Ohoud Al-Najar (a protected party by her litigation friend Khadia Al-Mulla) v The Cumberland Hotel (London) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 21 June 2019 |
| Neutral Citation | [2019] EWHC 1593 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17P00870 |
| Date | 21 June 2019 |
[2019] EWHC 1593 (QB)
Mr Justice Dingemans
Case No: HQ17P00870
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Susan Rodway QC and David Sanderson (instructed by Hodge Jones & Allen LLP) for the Claimants
Neil Block QC and Camilla Church (instructed by DWF Law LLP) for the Defendant
Hearing dates: 7, 9, 10, 13, 14, 15, 16, 17, 21 and 22 May 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Dingemans
Introduction
This case raises issues about whether a hotel proprietor owes a duty to guests to take reasonable care to protect against injury caused by the criminal actions of third parties, and if so whether the duty was breached in this case.
The Claimants (Ohoud Al-Najar (“Ohoud”), Khaloud Al-Najar (“Khaloud”) and Fatima Al-Najar (“Fatima”), the parties have agreed that I should refer to the Claimants and their family by their first names) are from the United Arab Emirates (“UAE”) and were, with Khaloud's three children and other family members staying at the Cumberland Hotel situated at the Marble Arch end of Oxford Street in London (“the hotel”) in April 2014. In the early hours of Sunday 6 April 2014 Ohoud, Khaloud, Fatima and Khaloud's three children were sleeping in rooms 7007 and 7008, which had an interconnecting door.
CCTV cameras show that at 0113 hours on Sunday 6 April 2014 Philip Spence walked into the hotel. He was wearing a jacket and trousers and it was common ground that in his appearance there was nothing to distinguish him from any other guest or visitor to the hotel. He walked across the lobby and passed within 8 metres of Wasif Zafar, the lobby security officer, going directly to the lift lobby. He took a lift to the 5 th floor where he was shown on CCTV to be exiting the lift lobby on that floor at 0114 hours. He then made his way to the 7 th floor and it is apparent that he probably used the fire escape stairs because he was not shown on any other CCTV from the lift lobby. On the 7 th floor he saw that the front door to room 7008 had been left open, with the deadlock used to prevent it locking. The door to room 7008 had originally been left open because one of the family members staying in the room had left it on the latch so that a hair dryer could be returned without waking the others. In the room Ohoud, Khaloud, Fatima and Khaloud's three children aged 12, 10 and 7 years were asleep.
Mr Spence went into room 7008 and started to steal money, jewellery and other items from rooms 7008 and 7007. He started putting the items into Fatima's suitcase which was in the room. Khaloud woke up and Mr Spence attacked her by hitting her on the head with a hammer which he had in his jacket pocket. Fatima woke up and came to Khaloud's rescue but she was also hit on the head with the hammer. At some time when he was in the rooms Mr Spence also attacked Ohoud by hitting her on the head with the hammer. Khaloud, Fatima and Ohoud all suffered very serious injuries. The attack on Ohoud destroyed the left side of her skull and caused catastrophic brain damage. Ohoud now lacks capacity to conduct her own affairs. The attack has had devastating consequences for the Claimants. The bravery and courage of all of the Claimants at the time of, and after, the attack was apparent from the evidence.
After the attack Mr Spence left the hammer on one of the fire escape staircases. He took the lift down to the lobby. He then left the hotel with the suitcase to return to Thomas Efremi, who had supplied the hammer used by Mr Spence in the attacks. Mr Efremi used the credit cards stolen by Mr Spence to obtain £5,000 in cash.
Mr Spence, who had 37 previous convictions for 62 offences including past acts of violence, was tried in the Crown Court at Southwark in October 2014. Mr Spence was convicted of 3 counts of attempted murder. Mr Spence and Mr Efremi were also convicted of conspiracy to commit aggravated burglary. Mr Spence was sentenced to life imprisonment with a minimum term of 18 years. Mr Efremi was sentenced to 14 years imprisonment. The Attorney General obtained leave to refer Mr Spence's sentence to the Court of Appeal, Criminal Division on the basis that it was unduly lenient. The sentence was increased to life imprisonment with a minimum term of 27 years, see Attorney General's Reference (No.123 of 2014) [2015] EWCA Crim 111; [2015] 1 Cr App R (S) 67.
