Two women who claimed they suffered ankle injuries getting out of a “bird’s nest” basket swing in a Tipperary playground have settled their High Court actions.
The settlements bring to an end the long-running legal saga which saw the women’s actions thrown out by a High Court judge over two years ago and the Court of Appeal later ordering a retrial of both cases.
In the High Court on Tuesday, counsel for the women, Michael Counihan SC, told the High Court that the actions had now been settled and could be struck out. He also asked the court to record that the women were to get costs on the Circuit Court scale, including the costs of the previous High Court case.
No details of the settlements were given in court.
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 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, 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 onto 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 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, 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 that 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 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, Mr Justice Noonan 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 the conclusion arrived at by the High Court trial judge that the swing complied with the safety standard that was ‘the end of the personal injuries claim’ could not 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.
“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 appeal 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 and 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 a responsible adult.
