PROVING THINGS 155: WITNESS EVIDENCE THAT GOES WRONG: HOTEL PROPRIETOR NOT LIABLE TO GUEST FOR ASSAULT BY TRESPASSER

In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2019] EWHC 1593 (QB)  Mr Justice Dingemans found that proprietors of a hotel had not been in breach of duty when some of their guests had been assaulted by a trespasser.  The claimants established that a duty of care existed, they failed to establish that the hotel were in breach of that duty.

THE CASE

The claimants were guests at a hotel in London.  Several of the claimants suffered extremely serious injuries when a trespasser to the hotel entered their room and assaulted them with a hammer.  The issue to be determined at trial was whether the defendant hotel

THE ERRANT WITNESS

It is worth noting that there was a witness who, if his evidence had been accepted, would have given considerable support for the claimants’ case on breach of duty.  This passage shows the importance of keeping attendance notes and details of all conversations with witnesses. The defendant’s solicitors had to put in witness evidence, attendance notes and emails to contradict this.

1. There was, on the face of the witness statements and in the oral evidence given at trial, a serious dispute raised by the evidence given by Mr Sami Ullah, an assistant night manager who had acted as night manager. He prepared a witness statement in which he was very critical about a number of matters relating to the security at the hotel, and alleged that solicitors acting on behalf of the hotel had refused to let him include these criticisms in his witness statement, which is why he had then supplied a witness statement to the Claimants’ solicitors. If true and reliable this would have been very important evidence in the Claimants’ favour. The Defendant’s solicitors put in witness statements strongly contesting that they had refused to let Mr Ullah put in criticisms about the hotel, and various attendance notes and emails were exhibited.

2. When he came to give evidence Mr Ullah did not support his written witness statement to the effect that the Defendant’s solicitors had not let him include criticisms of the hotel. Instead he said that the hotel staff had been briefed after the attack not to criticise the hotel when the insurers and the solicitors came. This evidence was not supported by any other witness including Mr Loughrey, Mr Marshall and Mr Zafar who said that there had been no such briefing.

3. Mr Ullah accepted that his evidence criticising the Defendant’s solicitors was untrue, and he also said that he had given untrue evidence supporting the hotel’s case to the Defendant’s solicitors. Mr Ullah was also asked about the fact that he had been made redundant before the witness statement had been served and that he had demanded payment for his signature, and it was suggested that he had become upset when he was told he could only be paid for his expenses, which would not exceed £300. He was asked about the fact that he was willing to sign his draft statement to the Defendant’s solicitors if he was paid damages.

4. Having heard Mr Ullah I have no doubt that he felt aggrieved at the fact that he lost his job at the hotel, the rights and wrongs of which are not before me, but I was unable to place any weight on his evidence and I reject his evidence. This is because he accepted he lied in his witness statement to the Claimants’ solicitors when he said that the Defendant’s solicitors had refused to let him put in criticisms of the hotel. On his own account he said he produced false evidence to the Defendant’s solicitors, and although Mr Ullah said he had been asked to do this by the hotel staff I reject this account because it featured for the first time in his oral evidence and none of the other witnesses supported his evidence about that. Mr Ullah did give some oral evidence supporting the hotel about the fact that their training was much better than a rival hotel at which he had subsequently worked, but I have no confidence in anything that Mr Ullah told me for the reasons given above and I have not relied on any of his evidence. It is only fair to note that, once Mr Ullah had given his evidence and the unreliability of his evidence had been shown, the Claimants did not require the Defendant’s solicitors to give evidence in accordance with their witness statements denying his allegations.

THE JUDGMENT ON LIABILITY

Duty extends to take reasonable steps to prevent attack of this nature (issue 1)

1. 1. The legal submissions before me raised issues about the scope of the hotel’s duty, the reasonable foreseeability of the attack, and causation. The real issue on the legal submissions before me was whether the hotel’s duty was limited to a duty not to cause harm to the Claimants or whether it extended to a duty to protect the Claimants against injury caused by the criminal acts of third parties. In order to impose liability on the Cumberland hotel for the criminal actions of Mr Spence against the Claimants I will need to find: a duty of care; a breach of that duty of care; which caused damage which was reasonably foreseeable.

