Council forced to pay damages for swing girl’s injury as sheriff overturns original ruling

Scottish Borders Council have been ordered to pay £2,000 in damages after a Galashiels schoolgirl fell and hurt her wrist while swinging from rafters in a playground shelter.

Abigail Wardle was just nine years old at the time in September 2007 when she plunged almost three metres from what she called the “monkey bars” at Burgh Primary School.

Her mother Lisa sued the local authority for damages, claiming the council was responsible by allowing children to get access to the rafters for climbing purposes.

However, the action under the Occupiers Liability (Scotland) Act was dismissed by a sheriff after hearing evidence that the schoolgirl was caught swinging from the rafters during a lunch break and warned by the deputy head teacher not to do it again minutes before the accident happened.

But that ruling has been overturned on appeal by Sheriff Principal Edward Bowen who has found the council liable for the accident.

He said: “I would have thought it was fairly obvious that the rafters would have been attractive to children for climbing purposes.”

Sheriff Bowen added: “The said exposed rafters were accessible and constituted an attraction to children to climb on and to swing from them, and a child who did so was liable to lose her grip on the rafters fall and sustain injury.”

Mrs Wardle’s action was previously thrown out by a sheriff who ruled the school had taken appropriate steps to protect pupils by banning climbing, giving health and safety instructions to children and having an adult playground supervisor.

But Sheriff Bowen said it was not possible to say whether these measures were sufficient, and found the council’s failure before the accident to install boarding to stop pupils climbing on the rafters put them at “fault”. He noted boarding was built two months after the incident, but concluded that if SBC had done that beforehand “the accident would never have happened”, and they had a duty of care towards Abigail.

However, Sheriff Bowen also said the schoolgirl had ignored the warning not to play on the rafters and ruled there was 50 per cent contributory negligence on her part.

As a result the agreed level damages between the parties of £4,000 was halved to £2,000 with interest back-dated to June 2009. Mrs Wardle was also granted costs.

A spokesman for Scottish Borders Council said: “While we are disappointed by the overturning of the original judgement – that the council had not been negligent in this case – we will respect the court’s decision.

“We hope this satisfactorily concludes matters for the family and that they can move on with their lives.”