Colette Olivia Ashton v The City of Liverpool Young Men's Christian Association

Under the Occupiers Liability Act 1957, an occupier must assess the reasonable safety of premises objectively, while taking account of the visitor’s known vulnerabilities and likely care. A low window in accommodation for vulnerable residents may constitute a danger where its restrictors can readily be defeated and an occupant may fall through the opening. The occupier must take simple and proportionate steps to remove that risk, such as installing effective tamper-resistant restrictors. Voluntary exposure to danger does not automatically establish volenti under section 2(5). The defence requires conscious and voluntary acceptance of the relevant risk. A visitor’s intoxication and vulnerability may instead be relevant to contributory negligence, which requires assessment of blameworthiness, causative potency and the justice of the reduction.

The claimant, a vulnerable wheelchair user living in accommodation operated by the defendant YMCA, fell from a fourth-floor window and suffered serious injuries. She alleged that she had accidentally fallen while dealing with clothing near the window. The defendant alleged that she had deliberately climbed out in a suicide attempt.

The issues included the mechanism of the fall, the condition of the window restrictors, whether the premises presented a reasonably foreseeable danger, breach of the common duty of care, volenti, and contributory negligence. The claim was determined at first instance after a liability trial.

1. Outcome. Judgment was given for the claimant. The defendant was held 65% responsible, with a 35% reduction for contributory negligence.
2. Factual findings. The claimant’s evidence was unreliable in detail, but the claim did not depend on a binary acceptance or rejection of her entire account. The court found that she had fallen accidentally while probably reaching for or dealing with clothing. The alleged hospital admission of a suicide attempt did not determine the mechanism of the fall, particularly in light of her intoxication, injuries, medication, alcohol withdrawal and impaired cognition.
3. Danger and duty. The original restrictors were ineffective and windows were regularly opened beyond the intended 10 cm limit. The claimant’s fourth-floor room had a low sill, and her physical and other vulnerabilities increased the foreseeable risk of falling. The defendant knew that restrictors could be defeated and adopted a blinkered focus on rubbish being thrown from windows rather than resident safety.
4. Breach. Installing effective restrictors was straightforward, inexpensive and capable of being done without disrupting occupation. The defendant therefore breached the common duty under sections 2(1) and 2(2) of the Occupiers Liability Act 1957. The statutory provisions concerning worthwhile social activity did not justify imposing a higher or onerous duty; the duty was simply to preserve the integrity and safety of the accommodation.
5. Volenti. The defendant failed to establish that the claimant consciously and voluntarily accepted the risk for the purposes of section 2(5). Her vulnerability and intoxication made the defence particularly difficult to establish.
6. Contributory negligence. The claimant’s voluntary intoxication and exposure to the window justified some reduction, although her vulnerability and the defendant’s inexpensive remedial duty placed the larger share of responsibility on the defendant. The appropriate apportionment was 65% to 35%.