Neutral Citation Number: [2013] EWHC 2349 (QB)
Case No: HQ12X01921
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 31st July 2013 

Before :

DAVID PITTAWAY QC
(Sitting as a Judge of the High Court)

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Between :

	Aileen Cooper
	Claimant	
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	Bright Horizons Family Solutions Limited	Defendant	

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Mr Daniel Lawson (instructed by Osbornes Solicitors LLP) for the Claimant
Mr Michael Lemmy (instructed by Plexus Law) for the Defendant

Hearing dates: 2nd – 3rd July 2013
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Judgment

David Pittaway QC:

Introduction

1.	This action arises out on an incident which took place on 2nd 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. 

2.	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 6th and 7th June 2009 her back pain significantly increased and she developed urinary incontinence. When Mrs Cooper saw her General Practitioner on 8th 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.
 
3.	The order of 15th January 2013 directed that liability should to be tried as a separate issue to include the issue of causation of the injury.

Witness Evidence

4.	The circumstances of the incident can be summarised as follows.

5.	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 2nd January 2008. 

6.	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.” 

7.	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 8th December 2007. The induction sign-off sheet, which was completed on 2nd June 2008, indicated that Mrs Cooper had seen the induction video.

8.	The age group of the children at the nursery ranged from 18 months to 2 ½ 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. 

9.	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.

10.	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. 

11.	Mrs Cooper says that on 2nd 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.  

12.	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. 

13.	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 8th 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.
 
14.	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. 

15.	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. 

16.	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. 

17.	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. 

18.	Ms Richmond, who was employed as a Nursery Nurse, recollects Mrs Cooper coming out of the cot room on 2nd 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. 

19.	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.

20.	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 get comfortable but when she moved her back “cracked”. Had Mrs Cooper told her that she had suffered pain when putting the baby into the cot, she would have detailed this in the Accident Report. Mrs Macer accepted that the side of the cot was fixed with cable ties without which, she said, the side of the cot would not have stayed in position. Her opinion was that it was safer to have the cot side up so that the baby did not fall out.  The statement omits to say whether the mechanism for dropping the side down on the cot was broken. 

21.	Ms Macer says that the baby in question was “from three months old” and weighed about 13 lbs, which is approximately 6 kgs. Ms Macer says that all the tasks were assessed and, in view of the fact that Mrs Cooper had a previous back problem, she was put with babies who were the lightest and required less bending or lifting. In Ms Macer’s view Mrs Cooper was undertaking a straightforward task for which she was trained without previous incident.

Documentary Evidence 

22.	The Accident Record completed and signed by Ms Macer on 12th June 2009 in answer to the question “How did the accident happen? Give the cause if possible.” states “sitting on chair, put arm over cot and tried comfortable when moved back cracked.”  The form is signed and dated ten days after the accident. The documents in the trial bundle include copies of other Accident Records, none of which include accidents of a similar type to the one in this case.

23.	The relevant entries in the medical records are as follows. The GP record dated 3rd June 2009 states “Low back pain twisting injury yesterday heard a crack in her back – numbness and pain in lower back today, left leg numbness and shooting pain – past injury – lifts children at work”. The A & E Record dated 8th June 2009 states “HPC – Patient suddenly twisted her back whilst sitting on chair – turning to put baby in the cot.” The hospital Discharge Summary dated 24th July 2009 states: “This lady was admitted as an emergency with a short history of back pain and incontinence.  A week before she turned on her left side whilst sitting and felt something click in her back, then had general onset of low back pain and left lateral thigh and foot pain.”

24.	The Defendant’s own manual handling assessment dated 13th June 2006, and reviewed 5th August 2008, under the section for Use of Cots and Evacuation Cots states: “Holding loads away from the body” and then states: “Yes. When putting a child into the cots you need to lower the child down away from the body. To reduce the strain on the back ask somebody to lower the cot side down. Twisting. Yes. First for you (sic) then bend knees and slowly lower the child into the cot. Keep the child as secure as is possible. Try to stand to the side to reduce risk of twisting the body.” The section on an individual’s capability states: “Create a hazard to those with a health problem. Yes. With known back problems staff may struggle to lower children into cots.”