   2. The modern starting point for an analysis of the circumstances in which a party might owe a duty to protect another person from the criminal activities of a third party used to be Dorset Yacht v Home Office [1970] AC 1004 where a duty of care was imposed on the Home Office which had brought young offenders to an island in Poole Harbour and allowing them to escape and cause damage. This was followed by Smith v Littlewoods Organisation [1987] AC 241 where no duty of care was imposed on the occupier of an empty cinema to prevent vandals from breaking in and starting a fire in circumstances where it was not reasonably foreseeable that a fire started by vandals would spread to other properties. Other relevant cases included Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12; [2004] 1 WLR 1273 where the police were found to owe a duty of care to a tourist shot by a probationary police officer after supplying the gun to him. Further developments continued with Mitchell v Glasgow City Council [2009] UKHL 11; [2009] AC 874, where it was held that there was no duty of care owed by the Council to warn a neighbouring tenant that a tenant had been given notice to quit because of the nuisance caused by that tenant to his neighbouring tenants, and Michael v Chief Constable of South Police [2015] UKSC 2; [2015] AC 1732 where it was held that there was no common law duty of care on the call handler of a 999 call to report threats to kill made by the caller’s ex-partner, although there was arguable liability under article 2 of the European Convention of Human Rights pursuant to the Human Rights Act 1988.

   3. However the law in relation to duties of these type for omissions (or failing to make things better as it has sometimes been called) was comprehensively reviewed by the Supreme Court in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4; [2018] AC 736 in which the police were held liable for the actions of the person that they were about to arrest for knocking over a passer-by. The judgment in Robinson means that the need to refer to the previous authorities is very much reduced, although it was common ground that some of the earlier dicta were relevant. In Robinson Lord Reed explained at paragraphs 22-25 of the judgment that some of the difficulties in the law of negligence had been caused by the decision of the House of Lords in Anns v Merton London Borough Council [1978] AC 728 at 751-752 when the House of Lords had attempted to set out an approach which could be applied in all circumstances to determine whether a duty of care existed. There had also been some misunderstanding of the effect of the judgment in Caparo Industries v Dickman [1990] AC 605. Lord Reed followed the approach of Lord Toulson in Michael v Chief Constable of South Wales Police at paragraph 106 to the test set out in Caparo [1990] 2 AC 605 at 617-618 noting that Courts should follow established principles and in novel situations “following Caparo, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authorities”.

   4. Lord Reed reaffirmed the general reluctance of English law to impose liability in tort for pure omissions. However, notwithstanding that starting point, the law will impose liability for pure omissions in certain circumstances, including the four situations identified in Robinson at paragraph 34. One of these situations is where “A has assumed a responsibility to protect B from that danger”. Absent these situations private bodies and public authorities will not generally owe a duty of care to prevent the occurrence of harm, see paragraph 35 of the judgment. One of the cases in which responsibility had been assumed was Stansbie v Troman [1948] 2 KB 48, where it was held that a decorator who had been left in charge of a house and went out leaving the door unlocked owed a duty to the householder to use reasonable care and skill to keep the house locked.

   5. So far as a duty in this case is concerned in my judgment it is necessary to start off from the fact that the Defendant operates a hotel. The common law developed special rules for those who are InnKeepers, now called hotel proprietors by the Hotel Proprietors Act 1956 which replaced and repealed the InnKeepers’ Liability Act 1863. For a person who operated a common inn and received all travellers willing to pay a reasonable price, there was strict liability on the InnKeeper for the goods of a guest. McCardie J in MacLenan v Segar [1917] 2 KB 325 explained that this was because of the prevalence of highway robbery and the possible collusion between thief and innkeeper, although Graham McBain in his interesting article “Abolishing the strict liability of hotelkeepers” JBL 2006 705-755 suggests at page 721-722 that the origin of this strict liability was Roman law. In any event, and whatever its origins, the law imposed stricter duties for the protection of the goods of guests than the duties for the protection of guests. Under the old common law it seems that the InnKeeper was not liable for any criminal assault on his guests, see Calye’s Case (1604) 8 Coke 32a at 33b “if the guest be beaten in the inn, the innkeeper shall not answer for it”.

