A Ballymena nursery has been fined a total of £20,000 for health and safety breaches after a child in its care suffered eye and brain damage due to an accident with a toy.
Brandon Dunseath, who was five at the time, was attending the after school club of The Magic Roundabout Ltd. when a handle of a toy football table punctured his left eye and went through to his brain.
Three and a half years after the incident, which happened on June 3, 2009, Brandon requires significant medical support.
Directors of The Magic Roundabout Ltd., Old Cullybackey Road, Florence and James Allen pleaded guilty to failing to promptly report the accident and failing to make a suitable and sufficient risk assessment.
Ballymena Crown Court sitting on Friday heard that Florence and James Allen had, at the time of the incident, been running a nursery in premises at Old Cullybackey Road for a decade and operating an after school club for about a year, which was based at the Ballymena North Centre at that time.
Prosecutor, Ms Laura Ivers said Brandon was attending the after school club on the afternoon of June 3, 2009, and had been called inside from outdoor play.
She said two members of staff were supervising and were both close by the five-year-old but that neither was observing him.
The court heard that there was a toy football table in the playroom which had handles at the side to facilitate play and that the handles were made of metal rods with a soft covering.
Ms Ivers told the court that “that there were no witnesses to what subsequently happened” but that the table “toppled over on to the child with an exposed metal rod puncturing his left eye going through to the brain”.
Staff were immediately alerted, assisted Brandon and an ambulance was called, said Ms Ivers, who pointed out that it was unclear whether or not the cover had come off just prior to the incident or in the course of it.
She told the court that the five-year-old “suffered life threatening injuries” which resulted in him being detained for a period of months in hospital and that some three and a half years later he requires “significant” medical support along with the dedicated support of his family.
Ms Ivers went on to state that there had been a two day delay in notification of the incident and that a social worker, who visited the company on June 5, 2009, to discuss the incident with Florence Allen told her it had to be reported “forthwith” to the Environmental Health Department of Ballymena Borough Council.
Ms Ivers said the football table had been seized for examination and that there were “no obvious defects” but that it had emerged in the investigation that a handle cover had come off the table on a previous occasion prior to Brandon’s accident but that it had “not been logged or reported”.
“If this had been logged action may have been taken,” said Ms Ivers who told the court that the The Magic Roundabout Ltd., had no previous convictions.
Describing the incident as “a terrible tragedy”, a lawyer for the company told the court: “nothing I say is intended to diminish the tragedy that has arisen following this accident”.
He told the court that the football table had been purchased from a reputable company and was compliant with British Standards.
He said it had been independently assessed after being seized and that the subsequent expert report found that ‘risk of injury was low’ and that the incident was ‘particularly unusual’.
The defence lawyer also said that Florence Allen had not been informed that a handle cover had been detached on a previous occasion.
There had, he pointed out, been prompt acceptance of responsiblity and a high level of cooperation with the investigation which followed the incident and he told the court that The Magic Roundabout Limited “has an exemplary health and safety record”
“This is a nursery held in the highest of esteem with those experts in the field... which is as good a testimonial as one can hope to find.
“Culpability in this case is at the lowest end of the scale.”
The defence lawyer said that when asked on June 5, 2009, why there had been a delay of nearly two days in notification of the incident, Mrs Allen, had stated she was only“focused on Brandon and the mummy” and that she “wasn’t thinking straight”.
Passing sentence at Ballymena Crown Court sitting in Antrim yesterday (Monday) Judge Stephen Fowler said: “No monetary penalty imposed by this court can put a monetary value on the suffering that Brandon endures”.
He ordered the defendants to pay £5,000 of the fine within 28 days and the remainder by July. They were also ordered to pay costs of £2,354.
Judge Fowler said that while no one actually witnessed what happened on the afternoon of June 3, 2009, “from all the circumstances it is clear that the football table toppled over on to him (Brandon)”.
He added that it was unclear whether the handle cover had detached before, during or just after the table fell on Brandon.
And he said that an investigation had found that a handle cover had come off prior to Brandon’s accident but that it had not been logged.
Judge Fowler said the consequences of incident were “heartbreaking” and meant ”profound life long changes to Brandon’s health and development”.
Judge Fowler added: “It is clear from everything that I have read in this case that Brandon has the care, dedication and support of a very loving mother.”
In mitigation, he said the after schools club was modern, with sufficient members of trained staff.
He said that while it had emerged that a handle cover had been known to be detached from the table on two separate occasions by two members of staff, this had not been brought to the attention of the proprietor.
He added that there was no evidence that the handle had detached on the day of the accident just prior to the incident.
Judge Fowler said that risk assessment by the company was “inadequate” but that “the breach was not typical of the after school club”
“There is no indication of corners being cut at the expense or safety of the young vulnerable,” said Judge Fowler.
“There was prompt acceptance of responsibility and once reminded of the need to report this incident, they did so,” he said.
Speaking after the court ruling Louise Dunseath, Brandon’s sister, read a statement on behalf of the family: “We are grateful that today criminal proceedings have finally been concluded before the Crown Court.
“Brandon, who is now eight almost nine years old, had, up until June 3, 2009, been a normal happy and healthy child. However, the events which occurred while entrusted in the care and control of The Magic Roundabout on the said date are such to cause Brandon to endure severe physical injuries which had initially been life threatening and will remain with him for the rest of his life.
“We are grateful for the progress Brandon has made to-date but future life, not only for Brandon but also for us, his family, has been devastated.
“We, as a family have had three and a half years of ongoing difficulties and anxiety and it is with extreme sadness that our daddy who tragically passed away just before Christmas isn’t here to see the outcome of today’s proceedings.
“We do not wish for any other child or their family to go through what Brandon and ourselves have and still continue to go through.
“May we take this opportunity to say a massive thank-you to all medical staff involved with Brandon since June 3, 2009. also, family, friends and work colleagues for your continuing support.”
Also speaking after the court sitting, a solicitor for The Magic Roundabout Ltd., said the company directors were “deeply upset”.
“They feel for Brandon and his mother,” he said.