Supreme Court dismisses appeal where trial judge correctly preferred expert evidence negating causation despite playground deviations.

THE SUPREME COURT

[Appeal No: 367/2011]

Clarke J.

MacMenamin J.

Laffoy J.

Between/

Usaman Ahmed (a minor suing by his father and next friend Mohammed Iqbal)

Plaintiff/Appellant

and

Longford Town Council

Defendant/Respondent

Judgment of Mr. Justice Clarke delivered the 17th July, 2014.

1. Introduction

1.1 Usaman Ahmed is now 15 years of age. When he was ten, on the 10th May, 2009, he was playing with his siblings at a children's

playground in Longford town maintained by the defendant/respondent ("Longford Town Council"). While he was playing on a swing he

fell and landed, at least in part, on a hard divider which was placed at the sides of rubber matting to mark the edge of a landing area.

As a result he suffered a fracture of his left humerus and a greenstick fracture of his left distal radius. In substance the case in

negligence made on behalf of Usaman Ahmed was first that the swing seat was set too low (by 20 millimetres) which was said to have

caused him to catch his foot on a downward swing thus in turn leading to his fall and second, that the distance from the swing seat

to the edge of the rubber matting of the landing area was insufficient so that the edge of the matting and, thus, the hard edge

should, it was said, have been further away from the swing itself. It was submitted that both of those features deviated from

appropriate standards, amounted to negligence or breach of the appropriate standard of care and that both factors contributed to

the accident and the injuries.

1.2 In the High Court the proceedings were dismissed on the question of liability. An appeal has been brought to this Court against

that finding. In order to properly understand the grounds of appeal relied on at the hearing, it is necessary to identify the reasoning of

the trial judge in reaching his conclusions on liability.

2 The Judgment

2.1 The case was heard before by deValera J. on the 26th July, 2011. In his judgment the trial judge noted that it was common case

that there were two deviations from an appropriate standard being a reference to the height at which the swing seat was fixed and

the distance from that seat to the edge of the landing area. The relevant standard was BS EN 1176-2: 2008 on Playground Equipment

and Surfacing. This standard embodies recommended minimum standards at both British and European level.

2.2 The trial judge noted the evidence of Dr. Richard Webb who indicated that he had inspected the playground. Dr. Webb had given

evidence that he considered the deviations in question to be, as the trial judge put it, "too minor to be of sufficient significance to do

anything about them". The trial judge also noted the evidence given by a consulting engineer, Mr. O'Brien, called on behalf of Usaman

Ahmed. The trial judge clearly preferred the evidence of Dr Webb as to whether it was foreseeable that, as a result of the identified

and admitted deviations to which reference has been made, an accident might occur. The trial judge placed significant reliance on the

fact that the playground had, apparently, been in use for a reasonable period of time without any accident or incident occurring.

2.3 Having reviewed that evidence, deValera J. came to the conclusion that he was:-

"satisfied that the defendants in this case were not negligent, they took all appropriate steps in designing, in

manufacturing, if that's the correct word, or having built for them and in subsequently supervising the use of this

particular facility. You can't avoid accidents to children, I know this as a fact, it just can't be done."

2.4 On that basis the trial judge dismissed the claim. However, one further part of the trial judge's reasoning emerged in the course of

a debate between the parties as to the proper order for costs which should be made. In the course of that discussion the trial judge

indicated that he should have included in his ruling a further finding that he was not satisfied that it had been established that there

was any causal connection between the deviations identified and the actual accident which was the subject of the proceedings.

2.5 It follows that there were two key findings of the trial judge. First, the trial judge was not satisfied that there was any lack of

appropriate care notwithstanding the deviations from standard which had been identified. Second, it is reasonable to infer that the

trial judge took the view that, even if he was wrong in respect of that first issue, no causal connection with the actual accident and

unfortunate injury suffered had been established. Clearly, in order to succeed on this appeal, it is necessary that it be established

that both of those conclusions of the trial judge should be overturned for, in order for Usaman Ahmed to succeed in these

proceedings generally, it would be necessary to establish both a breach of a duty of care and a causal connection between such

breach and his accident and injuries. Against that background it is next necessary to turn to the appeal.

3. The Appeal

3.1 It is worth setting out the grounds of appeal in full:-

"1. That the learned trial judge misdirected himself on the law.