   6. The position at common law evolved and by 1917 in MacLenan v Segar it was held in the context of a fire that a hotel proprietor owed a common law duty “to take reasonable care to prevent damage to the guest from unusual danger which the occupier knows or ought to know of”. As McCardie J noted the strict liability for goods and duty only to take reasonable care of the person of the guest was on the face of it anomalous, but with the intervention of the Innkeepers Act and the Hotel Proprietors Act the strict liability for loss of goods was limited to comparatively small sums save in specified circumstances including “default, neglect or wilful act of the proprietor”, see section 2(3). Anande v Firoka [2018] EWHC 3679 (QB) was an example of the limits on liability being set aside under the terms of the Act where problems with the hacking of the Onity door lock known to the hotel were not reported to guests.

   7. In Everett v Comojo [2011] EWCA Civ 13; [2012] 1 WLR 150 the Court of Appeal confronted the issue of whether a nightclub owed a duty of care in respect of the actions of another member of the nightclub who had attacked another guest with a knife. The judge had found a duty of care but found that there was no breach of duty. In finding a duty of care the judge had relied upon a Federal Court of Australia decision in Chordas v Bryant (Wellington) Pty Ltd (1988) 91 ALR 149 which held that hotel managers owed a duty to protect one guest from the foreseeable actions of another guest. The injured guest appealed and the nightclub cross-appealed in respect of the finding about the duty of care. The nightclub submitted that “the courts have always been slow to impose on a defendant liability for the deliberate acts of third parties and that any such duty should be narrowly drawn … the issue was of some importance for the hotel industry …”. The Court of Appeal applied the three fold test from Caparo and concluded at paragraph 34 that “there is a duty on the management of a nightclub in respect of the actions of third parties on the premises, but I stress the standard of care imposed or the scope of the duty must also be fair, just and reasonable” noting in paragraph 36 that “the common duty of care is an extremely flexible concept, adaptable to the very wide range of circumstances to which it has to be applied”. The appeal was dismissed because the judge’s finding that there was no breach of duty was upheld.

   8. Mr Block, while recognising that Everett v Comojo was binding on this Court, criticised the approach of the Court of Appeal in Everett v Comojo because the Court had simply applied the Caparo test in a way which he submitted was inconsistent with the approach now taken by the Supreme Court in Michael and Robinson. Mr Block also relied on the cases which showed that there was no duty to protect persons against obvious risks, such as diving into a gravel pit in Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46.

   9. In the light of all these authorities in my judgment, among other duties which are not material, the Cumberland Hotel owed the claimants, as guests of the hotel, a duty of care “to take reasonable care to protect guests at the hotel against injury caused by the criminal acts of third parties”. In my judgment the duty of care arises in respect of the omission to take steps to prevent the attack (or the duty to make things better by preventing the attack) as a “responsibility” type case as identified in paragraph 35 of Robinson. This is because the hotel invited guests to come and stay at the hotel and thereby assumed a duty to take reasonable care to protect guests. There is a loose analogy with the situation in Stansbie v Troman and the imposition of the duty is consistent with the result of the decisions in Chordas and Everett v Komojo the latter of which is binding on me. As is apparent I have found the duty to exist by reason of the assumption of responsibility test set out in Robinson rather than by the use of the Caparotest, although I should record that in my judgment the imposition of such a duty of care accords with the reasonable expectations of both hotel proprietors and guests, as well as the subjective expectations of both the Claimants and the Defendant’s witnesses such as Mr Stanbridge as given in evidence. It is clear that the common law relating to hotel proprietors has developed since 1604.

   10. In Smith v Littlewoods it was noted that in assessing the likely outcome it is not necessary to establish the precise means by which a loss occurred, but it is necessary to establish that the particular risk – in that case a major fire – was reasonably foreseeable, see Hughes v Lord Advocate [1963] AC 837 as explained in Smith v Littlewoods at page 248c. In this case this means that the likely outcome has to be an attack on guests in their bedrooms, but it is not necessary to show that a hammer was likely to be used.

No new intervening event to break the chain of causation (issue 2)

1. 1. In Smith v Littlewoods Ltd 1987] 1 AC 241 at page 272A reference was made to the judgment of Lord Sumner in Weld-Blundell v Stephens [1920] AC 956 at 986 where it was said that “In general … even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do”, noting that this had been regarded as expressing the view that the voluntary act of another breaks the chain of causation. However as Lord Goff noted at page 272C “if a duty of care is imposed to guard against deliberate wrongdoing by others, it can hardly be said that the harmful effects of such wrongdoing are not caused by such breach of duty. We are therefore thrown back to the duty of care”.

