Aston v City of Liverpool YMCA — A leap of faith?
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  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 “sparse”. There was no contemporaneous objective evidence in the form of photographs or an independent inspection of the room to determine the condition of the window immediately after the fall, no risk assessment in respect of the risk of persons falling out of windows, the defendant’s computerised maintenance/repair system had been decommissioned, the defendant’s log book had been misplaced and in the judge’s view, the claimant’s account had to be approached “with a great degree of caution”.
It was accepted that, as the YMCA did not provide any social care, the claimant would not be able to sustain a claim for breach of duty if it was upheld that she had attempted suicide. The court, therefore, dealt with this issue first. Although accepting that a claim will usually fail where a claimant is an unreliable witness, in the court’s opinion, this claimant could not be assessed by the normal standards expected of a person, given her vulnerability. Regardless of whether the claimant could prove matters on her own (inconsistent) testimony, the issue was more whether she could prove the salient points from the evidence as a whole. For this reason, the judge was also not too perturbed that the claimant’s pleaded claim was limited -
“Whilst the pleaded case must provide the tramlines and the essential matrix for the claim, it cannot and should not create a straitjacket, as long as the essential premises on which the claim is based can be established. This is particularly so where the evidence is bound to be circumstantial “.
Taking all the evidence in the round, the judge found that the claimant’s fall was accidental, notwithstanding comments made by her in hospital some time after the incident which could reasonably be interpreted as her suggesting she planned to take her own life. In finding that the fall must have been accidental, the judge relied on the fact that there was no clear trigger for the suicidal thoughts, her cries for help would have required an implausibly quick change of heart from a suicidal intention, the eye witness’ photo showing some clothing hanging out provided a plausible explanation why she was near the window, the claimant rolling out of the window was more plausible than a deliberate climbing out, the more contemporaneous accounts given by the claimant to police and hospital doctor of an accidental fall carried more veracity despite the claimant’s unreliability and acceptance of medical evidence that the claimant was likely to have impaired recollection.
On balance, the court also found that the only restrictors in place on the relevant window were those originally installed to the frame, with the defendant failing to prove otherwise, despite their submissions (an invoice for pre-accident work did not specify the relevant room, there was no mention of enhanced restrictors post-accident, and the crucial defendant witness was regarded as unsatisfactory). The original restrictors were not functioning effectively given that the window could be opened wider than deemed suitable, thereby creating a foreseeable risk of a wheelchair user (more so a vulnerable adult like the claimant) falling through the gap.
The absence of a risk assessment was not critical to the issues bearing in mind the defendant was aware of the windows being capable of being opened beyond the restrictors (as evidenced by an email pre-accident) and yet the defendant had not proved it had taken the low cost reasonable steps of fitting the additional restrictors, which the court found surprising bearing in mind the vulnerability of the occupants. In the court’s view “the defendant occupier adopted a blinkered approach to the foreseeable risk, and the obvious danger that arose in the circumstances”.
The court also dismissed the defendant’s submission under the Compensation Act 2006 that to impose a breach of duty here would curtail the worthwhile actions of the YMCA. In the court’s view, given the relatively easy low cost solution, the submission could not be sustained.
Whilst the court did not see how a vulnerable resident with little appreciation of inherent risk (and also intoxicated) could have any awareness of obvious risk to found a defence of volenti, neither could she be criticised for failing to report any disrepair, the court was at least prepared to find that her intoxication rendered her 35% contributorily negligent. Consequently the defendant was held liable for 65% of the claim.
Given the judge found that the court could “draw little comfort from the credibility or reliability of the claimant in her testimony”, one might have thought that the court would struggle to uphold the claimant’s claim and therefore the decision on primary liability may appear somewhat surprising. However, even in the absence of persuasive evidence from the claimant herself, the court had to steer a path through unsatisfactory or missing evidence on both sides to reach its conclusions – a somewhat unenviable task.
That said, the court’s willingness to seemingly accept parts of the claimant’s evidence as persuasive on particular issues when other aspects were not, still appears somewhat of a leap of faith when the burden of proving the case vests in the claimant after all. One cannot help wonder whether the comments around not being tied to the claimant’s testimony alone and willingness to not be constrained solely by the claimant’s pleaded case suggest an element of sympathy for this claimant as against a defendant unable to explain the existence of several key items of disclosure and evidence.
Once again, the decision highlights the importance for defendants of being able to show a diligent attitude to health and safety, the necessity of creating relevant paperwork to support appropriate systems, and the relevance of preserving documents to support claims defensibility.
Weightmans assists clients on all aspects of claims defensibility, including the creation of a digital vault to help preserve relevant documents in the event of a claim. For further information please contact firstname.lastname@example.org