Occupier’s liability – Holiday park – Duty of care – Ponds – Small child drowning in pond – Whether appellant park operator breaching duty of care – Whether appellant under duty to warn of location of and means of access to pond – Appeal allowed
In 2001, the deceased, a two-year-old boy, drowned in a pond in the appellant’s holiday park while on a caravan holiday with his family. The deceased and his younger brother had wandered off while their mother was talking to a man from another caravan. When she noticed that they were missing, she and her husband frantically searched for the boys, but did not find the deceased until it was too late.
The pond in which the deceased drowned was surrounded by wooden horizontal railings approximately 2ft high, several feet from the edge of the water and fenced with wire mesh below the rails. The deceased had climbed over them. The fence had been erected following an incident less than a year previously in which a four-year-old boy had had to be rescued from the pond. The deceased’s parents had known of the ponds but not their precise location.
The respondent, the deceased’s father, brought proceedings on his son’s behalf, claiming that the appellant had breached its duty of care under the Occupiers’ Liability Act 1957. He contended that the appellant should have: (i) erected a 1.1m high barrier around the pond, as recommended by the Royal Society for the Prevention of Accidents in the case of domestic ponds to prevent access by small children; or (ii) in the absence of a fence, warned parents of the danger presented by the pond. Allowing the claim, the judge held that although the appellant was not required to erect a taller fence, it had breached its duty of care by failing to warn of the location of the pond and its accessibility along a path. He found, on the balance of probabilities, that had such a warning been given, it would have alerted the deceased’s parents to the risk, such that they would have known where to search and would have found their son in time. The appellant appealed.
Held: The appeal was allowed.
Liability was not to be attributed on the basis that one or other of the parties was to be blamed for the accident. In order to escape liability for an accident that involved a child, an occupier was not required to prove that the parent was at fault. The deceased’s parents had not been at fault in any way since a child could easily disappear: Phipps v Rochester Corporation [1955] 1 QB 450 applied.
That did not mean that the appellant was in breach of its duty. The danger that the pond presented to a small child, should he or she stray, was obvious. An occupier, exercising reasonable care, did not have to underline or emphasise such an obvious risk. It was not necessary for the deceased’s parents to have been warned of the peril since any conscientious parent would have known that the site was potentially dangerous for small, unaccompanied children. Further warnings as to that obvious circumstance would not have made any difference. The existence of the path, of which the deceased’s parents were unaware, did not present any particular or hidden danger; it did not lead directly to the pond and was only one of several routes, some more direct, by which a wandering child might reach the pond. Although parents could be expected to do no more than locate the site of their caravan and any local attractions, that did not mean that the occupier was obliged to bring to parents’ attention the existence of the path or the precise location of the pond.
Further, in the absence of evidence to indicate how long it took the deceased to reach the pond, there was no basis for the judge’s finding that he might have been found in time had the appellant underlined the location of the pond and its means of access. The judge had erred in finding a breach of duty and in concluding that the suggested breach had caused or contributed to the deceased’s fatal, unaccompanied journey to the pond.
Christopher Alldis (instructed by Hill Dickinson LLP, of Liverpool) appeared for the appellant; Simon Earlam (instructed by GHP Legal, of Wrexham) appeared for the respondent.
Sally Dobson, barrister
