Nelson’s fall: Parents still don’t know how their toddler hit his head on concrete and had a brain injury at childcare

Nelson’s fall: Parents still don’t know how their toddler hit his head on concrete and had a brain injury at childcare

Five years after Olivia Xu and Elmer Zhang’s son Nelson suffered a brain injury – he was found laying on a concrete path at his early childhood centre, the couple are still in the dark about what happened and what caused the injury.

Did he slip on an icy path? they wonder. Did another child push him?

They’ll probably never know what happened.

The two teachers who were on duty in the playground of the under 2-year-old area at Queenstown’s Gems Kowhai Centre that freezing morning on July 27, 2020 told investigators they did not see Nelson fall because they were busy with other children. 

Worksafe concluded it was a “tragic accident”, and that the centre had not broken any health and safety laws. 

But exactly how Nelson came to be critically hurt remains a mystery.

That’s difficult for Nelson’s parents to accept.

The couple have spent $60,000 on lawyers to try to get more information about the circumstances that led up to their then-14-month-old son being in a critical condition. 

They’ve been told that their only option now would be to hire a private detective.

Emotions are still raw for Xu when she recalls rushing to Nelson’s daycare after being told he’d been injured, and seeing her little boy, who had been well when she dropped him off less than an hour earlier, lying on a nappy change mat unresponsive as one of his teachers administered first aid. 

She’s experienced flashbacks of that awful, life changing day – and she and Zhang often worry about what might happen if Nelson has another head injury.

“We’re really worried that one day we might lose him because he’s [now] more fragile than other kids,” she says through tears.

As well as wanting answers about what happened to their son, Xu said she and her husband want to see changes introduced in the sector to prevent similar incidents occurring.

Xu, who was working as an early childhood teacher at another nearby centre operated by the same owner at the time, told the Office of Early Childhood Education that she believed the rules around the design of outdoor environments at daycares should be stricter – especially for under 2s.

In her view, the playground at the Nest (which was what the under 2s classroom at Nelson’s daycare was called) was made up of too much concrete. (The Ministry of Education and Worksafe took a different view, inspecting the playground and deeming it up to standard.)

She also wants the criteria around active supervision tightened, and for cameras to be put in on playgrounds at ECE centres, so that when an accident is not witnessed by staff video footage can be reviewed to work out what happened.

The accident

The first sign that something was wrong with Nelson was when one of his teachers heard an unusual cry and turned to see him lying on the ground on a concrete path.

She picked Nelson up, took him inside, put him on the nappy changing table and started administering first aid, while another staff member phoned 111.

Nelson vomited between eight and 10 times and may have had seizures before paramedics arrived shortly after 10.05am. He was not responding to pain stimulus, but was breathing. His teachers noticed some stiffness in his limbs (at times he had his thumbs clenched over his fingers). Although his eyes were slightly open they did not appear aware.

Xu was with Nelson as he was rushed to Lakes District Hospital in an ambulance. She recalled that he remained unresponsive throughout the trip.

After they arrived at the ED, doctors assessed Nelson as likely needing neurosurgery and organised for him to be transferred to Dunedin. (Lakes District Hospital is not equipped for neurosurgery.)

Xu and Nelson travelled in a helicopter, while Zhang drove to meet them.

A CT scan conducted at Dunedin Hospital showed that Nelson had bleeding in his brain and needed an operation.

Meanwhile, police had arrived at Gems Kowhai about 11.15am and took photos of the scene of Nelson’s accident. The officer noted “the grass area… still had a light frost. There were no footprints/marks on the grass. There were no marks on the concrete”.

Several hours later, when Nelson was out of surgery, the surgeon told Xu and Zhang that Nelson had had a cyst in his brain, which had ruptured, exacerbating his injuries.

“We went in and saw him. It was quite terrible. You could see the big cut on the head,” Xu said.

The aftermath

The surgeon told Nelson’s parents that he needed another operation to insert a shunt into his brain. This couldn’t be done in Dunedin, so he was transferred to Starship Hospital in Auckland two days later.

He spent a month in Starship. Xu said that while Nelson was still in hospital she received an email from Gemma Smith, Gems’ owner, asking her and Zhang to sign Gems’ internal incident report. The couple initially said they’d read it and get back to Smith when they were able to, but later decided not to sign the report because they had questions about the investigation.

Both Xu and Zhang had to leave their jobs in order to care for Nelson. They decided to sell their home and relocate their family to Auckland so that they could be near Starship for any follow up treatment Nelson needed.

While Zhang received some compensation from income protection insurance, Xu estimates that they lost about $100,000 in total as a result of Nelson’s accident. They had previously put a deposit down on a section, where they had planned to build a house, but had to forfeit this payment.

Xu had retrained as a real estate agent instead of returning to ECE teaching. She only returned to full time work after having Nelson’s little brother, Myles, who is now 3 years old.

Before Nelson started daycare again at the age of 3 ½, Xu visited all the centres near their home in Silverdale and chose the one with the lowest adult-to-child ratio.

Nelson is now 6 years old. He is still receiving support from ACC and tests done since he started school have indicated he is academically behind his peers.

He has a short attention span and a recent assessment by a speech language therapist put his comprehension for most things at about the level of a 3 ½ year old, Xu said.

The investigations

Smith notified the Ministry of Education about Nelson’s fall at 11.09am and told Worksafe around 1pm on the day it happened, documents show.

The next day, the Ministry of Education asked Smith for documents, including the first aid qualifications of all staff, the centre’s supervision policy, staffing and child attendance records for the previous day and a map of the outdoor play area where the incident happened.

