Parents of drowned toddler lose compensation
Mr and Mrs Marsden had just begun what they hoped would be a relaxing and enjoyable summer break with their two young children at a campsite in Wales. The reality was “every parent’s worst nightmare” and one few could have […]
Mr and Mrs Marsden had just begun what they hoped would be a relaxing and enjoyable summer break with their two young children at a campsite in Wales. The reality was “every parent’s worst nightmare” and one few could have imagined.
The family were staying in the 125 acre, 100 pitch Greenacres Holiday Park near Portmadog in Gwynedd, North Wales in August 2004 when the accident occurred. Having spent 3 days cooped up inside their caravan due to incessant rain it was a relief when the weather held up briefly and the family could enjoy some fresh air. A court heard that Tracey and Philip had been chatting “briefly” with other holidaymakers when they noticed that their sons were missing. A frantic search was launched to find the two boys but the result was tragic.
Matthew, who was two, had wandered off with his 18-month-old brother, Alex. They had covered the 60 yards that lay between them and a pond where, it is thought, Matthew may have chased a duck before falling into the pond. He was found by his father face down in 18 inches of water and a judge later ruled that Matthew’s death was accidental. Mr Marsden, 43, who was an IT Manager from Buckley in Flintshire, suffered nervous shock and psychological trauma after the discovery of his son’s body.
Although the pond had been fenced off a year earlier after a four year old boy had fallen in it was only a foot high. The pond was also clearly marked on a site map that was handed out to holidaymakers when they arrived. However Mr and Mrs Marsden successfully sued the park owners, Bourne Leisure, for breaching its duty of care as they were not told there was a pond nearby. The couple also wanted a ruling made that every man-made pond should be fenced off. A judge at Wrexham County Court rejected the claims that the pond was a “trap for the unwary” but said that holidaymakers should have been warned about the pond. The park paid £40,000 in compensation including £15,000 in legal costs.
However Bourne Leisure immediately appealed the decision and so GHP Legal held onto the £25,000 compensation in a client account while the outcome of the appeal was decided. Mr and Mrs Marsden have been ordered to repay the compensation as three judges at the Court of Appeal “quashed” the verdict, saying that the holiday park was not to blame. Lord Justice Moses said that “nothing this court can say can adequately measure the suffering of two responsible, attentive and caring parents.”
In a family statement Mr Marsden said “I am disappointed in the decision to overturn the original judgement as it seems to have left a loophole in health and safety law. When a parent loses a child you get an overwhelming urge to prevent other children being hurt. I just hope people will realise that you cannot relax on holiday with children and don’t expect others to give the same degree of thought into safety as you may do yourself. I hope all caravan sites with ponds will take this simple step. My family should like to be left alone to grieve for our lovely boy.” The case was conducted on a no win no fee basis and covered by an insurance policy which will pay for the couple’s legal costs.
Lord Justice Stanley Burnton said “this was a tragic case and Matthew’s death has been understandably devastating for his parents. But accidents may and do happen to young children without anyone being at fault. A toddler can disappear in a fleeting moment. I don’t think there can be any parent who has not been in that situation. It is impossible to live in a risk-less society.”
Lord Justice Moses added that neither the parents nor the owners were to blame describing it as “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 Bourne Leisure was in breach of duty. The danger of the lake to a small child, should that child in fact stray, was obvious.” He went on to say that “short of keeping hold of the two children at all times when outside the caravan, there is nothing more the Marsdens could do…Holiday sites will almost inevitably contain sources of danger to small unaccompanied children. Further warnings as to that obvious circumstance could not have any difference.”