Al-Najar & Ors v The Cumberland Hotel (London) Ltd

A hotel’s duty to protect guests from criminal acts of third parties requires reasonable precautions, not a guarantee that an attack will be prevented. The seriousness of possible harm must be weighed with the likelihood of an attack and the practical demands of the hotel’s security arrangements. Breach is generally an evaluative question of fact and degree where no question of legal principle arises. An appellate court should therefore be cautious before substituting its own assessment for that of a trial judge who heard extensive evidence. An appeal cannot ordinarily succeed by presenting a materially recast version of the alleged duty where the relevant factual issue was not tested at trial. The appeal was dismissed because the trial judge was entitled to find no breach.

Nine members of one family suffered serious injuries when a criminal intruder entered their rooms at the respondent’s London hotel. They claimed damages for personal injury, alleging that inadequate security had enabled the attack.

Following a trial of preliminary issues concerning liability and causation, Dingemans J found that the hotel owed its guests a duty to take reasonable care to protect them against criminal acts by third parties. He nevertheless found no breach and dismissed the claims. The appeal focused on whether the lobby security officer should have greeted or challenged the intruder and whether the judge had erred in law or fact in assessing that issue.

Appeal dismissed. McCombe LJ gave the judgment, with Flaux and Newey LJJ agreeing.

1. The relevant duty was an admitted duty to take reasonable care to protect hotel guests against injury caused by criminal acts of third parties. It was not an absolute duty to prevent attacks. The very low likelihood of an attack remained relevant to the precautions reasonably required, despite the potentially grave consequences.
2. Whether an agreed duty of care has been breached is an evaluative question of fact and degree where no question of legal principle arises. The appellate court must exercise caution before differing from a trial judge’s assessment of primary facts, inferences, relative weight and nuance after an extensive trial. The approach was supported by Biogen Inc v Medeva plc [1997] RPC 1 and Fage UK Ltd v Chobani UK Ltd [2014] EWCA 5.
3. The single lobby officer had wider responsibilities, including patrolling the lobby and surrounding areas. The judge was entitled to find that those duties were reasonable and that the officer was not required to remain fixed between the entrance and lifts or greet every entrant. His position when the intruder entered did not, by itself, establish breach.
4. The appellants’ qualified case that the officer should have engaged the intruder whenever it was possible or reasonably practicable had not been properly explored in evidence or cross-examination at trial. It amounted to a materially recast case on appeal. The judge’s conclusion on the case presented to him could not be faulted. His causation finding that the intruder would probably have left if greeted could not assist in the absence of breach.

• Court of Appeal (Civil Division): Appeal dismissed; the order below was upheld: [2020] EWCA Civ 1716.
• High Court of Justice (Queen’s Bench Division): Dingemans J dismissed the claims after trial of preliminary issues concerning liability and causation, by an order dated 21 June 2019 and sealed on 1 July 2019.