The claimant was two years old at the time of the accident. She was at a nursery on outdoor play equipment and fell 75cm as she was trying to reach for a fireman’s pole, fracturing her arm.
The nursery solicitors strongly denied liability from the word go on grounds of a very good Ofsted report that approved the play equipment. Yet, after the accident, the gap that allowed children access to the fireman’s pole was blocked.
The pre-accident risk assessment stated that a suitably qualified member of staff needed to be by the pole at all times when children were using it.
It transpired at exchange of witness statements, that this was a 16-year-old work experience student. She said the claimant was by the pole and was the last child to go in for tea.
She turned to look away from the claimant and then the child was on the floor crying. She told her manager her attention was distracted just as the claimant reached out to balance as she approached the pole.
They had maintained the claimant was tall and strong for her age, and she used the equipment on her own without assistance.
Our weakness was that it was not clear how the child fell; whether as she lunged forward to grab the pole or as she tried to slide down it. She could obviously not give evidence.
However, we said a prudent reasonable parent – the relevant standard of care – would have blocked the entrance to the pole at the moment of being distracted before turning away and before the child reached the hazard.
The judge found that the standard of care was breached, in particular in that the work experience student turned around at a very crucial point, when one-on-one care was possible and there were no other children present in the playground.
Birmingham CC, 24 November 2009.