Al-Najar and others v Cumberland Hotel (London) Ltd

Negligence – Duty of care – Hotel – Claimants staying as guests at defendant’s hotel – Third party entering claimants’ hotel room in early hours of morning intending to steal – Third party causing very serious injuries to first to third claimants with hammer – Preliminary issue arising on question of liability and contributory negligence – Whether defendant owing duty of care to protect claimants from injuries caused by criminal acts of third party – Whether defendant in breach of duty – Whether defendant liable for injuries caused by criminal acts of third party – Preliminary issue determined accordingly The claimants were members of a family from the United Arab Emirates staying in the UK as guests at the defendant’s hotel. They occupied two adjoining rooms on the seventh floor. In the early hours of 6 April 2014, S entered the hotel and made his way to the seventh floor. The claimants had over-ridden the door closing and locking mechanisms and left their bedroom door open while they slept. S went into the room in which the first to third claimants and the seventh to ninth claimants were sleeping and began to steal money, jewellery and other belongings. When the first to third claimants woke up, S attacked them with a hammer, causing very serious injuries. S was subsequently arrested, convicted and sentenced to life imprisonment for three offences of attempted murder. The first to third claimants, as direct victims of the attack, and other members of the family as secondary parties who suffered psychiatric injuries, brought a claim for damages against the defendant alleging breach of the duty of care owed by a hotel to its guests, as a result of which they had suffered injuries. A preliminary issue arose as to liability and contributory negligence in respect of the claims made by the first to third defendants. The claims made by other family members were stayed pending the hearing of the preliminary issue. The claimants contended that the defendant had breached a duty “to take such care as in all the circumstances of the case was reasonable to see that their person and property were kept reasonably safe, whilst they were staying at the hotel”, and that that breach created the circumstances in which S could attack them and cause the injuries which they had suffered. The defendant admitted that it owed the duty to its guests but contended that the duty did not include a responsibility to protect guests from the criminal acts of a third party such as S, denied that the attack by S was reasonably foreseeable, denied that it had acted in breach of any duty and denied that any breach of duty caused the injuries suffered by the first to third claimants. Held: The preliminary issue was determined accordingly. (1) The defendant owed the claimants, as guests of the hotel, a duty of care to take reasonable care to protect guests at the hotel against injury caused by the criminal acts of third parties. The duty of care arose in respect of the omission to take steps to prevent the attack (or the duty to make things better by preventing the attack) where A had assumed a responsibility to protect B from that danger. That was because the hotel invited guests to come and stay at the hotel and thereby assumed a duty to take reasonable care to protect guests. the imposition of such a duty of care accorded with the reasonable expectations of both hotel proprietors and guests, as well as the subjective expectations of both the claimants and the defendant’s witnesses as given in evidence. In assessing the likely outcome, it was not necessary to establish the precise means by which a loss occurred, but it was necessary to establish that the particular risk was reasonably foreseeable. In this case that meant that the likely outcome had to be an attack on guests in their bedrooms, but it was not necessary to show that a hammer was likely to be used: Robinson v Chief Constable of West Yorkshire Police [2018] AC 736 applied. (2) It followed from the wording of the duty of care that the fact that the attack by S was a criminal act would not amount to a new intervening act and break the chain of causation. That was because the duty was to take reasonable care to protect guests against injury caused by the criminal acts of others.  (3) It was common ground that when assessing what was reasonable the relevant standard was that of a reasonable four-star London hotel. A breach of duty was something which a reasonable man would blame himself as falling beneath the standard of conduct for himself and also required of a person in a similar position. The court had to have regard to any reliable evidence of the practice of similar four-star hotels in London, while noting the fact that just because every other similar hotel did not adopt a particular security measure was not proof that the practice was reasonable if the measure was required to provide reasonable protection against risks. In the present case it had been reasonably foreseeable to the defendant that an individual such as S might gain entry to the hotel and injure the guests by a criminal assault, albeit that the evidence showed that the likelihood of such an attack was extremely low. On analysis, the evidence as a whole demonstrated that the defendant took the issue of security seriously and, in all the circumstances, it had taken reasonable care to protect the claimants from the injuries caused by S. Accordingly there had been no breach of the duty and there was no liability on the part of the defendant to the first to third claimants for the attack carried out by S: Smith v Littlewoods Ltd [1987] 1 AC 241 followed. (4) In circumstances where the court had not found any breach of duty on the part of the defendant, it made no findings on the issue of contributory negligence. Susan Rodway QC and David Sanderson (instructed by Hodge Jones & Allen LLP) appeared for the claimants; Neil Block QC and Camilla Church (instructed by DWF LLP) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of Al-Najar and others v Cumberland Hotel (London) Ltd