25.	In the Defendant’s guidance there is a diagram, taken from the Manual Handling Operations Regulations 1992, which demonstrates that a risk assessment should be considered where the lifting weight for a woman at extended shoulder height is 7 kgs. There are also set out in the guidance generalised recognised techniques for manual lifting and setting loads down. The guidance emphasises, amongst other matters, the importance of bending the knees, keeping the spine as straight as possible, avoiding twisting, over reaching, jerking, establishing a good balance, keeping the load close to the body and maintaining a firm grip. 

Expert Evidence

26.	Mr Jamil, consultant surgeon in spinal injuries, gave evidence that Mrs Cooper had a degenerate spine, which had been symptomatic before working at the nursery where the incident happened. He considered that it is likely that she had a protruding disc at L5/S1 with the disc squeezing out sufficiently to cause the symptoms of sciatica and pain referred to in the GP records. Each prolapse would have been on a small scale until the prolapse on 2nd June 2009. 

27.	In his report he considered that Mrs Cooper sustained a major prolapse on 2nd June 2009 “brought about in the first instance by [her] having to lean into the cot bearing the baby’s weight in a fashion that placed excessive strain on her lumbar spine. The history would suggest that a major squeeze of the disc took place when Mrs Cooper was first putting the baby down. Further disc material was then probably squeezed out as she twisted to sooth the baby with her arm leaning over the cot side. The torque action associated with the posture would create further pressure. The cracking noise Mrs Cooper reports hearing ... was probably caused by an air/nitrogen bubble with the disc popping and making a noise”. He is clear that if Mrs Cooper had not performed the manoeuvre of leaning over the cot it is unlikely that she would have suffered a major prolapse resulting in cauda equina syndrome.
 
28.	Mr Webb, consultant spinal surgeon, placed considerable reliance upon Mrs Cooper’s long history of back problems. 

29.	In his report he described her condition in the following terms: “this lady has a strong past medical history of back pain with associated sciatica in the left leg, radiating at times down to her foot, and this was as a consequence of a disc protrusion which had been present, causing her symptoms of back pain in 2003 with sciatica 2005 and 2007. … it would be my opinion that lifting the baby caused this already prolapsed disc to extrude a little further into the canal, increasing pressure on the nerves, then slowly over a week it increased, leading to a cauda equina lesion. This was not a particularly significant incident and it would be my opinion that had it not been for this particular incident, some activity at home – lifting saucepan of water or picking up something from the floor – would have caused her to develop similar problems. The past history implies that she was on the verge of developing a cauda equina lesion”. He considered that the incident on 2nd June 2009 accelerated her symptoms by “a maximum of six months”.
 
30.	The joint statement is unhelpfully set out without regard to any specific questions on which the experts are asked to agree or disagree. Mr Jamil makes the point, which he also did in his oral evidence, that only a very small number of individuals undergoing surgery for a herniated disc experience cauda equina syndrome. Mr Webb also accepts that cauda equina syndrome occurs in a very small proportion of individuals who develop a herniated disc prolapse. In the course of oral evidence he referred to the development of cauda equina syndrome, according to the literature, to between 2 to 3% and 5 to 15% of cases.

Regulations

31.	The  Provision and Use of Work Equipment Regulations 1998 provide:	
   “Suitability of work equipment
4.—(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. 
(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment. 

(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable. 

(4) In this regulation “suitable” means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person. 

Maintenance
5.—(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. 

(2) Every employer shall ensure that where any machinery has a maintenance log, the log is kept up to date.

Information and instructions
8.—(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment. 

(2) Every employer shall ensure that any of his employees who supervises or manages the use of work equipment has available to him adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment. 

(3) Without prejudice to the generality of paragraphs (1) or (2), the information and instructions required by either of those paragraphs shall include information and, where appropriate, written instructions on— 

(a) the conditions in which and the methods by which the work equipment may be used;
(b) foreseeable abnormal situations and the action to be taken if such a situation were to occur; and.
(c) any conclusions to be drawn from experience in using the work equipment.

(4) Information and instructions required by this regulation shall be readily comprehensible to those concerned.

Training
9.—(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. 

(2) Every employer shall ensure that any of his employees who supervises or manages the use of work equipment has received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.” 

