13.7.09

Court of Appeal holds that occupier was not liable where child drowned in tragic circumstances at its caravan park.

On 21 August 2004, Matthew Marsden, who was 2½, tragically drowned in a pond at a caravan park where he was on holiday with his parents and younger brother. The park had three lakes or ponds, and Matthew drowned in the smallest of these, Monarch Way. Monarch Way was surrounded by wooden horizontal rails about two feet high, several feet from the edge of the water, and was fenced with wire mesh below the rails. Whilst Matthew’s mother was speaking to a man in another caravan, Matthew and his younger brother disappeared and, despite a desperate search, he was not found until it was too late.

At first instance, the Judge found that Bourne Leisure Ltd, the operator and occupier of the site, should have instructed its staff to draw the attention of parents to the location of and access to the lakes and ponds and that, had it done so, the accident would have been avoided.

Held: It would be absurd and offensive to suggest that Matthew’s parents were in any way at fault. However, it did not follow from the fact that they were not at fault that Bourne Leisure was in breach of its duty. Bourne Leisure was not under any obligation to bring to the attention of parents the existence of a pathway or the precise location of the pond, when the danger it presented to young children was obvious. In addition, there was no basis for saying that Matthew might have been found earlier had Bourne Leisure underlined the location of the pond and the means of access to it.

Comment: Lord Justice Stanley Burnton, agreeing with the leading judgment of Lord Justice Moses, stated “This was a tragic case, and Matthew’s death has been understandably devastating for his parents. A drowning such as this is a parent’s nightmare. But accidents may and do happen to young children without anyone being at fault.”

This case serves as a reminder that the duty under the Occupiers’ Liability Act 1957 is limited to taking reasonable care to see that a visitor will be reasonably safe in using the premises for the purpose for which they are invited to be there. The Act provides that the occupier must be prepared for children to be less careful than adults. However, in Phipps v Rochester Corporation [1955], which was cited by the Court of Appeal in this case, it was stated that the duty to the public which may include children will be discharged if the dangers which may be encountered are obvious to a guardian, or are those of which they have given a warning comprehensible by a guardian.

From the perspective of defendants and insurers, the common sense approach adopted by the Court of Appeal to the issue of liability, which follows the approach that has generally been adopted to public liability claims in recent years, will be noted.