Chapter 9

Page 158 para 9.3.7 Children
Bourne Leisure Ltd T/A British Holidays v Marsden [2009] EWCA Civ 671

This case concerned the duty owed to visitors under s.2(2) of the Occupiers' Liability Act 1957 to take such care as in all the circumstance of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited to be there. Since the case concerned liability for the death of a two-and-a-half year old boy, Matthew, who drowned in a pond in a holiday park operated by Bourne Leisure Limited, the focus of the case was on the occupier’s duty under s.2(3)(a) to be prepared for children to be less careful than adults.

The tragedy occurred whilst the boy’s mother crossed a roadway from the family caravan to return items to a holidaymaker in a nearby caravan and did not notice that her two young children had disappeared. The boy’s parents soon realised that the children were missing and began a frantic search; the mother, Mrs Marsden, went along a roadway to the camp entertainment centre and her husband searched along the roadway near their caravan. Neither of the parents was unaware of the path which gave the child access to the pond in question and, by the time his father found him, the child had drowned in the pond. Less than a year before this incident a four-year-old boy had to be rescued from the pond in question and, as a result of that incident, Bourne Leisure had liaised with environmental health officers from the local authority and produced an open water policy covering all their 53 sites and erected a wire fence beneath the rails surrounding the pond.

The parents first claimed that Bourne Leisure should have placed an effective barrier on the site, of about 1.1 metres high, as recommended in the case of domestic ponds and schools to prevent young children who might foreseeably wander off unaccompanied by their parents, from gaining access to the pond. The trial judge rejected this claim and accepted the reasoning contained in a written statement from an environmental health officer who had been concerned with the death of Matthew which stated:

“A pond in a school is an entirely different thing to a pond in a park. In a school, you can expect to have a number of children being supervised by very few teachers; therefore it is reasonable to take special precautions. A pond in a domestic garden is also very different, and any child in the home would be exposed to it on very many occasions. In the case of a holiday park, is it reasonable to expect the children of such young age would be under constant parental supervision? If the law required it to be fenced, how high? How do we make the fences unclimbable? What about the rivers and streams on sites, the sea itself and site roads, which are far more hazardous than ponds,? … this child could have strayed into the river on site, the sea, or a site road and been killed by a car or even a reversing caravan.”

The second aspect of the parents’ claim was that in the absence of a fence, Bourne Leisure ought to have done more to warn them of the danger of the nearby pond and drawn to their attention the risks for unsupervised children. The judge held that if the parents had known about and been warned of the existence of ponds nearby, they would have been alert to the risk of danger; by failing to give warnings of that nature Bourne Leisure were in breach of their common duty of care.

Bourne Leisure appealed against this finding on the ground that its guests had received a welcome pack which included the location of the three ponds in the holiday park. They also argued that the firm had the right to expect close parental supervision of children as young as two-and-a-half. In allowing Bourne Leisure’s appeal against the finding of the trial judge, the Court of Appeal took the position that although an occupier ought reasonably to anticipate that small children might escape the attention of parents and wander into places of danger, it does not follow that the occupier is under a duty to take precautions against such dangers. They stated:

“Sometimes these cases are bedevilled with the quest for attaching blame either to the parent or to the occupier. The occupier, it is suggested, ought to have foreseen that there will be unaccompanied small children on its site and taken precautions; faced with that accusation, the occupier blames the parent for losing control over the child. But liability is not to be attributed on the basis that one or other must be to blame. In order to escape liability the occupier is not required to prove that the parent was at fault. As Devlin J put it in Phipps:-
“The parent of a straying child is not ipso facto negligent. A little child may sometimes escape from careful parental control, and it would be wrong to penalise an occupier whose premises were generally safe because he could not prove a parent to be at fault.” (page 469)

Stanley Burnton LJ further noted:

“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. For the reasons my Lord has given, it was not established that Matthew's death was caused by any breach of duty of the Defendant.”

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Chapter 9