School liability claim dismissed where plaintiff's injury occurred near steps, not a defective grating, and was incidental to normal play.

THE HIGH COURT

[2025] IEHC 423

[Record No. 2017/1462P]

BETWEEN

AMANDA SHAKIRA DINNEGAN

PLAINTIFF

AND

THE TRUSTEES AND BOARD OF MANAGEMENT OF LOUGHEGAR

NATIONAL SCHOOL

DEFENDANTS

JUDGMENT of Mr Justice Paul Coffey this 27th day of June 2025

1. Born on 30 September 2005, the plaintiff was at all material times aged nine and in third class at the defendants’ national school in Loughegar, County Westmeath. Her claim is for damages for personal injury and arises from an incident that occurred in the school yard during a break at 12.30pm on 12 May 2015, when it is alleged that, while participating in a race with other pupils, she was wrongfully caused or permitted by the defendants to come into contact with a raised steel grating in a concrete footpath as a result of which she tripped and fell thereby sustaining a fracture dislocation of her left elbow. As a consequence of her injuries, the plaintiff underwent two surgical procedures, the first to stabilise the fracture, and the second for the removal of K-wires. She also engaged in a course of intensive physiotherapy, following which she has regained full function in her elbow, although she has been left with residual surgical scarring.

2. It is not in dispute that the plaintiff fell and that she had been running on a concrete path immediately prior to losing her footing. It is agreed that the path begins at the top of a set of concrete steps located at the front of the school building and runs to the left of those steps. It is further not in dispute that a steel pedestrian grating was positioned along the right-hand side of the path and that during an engineering inspection in July 2018, a defect was identified in the grating near the end of the path at a point indicated by the plaintiff as the location where she claimed to have fallen. It is also accepted that after she fell, the plaintiff ran screaming back into the school via the door from which her class had exited into the school yard.

3. The defendants deny liability on three distinct grounds. First, they contend that the plaintiff’s claim is fundamentally undermined by the fact that it was originally advanced on an entirely different basis, namely, an allegation that the plaintiff was tripped by another pupil. Secondly, the defendants rely on the evidence of a Special Needs Assistant (“SNA”) who was present at the time of the incident, together with CCTV footage which the SNA maintains captures the event, to assert that the fall occurred near the concrete steps and therefore at a location that was well removed from the point at which the defective grating was later observed during the engineering inspection. Thirdly, it is argued that although the grating at the location pointed out by the plaintiff was found to be defective and a potential tripping hazard when it was examined during an engineering inspection in July 2018, the defect could not have been present at the time of the accident because it was not present when the area was inspected approximately six weeks after the incident by a claims investigator engaged by the defendants’ insurers.

Evolution of the plaintiff’s claim

4. The plaintiff’s case, as originally pleaded, was that she had been caused to fall when she was tripped by another student during a race in the school yard. This account was first set out in the Personal Injury Summons issued in February 2017, where it was specifically alleged that the plaintiff had fallen by reason of another pupil tripping her. The particulars of negligence and breach of duty relied upon included a failure to provide adequate supervision in the school yard at a time when children were permitted to run.

5. This version of events was maintained in the plaintiff’s Replies to Notice for Particulars delivered in July 2017. In those replies, the plaintiff identified by name the pupil alleged to have tripped her. No reference was made at that stage to any physical defect in the school yard surface.

6. The claim was further developed in an Addendum to Particulars of Negligence and Breach of Duty delivered in February 2018, where it was alleged, in addition to the original supervision claim, that the school had failed to prohibit or discourage running during break time, an allegation consistent with the case that the plaintiff was injured through contact with another child, not by tripping on a physical hazard.

7. A material change in the nature of the case occurred following a joint engineering inspection on 16 July 2018. During that inspection, the plaintiff pointed out a raised steel pedestrian grating towards the far end of the concrete path in the school yard on which it is agreed she fell and for the first time attributed her fall to tripping on that grating. The evidence of the plaintiff’s consulting engineer was that the grating had a ‘kink’ in it such that ‘if you pushed down on one end with your foot the other side lifted up, and vice versa’. This gave rise to a significant shift in the pleaded case.

8. Thereafter, the plaintiff, who was then a minor and sued through her mother, obtained leave to amend the Personal Injuries Summons to plead that the accident was caused by the presence of a protruding steel grating which it was alleged constituted a tripping hazard. An Amended Personal Injuries Summons was issued on the 14 May 2019 following which the original and inconsistent claim that the fall resulted from another pupil tripping her was no longer pursued as the primary basis of liability in the pleadings and was not pursued at all at the trial of the action.

