Court of Appeal clarifies the extent of the duty of care owed to hotel guests

Ohoud Al-Najar (by her litigation friend, Khadia Al-Mulla) and others v The Cumberland Hotel (London) Limited [18.12.20]

Background

The appellants were members of the same family from the United Arab Emirates, visiting London and staying at The Cumberland Hotel.

Phillip Spence, a criminal intruder, entered the hotel, crossed the lobby and took a lift to the seventh floor of the hotel where the family were staying. He entered their rooms to steal money, jewellery and other items. One member of the party awoke and Spence attacked her, and a number of other family members, with a hammer resulting in Ohoud suffering catastrophic brain damage.

Spence was sentenced to life imprisonment with a minimum custodial term of 18 years that was later increased to 27 years following review by the Attorney-General.

The appellants’ claim was advanced on the basis that the owner of the hotel had broken the duty “to take such care as in all the circumstances of the case was reasonable to see that [the Appellants] person and property were kept reasonably safe, whilst they were staying at the hotel”. Some 30 allegations of negligence were advanced against the hotel relating to the adequacy of security arrangements.

The court held that the hotel did owe a duty “to take reasonable care to protect guests… against injury caused by the criminal acts of third parties” but was not in breach of this duty, which included a finding that the hotel’s overall security systems were adequate.

The matter came before the Court of Appeal on 5 November 2020 with judgment handed down on 18 December 2020.

Decision

The appeal focussed on the actions and role of the lobby security officer. Lord Justice McCombe considered the appeal which raised the following question: “whether the judge had erred in his assessment that there was no breach of duty in relation to the lobby security officer in failing to greet Spence when he entered the lobby”. The judge had found at first instance that, if Spence had been greeted by the lobby officer, then he would likely have left the hotel and the assaults avoided.

The court noted and concurred with the finding of the trial judge that the duty on the hotel was to take reasonable care to prevent attacks such as this; it was not an absolute duty to prevent an attack, and whilst the consequences of such an attack might be very serious, the likelihood of such an attack was extremely low.

McCrombe LJ observed that the appellant sought to recast the duty owed to one aspect of the case only (that the lobby officer should have met and greeted every guest after 11pm where possible, alternatively where reasonably practicable). He relied on the judgment of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014]:

Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to the inferences to be drawn from them….

In his judgment, the trial judge was entitled to assess the breach of duty alleged in respect of the lobby officer’s conduct on the night by the nature of the case being made against the hotel, and by the extent of the challenge made to the lobby officer when he gave evidence at trial.

The judge had made his findings based on the evidence as presented, noting that the duty alleged on appeal had become shaded from the absolute duty that was being assessed at trial. This shaded duty was not one which the judge had been called upon to assess and accordingly, the judge’s conclusion that there was no breach of duty, could not be faulted.

Comment

The appellants were subjected to a significant and forceful attack, causing catastrophic injuries, reflected in the ultimate sentence Spence received.

The appellant’s sought to recast the duty owed and whether it was “possible, alternatively reasonably practicable” to have engaged Spence when he entered the hotel. Crucially, this issue had not been put/explored to any significant extent in the evidence and cross-examination of the lobby officer at trial, and consequently, the court was not prepared to entertain this approach.  

The decision also reaffirms the fact the appeal court will be slow to interfere with the decision of the lower court, highlighting the speech of Lord Hoffman in the House of Lords in Biogen Inc v Medeva Plc in which he said:

Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.

The case is a timely reminder that whilst there is a duty to keep hotel guests reasonably safe, and to protect guests against the risk of injury caused by the criminal acts of third parties, it is not an absolute duty.

The dismissal of the appeal should be of comfort to hotel owners and their insurers. The trial judgment and appeal provide a useful reminder of what the court will deem to be reasonable security measures sufficient to discharge the duty of care to hotel customers