32.	The Manual Handling Operations Regulations 1992 provide:

“Duties of employers
4.—(1) Each employer shall— 
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or 

(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured— 

(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule, 

(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and 

(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on— 

(aa) the weight of each load, and 
(bb) the heaviest side of any load whose centre of gravity is not positioned centrally. 

(2) Any assessment such as is referred to in paragraph (1)(b)(i) of this regulation shall be reviewed by the employer who made it if— 

(a) there is reason to suspect that it is no longer valid; or 

(b) there has been a significant change in the manual handling operations to which it relates; 

and where as a result of any such review changes to an assessment are required, the relevant employer shall make them.”

33.	The Health and Safety (Miscellaneous Amendments) Regulations 2002 provide:
“Amendment of the Manual Handling Operations Regulations 1992
4.  Regulation 4 of the Manual Handling Operations Regulations 1992 shall be amended by adding the following paragraph— 

“(3) In determining for the purposes of this regulation whether manual handling operations at work involve a risk of injury and in determining the appropriate steps to reduce that risk regard shall be had in particular to— 

(a) the physical suitability of the employee to carry out the operations;
(b) the clothing, footwear or other personal effects he is wearing;
(c) his knowledge and training;
(d) the results of any relevant risk assessment carried out pursuant to regulation 3 of the Management of Health and Safety at Work Regulations 1999;
(e) whether the employee is within a group of employees identified by that assessment as being especially at risk; and
(f) the results of any health surveillance provided pursuant to regulation 6 of the Management of Health and Safety Regulations 1999.”

Discussion

34.	The first issue which I have to consider is what happened to Mrs Cooper at the nursery on the afternoon of 2nd June 2009. At the outset I should say that I am satisfied that Mrs Cooper is an honest and truthful witness who has done her best to assist the court as to the sequence of events on 2nd June 2009. I accept her evidence that there were two stages, as she has described, as to what occurred. The first stage was when she was lifting the baby into the cot, when she first experienced pain in her back after which her legs felt heavy. I accept her evidence that she went into another room to collect a plastic chair which she placed beside the cot. Whilst she was sitting on the chair with her arm over the side of the cot she heard a cracking noise in her back and suffered further back pain. 

35.	There were no other witnesses to the accident. On this issue Ms Richmond’s witness statement is of limited value to me because it does not explicitly confirm that Mrs Cooper reported to her that she had suffered an injury when she came in to collect the chair. 

36.	I do not accept that the entry in the Accident Record provides a full account of what took place. Although Ms Macer has not given oral evidence, I am conscious of the fact that she says in her witness statement that if she had been told that Mrs Cooper sustained the injury whilst leaning over the cot she would have recorded it. I observe that the Accident Record is dated ten days after the accident. No explanation is put before me as to how it came to be completed at that time, when Mrs Cooper was in hospital recovering from surgery. I consider that the Accident Record probably reflected the emphasis placed by Mrs Cooper on what had occurred immediately after the incident, when the cracking noise she had experienced whilst sitting on the chair was uppermost in her mind. It is also a possibility that Mrs Cooper may have provided a more detailed explanation of what occurred to Ms Macer, which became subsumed in what Mrs Cooper regarded as the most important factor of what had occurred. In my view the Accident Record is an incomplete account. I should add that I place little weight on Ms Macer’s account, where her recollection of events has not been confirmed in oral evidence or subject to cross-examination. 

37.	Mrs Cooper’s explanation to the GP, as recorded, is less clear as to what took place, referring to “Low back pain twisting injury yesterday heard a crack in her back”. The entry in the A & E records may refer to both Mrs Cooper sitting on the chair and leaning over the cot, when it states: “HPC – Patient suddenly twisted her back whilst sitting on chair – turning to put baby in the cot.”  In my view, this record probably elides the two stages, leaning over the cot to put the baby down, and sitting down on the chair and twisting to sooth the baby. Once recorded in the hospital medical record, the account given by Mrs Cooper that she suffered the injury to her back whilst sitting down appears to have been repeated in the Discharge Summary. It is interesting to note that a letter written by the GP to the defendant on 30th November 2009 refers to the incident in the following terms: “This occurred on twisting at the same time as lifting a small child”. In my view too much emphasis can sometimes be placed on short histories taken by medical attendants for purposes wholly unconnected with any subsequent litigation.

