The Court of Appeal has allowed two appeals over ankle fractures suffered on a basket swing in a Tipperary playground and ordered a retrial of both personal injury claims before a different High Court judge. It did not decide whether Tipperary County Council was liable or award damages.
The claims were brought by Susan O’Mahoney and Sarah Kennedy, who were each minding a young child when she sat on the swing with the child and injured her right ankle while getting off. The accidents happened in March and July 2016. The High Court had heard the claims together and dismissed them.
The dispute included how to measure the swing’s ground clearance under the applicable British Standards. The plaintiffs’ engineer said the clearance should be measured from the lowest part of the seat and that the swing fell short of the 350mm minimum. The Council’s engineer measured from the rigid frame and considered the swing compliant. The High Court preferred the Council engineer’s view.
The Court of Appeal said the standard specified measurement from the lowest part of the seat and was not ambiguous. It found the High Court had not meaningfully explained why it rejected the plaintiffs’ engineer’s evidence. The appeal court also considered three playground inspection reports from Play Services Ireland, dated 2018, 2019 and 2020, that were admitted as new evidence. The 2020 report marked the swing as non-compliant and called for it to be raised by 300mm, with the action required within one month. The Council’s engineer had not been made aware of the reports before the High Court trial.
The High Court had also reasoned that the accidents were caused by the women choosing to use equipment designed solely for children under 12. The Court of Appeal found that conclusion unsupported by evidence. The playground notice said children aged 12 and under had to be accompanied and supervised by a responsible adult; the appeal court said this did not prohibit an adult from sitting on the swing with a child in her care.
The appeal court held that the High Court dismissals were erroneous, but said it could not substitute its own liability findings because the new evidence had not been considered at trial. It therefore ordered retrials. It also said the trial should be before a different judge, noting that the High Court judge had made extensive comments about damages despite dismissing the claims; those comments were obiter and the appeal court expressed no view on them.
On costs, the appeal court stated its provisional view that the plaintiffs should receive their appeal costs and the costs of the motion to introduce new evidence. The Council had 14 days to seek a different costs order, failing which the proposed order would be made.