Susan O'Mahoney v Tipperary County Council, Kevin Kiely and Joseph Corbett

JurisdictionIreland
JudgeMr. Justice Twomey
Judgment Date18 June 2021
Neutral Citation[2021] IEHC 643
CourtHigh Court
Docket Number[2018 No. 548 P]
Between
Susan O'Mahoney
Plaintiff
and
Tipperary County Council, Kevin Kiely and Joseph Corbett
Defendants
Between
Sarah Kennedy
Plaintiff
and
Tipperary County Council, Kevin Kiely and Joseph Corbett
Defendants

[2021] IEHC 643

[2018 No. 548 P]

[2018 No. 1850 P]

THE HIGH COURT

Personal injuries – Negligence – Liability – Plaintiffs seeking damages – Whether the plaintiffs could apportion liability to the defendants

Facts: Two adult plaintiffs, Ms O'Mahoney and Ms Kennedy, brought claims for personal injuries which were sustained on two separate occasions when using the same swing designed for children in the same community playground in Newcastle, Co. Tipperary. Both plaintiffs sought compensation at the High Court level (i.e. more than €60,000) from the first defendant, Tipperary County Council (the local authority), on the grounds that it set the height of the swing at a level that was too low and as a result of this alleged negligence/breach of duty, the local authority created an entrapment risk. As a result of this negligence, the plaintiffs claimed that they caught their ankles under the swing when trying to get off and thereby suffered injuries. It was the plaintiffs’ case that they were recreational users under s. 4(1) of the Occupiers Liability Act 1995 when sitting on the swing, on the basis that they were entitled to use the swing for the purpose of accompanying the children in their respective care, and that therefore they were both entitled to rely on the swing being kept in a safe condition for their use.

Held by the High Court (Twomey J) that there was no breach of duty by the local authority as it did in fact comply with the relevant British Standard for the height of swings. However, even if this was not the case, Twomey J held that it was not necessary for the Court to determine whether in fact there was a deviation, in relation to the swing, from the British Standards applicable at the time because there was a complete absence of causation between the alleged breach of duty (being the failure to raise the swing) and the occurrence of the accident. Twomey J held that this was because the ‘legal cause’ of the accident was not the fact that there was an alleged shortfall in the clearance between the child’s swing and the ground, making it unsafe for use by the plaintiffs, who were both adults; rather, the legal cause of the accident was that two adults chose, on separate occasions, to use equipment which was designed for children and which (as stated implicitly by the terms of the notice on the playground but also based on common sense), was not for use by adults. Twomey J held that, when using the equipment, they failed to take sufficient care for their own safety and in that regard, since the plaintiffs chose to use equipment which was not for use by adults, but for children of 12 and under, it was perhaps not surprising that they found the swing to be ‘too low’ for their usage and so caught their ankles between the swing and the ground. In those circumstances, they could not, in the Court’s view, suggest that the accidents were legally ‘caused’ by Tipperary County Council, when in fact the accidents were caused by their decision to use equipment which was not designed for use by adults.

Twomey J held that the claims of both plaintiffs would be dismissed.

Claims dismissed.

JUDGMENT of Mr. Justice Twomey delivered on the 18th day of June, 2021

SUMMARY
1

In 2008, in the Supreme Court case of O'Keeffe v. Hickey and Ors., [2009] 2 I.R. 302 Hardiman J. referenced the practice where parents take claims for personal injuries suffered by their children while playing in a playground. He was particularly critical of the view that every injury is compensatable and the eternal quest for a ‘deep pocket’ (such as a business, an insurance company, a local authority etc.) which could be made liable for an accidental injury. He expressed concern, at that time, that such claims were occurring at an ever-increasing pace and referenced the negative effects that they were having on the freedom of children to play. He quoted with approval the prediction that ‘ if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards.’ (at pp. 321–322)

2

Hardiman J. might be more than a little disappointed to learn that not only had claims by parents for injuries to their children in playgrounds continued apace since 2008, but that now, some thirteen years later, there is a new type of claim regarding playgrounds, namely a claim for injuries to adults when they are using swings, not in a hotel, bar or gym, but rather in a children's playground. This and the other issues which arise in this case can be summarised as follows:

(i) Adult injured while on a child's swing
3

This case concerns a claim by two adults who were injured when using a swing, not in an adult location, but in a children's playground. It considers the ‘ chilling effect’ of claims such as these on the provision of play or adventure facilities for children (and indeed the provision of goods/services generally to all citizens) and the application of what is ‘ universally known by reasonable adults of normal intelligence’, in other words, common sense, (as highlighted by the Court of Appeal in Cekanova v. Dunnes Stores [2021] IECA 12) to such a claim.