38.	I am also satisfied that where the defendant disputed Mrs Cooper’s account of what occurred partly on the basis of the medical records it should have heeded the guidance set out by Buxton LJ in Denton Hall Legal Services & Others v Fifield [2006] EWCA Civ 169, to which I was referred.

39.	Buxton LJ, referring to medical records in a personal injury action where there was a similar dispute to the one in this case, said: 

“77. It is therefore necessary to remind ourselves of the evidential status of such material. What the doctor writes down as having been told him by the patient, as opposed to the opinion that he expresses on the basis of those statements, is not at that stage evidence of the making of the statement that he records. Rather where, as here, the record is said to contradict the evidence as to fact given by the patient, the record is of a previous inconsistent statement allegedly made by the patient. As such, the record itself is hearsay. It may however be proved as evidence that the patient did indeed speak as alleged in two ways. First, if the statement is put to the witness, she may admit to having made it. Alternatively, if she does not "distinctly" so admit the statement may be proved under section 4 of Lord Denman's Act 1865. Second, by section 6(5) of the Civil Evidence Act 1995 those provisions do not prevent the statement being proved as hearsay evidence under section 1 of that Act. If the court concludes that such inconsistent statement has been made, that goes only to the credibility of the witness; the statement itself cannot be treated itself as evidence of its contents. Authority is scarcely needed for so protean a proposition, but I would venture to mention the observations of Lord Esher MR in North Australian v Goldsborough [1893] 2 Ch 381 at p 386.
….
80.  This failure to identify before the trial the issues in dispute with Mrs Fifield's account, and the material on which the dispute was based, meant that this part of the trial took on much of the worst aspects of the pre−Woolf world, with the case being developed only as the trial proceeded. Much of that was permitted to happen because of the universal assumption that the medical records are "evidence", without analysis of what if anything it is that they prove. To obviate such difficulties in future, and to ensure that factual issues in medical cases are economically and efficiently tried, the following procedure should be adopted. First, a party who seeks to contradict a factually pleaded case on the basis of medical records or reports should indicate that intention in advance, either by amendment of his pleadings or by informal notice. Then, the opposite party must indicate the extent to which they take objection to the accuracy of the records. When the area of dispute is identified, a decision will have to be taken as to whether the records need to be formally proved by either of the means referred to above. Thereby, not only will the ambit of the dispute be clarified in advance, but also it will be clear what interpretation is sought to be put on what my Lord has called somewhat Delphic records …”

40.	The second issue I have to consider is when Mrs Cooper sustained the additional damage to her back, which led to her admission to hospital on 8th June 2009 with a major prolapse of the L5/S1 disc and suspected cauda equina syndrome. I accept the evidence of Mr Jamil that the major disc prolapse occurred whilst Mrs Cooper was leaning over the cot on 2nd June 2009, putting the baby down. I accept Mr Jamil’s evidence that further disc material was extruded whilst Mrs Cooper was sitting down on the chair attempting to sooth the baby. He considers that twisting her body round would have been sufficient to cause further damage. In my view the totality of Mr Webb’s written and oral evidence does not dispute Mr Jamil’s opinion on when the additional damage was caused.

41.	If the injury initially occurred, as I have found, whilst Mrs Cooper was leaning over the cot, the third issue is whether the Defendant was in breach of its duty as an employer under the Provision and Use of Work Equipment Regulations 1998 and the Manual Handling Operations Regulations 1992.

42.	I am satisfied that there was a breach of the absolute obligation contained in Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 to maintain the cot in in an efficient state, in efficient working order and in good repair, and in so far as it is necessary, for the reasons set out below, there were also breaches of Regulations 8 and 9. In my view the injury was caused by the inability of Mrs Cooper to put the side down. If she had been able to do, she would have been able to bend her knees and put the baby down without exerting any, or any substantial, force on her back.

43.	In  Ball v Street [2004] EWCA Civ 76 Potter LJ considered Stark v The Post Office [2000] ICR 1013, CA in which it was held that an absolute obligation was imposed by the corresponding previous regulation, namely Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992. 

44.	Potter LJ said at paras 38 and 39:

“38. The employer’s duty of care laid down by Regulation 5(1) applies to any work
equipment ‘used at work’: see Regulation 3. As the judge held, and I have already
confirmed, the Defendant was within Regulation 3 in relation to the maintenance
of the haybob and was subject to the employer’s duty to see that it was
“maintained in an efficient state, in efficient working order and in good repair”.

