Infant Claims.Obvious dangers

Article

21 July, 2009

Bourne Leisure Limited (T/A British Holidays) v Marsden (On behalf of the Estate of M Marsden, Deceased)
Court of Appeal (Civil Division) (Moses LJ, Stanley Burnton LJ, Elias LJ)

13.07.2009

The Claimant was the father of a two year old child who had drowned in a pond at the Defendant's holiday park.

The pond was surrounded by fencing and the Defendant provided the Claimant and his wife with a plan showing sources of danger such as lakes, ponds, a river and a beach on their arrival at the park. However, it had been found at first instance that the Defendant should have done more to warn the child's parents of the pond and the pathway leading to it that was ultimately used by the child as their caravan was in particularly close proximity to the pond. The fencing had been introduced by the Defendant in response to an incident in 2003 when a four year old child needed to be rescued from the pond.

The Defendant appealed against this decision. In the Court of Appeal it was found that the danger presented by the pond to small unaccompanied children was obvious. There was therefore no basis for the Defendant to have to bring to the attention of the child's parents the existence of the pathway or the precise location of the pond in order to meet the required standard of reasonable care.

At first instance the trial judge had found that had additional information been provided to the parents as to the precise location of the pond and the path this would have made a difference. The Court of Appeal failed to support this view on the basis that no evidence was put forward as to how long it had taken the child to reach the pond and how he may have been found earlier had the parents been made specifically aware of the path leading to it.

The Claimant and his wife had admitted that the holiday park was not safe for unaccompanied children. However, the Court of Appeal made it very clear that it was not apportioning blame to the parents in this matter simply because it had not found the Defendant to be at fault. It was said any suggestion that the parents were at fault was 'absurd and offensive' but that it did not follow that the Defendant must automatically be liable simply because the parents were not at fault.

The appeal was allowed.

Comment

In the absence of specific guidance from the Royal Society for the Prevention of Accidents or the Health and Safety Executive, the Court of Appeal showed an unwillingness to hold a Defendant liable for a failure to raise particular awareness of a specific danger when the danger presented was obvious.

For more information please contact Elizabeth Bower, Marsden House, 28 Wellington St (St Johns), Blackburn, BB1 8DA. Tel: 01254 662831.

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