclear, but according to the skipper, around 2 pm – almost one and a half hours after the dive team reportedly surfaced, Mr Wills arrived at the scene, and a total of three boats began searching for a sign of the missing divers – specifically, the filing says, their surface marker buoys (SMB).
By 3 pm, three more boats had joined in the search, including a Malaysian Marine Police boat, a vessel from the Royal Malaysian Navy and a second vessel from the resort. They would continue searching until around 6 pm, when worsening sea conditions called an end to it.
Kristine Grodem was found, exhausted, at around 7.30 am the next morning, after having left the group in an attempt to seek help. Adrian and Nathen Chesters, and Ms Molina, would drift for another two days, during which time Nathen sadly died, and disappeared.
We’re not to blame
According to the response filed on behalf of Winter Snow (the parent name of the company Sea Gypsy trades as), resort manager Richard Wills and boat captain Kamil Bin Kassim, ‘any injury or compensation that [the Chesters family] wants to claim, should be borne by the Diving Instructor Kristine Grodem.’
‘The Defendants deny any liability and/or allegations of the Plaintiffs in the Statement of Claim, and say that the Defendants do not have any duty of care towards the Plaintiffs,’ reads the text of the filing. ‘The Defendants also say that it is Diving Instructor Kristine Grodem who … has a duty of care towards the Plaintiffs.’
The response describes Grodem as ‘an independent contractor’, rather than an employee of the resort’s dive centre, ‘Dan’s Nasty Frogmen’, although it is clear from e-mails between Mr Chesters and Ms Grodem that she is acting on behalf of the dive centre – screenshots seen by DIVE show that she uses an email address belonging to the resort, with an e-mail signature identified as being from Sea Gypsy Village Resort & Dive Base.
Detailing ‘Kristie Grodem’s negligence against the First Plaintiff and the Deceased’, the legal document alleges that Ms Grodem breached her duty of care to ensure that ‘safety devices such as whistles were carried by [all members] of the dive group’; failing to properly brief the dive team regarding safety procedures; failing to inform the captain how long they would be in the waters and failing to call a halt to the dive when it became dangerous.
The document also alleges Ms Grodem failed to inflate her SMB, contradicting the prosecution’s statement that she did.
Father and son guilty of ‘Contributory Negligence’
In closing out their legal arguments, the defence lawyers claim that Adrian and Nathen share some of the responsibility for the tragedy that befell them.
‘The Defendants say and assert that the First Plaintiff and the deceased have voluntarily chosen to participate in [a] diving activity, which is an extreme sport,’ reads the statement, pointing out that the divers signed the PADI Liability Release and Assumption of Risk (a document required prior to the commencement of all PADI training programmes), essentially waiving their right to hold the dive centre, instructor and boat captain responsible for any damage resulting from any act of negligence on their behalf.
The Defendants’ legal team say that if it is found that the Defendants had a duty of care to the Plaintiffs, then the Plaintiffs are guilty of ‘contributory negligence’ for the death of their son, arguing that Adrian and Nathen did not have sufficient skills to participate in the programme; failed to ensure that a complete set of equipment (including a whistle) was provided for the training; and failed to launch their SMBs (which they weren’t provided with) in an emergency.
Shockingly, they also consider Adrian and his son negligent for allowing themselves to be separated from their dive instructor when she swam off in search of assistance.
The defence denies all charges made in the initial court filing and has requested that the case be dismissed with costs.
‘The reply from the defence was not surprising,’ said Azlina Abdul Aziz, the Chesters’ family lawyer. ‘We have evidence to prove our claims, and we are interested whether they have evidence to back up theirs rather than simply making denials.’
Now that the Plaintiffs and Defendant have filed their legal Statement of Claim and Response, a pre-trial case management meeting will be conducted via video conference on 3 October before High Court Judge Dato’ Sri Shamsulbahri of the Johor Bahru High Court’s civil division.
Both Sea Gypsy Resort and PADI have been approached for comment but, as of the date of publication, have not responded.
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