2. That the learned trial judge failed to have any sufficient regard to the weight of the evidence.

3. That the learned trial judge's findings as to fact were perverse and contrary to the weight of the evidence."

3.2 I will come to the written submissions filed in due course. Thankfully, those submissions convey some reasonable idea as to the

basis upon which it is suggested that an appeal lies. It does have to be commented that the notice of appeal is completely deficient

in giving even a hint as to the true grounds of appeal. It is said that the trial judge misdirected himself on the law but no clue as to

how the trial judge was in error on the law is given. What law? In what way did the trial judge take a wrong view of the law? It is said

that the trial judge did not have sufficient regard to the weight of the evidence. Likewise, it is said that the trial judge's findings as to

fact were perverse and contrary to the weight of the evidence. In the light of the well established jurisprudence of this Court deriving

from Hay v. O'Grady [1992] 1 I.R. 210, it is difficult to see how, at least without much more, such a ground of appeal can lie. Was it

to be said that the trial judge reached a finding for which there was no evidence or was it to be said that the trial judge made a clear

error in his assessment of the evidence or is it said that some inappropriate inference was drawn? The notice of appeal gives no clue.

In respect of what facts or inferences or conclusions is it said the trial judge came to an unsustainable finding? Again there is no clue.

Indeed, it is very much open to the view that an application could have been brought to have the notice of appeal in this case

dismissed on the grounds that it disclosed, on its face, no stateable basis for appeal.

3.3 It is striking that, almost a quarter of a century ago, in the State (Gallagher Shatter & Company) v. deValera [1991] 2 I.R. 198,

Finlay C.J., giving the judgment of this Court, commented, at p. 202, as follows:-

"Grounds of Appeal

The notice of appeal in this case unfortunately does not contain specific grounds, but merely states in bald fashion that

the judge misdirected himself and was wrong in law and in fact in allowing the sums claimed and in ordering and

adjudging them to be allowed, and contains as a purported second ground "such further grounds as will be presented to

this Honourable Court on the hearing of the appeal".

These are not grounds of appeal as was pointed out by the Court during the course of the hearing, and I would like in this judgment

to emphasise again that whereas, as occurred in this case, it may be necessary in the interests of justice to permit the prosecution

of an appeal, even though no specific grounds have been put forward, what appears to be an expanding practice of submitting

grounds of appeal to this Court which contain no more than a mere statement of grievance with an order of the High Court should be

discontinued."

3.4 It really does need be noted by legal representatives of parties wishing to appeal to this Court that the time has long since

passed when it is acceptable to express the grounds of appeal in such vague and generalised terms that they give no clue as to the

true basis on which it is intended to argue that the judgment of the High Court was incorrect. Likewise, although given its sparseness

it is not a criticism which could be made of the notice of appeal in this case, the time has long since passed when it could be

considered appropriate to draft a notice of appeal that almost goes through the judgment of the trial judge as if it were a pleading

and, point by point, almost in the manner of a defence which amounts to a full traverse, states that each point is wrong without

giving any real indication of why that is said to be the case.

3.5 There is a duty on those bringing appeals to this Court to at least make a reasonable attempt to identify the true basis of appeal

and set out, in a concise, non-repetitive, and focused way the true grounds which are to be pursued. It is accepted that a notice of

appeal requires to be drafted within a relatively short period of time. For that reason some leeway as to precise points of detail must

be allowed. However, it must also be recognised that a notice of appeal is drafted very soon after the case is concluded when the

issues ought be clear in everyone's mind and the issues which it is considered justify an appeal ought, for like reason, be capable of

reasonably precise identification. Appeals should not be filed unless the losing party has some identifiable basis for believing that they

have a genuine appeal; otherwise it will be an abuse of process. But having identified some genuine basis for appeal, it is not too

much to expect that the notice of appeal itself should set it out in a way which allows the respondent (and indeed, the Court) to at

least have a reasonable picture as to what the appeal is all about.

3.6 Happily, as indicated earlier, the written submissions filed on both sides did bring greater clarity to the real issues which were

likely to arise on the appeal although, for reasons which it will be necessary to address, one significant legal issue which appeared

from the written submissions to be likely to be highly to be contentious did not feature at the trial because of a concession which was

(most correctly, in the Court's view) made by counsel for Longford Town Council at the oral hearing. I, therefore, turn to the written

submissions.

