Aston V City Of Liverpool YMCA ' A Leap Of Faith?

• Jurisdiction: European Union
• Law Firm: Weightmans
• Subject Matter: Employment and HR, Insurance, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Health & Safety, Insurance Laws and Products, Personal Injury, Professional Negligence
• Author: Mr Peter Forshaw
• Published date: 10 May 2023

A decision that highlights the importance for defendants of being able to show a diligent attitude to health and safety.

In this occupiers' liability case, Aston v City of Liverpool YMCA [2023] EWHC 707 (KB), the court had to decide in the face of inconsistent and unreliable evidence whether the YMCA were liable for the injuries sustained by a resident who fell from an upstairs window and sustained serious injuries including a head injury and spinal fractures.

The defendant is a charitable not-for-profit organisation which provides short and medium stay accommodation for vulnerable adults. Crucially, however, it was accepted that whilst the YMCA provides support (including a contract with the local council to provide accommodation), it does not provide social care.

The claimant was disabled, had a history of drug addiction and psychiatric issues as well as a criminal record. In view of such circumstances, the defendant provided her with a room designed for disabled users, one of the features of which was lower than normal windows, albeit with restrictors designed to prevent the window opening too far.

On the day of the incident, the claimant had consumed alcohol and drugs and was noticed to be upset. Prior to her fall, she was seen hanging from the window ledge and shouting for help, an image captured by a passer-by on their phone. She had fallen afterwards.

The issues which the court had to determine were:

• whether the fall was deliberate (the defendant contending the claimant had been trying to commit suicide based, primarily, on comments made by her in hospital two weeks post incident) or whether, as the claimant suggested, it was accidental (the suggestion being that she had been drying washing on the ledge as the tumble dryer in the flat was broken)
• the state of the window and restrictor at the relevant time
• what work had been carried out to the window on behalf of the defendant prior to the incident
• whether the condition of the window was a danger presenting a foreseeable risk of injury, and if so, whether this constituted a breach of the Occupiers' Liability Act 1957 (failure to take reasonable care) and was causative of the incident
• whether the defendant could rely on voluntary assumption of risk (volenti) on the part of the claimant as a full defence
• if the defendant was liable, whether there was any contributory negligence.

To determine these issues, Judge Graham Wood KC acknowledged that the evidence in the lead up to the incident was...