Aileen Cooper v Bright Horizons Family Solutions Ltd
| Jurisdiction | England & Wales |
| Judge | David Pittaway QC |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2349 (QB) |
| Court | Queen's Bench Division |
| Date | 31 July 2013 |
| Docket Number | Case No: HQ12X01921 |
[2013] EWHC 2349 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Pittaway QC
(Sitting as a Judge of the High Court)
Case No: HQ12X01921
Mr Daniel Lawson (instructed by Osbornes Solicitors LLP) for the Claimant
Mr Michael Lemmy (instructed by Plexus Law) for the Defendant
Hearing dates: 2 nd— 3 rd July 2013
Introduction
This action arises out on an incident which took place on 2 nd June 2009 whilst Mrs Cooper was working as a Nursery Nurse for Bright Horizons Family Solutions Limited ("the Defendant") at the Rothampsted Little Stars Nursery, Harpenden. Mrs Cooper was working in the baby room and had placed a baby in a cot when she experienced back pain.
The precise circumstances of the incident are in dispute but it is not in dispute that Mrs Cooper attended her General Practitioner the following day complaining of back pain. She was reassured and prescribed pain killers, however, over the weekend of 6 th and 7 th June 2009 her back pain significantly increased and she developed urinary incontinence. When Mrs Cooper saw her General Practitioner on 8 th June 2019 she was admitted to the Luton and Dunstable Hospital with a major prolapse of the L5/S1 disc and suspected cauda equina syndrome. Mrs Cooper was transferred to Addenbrooke's Hospital, Cambridge where she underwent surgery from which she has made an incomplete recovery. She attended the hearing to give oral evidence in a wheelchair, accompanied by her husband.
The order of 15 th January 2013 directed that liability should to be tried as a separate issue to include the issue of causation of the injury.
Witness Evidence
The circumstances of the incident can be summarised as follows.
Mrs Cooper is a Nursery Nurse, who had obtained her qualification after the youngest of her three children went to nursery. She began working for the Defendant as a full-time Nursery Nurse on 2 nd January 2008.
A copy of the Defendant's Job Description has been made available, which includes, under a section relevant to manual handling, the following passage: " Physical demands — Ensure children's safety while performing the following job functions — Frequently lift, move or hold children with a range of weight from 5 kg — 20 kg (Occasionally lift, move or hold weight more than 20 kg) … Demonstrate full range of motion to lift, reach, squat, climb sit and otherwise fully participate in activities."
The Defendant's Handbook also requested a health declaration on taking up employment. Mrs Cooper's Health Declaration Form in answer to the question "Have you had any major injury within the last five years? Stated "Yes" "Back problem". It also disclosed that she was undergoing " physio". Later in the same declaration she ticked the box as to whether that she had problems with her back, neck, arms, legs and joints. She also disclosed she had been receiving ongoing physiotherapy since 8 th December 2007. The induction sign-off sheet, which was completed on 2 nd June 2008, indicated that Mrs Cooper had seen the induction video.
The age group of the children at the nursery ranged from 18 months to 2 1/2 years but there was also facility for babies from about the age of four months. Mrs Cooper was transferred to the baby room in January 2009 after various members of the staff had left the Defendant's employment. The plan was that she would be employed in that capacity for three months until new staff had arrived.
There were five cots in the sleeping room, three with drop down sides which at one stage operated with a drop down mechanism. One of the issues in the case is whether the mechanism was broken or whether the plastic ties on the cot sides were fixed solely to prevent the sides being dropped down. The other two cots were not drop down cots and their bases were slightly higher. Mrs Cooper said that it was necessary to lean over and extend her arms to put a baby down or pick a baby up. She recollects that the mechanism for dropping the sides was broken, and this had been mentioned to various different managers and senior staff. She says that she had mentioned the defect to Ms Macer when Ms Macer started to work as a manager at the nursery.
Mrs Cooper's recollection is that the only training she received from the Defendant was an instruction to bend her knees when lifting items off the floor. At the time she received that training she was working in the pre-school area and was not concerned with lifting babies. She had received training about changing nappies for babies. She says she did not receive any training concerning lifting babies into and out of cots.
