Two women hurt on ‘bird’s nest’ kid's swing in playground appeal case loss

Last year, the High Court’s 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.

He found the accidents 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.

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 in Tipperary which had been built after members of the local community raised funds.

Ms O’Mahoney’s injury occurred on March 30, 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 un-displaced 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 occurred on July 13, 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 un-displaced 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 afterward and 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.

Opening their appeals, which were also heard together, on Thursday, Michael Counihan SC said reports on the swing by experts retained by Tipperary County Council have since come to light which said the basket of the swing was too low and should be raised 300mm.

He 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 300 mm or about “one extra foot”.

Counsel said nothing was done by Tipperary County Council.

He said this information was not available to his side when the actions arising out of the accidents in 2016 originally came before the High Court.

One of the reports on the swing had come to light under a Freedom of Information request and there were also two other reports.

He said his side 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.

Philip Sheahan SC, for the council, 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 three-judge CoA reserved its decision.