   2. It follows from the wording of the duty of care that I have found to exist the fact that the attack by Mr Spence was a criminal act would not amount to a new intervening act and break the chain of causation. This is because the duty is to take reasonable care to protect guests against injury caused by the criminal acts of others.

Criminal attack by Mr Spence reasonably foreseeable (issue 3)

1. 1. If there is a breach of duty, the loss caused by the loss must be “reasonably foreseeable” to the reasonable hotel proprietor, see The Wagon Mound (No.2) [1967] 1 AC 617.

   2. I was referred to a number of passages about reasonable foreseeability in Dorset Yacht v Home Office and Smith v Littlewoods. However it is important to recognise that some of those statements were made in the context of varying degrees of “reasonable foreseeability” being used as part of the test to establish the existence of a duty of care. In Dorset Yacht v Home Office at page 1028E Lord Reid illustrated the difference between reasonable foreseeability and bare foreseeability, without using those terms, when saying “If I buy a ticket in a lottery … it is foreseeable that I may win a very large prize – some competitor must win it … but no one could say that winning was a natural and probable result of entering such a competition”. In Smith v Littlewoods Ltd [1987] 1 AC 241 Lord Mackay drew a distinction at page 255 between “bare foreseeability” and “reasonable foreseeability”.

   3. In Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12; [2004] 1 WLR 1273 at paragraph 21 Lord Nicholls noted that reasonable foreseeability did not denote a fixed point on the scale of probability saying “as the possible adverse consequences of carelessness increase in seriousness, so will a lesser degree of likelihood of occurrence suffice to satisfy the test of reasonable foreseeability”. The fact of human intervention was something to be considered when assessing the degree of likelihood necessary to give rise to a duty of care, see paragraph 25. In that case the fact that guns were inherently dangerous was a very relevant factor, see paragraphs 33 and 39 of the judgment.

   4. Mr Block relied on the evidence of the past events to show that incidents of theft were very low and submitted that there was no known incident of a guest being attacked by non-guests in a hotel room before this case. It was said that this is a case of possibility upon possibility, that an attacker might enter the lobby, that he would not look suspicious and would walk confidently to the lifts, that he might get to the guest floors, that he might come across an unlocked door, that he might start to steal, that he might inadvertently wake the occupants, and that he would be carrying a weapon to attack them with, and that he might use it. Ms Rodway relied on the evidence of the past events to show that thefts had occurred, non-guests had wandered around the hotel, and the hotel’s own training had identified the possibility of non-guests coming in to attack guests. The evidence did show that on occasions non-guests had accessed guest floors, that thefts had occurred, and that those thefts might have been committed by hotel staff, guests and non-guests.

   5. In my judgment it was reasonably foreseeable to the Cumberland hotel that a third party might gain entry to the hotel and might injure the guests by a criminal assault, whether as part of an armed robbery, sexual assault or physical assault, with consequences which might be very serious. This was specifically identified in the DSO training programme referred to above. However it is also right to record that the evidence showed that the likelihood of such an attack occurring was extremely low, which is relevant to what steps ought reasonably to be taken by the hotel to prevent such an attack.

No breach of duty (issue 4)

1. 1. It was common ground that when assessing what is reasonable the relevant standard is that of a reasonable 4 star London hotel. A breach of duty is “something which a reasonable man would blame himself as falling beneath the standard of conduct for himself …” and also required of a person in a similar position, see Smith v Littlewoods at page 270 referring to Bolton v Stone [1951] AC 850 at 868-869.

   2. It was common ground that I should have regard to any reliable evidence of the practice of similar 4 star hotels in London, while noting the fact that just because every other similar hotel did not adopt a particular security measure was not proof that the practice was reasonable if the measure was required to provide reasonable protection against risks.

   3. I have addressed the allegations of breach of duty below by broad reference to the way that they were pleaded in the Particulars of Claim and Defence, although as is often the case once the evidence had been heard the submissions concentrated on some issues more than others, and set out my findings on the evidence in relation to each matter. I have then stepped back and considered as a whole whether there has been any breach of the duty of care.