39. That was a duty in similar terms to the duty imposed by sections 22(1) and 152(1) of the Factories Act 1937, and alleged to have been breached in respect of the failed hoist mechanism in Galashiels v Millar. The headnote to the report of the
House of Lords’ decision in that case accurately sets out the ratio of the decision,
namely that the duty imposed an absolute and continuing obligation, so that proof
of any failure in the mechanism of a hoist or lift established a breach of statutory
duty, even though it was impossible to anticipate such failure before the event or
to explain it afterwards, and even though all reasonable steps had been taken to
provide a suitable hoist or lift and to maintain it properly.”

45.	He said at para 44:

“In relation to Regulation 5(1), I do not accept the broad proposition of the judge
that, where there is an expendable part in a machine known to break from time to
time which can easily be replaced and it is one of a number of such parts so that
the mechanism can continue working in an overall effective and efficient manner,
no breach of Regulation 5(1) is demonstrable, “just like when one light bulb goes in a chandelier containing a large number of electric light bulbs.” The Regulation
does not define the employer’s duty in terms of the overall suitability of the
equipment to perform the task for which it is designed. It deals with the duty to
maintain it in an efficient state and working order and in good repair in respect of
all of its mechanical parts so as to prevent injury to the person using the
equipment. As in the case of the sections of the Factories Act 1937 considered in
Galashiels v Millar, the object of the Regulations is a broad one, namely to protect
workmen, and the task of the court is to view the maintenance and the condition of
the machinery supplied to them from the point of view of health and safety and
not that of productivity or economy.”

46.	In my view the cot was not in an efficient state or in efficient working order or in good repair.  I am satisfied that the mechanism for putting the cot side down was broken. I reject the submission that the cot side was held up in a fixed position by cable ties solely to stop the side being put down to prevent babies falling from the cot. Mrs Cooper and Ms Richmond’s evidence is that the fact that the mechanism for operating the sides of the cot was broken had been reported to Ms Macer and they were aware that other staff had also done so. 

47.	I am satisfied that the cot was defective notwithstanding that other cots were available with sides that could not be put down.  There is no material before me about the particular construction of the cots, with or without sides capable of being put down, or the height of the sides or distance of the base of the cots from the floor. There is no information about the allocation of cots or whether babies of different ages and weights were put into different types of cots. The plain fact, however, is that a cot which was designed to have the side put down could not be put down because the mechanism was broken. 

48.	I am also satisfied that there was a breach of regulation 4 of The Manual Handling Operations Regulations 1992. The requirement under Regulation 4(1) (a), as set out in full above, is that each employer shall “so far as is reasonably practicable, avoid the need for his employers to undertake any manual handling operations at work which involve a risk of their being injured.”  In my view, Regulation 4 was engaged in this case because there was a real and foreseeable risk of injury to Mrs Cooper undertaking the manoeuvre she has described of putting the baby into the cot without her being able to put the cot side down.

49.	In Koonjul v Thameslink Healthcare Services [2000] PIQR P123 Hale LJ said at paras 9 to 13:

“9. Mr Weir also complains that the risk of injury need not be significant. He refers to the one case (as far as we know) in which these regulations have previously been considered by this court, the case of Hawkes v London Borough of Southwark (unreported transcript 20th February 1998). In that case, Aldous LJ referred to their having to be a "real" risk for the purpose of the regulations. Mr Weir refers also to the Scottish case of Cullen v North Lanarkshire Council [1998] SC 451 at 455, where the court referred to the risk of injury needing to be "no more than a foreseeable possibility; it need not be a probability."
10. For my part, I am quite prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of regulation 4; that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers’ obligations to look after their employees' safety which they might not otherwise have.

11. However, in making such assessments there has to be an element of realism. As the guidance on the regulations points out, in appendix 1 at paragraph 3: . . . a full assessment of every manual handling operation could be a major undertaking and might involve wasted effort." 

12. It then goes on to give numerical guidelines for the purpose of providing "an initial filter which can help to identify those manual handling operations deserving more detailed examination."

