Al-Najar v The Cumberland Hotel: Court of Appeal rules on a hotel’s duty of care to protect guests from injury

The claim arose out of a violent attack and theft against a group of guests at the hotel, which was committed by an intruder who gained access to the victims’ hotel room. The door had been deliberately left unlocked and open so that another family member could return a hair-dryer that had been borrowed. The victims of the crime claimed that the hotel had a duty of care to protect guests from injury and that the hotel had breached that duty. The question for the court was whether the hotel was responsible in law for the injuries sustained by the Claimants.

At first instance, the trial judge held that when a hotel invites guests to stay it assumes a duty to take reasonable care to protect guests from injury caused by third party criminal acts. A situation where a party has assumed a responsibility to protect another party from a danger is one of a small number of circumstances in which liability for pure omissions is imposed under English law. Liability in such cases arises where a party has failed to take steps to prevent the danger. However, at first instance it was held that while the hotel did have a duty of care, that duty had not been breached in this case as the hotel had taken reasonable steps to protect guests from injury.

The first instance decision included a wide-ranging examination of the steps taken by the hotel to discharge its duty of care, including the adequacy of its security arrangements and steps it had taken to protect guests and compared this to hotels of a similar nature and location. The appeal, however, focussed only on the standard of care to be expected of the hotel lobby officer. The Claimants submitted that the judge had erred in his decision that there was no breach of duty in relation to the failure by the lobby officer to greet the intruder in the lobby.

The Claimants at first instance submitted that the lobby officer had a duty to greet all persons entering the hotel, and such a duty was in fact specified in a document listing the lobby officer’s duties. However, the Court found that the lobby officer could not be expected to be fixed in place in the lobby to greet every person entering the hotel at all times as he had to attend to other areas of the hotel. On appeal, the Claimants limited the level of care which they said should be expected of the lobby officer to a duty to greet every guest after 11PM, where possible, or alternatively where reasonably practicable.

The question of whether it was "possible, alternatively reasonably practicable" for the lobby officer to greet the intruder when he entered was not explored in detail at first instance and as such the evidence on this point was sparse. The Claimants pointed to evidence that the lobby officer had not carried out any security checks between 23.15 and o1.15 and submitted that he had not greeted a sufficient number of people who entered the lobby during that time.

The Court of Appeal held that the trial judge had been correct in his assessment of the duties actually imposed on the lobby officer. The lobby officer could not be expected to remain in a fixed place and greet every guest. The Court held that an appellate court had to be very cautious in differing from the trial judge’s evaluation of the facts. At the appeal, the Claimants had sought to recast the duty of care onto one aspect of the case and impose a more qualified duty on the lobby officer. The Court of Appeal held that recasting the duty of care in such a way would have involved a different approach to that taken to the lobby officer’s evidence at trial. The trial judge was not called upon to assess the particular specific duty which the Claimants sought to impose at the appeal. The Court of Appeal held that the trial judge could not be faulted on his conclusion based on the facts and evidence examined at trial. The appeal was therefore dismissed.

This case is one of great interest for those who operate in the hotel sector regarding the duty of care towards hotel guests. The judgment emphasises that although a hotel does not have an absolute duty to prevent injury to guests caused by third parties, it must take reasonable steps to protect guests. In this case, the hotel had done so. However, the case also serves as a warning to the sector: adequate measures must be in place to protect guests. The result for the claimants hinged on the way that they had set out their original claim before the judge at first instance. If the claim has been presented in a different way, focusing on the duties of the hotel lobby officer, his remit, and what he should have done on the night in question, the result may have been very different.

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