Child loses action against Kilkenny County Council over playground fall

A child who was injured when she fell in a community playground in Paulstown and broke her arm lost her action against Kilkenny County Council at Kilkenny Circuit Court.

The civil action was taken by the girl’s father on her behalf and was heard before Judge Sinead Ní Chulachain.

The child was nine when the accident happened on April 17, 2019. Her father gave evidence at Kilkenny Circuit Court that at approximately 2.30pm on the date in question he brought his daughter to play in the playground.

“I would have been there around ten minutes before the incident. My daughter went up on the monkeybars and when she was around two or three rings across she slipped and fell on the ground and broke her arm,” he said.

The child’s father told the court that his daughter fell onto hard impacted ground and said in his direct evidence to the court that there was ‘hard soil’ and ‘no grass’ and that he ‘could not see any safety mats’.

The child’s father told the court their he is first aid trained and that he could see that there was ‘a complete fracture’ in his daughter’s arm.

AMBULANCE

“I stabilised the fracture and called an ambulance,” he told the court adding that the ambulance went straight to University Hospital Waterford where the child underwent surgery the following day and was in a cast for six to eight weeks.

Adrian O’Higgins, BL on behalf of the plantiff asked what impact the fall and injury had on the child.

“For a good while she didn’t want to go into the playground. She was in gymnastics at the time and when the cast was taken off she was hesitant about doing activities and I needed to assist her with washing and she needed pain management,” added the child’s father who also told the court that during cold weather his daughter complains of pain and that her wrist is sore due to the cold.

Mark Flynn BL acting on behalf of Kilkenny County Council said that photographs taken by the child’s father following the accident showed that there was hexagonal shaped matting,which allowed grass to grow, under the monkey bars.

The child’s father told the court that he had photographed the general area following the fall adding, ‘to me it didn’t look like there was any matting there’.

“I understood that there was a risk and that she could fall. I would have thought that a playground would have been a safe place,” he said.

MEDICAL REPORT

A recent medical report was handed into the court which showed that the child’s full range of movement and function had not been affected. The child’s father also told the court that his daughter had attended physio on one occasion in relation to the injury.

The child, who is now 13, gave evidence before the court and said that on the date in question she was on the monkeybars and was two or three bars in when her hand slipped and she landed on the ground on her arm and her ‘whole body went on the one arm’.

The child told the court that she was ‘very shocked’ following the incident.

“I didn’t realise that I had broken it until I was in the hospital,” she said.

“I had surgery the next day and I got a pin in my arm and had a cast up to my elbow,” she said and told the court that following the fall she had difficulty showering and getting dressed.

The young girl also told the court that she sometimes gets ‘sharp, throbbing pains’ in her wrist.

“It only ever happens in cold weather,” she said.

EXPERT EVIDENCE

Engineer, Vincent O’Hara gave evidence on behalf of the plaintiff and said that on July 8, 2020 he had attended the playground with the plaintiff and her father and was instructed that the plaintiff had fallen from the monkey bars, which he described as being circular rings which were eight feet and four inches over the ground and were accessed via a platform.

Mr O’Hara told the court that he took photographs on the day and said that the photographs showed that the safety mat was visible in some areas but that underneath the monkeybars it had ‘sunken into the ground’ and that in this area the ‘top soil was flush with the ground’.

“Some portions of the matting was visible and some parts was not visible at all,” he added.

The engineer said the matting used in the playground is saphagrass, which is designed to allow the growth of grass through the mat and is tested to the relevant standards.

Mr O’Hara added that if the fall height is greater than one metre then top soil should not be used. The fall distance from the monkeybars was 2.2 metres and according to guidelines the drop can be no more than three metres.

“I have no issue with the surface under the monkeybars. It has to be monitored and maintained and not allowed to sink down into the top soil and to become a top soil surface. This takes the benefit of the mat out of the equation,” he said.

Mr O’Hara pointed out to the court that a photograph taken of the mat shows that the mat is sunken into the soil and the mat is visible in some locations and not in other locations. I don’t think that the mat is been used as it was intended,” he added.

The court also heard that the playground is inspected on a weekly basis by the council and annual reports are carried out by a specialist external company.

Mr O’Hara told the court that the matting was commonly used throughout the country adding that he has ‘no issue’ with the matting’.

Mr O’Hara, who was giving expert evidence in the case said that he accepted that the playground was generally well maintained.

“I have no issue with the park, but I did have a concern about the mat,” he said added that Kilkenny County Council has a duty of care to recreational users.

Engineer, Bernard Harte was also called to give evidence in the case by Kilkenny County Council. Mr Harte said on May 12, 2021 he had carried out an inspection with the parks inspector at Kilkenny County Council.

Mr Harte said that he found that the impact absorbent surface was adequate and that the matting was described in the brochure as ideal for a greenfields site and that the product was designed to allow grass to grow up through openings and that it was not a common policy to reset the matting.

“The freefall area for a turfed surface is one metre. If there was turf there you would anticipate there would have been accidents. In my opinion the matting complies with the regulations required,” he said.

An employee of Kilkenny County Council also gave evidence in the case and outlined to the court that he carries out playground inspections for the council since 2015.

“I check the surfaces for trip hazards or if the surface is cracked or broken,” he said and told the court that he had inspected the playground in Paulstown two days before the child’s accident and carried out weekly inspections there.

Judge Sinead Ní Chulachain that there was a duty of care owed to recreational users of playgrounds and that duty included not to intentionally cause damage to users or to have reckless disregard for them.

“It is foreseeable that children will use monkeybars and will fall. It is a high risk activity. The obligation is on Kilkenny County Council to make sure that there is a suitable surface underneath them so that children do not injure themselves.

COMPLIANT

“The surface in question is in compliant with the required standards and it was inspected by a specialist UK company that was of the view that the matting was adequate and that it met with the relevant standards. As well as weekly inspections which stated that there were no defects.

“It is clear from the photographs that there was matting in place. Nevertheless Kilkenny County Council had a duty of care to put in place a suitable surface that complies with the relevant standards which they did and carry out inspections which they did.

The judge also remarked that it is the obligation of Kilkenny County Council to provide reasonable safety.

“Kilkenny County Council have put in a safe surface and have it inspected, which they did,” she said adding that she was not satisfied that the plaintiff had shown a breach in their duty of care.

No order was made in relation to costs.