4. The Written Submissions

4.1 The arguments put forward in favour of the appeal in the written submissions were, principally, the following:-

(a) It was said that the trial judge placed insufficient emphasis on the relevant standards and in particular attention

was drawn to the fact that the trial judge used the phrase that they were "merely a standard";

(b) it was said that the trial judge placed too much emphasis on the fact that the playground had been used

without incident. It was suggested that a reference in his judgment to its use by hundreds of thousands of children

was incorrect whereas the evidence referred to thousands with emphasis also being placed on the fact that the

evidence established that the playground had been open for four years and that it was conceded that there might

have, in that time, been many falls which did not give rise to injury;

(c) it was argued that a proper analysis of the evidence could lead only to the conclusion that there was a failure

to meet an appropriate standard of care and that such failure caused the accident in question.

As these matters were elaborated further in the course of oral argument I will return to them in due course.

4.2 In their written submissions Longford Town Council addressed the standard of duty on the owner of a recreational facility.

Reference was made to Weir-Rogers v. SF Trust Ltd [2005] 1 I.R. 47, in which Geoghegan J., in this Court, considered the

consequences of the enactment of the Occupiers Liability Act, 1995 ("the 1995 Act") for the potential liability of owners of property in

relation to recreational users. It was suggested that the effect of the criteria set out in s. 4(2) of that Act created a significantly

more onerous threshold for a plaintiff. On that basis it was submitted that there was no evidence before the High Court which could

have led to a proper conclusion that Longford Town Council had acted in such a way as allowed this case to meet that higher

threshold.

4.3 However, at the oral hearing, as already noted, a concession was made. Counsel accepted that the proviso contained in s.4(4) of

the 1995 Act applied. Under that provision the general effect of subs. (1), which is indeed to significantly increase the threshold by

reference to which an occupier can be found liable, does not apply "where a structure on premises … for use primarily by

recreational users" is present. In such a case the occupier owes a duty to recreational users "to take reasonable care to maintain a

structure in a safe condition". While not conceding that s.4(4) is necessarily, in all cases, identical as to the duty which it imposes on

occupiers to the common law duty, counsel accepted that, on the facts of this case, there was no material difference between the

two tests.

4.4 Indeed, it is worthy of note that it does not appear that any case for a particularly enhanced threshold was advanced by

Longford Town Council in the High Court. Be that as it may, there was, in reality, no significant difference between counsel as to the

appropriate approach of the Court to the facts of this case. The test was either, as counsel for the plaintiff argued, the common law

test, or, as counsel for Longford Town Council suggested, a reasonable care test under s.4(4) of the 1995 Act with neither counsel

arguing that there was any significant practical difference between the application of the two tests at least so far as this case was

concerned.

4.5 As to the facts, it was said on behalf of Longford Town Council that the trial judge was entitled to accept the evidence of Dr.

Webb to the effect that any deviation from standard was too minor to be of sufficient significance to take action, and it was also

argued that there was evidence from which it was open to the trial judge to conclude that there was no causal connection between

any deviation from standard and the accident and injuries suffered in this case.

4.6 Thus, in the light of the written submissions and the adjusted position taken by Longford Town Council at the oral hearing, the

real issues which remain for decision were as to whether, in the light of the principles identified in O'Hay v. Grady, there was evidence

from which the trial judge could reach a sustainable conclusion both as to the materiality of the undoubted deviations from standard

(in the context of whether reasonable care can be said to have, nonetheless, applied) and as to causation. I propose to turn to the

question of causation first, for if the decision of the trial judge in that regard was sustainable then the appeal would necessarily fail

irrespective of the position in respect of the extent of the duty of care.

5. Causation

5.1 It is necessary to consider the issue of causation separately in relation to both of the deviations from standard identified. For the

purposes of this analysis I propose to assume, for the purposes of the argument and without so deciding, that it was negligent or in

breach of a statutory obligation to use reasonable care for Longford Town Council to permit the playground to operate with swings

which deviated from standard in the manner identified. The analysis is as to whether there was evidence, or absence of evidence,

from which the trial judge could properly conclude, nonetheless, that such deviation or deviations did not cause or contribute to the

accident.

5.2 There was some debate at the oral hearing as to the evidence concerning how the accident actually occurred. Usaman Ahmed

gave clear evidence that the immediate cause of his fall from the swing was that he hit his leg off the ground. In the course of their

evidence both Mr. O'Brien and Dr. Webb agreed that such was the probable cause of his fall. There was no evidence to suggest that

he was engaged in any form of inappropriate activity on the swing. In any event there was no finding by the trial judge which

rejected his evidence in that regard. It seems to me to follow, as was urged by his counsel, that the only evidence which was before

the Court was to the effect that the accident occurred as he described.

