Two women who lost High Court actions claiming damages after they hurt their ankles getting out of a basket swing in a Tipperary playground have launched an appeal.
Counsel for the women told the Court of Appeal on Thursday that expert reports retained by Tipperary County Council said the basket of the swing in the Newcastle playground was too low and should be raised 30cm.
Michael Counihan SC, for the two women, said the three reports on inspections carried out by the independent experts in 2018, 2019 and 2020 showed the swing failed a compliance test because the basket was too low and should be raised by about a foot but nothing was done by the council.
This information was not available to his side when the actions arising out of the accidents in 2016 originally came before the High Court.
The High Court’s Mr Justice Michael Twomey last October dismissed the separate cases by Sarah Kennedy, of Ballyknockane, Clogheen, Cahir, Co Tipperary, and Susan O’Mahoney, of Ballyvera, Goatenbridge, Ardfinnan, Clonmel, Co Tipperary.
Mr Justice Twomey found there was no negligence or breach of duty by Tipperary County Council.
The 2016 accidents were caused by two adults deciding to use equipment not designed for adult use, said the judge. “Common sense” would tell any adult they should not use a swing designed for use by children, he added.
Both women sued over ankle injuries sustained, on different occasions, as they got out of the “bird’s nest” basket swing in the community playground which had been built after locals raised funds. Each had caught their right ankle on the swing’s underside and suffered an undisplaced ankle fracture.
Ms O’Mahoney’s injury occurred on March 30th 2016 as she was exiting the swing which she had got onto with a toddler she was then minding. Her ankle was in a cast for six weeks, a boot for four weeks and was back working as a carer within two and a half months.
Ms Kennedy’s injury occurred on July 13th, 2016, as she was exiting the swing after getting onto 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. As well as suffering an undisplaced ankle fracture, she had some ligament damage. She was in a cast for four weeks, out of work for eight weeks and had some ligament damage for a short time after for which she wore ankle support.
Both women knew each other as acquaintances and their cases against the council were heard together because they involved similar claims.
On Thursday, Mr Counihan told the three-judge Court of Appeal that one of the reports on the swing had come to light under a Freedom of Information request and there were also two other reports supplied. He said accepted there was no deliberate withholding of the reports.
He said in each case the women’s ankles became caught under the swing, and it was their case that entrapment was a foreseeable risk.
Counsel for Tipperary County Council Philip Sheahan SC submitted that if the swing was raised to what the post risk assessment reports had proposed it would place the swing higher than the maximum tolerance allowed by the British standard.
In relation to the omitted reports, he submitted it would not have made a difference to the outcome.
The Court of Appeal, comprising of Mr Justice Seamus Noonan, Mr Justice John Edwards and Mr Justice Maurice Collins reserved its decision.