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

Negligence – Duty of care – Hotel – Appellants staying as guests at respondent’s hotel – Third party entering appellants’ hotel room intending to steal – Third party causing serious injuries to appellants – Appellants claiming damages alleging breach of duty of care – Judge determining respondent owed duty of care to protect guests from criminal acts of third parties but no breach of duty on evidence – Appellants appealing – Whether judge incorrectly assessing standard of care of respondent’s lobby officer – Appeal dismissed The appellants were members of a family from the United Arab Emirates staying in the UK as guests at the respondent’s hotel. They occupied two adjoining rooms on the seventh floor. In the early hours of 6 April 2014, S entered the hotel and began to steal money, jewellery and other belongings from the appellants’ rooms. When they 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 appellants brought a claim for damages against the respondent alleging breach of the duty of care owed by the hotel to its guests, as a result of which they had suffered injuries. The appellants contended that the respondent 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 High Court held that, while the hotel owed the appellants a duty to take reasonable care to protect them against criminal acts of third parties, there had been no breach of duty: [2019] EWHC 1593 (QB); [2019] PLSCS 115. The appellants appealed on grounds that the judge had incorrectly assessed the standard of care of the hotel’s lobby officer. They contended that the judge should have found that the lobby officer’s duty was to greet every guest who entered the hotel after 11 pm where possible or reasonably practicable. That contention differed from the allegation made at trial that the lobby officer had an absolute duty to greet every guest entering the hotel after 11 pm. Held: The appeal was dismissed. (1) The more qualified duty now alleged by the appellants had not been explored to any significant extent in the evidence and the judge was entitled to assess the question of breach of duty of the lobby officer by the nature of the case that was made against the respondent and by the extent of the challenges put to the lobby officer in cross examination.  The need for appellate caution in reversing the judge’s evaluation of the facts was because specific findings of fact, even by the most meticulous judge, were inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings were always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance, of which time and language did not permit exact expression, but which might play an important part in the judge’s overall evaluation. Where the application of a legal standard such as negligence or obviousness involved no question of principle but was simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation: Biogen Inc v Medeva plc [1997] RPC 1 followed. (2) The legal duty upon the respondent in this case was 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. The issue on all the various aspects of security considered, was whether that agreed duty had been broken. It was only a question of degree, on each aspect of criticism of the hotel’s security arrangements in this case, whether there had been a breach of the duty or not. On the single issue argued before the Court of Appeal, the appellants had sought to recast the duty on one aspect of the case only. That would have involved a different approach to the evidence as to the lobby officer’s conduct, as S entered the hotel, from the approach adopted at the trial. Appellate courts had been repeatedly warned not to interfere with findings of fact by trial judges, unless compelled to do so. That applied not only to findings of primary fact, but also to the evaluation of those facts and to the inferences to be drawn from them. The judge had been 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 respondent on that individual point and by the extent of the challenge made to the officer himself when he gave evidence. The judge did that and he reached a conclusion, on that one aspect of the many breaches of duty alleged, in light of those factors. There was no specific challenge at all as to whether it was possible or reasonably practicable for the officer, from where he was at the crucial moment, to have directed a specific challenge to S as he entered the hotel. The nature of the duty alleged had now become shaded from the absolute duty that was being assessed at the trial. That shaded duty was not the one that the judge was called upon to assess. His final conclusion that (on the basis of the primary facts found by him) there was no breach of the duty alleged, could not be faulted: Fage UK Ltd v Chobani UK Ltd [2014] EWCA 5 followed. Robert Weir QC and David Sanderson (instructed by Hodge Jones & Allen Solicitors Ltd) appeared for the appellants; Neil Block QC and Camilla Church (instructed by DWF Law LLP) for the respondent. Eileen O’Grady, barrister Click here to read a transcript ofAl-Najar and others v Cumberland Hotel (London) Ltd