Boris Ignachkov This article delves into the pivotal legal case of Bourne Leisure Ltd v Marsden [2009], presenting a concise analysis aimed at aiding law students’ understanding of its impact on legal precedents and duties of occupiers.
Legal Principles and Key Points
- 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.
Significance of the Case on the Development of the Law
The judgment in Bourne Leisure Ltd v Marsden [2009] E.W.C.A. Civ 671 underscores critical aspects of occupier’s liability, particularly regarding the extent of duty owed to protect children from obvious dangers. Its significance can be highlighted through its relation to several key cases:
- Comparison with Phipps v Rochester Corporation [1955]: In Phipps, the court held that occupiers must safeguard children who might not appreciate certain dangers due to their age. Unlike in Phipps, Bourne Leisure Ltd v Marsden differentiated on the ground that the danger from the pond was obvious and thus did not necessitate additional warnings, affirming that not all dangers require the same level of precaution from the occupier.
- Relation to Glasgow Corporation v Taylor [1922]: This case involved a child who consumed poisonous berries in a park. The court held the occupier liable because the danger was not obvious to the child. In contrast, Bourne Leisure Ltd v Marsden held that the obviousness of the pond’s danger absolved the occupier of further duties, reinforcing the idea that liability hinges on the obviousness of the danger to a reasonable person.
- Echoes of Jolley v Sutton London Borough Council [2000]: In Jolley, the council was found liable when a child was injured while playing on an abandoned boat. The council knew the boat posed a risk yet failed to remove it. In Bourne Leisure Ltd v Marsden, although similar in involving child safety, the ruling pivoted on the parents’ awareness of the danger, thereby not obligating the occupier to additional warnings, suggesting a nuanced approach to what occupiers must foresee and prevent.
Exam Questions and Answers
Below, you will find answers to the most commonly asked questions based on this case.
How does the concept of “obvious danger” apply to different age groups within the context of occupier’s liability?
In occupier’s liability, the concept of “obvious danger” varies significantly across different age groups. For young children, such as in Glasgow Corporation v Taylor [1922], dangers may not be perceptible, necessitating greater precautions by occupiers. UK statutory law, particularly the Occupiers’ Liability Act 1957, stipulates a higher duty of care towards children who are less aware of risks. This act requires occupiers to anticipate and safeguard against potential dangers that children may not recognize, contrasting with Bourne Leisure Ltd v Marsden, where the court deemed the pond’s danger as obvious and hence did not require additional warnings for older, competent children.
What are the implications of this case for occupiers with similar properties but differing guest demographics?
The ruling in Bourne Leisure Ltd v Marsden implies that occupiers must tailor their safety measures based on the demographics of their guests. Properties like holiday parks or leisure facilities should assess risks considering the age, capabilities, and behavior of their visitors. For instance, if young children frequently visit, more stringent measures and warnings might be necessary, similar to considerations in Jolley v Sutton London Borough Council [2000]. Occupiers need to dynamically adjust their duty of care, as failing to accommodate specific guest demographics could lead to liability under both the Occupiers’ Liability Acts of 1957 and 1984.
In light of this judgment, how might occupiers adjust their safety protocols to better align with legal expectations without over-warning?
To align with legal expectations post-Bourne Leisure Ltd v Marsden, occupiers should implement a balanced approach to safety protocols that adequately warns of dangers without causing unnecessary alarm. This includes conducting regular risk assessments to identify potential hazards and deciding whether these are “obvious” risks that adults can reasonably be expected to recognize. Effective measures might involve clear signage, physical barriers, and even educational programs about the risks present. The approach should be informed by both statutory requirements and case law precedents, ensuring that safety measures are both proportionate to the risk and tailored to the visitor profile, as suggested by the nuanced rulings in cases like Phipps v Rochester Corporation [1955].
