Neutral Citation Number: [2009] EWCA Civ 671
Case No: B3/2009/0016
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
His Honour Judge Seys Llewellyn QC
7WX01198
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 July 2009
Before:

LORD JUSTICE MOSES
LORD JUSTICE STANLEY BURNTON
and
LORD JUSTICE ELIAS
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Between:

	Bourne Leisure Ltd T/A British Holidays	Appellant	
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	Marsden (and on behalf of the Estate of M Marsden, Deceased)Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Christopher Alldis (instructed by Messrs Hill Dickinson LLP) for the Appellant
Mr Simon  Earlam (instructed by GHP Legal) for the Respondent

Hearing date: 22nd June, 2009
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Judgment
Lord Justice Moses: 
1.	On 21 August 2004 Matthew Marsden, aged 2½, drowned in a pond in Greenacres Holiday Park where he was holidaying, in their caravan, with his parents and younger brother.  Whilst his mother was speaking to a man in another caravan Matthew and his younger brother disappeared.  Despite a desperate search he was not found until it was too late.  Nothing this court can say can adequately measure the suffering of two responsible, attentive and caring parents, to echo the words of His Honour Judge Seys Llewelyn QC.  But the court is faced with the task of deciding whether the judge was entitled to find that the appellant, Bourne Leisure Limited, the operator and occupier of the site, failed to discharge the duty it owed to visitors to the site under the Occupiers’ Liability Act 1957.
2.	No challenge has been or could be advanced against the careful and thorough findings of fact made by the judge.  This court can only interfere if the judge was not entitled to conclude that the appellant failed to discharge its duty.  The site, at Morfa Bychan, covers about 125 acres with 1,000 caravan pitches; some of the caravans are static, others were towed by holidaymakers onto the site.  It has a capacity for about 4,500 guests and a recreation centre.  It also has three lakes or ponds, the smallest of which was known as Monarch Way.  That was where Matthew drowned.  A small stream flows through the site, which borders the sea with two points of access to the beach.
3.	The judge found that the tragedy occurred when Mrs Marsden crossed a roadway from the family caravan to a neighbour to return some entertainment centre tokens.  She took Matthew and his younger brother, aged 16 months, with her, leaving her husband at their caravan.  Her two small children ran around underneath and outside the awning of the caravan she was visiting.  She was somewhat distracted by the appearance of the man to whom she was talking and did not notice that her two young children had disappeared.  A few minutes later, and no one can be expected to be accurate about the time, she asked her husband whether the children were with him.  When both realised that they were not they began a frantic search.  Mrs Marsden sensibly went along a roadway to the camp entertainment centre.  Her husband looked down the roadway near their caravan.
4.	In fact, as the judge found, Matthew had gone down a surfaced pathway bounded by wooden rails which led between two caravans onto a roadway.  At the junction between the path and the roadway he appears to have turned right and then passed between static caravans to the edge of the pond known as Monarch Way.  This was a small pond surrounded by wooden horizontal rails approximately two feet high, several feet from the edge of the water, and fenced with wire mesh below the rails.  He must have climbed over.  His father found him drowned in the pond.
5.	Less than a year before, in September 2003, in circumstances which were not detailed in evidence, a boy about 4 years old had to be rescued from that pond.  The judge found that as a result of that incident, Bourne Leisure Limited had liaised with environmental health officers from the local authority and produced an open water policy covering all their 53 sites.  The wire fence beneath the rails surrounding the pond was fixed in response to the earlier incident in September 2003. 
6.	 The judge found as a fact, as I have indicated, that the parents of Matthew were responsible, attentive and caring.  Their loss was devastating.  He accepted their evidence that although they knew that there were ponds on site they were unaware of their location.  In particular he found as a fact that neither parent was aware of the precise location of the Monarch Way Pond and that neither parent was aware of the path which led to the roadway which gave access to the pond.  The area where the children were last seen playing was fenced with a wattle fence, save for the entrance to the pathway leading to the road down which Matthew had wandered.  
7.	The judge directed himself as to the law in a manner which the appellant did not seek to impugn.  He reminded himself that the duty of care pursuant to s.2(2) of the Occupiers’ Liability Act 1957 is 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.  In particular the occupier must be prepared for children to be less careful than adults (s.2(3)).  The judge reminded himself of the well-established propositions expressed by Devlin J in Phipps v Rochester Corporation [1955] 1 QB 450: the duty to the public which may include little children will be discharged if the dangers which may be encountered are obvious to a guardian or are those of which he has given a warning comprehensible by a guardian (page 472).