   4. (1) Security governance. It is right that there was no single overarching security policy or plan, but the evidence before me showed that there were Brand Statements, job descriptions and training materials which showed that risks had been identified and relevant training provided.

   5. (2) Risk assessments. It is right to record that there was no single risk assessment for the hotel, and Mr Davis who emphasised the importance of these processes, considered this a relevant failing. It was a failing much emphasised by the Claimants. However it is also necessary to record that the relevant risks had been identified in the documentation referred to above, including the risks of “armed robbery … burglary, rape, sexual assault, physical assault etc” in the DSO training programme even though the evidence showed that there was a very low likelihood of this occurring. There were also some internal and external risk assessments including one carried out in part by Mr Loughrey at the end of the NaCTSO document. It is not apparent that any further risk would have been identified or preventative measure reasonably required to be implemented if all the documents had been collated into one formal risk assessment.

   6. (3) Assessment of threat levels. The hotel had a detailed system for recording and investigating incidents of criminal and other undesirable activity. It was apparent that the hotel kept up to date with terrorist threat levels, and responded to those.

   7. (4) Security operating procedures. The hotel had detailed security policies and the evidence showed that they were training on the policies and they were used.

   8. (5) Access control. The hotel did operate procedures to control access. These included shutting two out of three entrance doors at night, having a lobby officer, having CCTV as a deterrent, having other hotel staff in the lobby being receptionists and the concierge, having housekeeping staff who were trained to spot persons wandering around, having patrols by the DSO, and having self-locking guest doors.

   9. (6) Reviews of plans and procedures. It is apparent that the hotel security policies were kept under continuous review by Mr Loughrey, who considered among other matters, what effect the Olympics would have, what other hotels were doing, and what reports were showing him about security at the hotel.

   10. (7) System for reporting. There was a system of reporting by departmental meetings and weekly meetings between Mr Stanbridge and Mr Loughrey.

   11. (8) Job descriptions. There were job descriptions set out in the training programmes which identified the duties of the security officers.

   12. (9) Inconsistent requirements to lobby officer. It is right to record that the list of duties for the lobby officer did on a literal reading require the lobby officer to meet and greet every single guest and also to patrol the Momentus bar, the Brasserie and outside the main entrance. However it is apparent that everyone knew that the lobby officer did not have to meet and greet everyone, and the duties were clear in practice.

   13. (10) Criminal trends. The evidence showed that Mr Loughrey was well aware of relevant criminal activities and trends. Both Mr Stanbridge and Mr Loughrey were members of the Institute of Hotel Security Management which was established in conjunction with the police. In my judgment both Mr Stanbridge and Mr Loughrey were concerned to ensure that they had a good understanding of anything relevant in relation to security and the hotel industry. The fact that one person described as a regular troublemaker was photographed for the purposes of reporting on shows that criminal activities were not ignored.

   14. (11) Reviews in the light of past incidents. It was apparent from the evidence that past incidents were investigated and recorded and considered by Mr Loughrey and Mr Stanbridge. I did detect a tendency on the part of Mr Stanbridge and Mr Loughrey to assume that, in the absence of clear evidence to prove the involvement of a non-guest, the thief would have been another guest or member of staff, but it is apparent that incidents were investigated properly using CCTV and key card interrogation and considered. Further it was apparent that both Mr Stanbridge and Mr Loughrey were aware that non-guests had on occasions accessed guest floors and the risk of them doing so.

   15. (12) Meetings of the security department. The evidence showed that Mr Stanbridge and Mr Loughrey met each week and that incidents were reviewed.

   16. (13) Departmental meetings. It is apparent that the departmental meetings, and in particular the last two before the attack, did consider the relevant reports of incidents.

   17. (14) Continuous training. The evidence showed that there was proper induction training and regular annual training. This was properly recorded. The only evidence that the signatures were not reliable came from Mr Ullah and I have explained in paragraph 23 above why I was not able to accept his evidence.

   18. (15) Monitoring security officers’ performance. It was apparent that Mr Loughrey did work closely with his security officers, and had a good idea about their abilities. It was also apparent that failings were picked up by others, as appears from the email from Mr Peck. I should record that the evidence showed that on 4 April 2014 there was no lobby officer on duty for a period of time. There was no good reason to explain this in the evidence. However it is apparent that for the overwhelming majority of the time there was a lobby officer on duty.