Mrs Cooper says that on 2 nd June 2009 she was working in the baby room when she lifted a six or seven month old baby into a cot. She believes that the baby was of normal size, tall but not overly heavy. The cot was one on which the mechanism was broken and the side would not drop down. She held him close to her body, went right up to the cot, almost leaning on it, in order to put him down on the mattress. She was unable to bend her legs as the cot side was too high. Mrs Cooper is 5' 6" tall. She had to be close to the side of the cot in order to reach down. As she was about to put him on the mattress, she felt her back go. She described it as " a sharp pulling pain". She says that as she stood by the cot soothing the baby her "back had become incredibly painful". She described her legs as not feeling right and used the side of the cot to steady herself.
Mrs Cooper went to fetch a plastic chair from the changing room, where her colleague, Ms Richmond, was at the time. Mrs Cooper says that she informed her that she had hurt her back and needed to sit down. She placed the chair next to the cot approximately level with the mattress. She placed her left arm over the side of the cot to sooth the baby. Her armpit was resting on the side of the cot. Although she does not know the depth of the cot, she was able to reach over and sooth the baby without her bottom leaving the chair. As she lowered her arm close to the baby "something felt like it had snapped in my back". She believes she was trying to look at the baby at the same time as reaching her arm into the cot to sooth him. She therefore twisted her back without realising it. Mrs Cooper says that she was aware of "a much more excruciating and sharp pain in her back". Her legs were heavy and became numb.
Mrs Cooper describes sitting on the chair for about five minutes before hobbling into the main room to speak to a colleague. She managed to stay at work for the rest of the day in agony. She went to work the following day with increasing pain before attending her General Practitioner who prescribed further pain killers. Over the weekend she began to develop urinary incontinence and attended her General Practitioner again on 8 th June 2009, who referred her to hospital with a suspected cauda equina syndrome. Mrs Cooper underwent surgery from which she has made only a partial recovery. She did not return to work. Mrs Cooper believes that the cots were not replaced or repaired until sometime in December 2009.
There were a number of witness statements from other employees of the Defendant, which were agreed without oral evidence being called. No other employees witnessed the accident.
Mrs Wiseman, who was employed as a Nursery Nurse, was not working the day Mrs Cooper sustained her accident. She says that she never received any training on site nor watched any DVD's on health or safety. She also confirms that Ms Macer introduced training about two years after the accident when each section of a "passport" training scheme was stamped after each section was finished. The training had not been repeated subsequently.
Mrs Parr, who was employed as a Deputy Manager, recalled the cot sides being fixed with ties but did not experience difficulties picking up or putting babies down to sleep in the cots. She used a plastic chair in the baby room to sit on and soothe the babies by rubbing their backs. She put her arm through the cot sides to do so. She recollected watching training videos, which included picking up and putting down babies, when she started, and undergoing refresher training two or three years before she made her statement.
Ms Kelly, who was employed as a Nursery Nurse, was aware of the existence of training videos but never watched them and confirmed that there were cots with drop down sides none of which were working with the sides fixed with ties.
Ms Richmond, who was employed as a Nursery Nurse, recollects Mrs Cooper coming out of the cot room on 2 nd June 2009 in pain and some distress telling her that she had hurt her back. She confirmed that she had reported the cots as being broken to Ms Macer and was aware that other nursery nurses had also done so. She was also aware of a chair in the cot room on which the nurses sat to soothe the babies to sleep. She recollected that the particular baby had difficulty getting to sleep and required someone sitting with him to sooth him to sleep. She was aware that the mechanism on the cot for dropping down the side was broken.
The Defendant called no factual evidence but places reliance upon a witness statement from Ms Macer, who did not attend the trial to give oral evidence. As such, I have to consider the weight I should give to what is contained in her statement, the content of which has not been confirmed in oral evidence nor tested in cross-examination.
Ms Macer was the Nursery Manager at the time of the incident. Her recollection is that Mrs Cooper explained to her, immediately after the accident, that she had been sitting in a chair, when she put her arm over the cot, tried to...
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