8.	The case against Bourne Leisure Limited was put on behalf of Matthew’s father in two ways.  Firstly, it was alleged that an effective barrier should have been placed around the site, of about 1.1 metres high, as recommended by ROSPA in the case of domestic ponds, to prevent young children who might foreseeably wander off unaccompanied by their parents, from gaining access to the pond.  This allegation was rejected by the judge, in part because the environmental health officers did not suggest to the site occupiers, after the earlier incident, that such protection was necessary.  There was no ROSPA policy governing ponds on holiday sites and the judge rejected the suggestion that ROSPA policy relating to domestic garden ponds and schools had an application to a holiday park.  He drew attention to a written statement from an environmental health officer who had been concerned with the death of Matthew.  That officer wrote that he :-
“…regarded the guidance in relation to garden ponds and schools as useless”.
He continued:-
“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.”
Although that official was not called it is plain that the judge adopted his reasoning in rejecting the allegation that the pond should have been more securely fenced.
9.	The judge then turned to the second allegation.  The claimant alleged that in the absence of a fence, the defendant ought to have done more to warn the parents of the danger of the nearby Monarch Way pond and of access to that pond by the pathway between the caravans.  He concluded that the defendant was:-
“…under a duty and a high duty to inform, clearly and unequivocally, the parents fully of the location and means of access to such ponds or lakes as were present on the site and in respect of which the decision had been taken not to fence them against unsupervised children passing across them.” (§ 33)
He continued-:
“It seems to me that if one starts not from the position of somebody who is familiar with the site as an operator would be, but the position of a parent of a very young child who is directed simply to the pitch location without more, this is not pointing the parent clearly and unequivocally to the existence and effective nearness of the pond for practical access by a wandering child, at least not unless, at reception or in some other way, this was drawn to the attention of the parents.” (§ 35)
10.	Having identified that duty the judge concluded that the defendant ought to have instructed its staff to draw the attention of  parents to lakes and ponds particularly when their caravan was close in the following terms:-
“’Of course, we do have ponds and lakes, I am sure you will, but do look after the children’ or provide a notice ‘A feature of this site is three lakes and ponds.  We hope you will enjoy the site and find them attractive, but please familiarise yourself with the site layout and mind those children’”.  (§ 36)
11.	The judge concluded that by failing to give warnings of that nature Bourne Leisure Ltd were in breach of their common duty of care.  He then turned to the issue of causation and considered whether such a warning might, on the balance of probabilities, have averted the tragedy.  He held that he was not able to conclude that had the warning been given the whereabouts of Matthew might have been discovered earlier and thus he might have been restrained from falling into the pond.  He rejected the argument advanced by the claimant that armed with the warning they might have known where to search.  He said:-
“I have to ask myself whether there is material on the evidence to conclude that it would have made the difference.  I do not feel able to say by placing this possibility upon a possibility and probably a third possibility that there is material on which I can conclude, on the balance of probabilities, that knowledge of the ponds’ existence and location would have saved such a number of minutes (if any, I do not know), as would have made the difference to Matthew surviving or not surviving.”
12.	But the judge went on to conclude that if the parents had known and been warned of the existence of ponds nearby, and an access way which enabled access to them, they would have been alert to the risk of danger.  (§ 39)  He continued:-
“I am satisfied on the balance of probabilities that sensible information as to the location and easy access to the pond at this point would, without any dire over-worrying warnings as to the height of fences, have made every difference …(§40)
In my judgment, a company which was not coloured in the slightest in its approach to safety by any improper consideration and which gave responsible thought to the physical measures which might or should be imposed at the site, nonetheless in a sense missed the obvious in relation to the features of this site and the history of Jordan Mason (the 4 year-old who had previously nearly been drowned).  In short, I consider that if they had fulfilled that duty, it would have made the difference.”  (§ 41)
13.	The essential question in this appeal is whether the judge was entitled to conclude that a failure to draw specific attention to Monarch Way pond and the access which might be gained to it, down the path I have described, constituted a breach of the common duty of care and secondly, whether that breach made, as the judge thought “every difference”.
14.	With the candour to which the judge paid tribute, both Mr and Mrs Marsden, who had made a previous visit to the site, but only for a weekend, accepted that they knew that there were lakes on the site.  They were not aware of the location of the particular pond known as Monarch Way, nor of the particular pathway which Matthew took.  But three days before the death of their son they had arrived and been handed a welcome pack with a plan.  The plan showed a number of sources of danger to unaccompanied children on site, in particular a number of roads, lakes, ponds, the river and the beach, just outside the site leading to the sea.  Again, with commendable frankness, both parents accepted that the site was not safe for small unaccompanied children. 