(ii) A claim that €54,700 is fair compensation for a ‘minor’ injury
4

This case also considers a claim made by the plaintiff through her lawyer that an injury which her counsel categorised as a ‘ minor’ ankle injury that kept someone out of work for just 10 weeks would nonetheless merit damages for ‘pain and suffering’ (in addition to any out of pocket expenses) of up to €54,700 under the non-binding Book of Quantum (assuming, of course, negligence was established), even though:

For this reason, as noted below, when the foregoing principles for the assessment of damages set down by the Supreme Court and the Court of Appeal (which, unlike the Book of Quantum, are binding on this Court) are applied, this Court concludes that a more appropriate sum for fair compensation for a minor ankle injury would be between €5,000 and €7,500, thus illustrating that in some cases the non-binding Book of Quantum will be of little or no assistance to a court in calculating damages. Accordingly, this claim, if it was to be brought at all, should have been brought in the District Court.

  • • the binding case law from the Supreme Court (in Simpson v. Governor of Mountjoy [2021] IESC 81) regarded the sum of €7,500 as appropriate compensation for a person who was wrongfully required to slop out for 7.5 months in a prison, and,

  • • it would take a person on the average wage in the State over 1.5 years to earn €54,700 (applying the binding principles adopted by the Supreme Court in McDonagh v. Sunday Newspapers [2018] 2 I.R. 79 for assessing the reasonableness of damages, i.e. ‘how long and how hard an individual would have to work to earn’ the proposed sum), and

  • • the amount of damages for the ‘pain and suffering’ caused by a minor injury to an ankle is required to be proportionate to the pain and suffering cap of €500,000 for quadriplegia/catastrophic injuries (according to the binding principles set down by the Court of Appeal in Nolan v. Wirenski [2016] IECA 56), yet a sum of €54,700 is almost 1/9th of the cap, which cannot in this Court's view be regarded as proportionate in light of the huge difference between the pain and suffering involved in quadriplegia/catastrophic injuries on the one hand and the pain and suffering involved in a minor ankle injury on the other.

(iii) Minor injury claims instituted in the High Court rather than the District Court
5

This case also illustrates that there may be financial reasons why some claims, for minor and moderate injuries taken by impecunious plaintiffs may be brought in the High Court, rather than the District Court or Circuit Court. It is important to emphasise that it is not being suggested that this is what happened in this case and there is no suggestion that the plaintiffs' lawyers did not bona fide believe that their client was genuinely entitled to compensation in excess of €60,000 (the floor for High Court damages), even though it is this Court's view that the appropriate compensation for her injury was €5,000 – €7,500. Indeed, it is clear that the plaintiffs' lawyers were making the best case possible for them.

6

Rather the point that is being made is that it is clear that issuing proceedings for minor injuries in the High Court, rather than the District Court, by an impecunious plaintiff may amount to greater leverage upon the defendant to settle that claim. This is because, where a plaintiff is not in a position to pay legal costs, if he or she loses, the Supreme Court in Farrell v. Bank of Ireland [2012] IESC 42 observed that litigating may be part of an ‘unfair tactic little short, at least in some cases, of blackmail’ to force a defendant to ‘buy off the case’, even if the claim is ‘ unwholly unmeritorious’. If one accepts therefore the Supreme Court's conclusion that an impecunious plaintiff may, in some cases, be using his impecuniosity as leverage, it seems clear that instituting a minor claim in the High Court increases that leverage. This is for the simple reason that a defendant will make a much greater saving on legal costs (which he would not recover from an impecunious plaintiff) by settling a High Court action, than settling a District or Circuit Court action.

7

Accordingly, logic would suggest that the amount which a defendant will pay to settle a claim is much greater in the High Court, than in the District Court, since the saving on legal costs is so much greater. For example, in the case of Condon v. Health Service Executive, Szwarc v. Hanford Commercial Ltd. T/A Maldron Hotel Waterford [2021] IEHC 474, submissions were made to this...

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    ...court orders. (vii) Easy to be generous with other peoples' money 116 As was noted by this Court in Kennedy v. Tipperary County Council [2021] IEHC 643 at para. 77, which involved two adults who had suffered ankle injuries arising from their use of swings in a children's playground: “[…] wh......

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