The words of Lord Justice Stanley Burnton must have been a hammer blow to the parents of Matthew Marsden :
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.
He agreed with the leading judgment of Lord Justice Moses in the matter of Bourne Leisure Ltd v Marsden. Matthew, a two and half year old toddler had, in a split second, wandered off from his attentive mother whilst on holiday at a caravan park. He was found drowned in a small pond on the site by his father. The legal question was whether or not the park owners had failed to discharge the duty it owed to visitors to the site under the Occupiers’ Liability Act 1957.
Lord Justice Moses made it clear that in answering this question it was not necessary to find somebody to blame for the tragedy :
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…
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…
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.
The situation of the parents seems to be aggravated because the press reports of the case suggest they had already received £25,000 in compensation following the first instance finding in their favour. That and the costs had to be repaid to the appellant. It is in rare cases like this that you wish we had some form of no fault compensation scheme.