5.3 However, counsel for Longford Town Council suggested that there was an absence of compelling evidence which connected the

undoubted deviation from standard as to seat height with the accident as described. It must be recalled that questions of causation

are questions of fact. Where an issue as to causation arises it is for the trial judge to determine, on the balance of probabilities and

as a matter of fact, whether any established or alleged wrongdoing on the part of a defendant actually caused the alleged harm to

the plaintiff. In the context of a case such as this, it was for the trial judge to decide, as a matter of fact, whether the deviation

from standard (if it was established to amount to negligence or a lack of appropriate care) actually caused or contributed to the

accident and injuries which are the subject of these proceedings. The role of an appellate court in considering such a finding of fact is

clear.

5.4 In Hay v. O'Grady McCarthy J. delivered the unanimous decision of this Court and dealt with the role of an appellate court in

relation to facts. In particular, at p. 217, McCarthy J. set out a number of propositions which define the respective roles of a court of

first instance and an appellate court in relation to factual findings. At item 2 the following is stated:-

"If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings,

however voluminous, and, apparently, weighty the testimony against them. The truth is not the monopoly of any

majority."

5.5 The judgment goes onto make some comments concerning inferences from primary fact and in particular observes that the extent

to which an appellate court should interfere with inferences from facts may depend on the extent to which those inferences may

themselves have been influenced by a judge's assessment of witnesses (as opposed to, for example, matters deriving from

documentary evidence).

5.6 It is also appropriate to note what this Court said in Doyle v. Banville [2012] IESC 25, where, having analysed Hay v. O'Grady, the

following is said at para. 2.7 of my judgment:-

"Finally, before moving on to the specific issues which arise in this appeal, it is also important to note that part of the

function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way

in which the trial judge reached a conclusion as to the facts. It is important to distinguish between a case where there

is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence

to another and does so for a stated and credible reason. In the latter case it is no function of this Court to seek to

second guess the trial judge's view."

5.7 Thus, the proper approach of an appellate court to a question of primary fact is to determine whether there was any significant

and material error in the way in which the trial judge reached a conclusion as to that fact on the evidence and, if there is not, to

leave that finding of fact undisturbed provided that it was supported by credible evidence even if there was other evidence to the

contrary. It is as against those principles that the finding of the trial judge in this case to the effect that he was not satisfied that

causation had been established needs to be assessed.

5.8 In that context a number of facts need to be noted. First, the deviation from standard was 20 millimetres. For those less attuned

to the metric system in its detail that is a distance of approximately 4/5 of an inch. On the question of causation the real issue is as

to whether it was open to the trial judge to conclude that a causal link between such a small difference in the seat height and this

particular accident had not been established. In the context of the argument concerning whether there had been a breach of any

duty of care counsel for Usaman Ahmed had made significant play of the fact that standards, particularly in the context of children's

playgrounds, are designed to create a reasonable balance between the need for children to be able to play in a free and happy

environment but also safely. In addition, in the context of swings, a balance between not having the seat too high for younger (and

therefore, on balance, shorter) children with not having the seat too low for older (and on balance, taller) children needed to be

struck. On that basis it was sought to argue that a seat height which was too low created a potentially increased risk for taller

children, for this case does, indeed, involve a tall child. Whatever may be the merits of that argument, it seems to me that there is a

separate question as to whether, in the circumstances of this accident, the evidence constrained the trial judge to find a causal

connection between the 4/5 of an inch seat height deviation and the fall.

5.9 Second, it must be recalled that, on any view, the swing had been in use for some time (approximately four years) and had been

used before the day in question by Usaman Ahmed and also used by him for some period of time before the accident actually

occurred. In those circumstances it necessarily follows that there must have been something different about the way in which he was

positioned on the swing when he fell as opposed to all previous occasions (including the earlier part of his use of the swing on the day

in question) when no such problem had arisen. The real question on causation which arises is as to whether, as a matter of

probability, an extra 4/5 of an inch would have made any difference on the day in question.

