Bourne Leisure Ltd (t/a British Holidays) v Marsden

Foreseeability that a young child may escape parental supervision does not, without more, require an occupier to fence every obvious source of danger or give particular warnings. Under the Occupiers’ Liability Act 1957, the issue is whether reasonable care made visitors reasonably safe for the permitted use of the premises, taking account of children’s lesser caution. Where the danger is obvious to a conscientious parent, an additional warning of its precise location or access route is ordinarily unnecessary. A breach must also be shown to have caused the injury; speculative possibilities cannot establish causation on the balance of probabilities.

A two-and-a-half-year-old child drowned in a pond at a large holiday park. His father alleged that the operator should have installed a higher barrier and warned the parents about the pond’s location and access route. The Wrexham County Court rejected the fencing allegation but found a breach of duty in the absence of a specific warning and concluded that the warning would have made the difference. The operator appealed. The central issues were whether the alleged warning duty arose and whether its breach caused the death.

Lord Justice Moses delivered the leading judgment. Lord Justices Stanley Burnton and Elias agreed. The appeal was allowed.

1. The relevant standard under s.2(2) of the Occupiers’ Liability Act 1957 was reasonable care in all the circumstances to ensure that visitors were reasonably safe for the purposes for which they were invited. Section 2(3) required the occupier to be prepared for children to be less careful than adults.
2. It did not follow that an occupier must take precautions against every danger merely because small children might escape parental supervision. Where a danger was not obvious and children might foreseeably play in the area, precautions might be required. The danger presented by the pond to a small child who strayed was obvious.
3. The court applied the approach in Phipps v Rochester Corporation [1955] 1 QB 450. Liability was not determined by allocating blame between parent and occupier. The parents’ lack of fault did not establish a breach, and the occupier was not required to prove parental fault.
4. There was no reasonable-care obligation to draw specific attention to the precise location of the pond or to one access route. The parents had been given a site plan showing the ponds and other hazards. The path did not itself constitute a hidden or particular danger, and the pond could be reached by other routes. Guidance concerning domestic garden ponds and schools did not establish the standard applicable to a holiday park, particularly in the absence of relevant ROSPA or Health and Safety Executive guidance.
5. The causation finding was unsupported. There was no evidence of how long the child had taken to reach the pond, or that information given three days earlier would probably have led to an earlier discovery or prevented the drowning. The suggested concept of focusing supervision did not identify any practicable precaution beyond holding the children continuously. Neither breach nor causation was established.

1. Court of Appeal (Civil Division): [2009] EWCA Civ 671 allowed the operator’s appeal.
2. Wrexham County Court: His Honour Judge Seys Llewellyn QC found that the operator was in breach of duty by failing to give specific warnings and that the breach caused the death.