• In the case of Bourne Leisure Ltd. v Marsden [2009] E.W.C.A. Civ 671, it was held that a holiday site owner was under no obligation to bring the precise location of a pond, or the existence of a pathway reaching the pond, to the attention of visiting parents when the danger the path and pond presented to small unaccompanied children was obvious.

Facts of the Case

  • D owned and operated a holiday site covering 125 acres and 1000 caravan pitches. It had a capacity of 4500 guests, an entertainment centre and three ponds.
  • C, his wife and two sons stayed on the holiday site. On their entrance, D provided them with a plan showing sources of danger, including the ponds and a river.
  • C’s wife took the children with her to a neighbour to return some entertainment centre tokens. While talking to the neighbour both children disappeared.
  • Realising the children were missing after a few minutes, C and his wife separated to search for them.
  • C’s eldest son went down a surfaced pathway and reached the edge of the smallest pond, Monarch Way. The son climbed over the wooden rails and drowned in the pond.

Issues

  • Was D under a duty to take reasonable care to bring to the attention of C the existence of the pathway and the precise location of the pond?

Held by the Court of Appeal (Civil Division)

  • Finding for D, that D was under no obligation, in the exercise of reasonable care, to bring to the attention of C the pathway or the precise location of the pond, when the danger they presented to small unaccompanied children was obvious. Further warnings as to that obvious circumstance could not have made any difference. As such, there was no breach of duty that could be identified.

Lord Justice Moses

  • Both C and his wife, who had made a previous visit to the site for a weekend, accepted that they knew that there were ponds nearby. They were not aware of the location of the particular pond known as Monarch Way, nor of the particular pathway.
  • When they arrived they were handed a welcome pack with a plan showing a number of sources of danger to unaccompanied children on site, in particular roads, lakes, ponds, the river and the beach. With commendable frankness, both parents accepted that the site was not safe for small unaccompanied children.
  • “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” [16].
  • There is no basis upon which, in the exercise of reasonable care, D should have emphasised an obvious danger. C knew, as any parent would have, that the site was dangerous to unaccompanied children for many reasons.
  • C did not know of the existence of the path, but that is no basis for saying that the path represented any particular or hidden danger. A wandering child might reach the pond via that path, but so that child could by any number of routes.