Appeal against drowning damages

Matthew Marsden wandered off with his younger brother

The father of a toddler who drowned in a holiday park duck pond could lose his £25,000 compensation.

Phillip Marsden, from Buckley, Flintshire was awarded the damages at Wrexham county court last year following the death of Matthew, two.

He drowned after wandering off at the Greenacres Holiday Park at Black Rock Sands near Porthmadog in Gwynedd.

Park operator Bourne Leisure Ltd is appealing against the court ruling at the civil appeal court in London.

Matthew Marsden drowned in 18 inches of water after he and his 14-month-old brother, Alex, wandered away from the family's touring caravan at the 125-acre Greenacres Holiday Park in August, 2004.

His parents, Phillip and Tracey Marsden, began a frantic search after discovering the boys were missing.

It is impossible to live in a riskless society Lord Justice Stanley Burnton

Mr Marsden who discovered Matthew "floating face down" in Monarch Way Pond, 60 from the family caravan.

An inquest later recorded a verdict of accidental death.

Mr Marsden sued the park's owners, Bourne Leisure Ltd - trading as British Holidays - which runs Greenacres.

The IT manager, who suffered nervous shock and psychological trauma after discovering his son's body, was awarded £25,000 damages by a judge at Wrexham County Court last year after he found the company liable under the Occupiers Liability Act.

Although Bourne Leisure had done enough to fence off the pond, and the judge rejected claims that the pond was "a trap for the unwary", he said the company should have specifically warned holidaymakers of the potential hazard posed.

Bourne Leisure has now challenged the judge's ruling at the Civil Appeal Court in London. If that is successful, Mr Marsden could lose his damages payout.

The Marsdens searched frantically for their missing son

Christopher Alldis QC, for the company, argued that there was "no sufficient basis" for the judge's conclusion that further information about the three ponds on the site "would have prevented the lapse of attention that enabled the children's escape".

A "welcome pack" distributed to visitors identified the presence and location of the ponds, he said, while Bourne Leisure was entitled to expect "close parental supervision of children as young as two-and-a-half".

However, Simon Earlham, for Mr Marsden, described the Wrexham judge's ruling as "unchallengeable".

Mr and Mrs Marsden, he said, had been found to be "responsible, attentive and caring parents" as well as "transparently honest" witnesses.

Due to "almost incessant rain" during the first three days of the holiday, the boys had been with their parents all the time.

Fleeting moment

However, on the fourth day, the youngsters disappeared as Mrs Marsden turned her back for a moment to talk to another camper.

Mr Earlham said there had been "a near-drowning incident" involving another young boy in the same pond the previous year, and Mr and Mrs Marsden had been "completely oblivious" to a path leading to the pond, which did not appear on the site map.

One of the judges hearing the appeal, Lord Justice Stanley Burnton, observed during the case: "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 riskless society".

After a day-long hearing, the appeal judges reserved their judgment on the case until an unspecified later date.