   19. (16) Membership of professional security body. The security officers were members of the Security Industry Association and were properly trained. Mr Stanbridge had a diploma in Security Management. Mr Stanbridge and Mr Loughrey were members of the Institute of Hotel Security Management.

   20. (17) Training of Mr Zafar. Mr Zafar was trained by Assist Security Limited and he had received lobby officer training on 3 August 2013 from Mr Loughrey.

   21. (18) NaCTSO guidance. I have noted that the hotel did not have a formal risk assessment but did identify and confront risks. For the reasons which I have already given the NaCTSO guidance did not, when properly understood, require magnetic swipe card access at the lift lobby area. There was no continuous monitoring of CCTV.

   22. (19) CCTV cameras in the lifts and on the fire escape stairs. There were no CCTV cameras on the fire escape stairs and in the lifts. There were about 135 CCTV cameras in the hotel, and Mr Spence had been recorded on the CCTV. It is right to record that some of the CCTV cameras which were motion activated did not activate, as is apparent from the intermittent coverage of some of the entries and exits to the lifts. The CCTV cameras were maintained under a maintenance contract and it is apparent from the CCTV coverage at the trial that the overwhelming majority were in proper working order.

   23. (20) Monitoring of CCTV. I have already noted that there was no continuous monitoring of CCTV.

   24. (21) Doors being left open by Middle East guests. There was a proper system for ensuring that open doors were shut by housekeeping or security staff. There was no alarm system to alert security staff to open doors. There was no notice on the back of doors telling guests to shut the door or welcome leaflet to the same effect. There were patrols of the guest floors at least once a day and it is apparent from the reports that open doors were picked up.

   25. (22) Numbers of patrols. The patrols were carried out once a day.

   26. (23) Morse watchman and shutting of doors. The evidence of the reports of open doors found by the DSO’s shows that the timing requirements of the Morse watchman did not prevent DSO’s from identifying open doors.

   27. (24) Patrols before the attack. The evidence shows that Mr Stoyanov was on tour at the time of the attack, but had not carried out tour 2 which would have included the seventh floor. I could not discern any duty to carry out that tour at any specific time.

   28. (25) Shortcomings in patrols. It is apparent from the reports from the tours that patrols were regularly carried out and relevant matters reported. Although it is apparent that Mr Marshall would not have walked every part of the corridor and so might have missed an open door, the evidence which I accept showed that patrols were taken seriously even if they were carried out briskly as shown by the evidence from the timing of the touchpoints.

   29. (26) Numbers of security staff. At the material time there was a lobby officer, DSO and back of house officer on duty. Mr Loughrey was also on duty, although his formal shift had finished. I noted Mr Loughrey’s evidence that an ideal solution would be to have another lobby officer to greet every single guest, but the test is whether the hotel took reasonable care to protect the Claimants against Mr Spence’s attack and in my judgment the single entrance after 11 pm, the lobby officer together with the other staff in the lobby, the CCTV, the possibility of finding housekeeping and the DSO on the guest corridors, and the self-locking door showed that the hotel had taken reasonable care to protect against this attack.

   30. (27) Positioning of the lobby officer. The lobby officer was not in a fixed position between the left hand entrance and the lift lobby area. It is apparent that Mr Zafar was walking around the lobby, including the bar area in the period of time leading up to the attack. He was coming back towards the front left hand entrance when Mr Spence walked into the lobby and towards the lift lobby area.

   31. (28) Monitoring of Mr Zafar. I have already addressed the monitoring carried out by Mr Loughrey. On the night apart from resting his head on the edge of the concierge desk for about 5 seconds Mr Zafar did appear to be in the lobby and carrying out his duties. I did reflect on Mr Marshall’s evidence about the relative lack of importance of the lobby officer when compared to the roles of DSO and Back of House security officer to consider whether that reflected the attitude generally of the hotel to the role of the lobby officer. However it was apparent from the evidence of Mr Loughrey, as security manager, and Mr Zafar, as lobby officer at the material time, that they understood the importance of the role of the lobby officer.

