Two women have settled their High Court actions alleging they suffered ankle injuries getting out of a basket swing in a Tipperary playground.
The settlements bring to an end the long-running legal saga that saw the women’s actions thrown out by a High Court judge more than two years ago before the Court of Appeal ordered a retrial of both cases.
In the High Court on Tuesday, senior counsel for the women, Michael Counihan, said the actions have now been settled and could be struck out. He also asked the court to record that the women were to receive their legal costs on the Circuit Court scale, including the costs of the previous High Court case.
No further details of the settlements were given in court.
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In November 2022, the Court of Appeal ordered a retrial of the actions taken against Tipperary County Council by Sarah Kennedy, of Ballyknockane, Clogheen, Cahir, Co Tipperary, and Susan O’Mahoney, of Ballyvera, Goatenbridge, Ardfinnan, Clonmel, Co Tipperary.
Both women had sued over alleged ankle injuries sustained, on different occasions, as they got out of a bird’s nest basket swing in a community playground in Newcastle, Co Tipperary. It was built after members of the local community raised funds for it.
Ms O’Mahoney’s injury allegedly occurred on March 30th, 2016, as she was exiting the swing which she had got on to with a child whom she was then minding, aged two years and 10 months. She caught her right ankle on the underside of the swing and suffered an undisplaced ankle fracture.
She was in a cast for six weeks, an ankle boot for four weeks, and was back working as a carer within two-and-a-half months.
Ms Kennedy’s injury allegedly occurred on July 13th, 2016, as she was exiting the swing after getting on to it with her cousin, a boy aged 16 months. She had the child in her arms as she got off and caught her right ankle in the underside of the swing.
She suffered an undisplaced ankle fracture and some ligament damage, was in a cast for four weeks, out of work for eight weeks and had some ligament damage for a short time after and she wore ankle support.
At issue in the case was the height at which the swing had been set.
In the first High Court action, Mr Justice Michael Twomey accepted engineering evidence for the council that the swing was set at the right height and in compliance with the relevant British standard then applicable.
However, the Court of Appeal ordered a retrial of the actions taken by the two women against Tipperary County Council. Mr Justice Seamus Noonan delivering the appeal court ruling said the dismissal of the two claims by the High Court was “erroneous”.
The Court of Appeal also ruled newly adduced evidence that was raised at the appeal and came to light after the High Court case, appeared to be, at a minimum, “capable of having had a very significant, if not indeed decisive effect”, on the trial judge’s conclusions about compliance with the relevant safety standard.
Had the evidence been available, Mr Justice Noonan said, it would have provided “fertile ground” for cross-examination about the correct method of measuring the ground clearance of the swing and its compliance with the safety standard.
The High Court judge’s conclusion that the swing complied with safety standards so that was the end of the claim, could not be sustained, said Mr Justice Noonan.
The High Court judge went on to hold that, even if he was wrong about compliance, the claim would still fail because these adults should not have been using a swing exclusively designed for children under 12 years of age.
“That conclusion appears to me to have been entirely unsupported not just by any credible evidence at the trial, but any evidence at all,” Mr Justice Noonan said on behalf of the three-judge appeal court.
No witness gave evidence to the effect that this swing was designed exclusively for young children and, while the playground sign stated the playground was for the use of children of 12 years and under, it also stated all such children must be accompanied and supervised by a responsible adult, the judge added.
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