Two women who lost High Court actions claiming damages after they hurt their ankles getting out of a "bird’s nest" basket swing in a Tipperary playground are to have their cases reheard.
The Court of Appeal on Friday ordered a retiral of the actions taken by the two women against Tipperary County Council and said a different High Court judge must hear their cases second time around.
Mr Justice Seamus Noonan delivering the Court of Appeal ruling said the dismissal of the two claims by the High Court was “erroneous”.
The only course open, the judge said, is for the Court of Appeal to direct a retrial of both actions in the High Court.
Newly adduced evidence
And the Court of Appeal ruled newly adduced evidence which was raised at the appeal and came to light after the High Court case appears 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 the judge said it would have provided “fertile ground” for cross-examination in relation to the correct method of measuring the ground clearance of the swing and its compliance with the safety standard.
Mr Justice Noonan said accordingly the conclusion arrived at by the High Court trial judge that because in his view the swing complied with the safety standard that was ‘the end of the personal injuries claim’ cannot be sustained.
He said the High Court judge went on to hold that even if he were wrong about that, the claim would still fail for the second reason that these adults should not have been using a swing exclusively designed for children under 12 years of age.
Unsupported conclusion
“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 on behalf of the three judge court which included Mr Justice Maurice Collins and Mr Justice John Edwards said.
No witness, he added gave evidence to the effect that this swing was designed exclusively for young children.
“While the playground sign stated that the playground was for the use of all children of 12 years and under, it also stated that all such children must be accompanied and supervised by responsible adult. The council accordingly expected and required all children in the playground to have an adult with them to supervise their play activities which of course includes going on swing,” the judge said.
He added: "What the council presumably sought to discourage and prevent was people over 12 of age such as teenagers and adults using the playground on their own without being accompanied by a young child. That, while perfectly understandable is entirely different from suggesting that an adult with a toddler in her care was prohibited by the notice from going on the swing with the toddler to protect her child. It appears to me quite wrong to suggest that this latter activity was something that was prohibited by the notice posted in the playground.”
In the High Court last year Mr Justice Michael Twomey 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 accidents in 2016 were caused by two adults deciding to use equipment not designed for adult use and “common sense” would tell any adult they should not use a swing designed for use by children, the judge said
Both women sued over ankle injuries sustained, on different occasions, as they got out of a bird’s nest basket swing in the Newcastle community playground which had been built after members of the local community raised funds.
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. She caught her right ankle on the underside of the swing and suffered an undisplaced ankle fracture.
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 in the underside of the swing. She suffered an undisplaced ankle fracture and some ligament damage.