The plaintiff’s explanation for the change in her account

9. The shift in the plaintiff’s case, from a case based on interaction with another pupil to one founded on an alleged physical defect, represents a fundamental departure from the narrative consistently maintained by the plaintiff and her legal representatives for more than three years. As such it requires a clear and cogent explanation.

10. The plaintiff’s explanation for the change in her account of how the accident occurred was that she had initially been ‘confused’. She said that although she always knew she had tripped on the grating, she did not say so at the time because she ‘presumed’ that she had been tripped by another child. She maintained that this presumption arose in the immediate aftermath of the accident, particularly while she was in hospital, and that she conveyed this understanding to her parents.

11. She accepted that the version of events set out in the original Personal Injury Summons and in the Replies to Particulars was the version she had provided to her parents, and that it was they who passed this on to the family solicitor. She attributed the discrepancy to emotional distress and childhood anger at the time.

12. She further claimed that she had mentioned the grating to her parents at some point prior to the engineering inspection in July 2018. However, this was not supported by the evidence of her mother, who was the only one of her parents to give evidence at the trial. Her evidence was that she did not know that the grating had caused the fall and that even at the engineering inspection, when the location was pointed out, the plaintiff did not expressly attribute the fall to the grating, but merely indicated the grating to be the general area where she believed she had fallen.

Evidence of Ms Mary Kenny

13. Ms Mary Kenny, an SNA at the school, gave evidence that she was on yard supervision during the relevant break, primarily supervising her special needs pupils but also with an observing and reporting function in relation to other children in the yard. She stated that she was ascending the concrete steps, which lie to the right of the concrete path on which it is agreed the plaintiff fell, when she heard a scream coming from her left. She said that she looked in that direction and saw a child, whom she identified as the plaintiff, and whom she said she knew by name, getting up from the concrete path, near the top of the steps. She then saw the plaintiff run down the adjoining grass verge, from the direction of the path towards the school building, while screaming.

14. Ms Kenny said that she descended the steps, met the school principal at or near the bottom of the steps, and informed him that the plaintiff had fallen. She then accompanied the principal back up the steps and pointed out to him the site of the fall, which she indicated to be on the concrete path near the top of the steps. Her evidence was that a few children also came over and pointed to the same location.

15. She was shown CCTV footage which was date stamped with the date of the accident and confirmed that it captured the incident. While viewing the footage, she identified herself, the school principal, the plaintiff and the events that she had described in her evidence, including the pointing out of the site of the fall on the concrete footpath close to the top of the steps, a location that was a considerable distance away from the defective grating complained of by the plaintiff.

The CCTV footage

16. The CCTV footage aligns in all material particulars with Ms Kenny’s account. It shows a child running and then falling on the concrete path just to the left of the top of the steps for no apparent external cause, disappearing from view, then running towards the school on a grassy area to the left of the concrete steps after which Ms Kenny can be seen making her way down the steps towards the school building and then reappearing with the school principal to whom she points out a location just to the left of the top of the steps where the child had fallen. The plaintiff denied that she could be seen in the CCTV footage, claiming that the child who fell was wearing tracksuit bottoms of a type that she never would have worn.

Evidence of Mr Michael Mulligan

17. Mr Michael Mulligan, an accident investigator engaged by the defendant’s insurers, gave evidence that he attended the school on 26 June 2015, approximately six weeks after the incident. His task was to assess the location of the reported fall and to identify any potential hazards.

18. Upon arrival he met with the school principal and carried out a site inspection. His attention was directed to the concrete path where the fall was said to have occurred. He described the path as being in good condition and noted that there was a steel grating situated along one side of it. He stated that he did inspect the grating during his visit but did not observe any defect or hazard that, in his view, could have caused a fall.

19. Mr Mulligan took photographs of the area but did not photograph the full length of the path or the steel grating at the location where the plaintiff subsequently said she had fallen. He did state, however, that he walked the entirety of the path and that nothing untoward stood out to him during the inspection.

Decision

20. In order to establish liability on the part of the defendants, the plaintiff bears the onus of proving, on the balance of probabilities, that her fall on 12 May 2015 was caused by the raised pedestrian grating that was identified during the engineering inspection in July 2018.