15.	 Of course, the defendant ought reasonably to have anticipated that small children might escape the attention of parents and wander into places of danger.  But it by no means follows that the occupier is under a duty to take precautions against such dangers.  If the danger is not obvious and the occupier ought to have foreseen that children may play in the area of the danger he may have to take precautions.  But that situation is quite different from circumstances in which the source of danger is obvious should a small child stray from the control of even the most attentive and conscientious parent.
16.	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)
17.	In the instant case it is absurd and offensive to suggest that Mr and Mrs Marsden were in any way at fault.  A child may be gone in an instant.  But it does not follow from the fact that they were not at fault that the defendant was in breach of its duty.  The danger of the lake to a small child, should that child in fact stray, was obvious.  Mr Earlam suggested that because Monarch Way pond was close to where Mr and Mrs Marsden had pitched their caravan the defendant ought particularly to have warned them of the danger of the lake should their son go to the lake unaccompanied.  There were, he pointed out, warning notices attached to the rail of the lake which could be read by those who occupied the static caravans which bordered it.
18.	There seems to be no basis upon which it could be said that, in the exercise of reasonable care, the occupiers should have underlined or emphasised so obvious a danger.  Mr and Mrs Marsden knew, as any conscientious parent would have known, that the site as a whole was dangerous to small unaccompanied children for many reasons.  As conscientious parents, they did not need to be told that.  They did not know of the existence of the path.  There is no basis for saying that that represented any particular or hidden danger.  The path did not even lead to the pond.  True it is that a small wandering child might gain access to the pond via that path, but so that child could by any number of routes.  In fact, there were more direct routes to the pond than that afforded by the path.
19.	In my judgement, there is no basis for concluding that the occupier was under any obligation, in the exercise of reasonable care, to bring to the attention of parents the existence of that pathway or the precise location of the pond, when the danger they presented to small unaccompanied children was obvious.  That is all the more evident in the circumstance that the site occupier had given a plan to the parents which showed the location of the ponds as well as the stream and the beach. The judge himself drew attention to the views of the environmental health officer that there were a number of sources of danger to small unaccompanied children.  
20.	There was some focus, during argument, on the small print “safety on the park” warnings which were provided generally to all those who visited Bourne Leisure’s many sites.  The warnings included a reference to the need for all under 8s to be accompanied by a responsible adult at all times and as to the dangers around the edge of ponds and lakes.  But such warnings were irrelevant in a case such as this where the parents were quite aware of the need to accompany their young children and of the dangers at the water’s edge, of which they needed no reminder.
21.	I reiterate that there is no blame to be attached to the parents for not subjecting the plan to greater scrutiny.  In any event, it did not show the path down which Matthew wandered.  Parents cannot be expected to do more than look for the location of their caravan and of any attractions which they might visit.  But it does not follow that the defendant was bound to draw specific attention orally or in a written notice to the lakes shown on the plan.  There was no basis for saying that it was a breach of duty not to do so.  I am not suggesting that in cases such as this it is necessary for the claimant to call expert evidence.  But in the absence of any guidance given by ROSPA or by the Health and Safety Executive it was not open to the judge to conclude that the occupiers fell below the standards reasonably to be expected of them when they failed to make particular mention of location of lakes and ponds shown on the plan, still less to one of the many routes by which they could be reached.
22.	There is even greater difficulty in supporting the judge’s conclusion on causation, namely that what he described as “sensible information as to the location and easy access to the pond” would have made every difference.  As I have recalled, there was no evidence to show how long it had taken Matthew to reach the pond and thus no basis for saying that he might have been found earlier had the occupier underlined the location of the pond and the means of access to it.  But it is difficult to see how further information given, presumably on arrival, three days earlier, could possibly have made any difference.  The most that Mr Earlam, for the parents, could say was that:-
“Parents who had at all times been with their children carefully and closely supervising them would have continued to do so and, if a specific danger had been brought to their attention, would have supervised them by focussing their supervision so as to reduce any risk posed by that specific danger.”  (skeleton argument 4.2)
23.	It never became clear what he meant by “focussing their supervision”.  Short of keeping hold of the two children at all times when outside the caravan, there is nothing more the Marsdens could do.  Small children can disappear in a moment.  Holiday sites will almost inevitably contain sources of danger to small unaccompanied children.  Further warnings as to that obvious circumstance could not have made any difference.  The judge gave no reason for concluding to the contrary.
24.	In those circumstances, I am driven to the conclusion that there was no foundation for the identification of a breach of duty or for the conclusion that the suggested breach caused or contributed to Matthew’s fatal and unaccompanied journey to the pond.  For those reasons, I would allow this appeal.
Lord Justice Stanley Burnton: 
25.	I agree. 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. 
Lord Justice Elias:
26.	I also agree.