Bourne Leisure v Marsden [2009] EWCA Civ 671
In this recent case the parents of a child, Matthew, who had
drowned in a pond on a caravan site sued Bourne Leisure, the
operator and occupier of the site, under the Occupiers Liability
Act 1957. At first instance the court found in favour of the
parents. Bourne Leisure appealed and the Court of Appeal reversed
the decision.
The caravan site at Morfa, Bychan covered approximately 125
acres with 1000 caravan pitches. Some of the caravans were static
and others were towed by holidaymakers onto the site. The park had
the capacity for about 4500 guests and importantly had three ponds.
The tragedy occurred when Matthew's mother was speaking to a
neighbour on the site. Matthew, aged two and a half, and his
younger brother of 16 months were playing next to her. She did not
notice that the children had disappeared. It is not known how long
the children were missing but was thought to have been only a few
minutes. An immediate search was undertaken. However, and
unfortunately Matthew was subsequently found having drowned in the
smallest of the three ponds. It transpired that he had gone down a
surfaced path bounded by wooden rails which led between two
caravans onto a roadway and turned towards the pond. The pond was
surrounded by wooden horizontal rails approximately two feet high,
several feet from the edge of the water, and fenced with wire mesh
below the rails. It was found that Matthew had climbed over the
rails.
Less than a year before Matthew drowned, a four year old boy had
to be rescued from the same pond. Bourne Leisure at that time had
liaised with the local authority and had produced an open water
policy covering all of their fifty three caravan sites. The wire
fence beneath the rails surrounding the pond had been fixed in
response to this earlier incident.
On arrival to the site the parents had been provided with a
welcome pack which included a plan showing a number of sources of
danger, including roads, lakes and the ponds.
The judge at first instance held that Bourne Leisure had
breached their duty of care by not giving the parents specific
warnings about lakes and ponds near their caravan.
The essential question in the appeal was whether the trial judge
was entitled to conclude that a failure to draw specific attention
to the pond constituted a breach of Bourne Lesiure's duties.
The relevant law was said to be stated by Devlin J in Phipps
v Rochester Corporation [1955] 1QB 450: "The duty to the
public which may include little children will be discharged if the
dangers which may be encountered are obvious to a guardian or are
those of which he has given a warning comprehensible by a
guardian".
Bourne Leisure were held not liable. It was held that:
"there is no basis for concluding that the occupier was under
any obligation, in their exercise of reasonable care, to bring to
the attention of parents the existence of that pathway or the
precise location of the pond, when the danger they presented to
small unaccompanied children was obvious. That is all the more
evident in the circumstance that the site occupier had given a plan
to the parents which showed the location of the ponds as well as
the stream and the beach."
It was further observed: "If the danger is not obvious and
the occupier ought to have foreseen that children may play in the
area of danger he may have to take precautions. But that situation
is quite different from circumstances in which the source of danger
is obvious should a small child stray away from the control of even
the most attentive and conscientious parent."
Both the judge at first instance and the Court of Appeal were at
pains to point out that the parents were in no way to blame,
holding that this would be absurd and offensive.
It was stressed that it does not follow from the fact that the
parents were not at fault that Bourne Leisure were responsible, it
being held that: "…liability is not to be attributed on the
basis that one or other must be to blame…".
Whilst this case undoubtedly concerns a tragedy, it does seem to
suggest a move towards a test of genuine reasonableness in terms of
the Occupiers Liability Act.
Contributed by Caroline Cassidy