Judge rules playground fall an accident, not negligence

Girl (8) fell in a Castlebar playground and broke her arm

A GIRL who broke her arm after falling in a playground did so as a result of an accident and not as a result of negligence, a judge has ruled.
The girl (13) fell and broke her arm while playing in the playground in the Castlebar Town Park on October 10, 2013, when she was eight years old. The playground had only been open a few weeks at the time. It was claimed that she caught her foot in the the cap covering the anchor holding a climbing net of a multi-play unit.
The plaintiff, through her father, sued Mayo County Council for negligence, claiming that the yellow cap that covered the anchor was not flush with the ground, making it a hazard for people to trip on. It was also claimed that the cap was a greater tripping hazard as it was the same colour as the playground surface.
The hearing before Judge Rory McCabe at Castlebar Circuit Civil Court was fully contested by Mayo County Council, whose witnesses all denied that there was anything unsafe about the cap.
While Judge McCabe found that the device had not been installed to the manufacturer’s guidelines, he did not feel it rendered it unsafe.
“It was a simple accident … not every accident involves negligence,” he said when giving his ruling.

‘Horrific’ injury
The girl told the court she was going to climb up the net when a friend suggested racing to the the swings. As she was running, she said, she caught her foot on the ‘bracket’ on the ground and tripped over it. She sustained what was described as a ‘horrific enough injury’ as the bone in her left arm broke through the skin. She was in a cast for six weeks and has now fully recovered.
The court heard that the climbing net was anchored into the ground, and that a cap measuring two inches high and four inches in diameter covered the metal anchor post. Mr Kevin Brandon, an engineer for the plaintiff, said he inspected the playground in May 2015 and found that the bottom of the cap was not flush with the ground as per the manufacturer’s installation instructions, and that there was a gap of between 15 and 23mm. He said this represented a tripping hazard.
Ms Áine Boyle, counsel for the plaintiff, said that in November 2018, Mayo County Council carried out ‘repair work’ to the anchor of the unit. The surface was raised, and the cap is now as ‘flush as possible’ with the ground. She added the surface colour surrounding the cap has now been changed from yellow to black. She argued that this repair work indicated that there was negligence.
However, Ms Lorraine Scully, counsel for Mayo County Council said the work was due to vandalism to the anchor and had nothing to do with it being a hazard. This was supported by employees of Mayo County Council, who gave evidence.

Sloping surface
Steven McGuinness, Director of Hawthorn Heights Landscapes, which constructed the playground, said the surfacing used in the Castlebar playground is known as ‘wetpour’, which he described as the ‘Rolls Royce of surfacing’.
He said the anchor was concreted into the ground and the cap was placed over the metal to protect children who may fall on it. He accepted that the cap was not flush with the ground but stated that this was due to the slope in the park.
Regarding the suggestion that the colour of the cap and the surface being the same might be considered a tripping hazard, Mr McGuinness said that he did not think it was and added ‘I still don’t consider it is a trip hazard’.

Inspected
He told Ms Scully that he has installed around 100 playgrounds in Ireland without any issues arising. He said that all playgrounds are independently inspected before they are taken over by the local authorities and that this playground complied with all requirements.
When asked by Ms Boyle if the new surface, which was put down in November 2018, was now safer, Mr McGuinness said it was no safer than it had been before.
When giving his ruling, Judge McCabe found that the cap was not flush with the ground and not installed as per the manufacturer’s instructions. However, he felt that the gap was so small that it was almost impossible to imagine a foot getting caught in it as described in evidence. He found that the fall was a result of an accident and not due to negligence. He made no order in relation to costs.