Ministry staff visited the centre on July 29. They requested further information, including incident records from the Nest, any analysis and reviews of such incidents, staff rosters going back a few weeks and records of previous complaints. (Smith provided these documents on August 5, Ministry emails obtained under the Official Information Act show.)

A Worksafe inspector visited Gems Kowhai on August 5 (nine days after Nelson’s fall), took photos and spoke to the teachers who had been present.

Smith also provided Worksafe with Gems’ investigation report into Nelson’s fall.

On August 11, Worksafe contacted the Ministry of Education to say that Worksafe did not have any concerns about the centre and that it was of the view that the outside environment of the Nest was fine.

A Worksafe investigator interviewed Smith on September 21.

Dr Patrick Kelly, a paediatrician and the clinical director for Starship’s Te Puaruruhau service, wrote a child protection report for Nelson in September 2020 “because it was a complex and unusual situation, so it is important that the assessment is thoroughly documented”.

He noted that an “unexpected” injury had been identified in an MRI Nelson had on July 31 – his sixth thoracic vertebra was damaged.

Kelly said in toddlers this kind of injury was usually the consequence of hyperflexion associated with abusive head trauma, however, “such injuries have been described in adults as a consequence of convulsions, or as a result of accidental falls (for example, on ice)”.

“Although this has never (as far as I am aware) ever been reported in a child of Nelson’s age after a fall of this type, very few if any children of Nelson’s age get a spinal MRI after a minor fall,” he wrote.

Kelly concluded that all Nelson’s injuries were the result of an accident. He could not determine how his vertebra was damaged.

In December 2020, Worksafe completed its report into the incident.

“Nelson Zhang’s fall was simply a tragic accident… there were above ministry guideline ratios for teachers per children on the day of the 27th July (and consistently at the centre) and the children were being adequately supervised.

“Worksafe has no further avenues of enquiry to pursue in this matter,” the report concluded.

Worksafe’s investigator wrote that based on Kelly’s report, “we also cannot be certain that had another child fallen in the same way that Nelson had, the injuries would not have been so severe”.

However, the Worksafe report omitted to say that Kelly’s report noted that “although it is rare, I have seen subdural haemorrhage from a fall of less than 1 metre onto concrete in a child of this age, even without an arachnoid cyst”.

Xu and Zhang’s lawyers later wrote to Worksafe to express concerns about its report.

The Ministry of Education received Worksafe’s final report on March 4 2021. Ministry staff visited Gems Kowhai again on March 15, 2021. They concluded the outdoor area was “safe and secure” and “no further action” was required.

The unanswered questions

In an interview with the OECE, Xu said she remains puzzled by discrepancies in timelines and statements outlined in the various reports.

According to Gems’ investigation into the incident, a teacher finished inputting data from the outdoor safety check into the online system the centre used to track hazards at 9.46am. (The teacher reportedly had done the safety check earlier that day, before the children were let out, and was signing it off on an iPad.)

Gems’ report says one of the teachers spotted Nelson crying at 9.47am and, immediately after putting down another child she had on her hip, picked him up. The call record from St John shows that a teacher rang 111 at 9.48am.

Xu is skeptical about how the situation could have unfolded so quickly.

In a letter to Worksafe dated April 19, 2022, her and Zhang’s lawyers wrote: “there is no way that all of this could have happened in one or two minutes before the 111 call.  This is consistent with the 111 transcript in which one staff member says (shortly into the call) that this happened ‘about five minutes ago’”.

Xu told the OECE she also wanted to know why multiple documents from the different agencies that investigated stated that it was at first believed that another child (the son of the teacher who found Nelson crying) had pushed Nelson (he was standing near Nelson when he was found) however this was not mentioned in Gems’ internal investigation report.

Worksafe said the allegation that Nelson was pushed could not be verified because no adults saw this occur, and police do not typically interview children younger than 3 years old.

Xu recalled that there had been frost on the ground at the nearby Gems ECE centre where she was working on the day Nelson was hurt. She wondered whether the path Nelson fell on could have been icy and slippery.

During its investigation, Worksafe asked MetService forensic meteorologist Neal Osborne what the weather conditions in urban Queenstown were like on the night before and morning of Nelson’s fall. 

Osborne said at Queenstown Airport, which would’ve been “pretty representative of the Lower Shotover” (where the daycare is located), “the grass minimum… was below 0 degrees until the thermometer was recorded as rising at 0957hrs so that is an indication to him that there was frost at the airport”.

Gems’ internal investigation concluded that the path was not slippery, given that a teacher attested in the safety check that the concrete paths were “in working order”. Smith said in the report that staff were trained to check the slipperyness of the paths as part of ensuring they were in working order.

Worksafe concluded that, therefore, the path was not icy. The organisation appeared to have relied on the evidence provided by Gems in its internal report to reach this view. None of the Worksafe, Ministry of Education or police documents state that any of these agencies independently checked whether the path was icy.

In April 2021, Xu and Zhang complained to the Ministry of Education to express their disappointment that Gems Kowhai had not faced any consequences over Nelson’s fall. They said they believed the centre was unsafe. 

They wanted to see a more detailed investigation carried out. However, the Ministry concluded that a further investigation was not required.

So the Ministry, police, Worksafe and Gems all consider the matter resolved. But Xu and Zhang are left with unanswered questions.

Xu is speaking about Nelson’s accident publicly for the first time as the Government moves ahead with plans to amend licensing criteria, including health and safety requirements, for ECE services.

The response

Since Nelson’s fall, Gems Kowhai has changed management. The OECE repeatedly contacted the then-owner/manager Gemma Smith and the current manager for comment for this story, but is yet to hear back from them.

If we receive a response we’ll update this story.