Ben Posford writes for the September 2013 Personal Injury Brief Update Law Journal 25 Mar 2019
The following case analysis co-authored by Ben Posford recently appeared in the Personal Injury Brief Update Law Journal, September 2013 edition, discussing the implications of a decision of the High Court of Justice in relation to a claim for personal injury compensation arising from the development of a Cauda Equina Syndrome in the workplace.
Ben Posford is the Head of Catastrophic Injury at Osbornes, and acted for the Claimant.
Cooper v Bright Horizons Family Solutions Ltd  EWHC 2349 (David Pittaway QC sitting as a High Court Judge, QBD) – Ben Posford, Osbornes Solicitors LLP & Daniel Lawson, 9 Gough Square
Mrs Cooper (“C”) worked as a nursery nurse at the Little Stars Nursery in Harpenden, which was owned by Bright Horizons (“D”). On 2nd June 2009 C was required to use a cot in the baby sleeping room on which the drop down side had been rendered inoperative such that it could not be lowered. The side had been tied up with plastic cable ties which could not be undone.
As a result of leaning over the cot to place a 6-7 month old baby onto the mattress, C suffered a prolapse of the L5/S1 disc. She then sat on a chair beside the cot and, as was usual practice at the nursery, reached over the fixed side with her left arm to soothe the baby whilst seated. In so doing she twisted her back, which caused the damaged disc to squeeze further into her spinal canal. This led to the development of cauda equina syndrome (“CES”), which is a severe neurological condition arising from damage to the nerves at the base of the spinal cord.
C brought proceedings for damages for personal injury, alleging that D had unsafe working practices, defective equipment, and had failed to implement its own manual handling risk assessment. D defended the claim on the basis that its risk assessment had been drafted incorrectly, its work equipment was in efficient working order, and the task of placing babies in cots involved no real risk of injury.
The claim was tried by David Pittaway QC sitting as a High Court Judge. He found for C on both liability and causation, which were tried as preliminary issues.
The judgment is of interest to practitioners for two reasons. The first concerns the court’s approach to the evidential status of medical records.
The accident circumstances in this case involved two stages: the initial prolapse caused by leaning over the side of the cot, and then the further damage as a result of twisting. It was the combination of both stages that led to a major prolapse and the development of CES. As so often happens, the records from the GP surgery and the hospitals attended did not go into detail about both stages, and instead tended to focus only on one part of the accident circumstances. Faced with descriptions like “twisting injury yesterday heard a crack in her back” and “patient suddenly twisted her back whilst sitting on chair”, C’s credibility was challenged. She was absolutely resolute though that there had been two distinct stages to the accident, and sought to rely in closing on the guidance set out in Denton Hall Legal Services & Others v Fifield  EWCA Civ 169. There, at paragraph 77, Buxton LJ emphasised that what a doctor writes down as having been told him by a patient, if it contradicts a later account, at best amounts to a previous inconsistent statement and hearsay. Even if the court concludes that the statement was made, this goes only to the credibility of the witness. The entry in the medical record itself cannot be treated as evidence of its contents. Buxton LJ then went on to state:
“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… 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…”
David Pittaway QC considered the above approach taken by the Court of Appeal, and agreed that the guidance set out by Buxton LJ should have been heeded in this case, and the failure to do so meant he did not treat the medical records as having the same evidential weight as C’s own evidence. He concluded that “too much emphasis can sometimes be placed on short histories taken by medical attendants for purposes wholly unconnected with any subsequent litigation”.
The second interesting feature of this case was C’s allegation that in addition to the usual breaches of the Provision and Use of Work Equipment Regulations 1998, particularly regulation 5(1), and the usual breaches of the Manual Handling Operations Regulations 1992 (the “MHOR”), much also turned upon the less often cited regulation 4(3) of the MHOR. This regulation was tacked on to the end of regulation 4 of the MHOR by the Health & Safety (Miscellaneous Amendments) Regulations 2002, but it seems never to have been cited in any recorded judgment, despite being a key regulatory provision in claims where a defendant employer has prior knowledge that the claimant suffers with a bad back or some other medical condition such that it could affect the performance of a manual handling task.
Regulation 4(3) of the MHOR, as inserted by regulation 4 of the Health & Safety (Miscellaneous Amendments) Regulations 2002, states as follows:
“(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.”
David Pittaway QC found that D had failed to implement the conclusions of its own risk assessment. D admitted knowing that C had a pre-existing back problem for which she had had physiotherapy treatment but which still affected her ability to lift and walk long distances. This was recorded in C’s health declaration form when she started working at the nursery. D’s risk assessment stated that employees with back problems “may struggle to lower children into cots.” The procedure for doing so was to lower the sides of the cots, “then bend knees and slowly lower the child into the cot.” None of this was possible because of the plastic ties holding up the side of the cot.
The judgment cites regulation 4 of the MHOR in full, including regulation 4(3), and the Judge goes on to state that he is “satisfied that there was a breach of regulation 4” of the MHOR. He found that D was on notice of C’s pre-existing condition such that it was likely to affect her suitability for manual handling tasks.
Daniel Lawson of 9 Gough Square was instructed by Ben Posford of Osbornes Solicitors LLP for the claimant; Michael Lemmy of Nine St John Street Chambers was instructed by Plexus Law for the defendant.
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