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Marsden v Bourne Leisure [2009] EWCA 671

A small child drowned in a lake on a holiday park and the parents sought a breach of the Occupier’s Liability duty on the part of the park’s owners.  

The pond was surrounded by wooden rails 2ft high beneath which was a wire fence which had been installed due to liaison with Environmental Health officers from the local authority following an incident in 2003.  Bourne leisure had also provided specific warnings about the ponds and emphasised the risks these posed to unsupervised children.

It was alleged that an effective barrier should have been placed around the site, of about 1.1 metres high, as recommended by Royal Society for Prevention of Accidents in the case of domestic ponds, to prevent young children who might wander off unaccompanied from gaining access to the pond.

The court found

Individuals take responsibility for their own activities; the occupier is not liable for injury caused during dangerous activity.

The claimant, Mr. Tomlinson (then aged 18), visited an artificial lake which was part of a country park. He dived into the water but hit his head on the sandy bottom, breaking the fifth vertebra of his neck which left him tetraplegic.

He brought proceedings against Congleton Borough Council under the Occupiers’ Liability Act 1984, contending that the council had been in breach of the duty of care under s. 1(1) as the premises were not reasonable safe for his use as there had not been adequate warning of the dangers of diving into the lake.

The council argued that as he was not permitted to be in the lake he had ceased to be a visitor and so was not protected under the Occupiers’ Liability Act 1957, but the claimant argued that he was covered by the 1984 Act which relates to trespassers.  He claimed for loss of quality of life, loss of earnings and also the cost of the care he would require due to his injuries.

A couple were not liable under the Occupiers’ Liability Acts for injury caused to a friend of their son who played on a neighbouring roof with him as they were not in occupation of the roof.

A couple occupied a flat above a supermarket where one of the couple was employed. They occupied it on terms that permitted the employee’s family to live in the flat under a service occupancy. The main bedroom looked out on a largely flat roof (not included in the service accommodation) which covered a row of outbuildings forming part of the supermarket. Most of the roof was bounded by walls, but an area at the far end, (furthest from the bedroom window) was not surrounded by walls. The far end was also the only part of the roof that was sloping.

The couple did not have a garden, so allowed their nine year old son to play on the roof. The boy had been given strict instructions not to play at the far end (the part that was unfenced and sloping), and not to invite other children on to the roof. The employer who owned the roof was

A holiday park owed a duty of care to visitors in respect of the construction of a brick wall near an area used for children’s shows.

A guest staying at a holiday park suffered a severe cut when he fell on a low brick wall surrounding a restaurant on the holiday park site. The wall was near an open area, where shows were held for children. At a later date a stage was erected on that area. The guest brought an action based upon breach of the common law duty of care under the Occupiers’ Liability Act 1957, contending that the extremely sharp engineering bricks used in construction of the wall were unsuitable and potentially dangerous in an area where young children were expected to be present.

The court heard expert evidence that materials other than engineering building blocks, or with a rounded edge, could have been used in the design and construction of the wall. It was said that in designing the wall it would have been sensible to take account of the fact that it was in an area that was likely to be used by large numbers of children.

The judge found