   32. (29) Hosting and greeting. It is right to record that Mr Zafar appeared to speak to only one guest between 2315 and 0115 hours, and the evidence showed that the night before (4 and 5 April 2014) that both Mr Stoyanov and Mr Zafar seemed to have spoken to guests only when the guests had addressed them. However it is also apparent that at the material time Mr Zafar was walking around the lobby, looking at persons, and was for (what was estimated to be) 52 of the 120 minutes of the period from 2315 to 0115 hours standing between the entrance door and the lift lobby area.

   33. (30) No hosting or greeting of Spence. Mr Zafar appeared to look towards Mr Spence, and he would have had a side view about 8 metres from him, but he did not host or greet him.

   34. I have considered carefully all of the lay and expert evidence about the breaches of duty. In my judgment the evidence as a whole showed a hotel in which security was taken seriously by Mr Loughrey and the security officers and the hotel did take reasonable care to protect the Claimants against the injuries caused by Mr Spence. The hotel did not need to monitor continuously CCTV cameras. This is because there is nothing to suggest that this is an activity carried out by any other hotel proprietor given the low likelihood of any attack occurring. For similar reasons in my judgment to act reasonably the hotel did not need to install CCTV cameras in the lift or on the fire escape staircases. The hotel did not need to have an alarm system to alert security staff to open guest doors. Any such system would generate alarms when there was cleaning of the rooms, or guests were taking too long leaving the room. There was nothing to suggest that this should be used by any reasonable hotel proprietor. The duty was to take reasonable care to prevent the attacks, it was not an absolute duty to prevent an attack.

   35. Although the evidence showed that some guests from the Middle East had a tendency to leave their doors on the latch it was common sense that the guest door should be shut. I do not consider it likely that guests would have known that there were 1,100 guest bedrooms at the hotel, but guests would have known that this was a large hotel and that there were numerous other guest bedrooms and, at the very least, those other guests would have had access to the guest floors. The evidence in this case shows that the reason that the door was not shut was not because it was not perceived to be necessary to shut the door but because the key card could not be found before Shaikha left, and that if it had been found the door would have been shut. In my judgment to act reasonably the hotel did not need to put a notice on the door or hand out a leaflet telling guests to shut their doors.

   36. In my judgment the number of patrols was sufficient to show that the hotel acted reasonably to protect the Claimants. There was no requirement to have any specific number of patrols, or to have the patrols at any particular time. Although matters might have turned out differently if Mr Stoyanov was carrying out tour 2 at some time after Shaikha had first left the door open at midnight and before the attack at 0125 hours, I can discern no duty for Mr Stoyanov to be on tour 2 at the time that Shaikha had left the door to room 7008 on the latch, because he could decide when to carry out the patrol.

   37. In my judgment the duty on the hotel did not require the hotel to provide another lobby officer or to require the lobby officer to host and greet every guest entering the hotel after 11 pm. This is because there was sufficient security provided by the lobby officer walking around the lobby and looking at guests, even though this activity was not apparent on all occasions as appears from Ms Coleman’s evidence. In my judgment to act reasonably the hotel was not required to insist that the lobby officer greet every single guest after 11 pm. This was because the lobby officer was looking after the whole of the lobby and looking at some, but not all guests when they entered. For similar reasons there was no duty to put a key card reader and insist that every guest show their key card, even though this occurred later at a time of heightened terrorist alert.

   38. In my judgment to act reasonably the hotel did not have to provide key card access to the lifts, even though it had been proposed by Mr Loughrey in 2012 and the system was adopted after the attack. The evidence showed that such systems were liable to being overridden by tailgating and other guests pressing buttons allowing access to others. Even after its installation it was noted that the lobby security officer was the primary means of providing security. My conclusion on these matters is part supported by the approach taken to security by other 4 star London hotels where all but one did not have key card lift access readers.

