The Court of Appeal has directed a fresh hearing of two separate actions brought by women who injured their ankles while getting off a playground swing.
The High Court previously dismissed the cases of Susan O’Mahoney and Sarah Kennedy, finding there was no negligence or breach of duty by Tipperary County Council.
On Friday, Mr Justice Seamus Noonan and two Court of Appeal colleagues found the dismissal was “erroneous”.
Fresh evidence adduced before the appeal court was capable of having a “very significant, if not indeed decisive effect” on the High Court’s conclusion that the swing in the community playground in Newcastle, Co Tipperary, complied with applicable British standards, the judge said.
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Further, the finding that the claim would still fail even if the swing did not comply with the guidelines because the plaintiffs were adults using a swing designed for children under 12 was a conclusion “entirely unsupported” by any evidence, said Mr Justice Noonan.
It was not open to the higher court to make new findings on liability when the new evidence presented on appeal was not considered by the High Court.
The only available option was for the court to direct a retrial of both actions in the High Court, he said, adding that it was the court’s provisional view that the women were entitled to their legal costs for the appeal.
Ms O’Mahoney, of Ballyvera, Goatenbridge, Ardfinnan, Clomel, Co Tipperary, and Ms Kennedy, of Ballyknockane, Clogheen, Cahir, Co Tipperary, sued the council over ankle injuries sustained on separate occasions in 2016, as they dismounted a bird’s nest basket swing.
Ms O’Mahoney sustained her injuries on March 30th, 2016, when she got off the swing having been on it with a two-year-old. She caught her right ankle on the swing’s underside and suffered an undisplaced ankle fracture. Her foot was in a cast, then an ankle boot and she returned to work as a carer within two and a half months.
Ms Kennedy caught her right ankle when getting off the swing she had got on to with her 16-month-old cousin on July 13th, 2016. As well as an undisplaced ankle fracture, she sustained some ligament damage.
Both women knew each other as acquaintances and their cases were heard in tandem as they involved similar allegations.
The High Court’s Mr Justice Michael Twomey found the swing complied with British standards and was not designed for adult use. He said “common sense” would tell any adult they should not use a swing designed for use by children. Such claims could have a “chilling effect” on the provision of children’s play facilities, Mr Justice Twomey remarked in his ruling last year.
In their appeal, the women complained that the judge erred in concluding the swing complied with British standards and that they should not have used the swing when accompanying a small child.
The women also adduced new evidence, in the form of expert safety reports held by the council, which was not available during the trials.
An inspection report concerning the swing, which predated their trials by a year, was released to Ms O’Mahoney through a freedom of information request. The report found the swing needed to be raised by 30cm.
In his ruling on behalf of the three-judge Court of Appeal, Mr Justice Noonan said he could not accept the proposition that the British standards were ambiguous.
The standards say the required ground clearance relates to the distance between the lowest part of the seat and the ground, the judge said, adding that another expert’s contention that the measurement is from the hard rim of the swing is “entirely immaterial”.
The court found there was an absence of meaningful assessment by the High Court of the plaintiffs’ expert evidence in this regard.
Most importantly, the judge said, the new evidence could have a very significant or decisive effect on the conclusions about the swing’s compliance with guidelines.
Further, no witness gave evidence to say the swing was designed exclusively for young children, he said.
While a sign at the playground stated it and the equipment “should not be used by an adult”, there was also signage instructing that children under 12 be supervised by an adult, he said. It seemed to the judge “quite wrong” to suggest an adult caring for a toddler was prohibited by the notice from getting on to the swing with the child.
Mr Justice John Edwards and Mr Justice Maurice Collins agreed with the decision to uphold the appeal.
