Teen who lost finger was foolish to climb fence, says judge

A teenager who lost a finger after climbing over a fence at a sports ground lost his case yesterday.

A High Court judge said the top of the fence was reasonably designed to be unsafe to deter people from climbing it.

Mr Justice Colm MacEochaidh said it was inherently foolish to climb the fence at the sports court in Carrigaline, Co Cork, and he dismissed the case.

The judge said that in very unusual circumstances, and the fact it had been an innocent activity in which the young man was involved, he would make no order for costs.

After the dismissal of the plaintiff’s case, the defendant, Cork County Council, had applied for costs.

Mateusz Kacper Kaczynski of Tannery Gardens, off Redemption Rd, Cork, brought the action against Cork County Council. The plaintiff, now 22, was 17 at the time of the accident in September 2010. The sports court in the municipal park is used for basketball and five-a-side football.

Mr Justice MacEochaidh said the 2.4m mesh fence was finished at the top with 2.5mm protrusions similar in diameter to a biro.

“On balance I find as a fact that the accident was caused when part of the ring [worn by plaintiff] connected with part of the upright protrusion,” said the judge.

“During the momentum of him dropping to the ground the ring caused skin of his finger to be ripped off causing severe damage. That is the first finding of fact.”

The finger could not be saved in hospital.

£I reject evidence of the plaintiff that it was easily climbable. Only with obvious risk-taking can this fence be climbed. Any climbing of the fence was inherently foolish for anyone to undertake,” said the judge.

The protrusions at the top of the fence were to make climbing of the fence risky and unsafe and thus act as a deterrent to climbing.

He said the duty of care which the local authority had for users of the facility extended to those who used it for its intended purpose.

“The particular duty of care is not applicable here,” said the judge.

“The plaintiff was using the fence not for the purpose of keeping the ball in play or bouncing the ball off the fence. He was using it as a ladder, as a climbing frame. This was not its intended purpose. The duty of care did not arise in this case.

“People climbing over that fence faced risk of injuring themselves. The risk of harm was foreseeable.”

Lorraine O’Sullivan, senior counsel, for the local authority, submitted during the trial: “It is not a climbing wall. It is in an area where older, young, people play. It is not a playground.”

The judge had asked: “If it is said the fence caused the injury how can it not be said it is safe. Is it not this clear as night follows day it is unsafe?”

Ms O’Sullivan had replied: “Just because the accident happened in this way does not mean it is an unsafe fence.”


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