13. It also seems to me clear to be that the question of what does involve a risk of injury must be context−based. One is therefore looking at this particular operation in the context of this particular place of employment and also the particular employees involved. In this case, we have a small residential home with a small number of employees. But those employees were carrying out what may be regarded as everyday tasks, and this particular employee had been carrying out such tasks for a very long time indeed. The employer in seeking to assess the risks is entitled to take that into account.”

50.	The result of the Defendant’s own risk assessment for “Lifting Babies and toddlers” identified a medium level of risk for staff with known back problems. The specific assessment for use of cots identified a high level of risk in respect of holding loads away from the body, and a medium level of risk in relation to twisting.  In my view, the risk was avoidable by being able to drop the cot side down. Moreover, I find that Mrs Cooper did not receive training on lifting babies or small children, by training video or otherwise.   

51.	It does not seem to me that the Defendant can now resile from the risk assessment that was actually undertaken and now rely upon the submission that it was wrong. As Hale LJ said in Koonjul v Thameslink Healthcare Services (supra), the question of what does involve a risk of injury must be context−based. Although lifting and putting down babies in cots may, in the context of ordinary life be an everyday activity, in the context of a nursery it is necessary for the Defendant to have developed procedures for doing so, a fact which it recognised in its own assessment. From the outset of Mrs Cooper’s employment, as is evident from the statement on the Health Declaration Form, the Defendant was aware of Mrs Cooper’s pre-existing back condition and did not follow its own guidance for employees with bad backs. The experts are agreed that the average weight of a six month old baby would be 7.26 kgs which was larger than the weight at shoulder height shown in the guidance.

52.	For the avoidance of doubt I also consider that the risk assessment should have included the situation where babies are soothed whilst Nursery Nurses are sitting on the chair next to the cot, in particular the inadvisability of stretching their arms over the side of the cot. In doing so Mrs Cooper twisted her body and caused further damage to a major prolapsed disc.  I note that Mrs Parr, when conducting the same manoeuvre, placed her arm through the sides of the cot rather than over the side.

53.	I am satisfied that both experts, Mr Jamil and Mr Webb, are eminently well-qualified to assist the court on this type of spinal injury. I accept Mr Jamil’s evidence that “but for” Mrs Cooper leaning over into the cot to put the baby down she would not have sustained a major disc prolapse resulting in cauda equina syndrome. I also accept his evidence that further damage was caused to the disc was caused whilst Mrs Cooper was sitting down on the chair beside the cot.

54.	In my view the issue between the experts on medical causation has fallen away following the answers given by Mr Webb in cross-examination. Both Mr Jamil and Mr Webb are agreed that cauda equina syndrome is a very rare occurrence where there are herniated discs. Mr Webb put the risk of it developing variously at 2 to 3% and 5 to 15%, according to the literature, of cases of herniated discs. He described in oral evidence the risk of cauda equina syndrome developing in this case as “unfortunate” and “improbable”. 

55.	I accept Mr Webb’s evidence that Mrs Cooper had a long history of back pain which put her at risk of a major disc prolapse whilst working or carrying out domestic activities but that is wholly different from her developing cauda equina syndrome. In my view Mr Webb resiled in oral evidence from the statement in his report that “the past history implies that she was on the verge of developing a cauda equina lesion” and also from the proposition that any acceleration of her symptoms was “a maximum of six months”. Mr Webb accepted in cross-examination that it would be a matter of speculation as to whether in any of the circumstances he described Mrs Cooper would have gone onto to develop cauda equina syndrome.  It does not seem to me, therefore, to be open to the Defendant to submit that Mrs Cooper would probably have gone onto to develop cauda equina syndrome in any event had she not suffered a major disc prolapse whilst leaning over into the cot. To the extent that submission was still being made at the end of the trial, I reject it.

56.	Although, both experts have expressed views, in their reports and in the joint statement, on other aspects of Mrs Cooper’s back condition and whether her other symptoms, in particular in the neck and lumbar spine, were also attributable to cauda equina syndrome, they were not explored in cross-examination. When I asked counsel whether they were asking for me to consider these matters, in the event that liability and primary causation was established, I was advised that they were agreed that these were matters which would be considered, if necessary, at the quantum stage.
 
57.	Finally, I should add that the allegation of contributory negligence pleaded in the defence was not pursued at trial.

58.	In these circumstances I direct that judgment shall be entered for Mrs Cooper with damages to be assessed.