21. Although the evidence of Mr Mulligan suggests that the area was free from defect as of 26 June 2015, a date after the accident but preceding the engineering inspection of July 2018, I am not inclined to rely on his testimony. He did not specifically direct his attention to the precise location that was identified by the plaintiff as the site of her fall. His inspection was general in nature and does not resolve the specific question of whether the grating at the relevant location constituted a tripping hazard at the material time.

22. There are, however, two interrelated considerations, each of which raises serious doubt as to whether the plaintiff’s claim can succeed.

23. The first consideration is that the plaintiff has not offered a satisfactory explanation for the fundamental shift in her description of how the accident occurred. The original case, maintained consistently until mid-2018, was that she had been tripped by another child while running. This was pleaded in the Personal Injury Summons of February 2017, repeated in Replies for Particulars in July 2017, and advanced again in the Addendum to Particulars of Negligence and Breach of Duty in February 2018. It was also the account given by the plaintiff’s solicitors to the consulting engineer engaged on her behalf prior to his attendance at the engineering inspection in July 2018.

24. It was only following that inspection that the plaintiff changed her account, alleging instead that she tripped on a raised grating. She now claims that she had always believed the grating to be the cause of her injuries and had told her parents so at an earlier stage. However, this is not supported by the evidence of her mother.

25. While the plaintiff has attempted to explain the change in her narrative by reference to her age, confusion, and emotional state, there remains a fundamental inconsistency between her current account and the consistent position that was maintained through verified pleadings and solicitor’s instructions over a number of years. No clear or convincing explanation was given as to why, if she has always believed the grating to be responsible, that version was not asserted until more than three years after the incident.

26. Although consistency is not always the guarantor of accuracy, it is nonetheless an important hallmark of credibility. In this case, there has been a material shifting of the plaintiff’s story for which there is no proper or adequate explanation. The new narrative is not supported by the contemporaneous pleadings, nor by the testimony of her mother, and raises serious questions about the accuracy and reliability of the plaintiff’s recollection of events.

27. In assessing the plaintiff’s credibility, I have had due regard to the fact that she was only nine years old at the time of the accident and was still a young person, aged only 19, when giving her evidence in what is undoubtedly a stressful setting. However, I cannot overlook the fact that her evidence was inaccurate and unreliable on a peripheral but nonetheless relevant matter. In particular, the plaintiff stated in evidence that as a result of her injuries, she had to give up a number of activities that she enjoyed before the accident, including boxing, and that she had never returned to the sport. However, during cross-examination, the defendant produced a newspaper article containing a photograph of the plaintiff and reporting that she had won a Leinster boxing title in or about May 2017, while representing a boxing club in Mullingar. Winning such a provincial title in circumstances that attracted media attention is plainly a matter of some significance. When this was put to her, the plaintiff accepted that she had competed in the event but said she had ‘forgotten all about it’. While I am mindful of her age and the passage of time, this unexplained discrepancy casts further doubt on the accuracy and reliability of her broader recollection.

28. Secondly, where it diverges from the plaintiff’s account, I prefer the evidence of Mary Kenny, the SNA who was on duty at the relevant time. I found Ms Kenny to be a careful and reliable witness. Although the provenance of the CCTV was not formally established, it is date stamped with the correct date of the accident and aligns in all material respects with the evidence of Ms Kenny and her description of the events around the time of the accident. The CCTV footage clearly shows the plaintiff falling near the top of the steps, substantially distant from the location of the allegedly defective grating, and critically shows Ms Kenny pointing out the same location as being the site of the accident. I am satisfied that the CCTV footage captures the incident in question and that it can be relied upon in determining the sequence and location of events.

29. Taken cumulatively, the evidence of Ms Kenny, its consistency with the CCTV footage, and the plaintiff’s inconsistencies and inaccuracies in relation to both core and peripheral matters, lead me to find as a fact that the plaintiff’s fall was not caused by contact with the allegedly defective grating. Rather I find as a fact that the fall occurred on the concrete path near the top of the steps without any identifiable external cause. I am further satisfied that even if the plaintiff fell while running, the incident arose during ordinary children’s play and was therefore incidental to typical school yard activity which, of itself and with nothing more, does not give rise to any liability on the part of the school. Insofar as any issue of general supervision arises from the case made and evidence given by the plaintiff, I am satisfied that general supervision was in place at the relevant time, provided by both Ms Kenny and the school principal.

30. In light of these findings, I dismiss the plaintiff’s claim.