5.10 Much of Mr. O'Brien's evidence was directed towards the question of whether such a small difference could be said to have

increased the risk. But whether it increased the risk or not does not answer the question of whether it, as a matter of probability,

caused or contributed to this actual accident. If, for example, the way in which the swing was being used at the immediate point of

the accident was such that, unfortunately, the ground would have been clipped anyway in a sufficiently serious way to cause a fall in

much the same manner as occurred, even if the seat had been 4/5 of an inch higher, then there would, in truth, be no causal

connection between that deviation from standard and this accident. Having carefully reviewed the transcript, I am not persuaded

that this issue of causation was addressed in the expert evidence on both sides in a way which constrained the trial judge to find

that there was a causal link. It might well have been open to the trial judge to reach such a conclusion. He was not, however, in my

view, bound to come to that view.

5.11 For those reasons I am satisfied that the trial judge was entitled, on the evidence, to reach the conclusion, on the balance of

probabilities, that the 4/5 of an inch deviation from standard in the seat height did not cause or contribute to this accident.

5.12 So far as the extent of the rubber matting issue was concerned, Dr. Webb, in giving his evidence, referred to recent research

which seemed to show that the principal benefit of rubber matting was in the reduction of significant head injuries. Dr. Webb referred

to research conducted by Prof. David Ball, who is Head of Risk Management at Middlesex University. Dr. Webb gave evidence that

studies conducted by Prof. Ball seem "to show … that the incidents of head injuries has decreased but there hasn't been any

significant fall off in long bone fractures…" Again, the principal focus of the cross-examination of Dr. Webb seemed to relate to

whether, in the light of that research, it was reasonable to ignore a relatively small (approx. three inch) divergence from the

recommended distance between the swing seat and the edge of the matting. However, that evidence was also relevant to the

question of causation. If it is the case, as that research by Prof. Ball seems to suggest, that matting does not seem to have led to a

significant reduction in long bone injuries, it was, in my view, open to the trial judge to take the view that it did not necessarily follow

from the fact that Usaman Ahmed fell slightly outside the matting area that, as a matter of probability, he would not have suffered

the same or broadly similar injuries had the mat area been three inches wider.

5.13 The plaintiff's case, as put through Mr. O'Brien, almost seemed to suggest that this was axiomatic. Falling onto a harder and

unmatted surface was likely, it was said, to have led to very different injuries than if the fall was onto a matted area. However, the

relevant research seems to cast significant doubt on that proposition. There also was no medical evidence which might have been of

some assistance in determining whether it was probable that these injuries were attributable to falling outside as opposed to inside

the matted area and, indeed, if that be so, whether significant injuries were likely to have arisen even if the fall had occurred

completely within the matted area.

5.14 In the light of that review of the evidence I am satisfied that it was open to the trial judge to conclude that a causal connection

between the scale of the matted area and the injuries actually suffered in this case had not been established.

5.15 In those circumstances I am satisfied that the finding of the trial judge, to the effect that no causal link between the two

deviations from standard identified and the accident and injury actually suffered in this case, had been established on the balance of

probabilities, was a finding which was open to the trial judge on the evidence. In the light of that finding the question of whether, in

the context of s.4(4) of the 1995 Act, there was any actionable lack of reasonable care deriving from those deviations from standard

is no longer relevant.

5.16 In fairness to the case made it is important to emphasise that there was credible evidence put forward on behalf of the plaintiff

which could have persuaded the trial judge to find in his favour on the question of causation. This case is far removed from the type

of proceeding which fails because the Court disbelieves an account of an incident given by a plaintiff. The problem in this case was

that Longford Town Council also proffered credible expert evidence consistent with an absence of causation. This was quintessentially

a case where the trial judge had to choose between two expert views on that question of causation. Given that there was credible

evidence for both sides on that issue, the decision as to which to prefer was ultimately a matter for the trial judge and cannot be

disturbed unless there was a clear significant and material error in the trial judge's approach. It was, of course, therefore, a case

where the trial judge could have accepted the evidence of either expert. In the light of the fact that there were undoubted

deviations from standard, there was clearly a stateable basis for seeking to put forward the claim in these proceedings. It is simply

that there was also a stateable defence on the facts in relation to causation and the trial judge was entitled to prefer the expert

evidence which formed the basis of that stateable defence.

6. Conclusions

6.1 For those reasons I am satisfied that it was open to the trial judge to make the finding concerning lack of causation which he did.

It follows that the issues concerning the duty of reasonable care do not arise for, in the absence of a causal link, even if it were

possible to overturn the trial judge's determination on those matters, it would not avail the case made on behalf of Usaman Ahmed.

6.2 For those reasons I would uphold the decision of the trial judge and dismiss the appeal.