Family attacked in London hotel burglary loses breach of duty appeal in English Court of Appeal

Ohoud Al-Najar and eight other members of her family were staying at The Cumberland Hotel in London in April 2014 when a criminal intruder, who pled guilty to aggravated burglary in October of the same year, entered the hotel and attacked them after stealing money and jewellery from their rooms.

The appeal was heard by Lord Justice McCombe, Lord Justice Flaux, and Lord Justice Newey.

Passed unchallenged

The appellants were visiting the UK from the United Arab Emirates at the time of the break-in. Six of them were accommodated in two adjoining rooms on the seventh floor. On the night that the intruder, Philip Spence, broke into the hotel by passing unchallenged through the lobby and taking the elevator to the seventh floor, the door between the rooms was left unlocked. At 1:13am, Mr Spence entered one of the rooms and began to steal items from it before going into the other room via the unlocked door.

The second appellant, Khaloud Al-Najar, awoke while Spence was in her room and was attacked by him with a hammer. The first and third claimants, Ohoud and Fatima Al-Najar, were then attacked in the same way. All three suffered serious injuries, with the first claimant in particular suffering catastrophic brain damage that rendered her incapable of conducting her own affairs.  Following this, they raised an action of personal injury against the respondent, the owner of the hotel.

At trial in the High Court, the judge recorded the issue of the case as whether the respondent had broken a duty to keep the appellants’ person and property reasonably safe whilst they were guests of the hotel. The respondent contended that the duty did not include a liability to protect guests from the criminal acts of a third party.

In assessing whether the hotel was in breach of its duty, the judge found that the hotel’s security systems at the time were adequate. He did not find there was any breach of duty arising from the failure of the hotel’s lobby officer to challenge Spence when he entered the hotel in the small hours of the morning or in the hotel not having in place key card access to the lifts.

On appeal, the appellants submitted that the High Court judge had erred in stating there was no breach of duty by the lobby officer in failing to at least greet Mr Spence in the lobby and in saying that the lobby officer’s standard of duty was to walk around the lobby at look at guests. Had the lobby officer been found to be required to greet all guests as they entered where possible, the assaults would have been avoided.

Recast the duty

In his opinion, with which Flaux LJ and Newey LJ agreed, McCombe LJ noted that the appellants’ criticisms of the lobby officer had originally been one of thirty alleged security failings by the respondent, saying: “All the heads of appeal now, however, concentrate entirely on the single aspect of the judge’s assessment of the role of the lobby officer at the hotel and [his] performance of that role on the night in question. In my judgment, however, it is important to see that this was a trial putting in issue the adequacy of virtually every aspect of security provision at the hotel and the role of the lobby officer was only one of those aspects.”

Addressing the agreed legal duty of the respondent, he said: “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. Now on the single issue argued before us, the Appellants have sought to recast the duty on one aspect of the case only.”

He continued: “In my judgment, that re-cast would have involved a different approach to the evidence as to [the lobby officer’s] conduct, as Mr Spence entered the hotel, from the approach adopted at the trial.”

McCombe LJ noted the words of Lewison LJ in Fage UK Ltd v Chobani UK Ltd (2014), who said: “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 light of this, McCombe LJ went on to say: “In my judgment, the 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 Respondent on this individual point and by the extent of the challenge made to [him] when he gave evidence. The judge did that and he reached a conclusion, on this one aspect of the many breaches of duty alleged, in light of those factors.”

He concluded: “There was no specific challenge at all as to whether it was possible or reasonably practicable for [the lobby officer], from where he was at the crucial moment, to have directed a specific challenge to Spence as he entered the hotel. The nature of the duty alleged has 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. I do not see that his final conclusion that (on the basis of the primary facts found by him) there was not a breach of the duty alleged, can be faulted.”

For these reasons, the appeal was dismissed.