   39. I have considered Ms Rodway’s complaint that in the absence of a physical barrier and key card access to the lifts the guest rooms were in effect opening on to Oxford Street but I do not accept that that is a fair characterisation of the matter. It is right that there was no physical barrier to stop someone walking from Oxford Street into Great Cumberland Place and going through the left hand entrance after 11 pm, but such a person would have to avoid staff in the form of a lobby security officer somewhere in the lobby, receptionists ahead, and the concierge staff to the right. There were numerous CCTV cameras capturing that person. If the person walked to the lift lobby area and travelled up to the guest floors there was the possibility of coming across housekeeping staff, who had been trained to look out for non-guests, and the DSO on patrol. Finally there were the guest bedroom doors secured by self-locking devices. All the evidence shows that it was understood that the door should be shut. In some respects Ms Rodway might have said that the guest bedroom doors opened on to the world. This is because anyone paying the room rate would be able to become a guest. The reality is that, given the unpredictability of criminal behaviour, the attack on the Claimants could just have easily been carried out by another guest, or a person accompanying a guest into the hotel. In this respect I note that there was concern about the person who came up to the seventh floor in the same lift as Shaikha, Alnood and Mubarakah. Greeting every individual guest or insisting on key card access would not have prevented an attack by a fellow guest, and it emphasises the importance of the guest bedroom door.

Causation (issue 5)

1. 1. The issue is whether, if I had been satisfied that in order to act reasonably the Cumberland hotel should have employed any of the measures set out above, such a measure would have prevented the attack by Mr Spence. I accept that if there had been a duty to provide: continuous monitoring of CCTV; there had been CCTV on the fire escape staircase and lifts; a notice or leaflet telling guests to shut the doors; another lobby officer; more patrols; or a key card providing lift lobby access; these measures might have prevented the attack, but I am unable to say that it was more likely than not that they would have prevented the attack. This is because it is unlikely that Mr Spence would have been identified as a non-guest on CCTV or by another lobby officer, or that he would have come across a patrol. The notice on the door about shutting the door or a leaflet would have added nothing to Shaikha’s understanding that the door should be closed. It is right to note that there was a period of time separating Mr Spence from the guest before who had gone up in the lift and the guest who came up after Mr Spence, but it is apparent that he was able to negotiate his way around the hotel and I consider it more probable than not that he would have successfully tailgated another guest in this comparatively busy lobby.

   2. On the other hand if there had been a requirement for the lobby officer to greet every single person including Mr Spence I consider it more likely than not that Mr Spence would have pretended to be coming into the public area of the lobby, such as the bar, and that he would then have left the hotel unobtrusively. If there had been a requirement for an alarm on each open door I consider it more likely than not that this would have sounded before the attack had been carried out, and that the door would then have been shut before the attack. The reality is that in most cases it will always be possible to identify something which would probably have prevented an attack, for example security arches which would have picked up the hammer carried by Mr Spence, although it was not contended that the duty to act reasonably extended to requiring the erection of such a security arch in this case.

   3. In the light of the conclusion on causation set out in the paragraph above I did revisit my conclusion on breach of duty of care but there was nothing to cause me to change my conclusion that the hotel acted with reasonable care to protect guests at the hotel against injury caused by the criminal acts of third parties.

Contributory negligence (issue 6)

1. 1. When analysing the preliminary issue as ordered it became clear that issues of contributory negligence, or even potential liability to make a contribution, on the part of Shaikha were not part of the preliminary issue. Therefore the only question on contributory negligence is whether there was contributory negligence on the part of Ohoud. It is well-known that contributory negligence raises issues of blameworthiness and causation.

   2. In the light of my previous conclusion it is not necessary for me to express any conclusion on this issue and I have decided not to do so. This is because any finding of contributory negligence depends on a broad assessment which will include respective blameworthiness and causative relevance. In circumstances where I have not found any negligence on the part of the hotel it would mean that any finding on contributory negligence would not be a fair assessment of respective contributions to the incident.

Conclusion

1. For the detailed reasons given above: (1) in my judgment the Cumberland hotel owed the Claimants a duty to take reasonable care to protect guests at the hotel against injury caused by the criminal acts of third parties; (2) the attack by Mr Spence was a criminal act but did not amount to a new intervening act and break the chain of causation; (3) the attack by Mr Spence was reasonably foreseeable to the hotel but the likelihood of such an attack occurring was extremely low; (4) the hotel did not act in breach of any duty of care to the Claimants; (5) I have made findings on whether any actions might have prevented the attack; and (6) in circumstances where I have not found any breach of duty on the part of the hotel I have not made any findings on the issue of contributory negligence. I therefore determine that there was no liability on the part of the Cumberland hotel to Ohoud, Khaloud and Fatima for the attack carried out by Mr Spence.