Two women are appealing injuries allegedly sustained on the playground’s ‘Bird’s Nest’ swing

Two women who have lost Supreme Court cases over alleged injuries sustained when stepping out of a “bird’s nest” swing at a children’s playground have petitioned the Court of Appeals (CoA) to overturn the decision.

Last year High Court Judge Michael Twomey dismissed the separate cases of Sarah Kennedy of Ballyknockane, Clogheen, Cahir, Co Tipperary and Susan O’Mahoney of Ballyvera, Goatenbridge, Ardfinnan, Clonmel, Co Tipperary.

Mr Justice Twomey found that there was no negligence or breach of duty by Tipperary County Council.

He noted that the accidents were caused by two adults who decided to use equipment not intended for adult use, and that “common sense” would tell any adult not to use a swing set designed for intended for use by children.

Both women are suing over ankle injuries sustained on separate occasions when they climbed out of a bird’s nest wicker swing at Newcastle Municipality’s 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 stepped off the swing set she had climbed on with an infant she was caring for at the time.

She caught her right ankle on the underside of the swing and suffered an undisplaced ankle fracture. She wore a cast for six weeks, booties for four weeks and was back to nursing within two and a half months.

Ms. Kennedy’s injury occurred on July 13, 2016, when she left the swing set after climbing on it with her cousin, a 16-month-old boy.

She had the child in her arms when she dismounted and caught her right ankle on the underside of the swing.

She suffered an undisplaced ankle fracture and ligament damage, was in a cast for four weeks, was unemployed for eight weeks and then had ligament damage for a short time, for which she wore an ankle bandage.

Both women knew each other as acquaintances and their cases against the Council were tried together because they involved similar allegations.

Opening their appeals Thursday, which were also being heard together, Michael Counihan SC said reports of the swing have now come to light from experts hired by Tipperary County Council saying the swing’s basket was too low and around should be raised 300 mm.

He said the three reports of inspections conducted by independent experts in 2018, 2019 and 2020 showed the swing failed a compliance test because the basket was too low and by 300mm or about “an extra foot” should be raised.

The attorney said Tipperary County Council did nothing.

He said this information was not available to his side when the claims resulting from the 2016 accidents were initially heard in the High Court.

One of the reports about the swing had come to light as part of a freedom of information request, and there were also two other reports.

He said his side accepts the reports are not being intentionally withheld.

He said in each case the women’s ankles had been pinched under the swing and it was their case that pinching was a foreseeable risk.

Philip Sheahan SC, on behalf of the Council, argued that if the variation were raised to what the post risk assessment reports had suggested, the variation would be higher than the maximum tolerance allowed by the British Standard.

Regarding the omitted reports, he stated that it would not have affected the outcome.

The three-headed CoA reserves its decision.