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Bourne Leisure Ltd v Marsden, Court of Appeal, 13 July 2009

5 August 2009
The issues

Occupiers Liability Act – child / children – unaccompanied child drowning in pond.

The facts

Matthew Marsden, aged 2 ½, drowned in a pond at Greenacres Holiday Park on 21st August 2004. He was staying with his parents and younger brother in a caravan and was on holiday. Matthew and his younger brother disappeared whilst his mother was speaking to someone in another caravan. The Claimant brought a claim against the operator and occupier of the site under the Occupiers Liability Act 1957.

The site covered 125 acres with 1,000 caravan pitches, some being static sites, others with caravans towed by holiday makers onto the site. It had a capacity for 4,500 guests and a recreation centre. It also had three lakes or ponds, the smallest of which was known as Monarch Way and was where Matthew drowned. A small stream flowed through the site, which bordered the sea with two points of access to the beach.

Matthew had gone down a surfaced pathway bounded by wooden rails which led between two caravans onto a roadway. He appeared to have turned right and passed between static caravans to the edge of the pond. The pond was surrounded by wooden horizontal rails, approximately 2 feet high, several feet from the edge of the water and fenced with wire mesh below the rails. He must have climbed over and his father found him drowned in the pond.

The year before, the circumstances of which were not given in any detail, a boy of 4 had to be rescued from the pond. As a result of that incident the Defendant liaised with Environmental Health Officers from the Local Authority and produced an open water policy covering all of their sites. The wire fence beneath the rails was fixed in response to the earlier incident.

The Judge found that the parents knew that there were ponds on site but that they did not know where they were. The Claimant alleged that an affective barrier should have been placed around the site of about 1.1 metres high. The Judge rejected this allegation. The second allegation related to the Claimant’s case that the Defendant should have done more to warn the parents of the danger of a nearby pond and of the access to that pond by the pathway between the caravans. The Judge found that the Defendant was under a duty “and a high duty” to inform clearly and unequivocally the parents of the location and means of access to such ponds and lakes as we present on the site. He concluded that by failing to give appropriate warnings the Defendant was in breach of its duty of care. As to causation, he concluded that if the parents had known and been warned of the existence of ponds and of the access way they would have been alert to the risk of danger and it would have made a difference to the outcome.

The Defendant Appealed.

The decision

It was absurd and offensive to suggest that the parents were in some way at fault. A child could be gone in an instant. It did not follow however from the fact that the parents were not at fault, the Defendant was in breach of its duty. The danger of the lake to a small child, should that child stray, was obvious. There was no basis on which it could be said that in the exercise of reasonable care the occupiers should have underlined or emphasised so obvious a danger. Mr and Mrs Marsden knew, as any conscientious parent would have known, that the site as a whole was dangerous to small, unaccompanied children for many reasons. As conscientious parents they did not need to be told that. They did not know of the existence of the path but there was no basis for saying that that represented any particular or hidden danger. The path did not lead to the pond. It was true that a small wandering child might gain access to the pond via the path but so it could by any number of routes. There was even greater difficulty in supporting the Judge’s conclusions on causation. There was no evidence to show how long it had taken Matthew to reach the pond and thus no basis for saying that he might have been found earlier, had the occupier underlined the location of the pond and the means of access to it. It is difficult to see how further information given, presumably on arrival 3 days earlier, could possibly have made any difference. In respect of the parents, the phrase “focusing their supervision” had been used in argument. It had never become clear what that meant. Short of keeping hold of the two children at all times, there was nothing more the parents could do. Further warnings as to obvious sources of danger would not have made any difference.

Appeal allowed.

focus on...

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