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  • In writing this BLOG, I`m reminded of the song written many years ago called “They All Laughed”, some part of the lyrics of which are copied below:

    “They all laughed at Christopher Columbus when he said the world was round

    They all laughed when Edison recorded sound

    They all laughed at Wilbur and his brother when they said that man could fly  …”

    The writer, George Gershwin, compares those who “laughed at me, wanting you” with those who laughed at some of history’s famous scientific and industrial pioneers, and then asking, “Who’s got the last laugh now?”.

    The case of the two adult ladies who fell off the swings back in 2016  in the playgrounds in County Tipperary created some hilarity for those who listened to the result of two High Court Claims which had been taken by Ms. O’ Mahoney and Ms. Kennedy against Tipperary County Council, Joseph Corbett and Kevin Kiely, when the High Court dismissed their Claims in October 2021, with reported headlines of: “Judge throws out two womens` €60,000 claims for ankle injuries on swing in council playground”.

    The Facts

    On the 30th March 2016 Ms. O’Mahoney, who was born on the 26th July 1967, was present in a children’s playground at Newcastle, County Tipperary in the course of minding a toddler who was two years and ten months old.  She got onto a swing, known as a basket or bird’s nest swing, with the toddler beside her.  After a short period, she sought to get off the swing and in doing so, her right ankle became trapped underneath the swing, resulting in her suffering an injury consisting of a fracture of the ankle. Ms. Sarah Kennedy, the other Plaintiff, was involved in an almost identical accident on the 13th July 2016. She was born on the 10th October 1994 and, at the date of the accident, was looking after her 16 month old cousin. She also got on the swing with her cousin and, in attempting to get off, her right ankle also became trapped beneath the swing and she too suffered a fractured ankle.

    The High Court Case

    Corroborative evidence was given by professional Engineers; Mr. John Hayes on behalf of the claimants and Mr. Paul Twomey on behalf of the respondents, the County Council and Others. While a large part of the case revolved around the ground clearance between the basket of the swing and the ground, where the  British Standards (BS EN 1176 and BS EN 1177) required a minimum ground clearance of 350mm and whether that ground clearance should be between the lowest part of the seat and the ground (as argued by Mr Hayes on behalf of the Claimants), or between the higher blue circular frame of the swing and the ground (as argued by  Mr. Twomey on behalf of the Respondents), ultimately it was reported in the newspapers that, Mr. Justice Michael Twomey said: “common sense” would tell any adult that they should not use a swing designated for use by children.

    Judge Twomey’s Decision was appealed by both ladies and everyone laughed and wished them luck in their Appeals!

    The High Court Reasoning

    While it appears that Judge Twomey did comment that “……reasonable adults of normal intelligence know, or should know, not to use swings designed for children”, the initial part of his decision did revolve around the evidence provided by both Engineers, and in particular the evidence given by the Respondent’s Engineer, where he noted that the playground had been inspected regularly, on behalf of Tipperary County Council by ROSPA (Royal Society for the Prevention of Accidents) and the swings, as installed, were found to be in compliance with the above BN Standards.

    The Appeal

    Subsequent to the service of the Notice of Appeal, a new development occurred where it was ascertained that, after the conclusion of the Trial in the High Court, Ms. O’ Mahoney became aware that the Council may have had in its possession a relevant safety report in relation to the swing which had not previously been disclosed; namely a document titled “RP11 Annual Playground Inspection Report” dated 24th June 2020 (one year prior to the Hearing of the case in the High Court) which had concluded that the relevant swings did not comply with BS 1176 and in fact the professional who undertook the Report had signified that the swing should be raised by 300mm from the ground within one month.

    The Claimant’s Solicitor, in his Affidavit to the Court seeking to introduce this new evidence, had also produced a Report under the heading of “The Use of Swings by Carers”  which, in the interest of promoting social and interactive play with swings of this type, “allows a child to sit or lie with support from a family member of carer”.

    In fairness to the Council, it emerged that, when all reports held by the County Council should have been delivered to their Solicitors, it transpired that the “Corporate Services” section of the Council, which deals with claims of the kind arising here, was unaware of the existence of these Reports as they had been provided to the “Community and Economic Development” section of the Council, where, as noted subsequently by Mr. Justice Noonan in the Court of Appeal Decision, this was “ an apparent case of the left hand not knowing what the right hand was doing”.

    The Court of Appeal Decision

    Mr. Justice Noonan delivered the Court of Appeal Decision on the 18th November 2022[2022] IECA 265.  Obviously influenced by the fact that the Council Engineer Mr. Twomey had incorrectly relied on the ROSPA Reports produced in the High Court, but noting the new Reports since filed with the Court (by Order of Mr. Justice Costello dated 11th March 2022), Judge Noonan was of the view, as stated by Mr. Hayes Engineer in the High Court, that the BN Standards could not be clearer and stipulated that the ground distance is the distance between the lower part of the seat and the ground.  There could be no ambiguity about this.

    High Court conclusion entirely unsupported by any evidence

    Most importantly, Judge Noonan commented that the newly adduced evidence in the Appeal appeared to him to be at minimum capable of having a very significant, if not indeed decisive effect on the High Court Judges conclusions about compliance with the required Standards.  Where a conclusion was reached that these adult Plaintiffs should not have been using the swing exclusively designed for children under 12, that conclusion appeared to the Judge to have been entirely unsupported by any evidence.  Furthermore, Judge Noonan noted that no witness gave evidence in the High Court that the effect that this swing was designed exclusively for young children.  While there was a sign at the playground recording that the playground was for the use of all children 12 years and under, it also stated that children must be accompanied and supervised by a responsible adult and, in the Judges view, 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 included going on a swing.

    Re-Trial Directed

    Having regard to the foregoing, Judge Noonan was of the view that the High Court Judge’s dismissal of the Plaintiffs` Claims was erroneous and in those circumstances the only course open to the Court of Appeal was to direct a re-trial of both actions in the High Court.  The Appeals were accordingly allowed together with an Order for Costs in favour of the Claimants.

    And What have we learned!

    While there is no guarantee that when the re-trial of both actions occurs in the High Court by a different Judge, the different Judge will come to either the same conclusion as the Court of Appeal or a different conclusion of that of the High Court, there is no doubt that these Claims will both be taken more seriously by the High Court and that nobody will be laughing at these Claimants!

    Who’s got the last laugh now?

    For further information on Accident / Personal Injury Claims you should contact:

    Brian Morgan
    Morgan McManus Solicitors

    Web: www.morganmcmanus.com
    Email: bmorgan@morganmcmanus.ie
    Ph. No.: 00353 47 51011

    Have you read our Guides:

    1. The 7 immediate Steps I must take if I`m involved in a Road Traffic Accident: Morgan-McManus-7-Steps-To-Take-After-a-Car-Accident.pdf (morganmcmanus.com)
    2. The 7 immediate Steps I must take if I have been involved in a Workplace Accident: 7-Steps-to-Take-After-a-Workplace-Accident.pdf (morganmcmanus.com)
    3. Do I need a Solicitor when filing a PIAB Personal Injury Claim?: Do-I-need-a-Solicitor-when-filing-a-PIAB-Personal-Injury-Claim-FINAL.pdf (morganmcmanus.com)

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