Lm6,000 damages for playground injury

The Zebbug local council was yesterday ordered to pay over Lm6,000 damages to a girl who was injured in a playground accident nine years ago.

The judgment was delivered by Mr Justice Tonio Mallia in the case filed by the girl's parents, Raymond and Filippa Fenech, against the council and against the Minister for the Environment and the Director of the Manufacturing and Servicing Department.

The Fenechs claimed in their writ that in August 1995 their seven-year-old daughter, Samantha May, was playing at the local playground. As she was going down the slide she was injured by an exposed sharp piece of metal projecting from the slide. The metal penetrated her thigh and she was rushed to hospital with the metal still embedded in her leg.

The parents asked the court to declare that defendants were responsible for the accident and to condemn them to pay damages.

Mr Justice Mallia noted that it resulted from the evidence that the council had assumed responsibility for the playing field with effect from April 1, 1995. It was not clear who had been responsible for the maintenance of the playground prior to that date.

The mayor of Zebbug said that the government's Maintenance and Services Department was responsible while department officials denied that the department had ever carried out maintenance works on the playing field, adding that the job used to be carried out by a private contractor.

What was important, the court said, was that the Zebbug local council assumed responsibility for the playing field before the girl was injured. The mayor told the court that the standard of the equipment at the playground was not high and was indeed inferior to that of other playgrounds, adding however that the equipment was usable.

Mr Justice Mallia said it did not result that the council had commissioned any report about the state of the equipment and nor had it requested expert advice on the matter. The council had merely decided on the basis of a visual inspection of the equipment. By considering the equipment to be good and to expose it to the public without conducting a proper examination, the council was guilty of breach of trust to the public and was therefore liable in damages.

Once the council was responsible for the maintenance of the playground, then the council ought to have obtained certification of its state, or to have closed the playing field until a positive condition report was obtained. The court declared that this was the proper manner in which entities that assumed responsibility for public places, especially those frequented by children, ought to act.

Although the local council had pleaded that the damage to the slide was caused by vandalism, this did not result from the evidence produced. The police officer who had been on the scene of the accident told the court that the metal had detached itself from the slide as it was rusted over time. It was therefore clear that the metal had been detached due to lack of maintenance.

Mr Justice Mallia pointed out that the Zebbug mayor had told the court that he employed two watchmen at the playing field. However, these were not trained personnel but cleaners and gardeners. When the mayor told the court that no playing field in Malta had a full-time watchman, the court declared that if this was the case it was wrong. Playing fields were used by children who were unaware of danger, especially when they were playing.

Consequently, a person providing a play area for children had not only to provide a safe and adequate site but had also to ensure that the play area was safe and secure at all times. Playing fields, the court noted, ought to be closed off to the public and opened each morning by the watchman who should check, on a daily basis, that all equipment was safe.

The court added that the girl's parents were not at fault in this case. Samantha May was seven years old when the accident occurred and she had started attending Christian doctrine classes and going to the playground alone.

In liquidating the damages, the court noted that the girl had sustained a three per cent permanent disability. It then condemned the council to pay the girl's parents, acting on behalf of the minor, the sum of Lm6,703 as damages.