When, despite a similar accident a year before, the courts decide that duty of care had not been breached
What happened?
A two year-old boy was staying at a holiday park with his parents and younger brother. It was a big holiday park with three ponds and a stream running through it.
The boys escaped the attention of their mother when she was speaking to another guest. They walked to one of the ponds, which was surrounded by two foot high horizontal rails, several feet from the water with wire mesh below the rails.
The boy must have climbed over the rail was found drowned in the pond by his father.
A year before, a four year-old had been rescued from the pond. The park operator had liaised with the local authority EHOs, and it was as a result of this investigation that the wire mesh was installed.
The boy’s parents knew there were ponds on the park site, but did not know where.
The parents claimed compensation, alleging firstly that that an effective barrier should have been placed around the pond about 1.1 metres high, and secondly that the holiday park should have done more to warn the parents of the dangers.
Legal Outcome
The Judge rejected the first allegation regarding the barrier.
Regarding the second allegation, the judge found that the holiday park was under a ‘high’ duty to inform clearly and unequivocally the parents of the location and means of access to such ponds. He concluded that by failing to give appropriate warnings the holiday park was in breach of its duty of care.
The holiday park appealed, and the appeal was allowed.
The judge said ‘The danger of the lake to a small child, should that child stray, was obvious. There was no basis on which it could be said that in the exercise of reasonable care the occupiers should have underlined or emphasised so obvious a danger. The parents knew, as any conscientious parent would have known, that the site as a whole was dangerous to small, unaccompanied children for many reasons. Short of keeping hold of the two children at all times, there was nothing more the parents could do. Further warnings as to obvious sources of danger would not have made any difference.’
What can we learn from what happened?
A tragic, but very interesting case that illustrates that while duty of care may be owed, even a ‘high’ duty, that duty does not require that every person is protected from every hazard at all times, when reasonable precautions have been put in place. The added dimension here, as is often the case with accidents involving children, is the supervisory role of the parents or guardians. There is no criticism here of the parents, and the appeal judge makes this clear.
Lastly, what is not known is what the legal outcome may have been had the wire mesh not been installed a year earlier. Given it was recommended by the EHO, the holiday park may have been in a weaker position had it not been installed.