The High Court has confirmed that hotels owe guests a duty to take reasonable care to protect them against injury caused by the criminal acts of third parties.
However in this particular case – where guests were catastrophically injured in a hammer attack - it was held that whilst the criminal act itself had been reasonably foreseeable, the likelihood of the attack occurring was extremely low. Therefore, the hotel had not breached its duty of care to the Claimants.
The Claimants were guests at the Cumberland Hotel ("the Hotel") in London, and were staying in adjoining rooms. Three of the Claimants (all young children) were attacked in their rooms. The attacker, Philip Spence, had entered the hotel from the street with the intention to steal items from the hotel. The room in question was accessible from the hotel corridor, as the door had been left on the latch by the Claimants.
The children sustained life changing injuries and their relatives suffered alleged psychiatric injuries. They all submitted a claim against the Hotel alleging that it had breached its 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".
The Claimants argued that the security at the hotel was inadequate, describing it as "haphazard and poorly managed," as the assailant had not been challenged by security.
They argued that the lack of appropriate security measures in the lobby meant "in effect [the Claimants'] bedroom doors were open to the street below". The Claimants also submitted that there should have been CCTV covering the corridors and guests should have been warned to close their doors.
The Hotel accepted that it owed its guests a duty of care but denied that the duty extended to include a responsibility to protect guests from criminal acts of third parties.
The Court found there was no liability on the part of the Hotel for the attack carried out by Mr Spence.
Mr Justice Dingeman set out his rationale as follows:
- The Hotel did owe a duty to take reasonable care to protect guests at the hotel against injury caused by the criminal acts of third parties;
- The attack by Mr Spence was a criminal act but did not amount to an intervening act breaking the chain of causation
- The attack was reasonably foreseeable but the likelihood of it occurring was low
- The Hotel did not act in breach of any duty to the Claimants
In respect of issue 1, the Court accepted that there was no general liability in tort on private bodies and public authorities for pure omissions. The Hotel Proprietors Act carries no duties for hoteliers to protect guests. However, liability for omissions had been considered in Robinson, and one of the four situations where liability would be imposed for an omission was present – where "A has assumed to a responsibility to protect B from that danger." The Court therefore held that the duty owed was "to take reasonable care to protect guests at the hotel against injury caused by the criminal acts of third parties."
As to point 2, the Court was satisfied that the criminal actions of Mr Spencer were not a break in the chain of causation as the duty owed required reasonable care against such a criminal act.
The foreseeability of the attack (point 3) was reasonable according to Mr Justice Dingeman, stating "a third party might gain entry to the hotel and might injure the guests… with consequences which might be very serious". Nonetheless, the likelihood of this occurring was low, and this was "relevant to what steps ought reasonable to have been taken by the hotel."
Taking this and other points into account, per point 4, there was no breach of the duty defined earlier. The Court held that "the evidence as a whole showed a hotel in which security was taken seriously". The hotel was not required to continuously monitor CCTV or install them in additional areas, nor "hand out a leaflet telling guests to shut their doors."
The Court concluded that "the hotel acted with reasonable care to protect guests at the hotel against injury caused by the criminal acts of third parties."
Furthermore, in the absence of a finding of a breach of duty, there was no need to make a finding on the issue of contributory negligence by some of the Claimants.
It is understood that the Claimants are considering an appeal.
What can we learn?
- This decision addressed important issues about the liability of a hotel for the criminal acts of third parties. As Mr Justice Dingeman highlighted, the Hotel Proprietors Act - the legislation usually considered when addressing a hotel and liability to their guests - "imposed stricter duties for the protection of the goods of guests than the duties of the protection of guests." This decision, following on from Robinson last year, will provide some clarity in terms of the duties owed in respect of the care of the guests themselves.
- The liability of hotels and tour operators is a hot topic at the moment, as the case of X v Kuoni is currently awaiting judgment in the Supreme Court. The Claimant was sexually assaulted by an employee at her hotel while on a package holiday in Sri Lanka. She claimed damages for the assault against Kuoni as being liable for the actions of the assailant. The claim is brought under the Package Travel, Package Holidays and Package Tours Regulations and in breach of contract. Therefore, it is not an issue of breaching a duty in tort, which is what scuppered the Claimants in the index claim. Her claim has so far been rejected by the lower courts, but if the appeal is granted, then the implications for the travel industry are significant as tour operators will be liable for the acts of the hotel, their employees and third parties, arguably leaving them little prospect of challenging a claims involving criminal acts of third parties.
- The decision also serves as an interesting contrast to previous judgments, demonstrating how Courts have considered the adoption of a duty of care to lawful visitors. In Pollock, homeowners were found liable for injuries sustained by a blind visitor under the Occupiers' Liability Act when the visitor fell 25 feet out of an open window, sustaining severe spinal injuries. By identifying that there was a risk to the visitor because of the open window, the homeowners had adopted a duty.
- In Biddick, a homeowner's offer to help fit loft insulation amounted to the adoption of a duty of care, which he was required to discharge carefully, even though the workman had neither relied on his help nor considered it necessary for his safety. Had Mr Biddick not chosen to involve himself in the operation, there would have been no basis at all to make any finding of negligence against him.