Ohoud, Khaloud and Fatima as direct victims of the attack, and other members of the family as secondary parties who suffered psychiatric injuries, bring a claim for damages against the Defendant the Cumberland Hotel (London) Limited (“the Cumberland hotel”). This is the hearing of a preliminary issue as to liability and contributory negligence in respect of the claims made by Ohoud, Khaloud and Fatima. The claims made by other family members have been stayed pending the hearing of the preliminary issue.
Issues
The Claimants contend that the Cumberland Hotel breached a 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”, and that breach created the circumstances in which Mr Spence could attack them and cause the injuries which they had suffered.
The Defendant admits that it owed the duty to its guests but contends that the duty did not include a responsibility to protect guests from the criminal acts of a third party such as Mr Spence, denies that the attack by Mr Spence was reasonably foreseeable, denies that it has acted in breach of any duty, and denies that any breach of duty caused the injuries suffered by Ohoud, Khaloud or Fatima.
The issues were refined in the course of the trial and during excellent closing submissions from Ms Susan Rodway QC on behalf of the Claimants and Mr Neil Block QC on behalf of the Defendant and their respective legal teams. By the end of the trial many of the factual disputes had been resolved, and I should record my particular thanks to Mr David Sanderson and Ms Camilla Church for their hard work in reviewing hours of CCTV footage to resolve some of the disputes about the timings of the patrols by security officers. This case was a proper example of the parties co-operating with each other pursuant to CPR Part 1.4(2)(a) to enable the Court to deal with the case, while at the same time ensuring that every proper point on behalf of their respective clients was pursued.
In the final event the legal and factual issues for me to determine are: (1) whether the duty owed by the Cumberland hotel extended to a duty to take reasonable steps to prevent the attack by Mr Spence; and if there was any such duty: (2) whether the attack by Mr Spence was a new intervening act which broke any chain of causation; (3) whether the attack by Mr Spence was reasonably foreseeable; (4) whether the hotel acted in breach of any duty owed to Ohoud, Khaloud and Fatima by failing to act as a reasonable, prudent and competent operator of a London hotel of this standard; (5) whether any breach of duty on the part of the Cumberland hotel caused the injuries suffered by Ohoud, Khaloud and Fatima; (6) whether there was any contributory negligence on the part of Ohoud.
The evidence
On behalf of the Claimants I heard oral evidence from: Khaloud, who was injured in the attack; Fatima, who was also injured in the attack; Shaikha Saeed Al-Muhairi (“Shaikha”), sister of Khaloud, Fatima and Ohoud; Elizabeth Cole a guest of the hotel on 4 August 2013 when a man came into her locked room which she was sharing with her son; Sandra Coleman another guest of the hotel on 6 April 2014; Sami Ullah, assistant night manager at the time of the attack; and John Rafferty, who stayed at the hotel in 2012 or 2013 and who raised issues about the security at the hotel.
There was a hearsay notice served in respect of an attendance note made by the Claimants' solicitors recording statements made by Mr Spence when he was visited in prison and a transcript of the evidence given by him at his trial. I also read a statement from Saif Saeed Al-Muhairi (“Saif”), brother of Khaloud, Ohoud, and Shaikha, whose statement was not challenged subject to a modification to remove opinion evidence in paragraph 31. There was a statement from James Swift, Director of a Security Engineering and Risk Management firm who had visited the hotel on 8 July 2015 on behalf of the Claimants' solicitors which was not challenged. Reliance was also placed on transcripts of part of the evidence of Mr Efremi from the trial.
On behalf of the Defendants I heard oral evidence from: MD Robiuzzaman Marshall, night shift Back Door Officer or Back of House officer of the hotel on 5 and 6 April 2014; Robert Stanbridge, head of security for GLH Hotels Limited (“GLH Group”) which is the Group in which the Cumberland hotel is a subsidiary; Ian Peck, general manager of the hotel at the time of the attack; Mark Loughrey, security manager at the hotel; Mr Zafar, the night shift lobby security officer of the hotel on 5 and 6 April 2014; Mark Blackie, chief engineer of the hotel at the time of the attacks; Bela...
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