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Recalling Ray Fenech et v. Zebbug Local Council

The Times of Thursday 23 September 2009 carried an article about the bad state of a playing field in a particular Maltese locality: '...no padded flooring, a see-saw with no handles and a very hazardous merry-go round.' The Mayor blamed lack of funds and shortage of human resources. My reply to this is that if a child gets hurt in this playground,and the parents or guardians institute proceedings for damages, the Local Council will find little sympathy in Court after Raymond Fenech et v. Kunsill Lokali Zebbug et (Court of Appeal, 6 July 2007, Ref 1971/1195/1).

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The Raymond Fenech case was instituted by the parents of a child who suffered a permanent disability of 3% while playing in a playing field; a piece of metal protruding about five centimeters pierced through her leg when she went down the slide. The First Hall of the Civil Court, presided by the Hon. Mr Justice Tonio Mallia, in its judgement of 21 October 2004 had observed that:

1. the Local Council was responsible for the playground. It took responsibility from Central Government in 1995 after accepting that the playing field and the equipment were in good condition. When it concluded that the playing field and equipment were in good condition, it was giving the general public an assurance that they could use make use of it without peril. The fact that an accident occurred implied a breach of trust which made the Local Council liable for damages; 

2. the Council should have commissioned a professional Condition Report on the state of the playing field; if the experts approve the playing field it would be opened up to the use of the general public; if in the negative the Local Council should have closed off the playing field until the necessary repairs were carried out;

3. the Council was planning to upgrade the equipment, but in the meantime left the playing field open to the general public;

 4. according to witnesses, the equipment was rusty and the accident was caused by a piece of metal which protruded as a result of corrosion. This led to the Courts' finding the Local Council responsible for failing to maintain the playing field;

5. the Local Council claimed that it had a system of inspectors, but the Court said that this was not enough to ensure that the playing field was safe and secure 'at all times'. According to the Court all playing fields should be closed to the public at night, opened in the morning by a watchman who, before allowing children to use the playing field, should inspect all the equipment to ensure that it did not incur any damage. The watchman had to be skilled enough to carry out this inspection properly;

6, the Local Council claimed that the playing field was vandalised. The Court held that the playing field had to be, as much as possible, vandal-proof.

The Court of Appeal confirmed the judgement of the First Hall and the Local Council had to pay Lm6,703 (about 14,000 Euro) by way of damages.

In the interests of our children (article 3, Convention on the Rights of the Child, to which Malta is a signatory), and also because lack of funds is no excuse in the eyes of the Courts of Justice, the playing field referred to (and photographed) in the article of 23 September 2009, should be closed off to the general public until it is brought up to standard. The same goes for any other playing field.

Local Councils take note!

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