KembaraXtra-Case Law-Al-Najar and others v Cumberland Hotel (London) Ltd [2021] 1 WLR 3415

KembaraXtra-Case Law-Al-Najar and others v Cumberland Hotel (London) Ltd [2021] 1 WLR 3415
I. Case Information

II. Key Legal Question / Practice Point

Appeal - Findings of trial judge:
- Can an appellate court allow an appeal based on a re-cast content of duty when the trial judge found no breach of the originally contended duty of care?
- Specifically, in a case where a hotel was found not in breach of its duty to protect guests from third-party criminal acts.

III. Factual Background

Incident: Three claimants were attacked by a third party (S) who entered the defendant's hotel in the early hours.
Third Party Action: S attempted to steal money, jewellery, and other items from one of the claimant's rooms.
Claimants' Injuries: All claimants suffered physical or psychiatric injuries.
Claimants' Initial Contention (Trial):
- Defendant hotel proprietor was in breach of duty of care.
- Breach due to failure to stop S entering the hotel, gaining access to guest areas, and carrying out the attack.
- Specific alleged breach: Hotel's lobby officer should have greeted and, if necessary, challenged every person entering the hotel from 11 p.m. onwards.

IV. Trial Judge's Decision (Dingemans J)

Duty of Care Established: Hotel proprietor owes guests a duty to take reasonable care to protect them against injury caused by the criminal acts of third parties during their stay.
Breach of Duty Finding:
- The defendant had taken reasonable care in all circumstances.
- Therefore, the defendant was not in breach of duty.
- Specifically rejected the claimants' contention regarding the lobby officer's duties after 11 p.m.

V. Claimants' Appeal

Re-cast Duty Contention on Appeal:
- After 11 p.m., the lobby officer should have greeted every person entering the hotel where possible, alternatively where reasonably practicable. (This is a softer, less absolute version of the original contention).

VI. Court of Appeal's Decision (Dismissing the Appeal)

Nature of the Duty: The defendant's duty was to take reasonable care, not an absolute duty, to prevent criminal attacks.
Trial Judge's Findings on Likelihood: The trial judge found the likelihood of such an attack to be extremely low.
Justification for Rejecting Original Contention: Given the "reasonable care" standard and low likelihood, the judge was clearly entitled to reject the contention that the duty included challenging every person after 11 p.m.
Assessment of Breach at Trial:
- The trial judge assessed the alleged breach (regarding the lobby officer) by reference to the nature of the case being made at trial and the extent of the challenge to the lobby officer's evidence.
Problem with Re-cast Duty on Appeal:
- A consideration of the re-cast duty would have required a different approach to the evidence regarding the lobby officer's conduct, an approach the trial judge was not called upon to assess.
Appellate Court's Role - Non-Interference with Findings of Fact:
- Appellate courts have been repeatedly warned not to interfere with findings of fact by trial judges, unless compelled.
- This applies to primary facts, evaluation of those facts, and inferences drawn from them.
Conclusion: The trial judge's conclusion of no breach of the duty alleged (based on primary facts found) could not be faulted.

VII. Cited Authority

Fage UK Ltd v Chobani UK Ltd [2014] ETMR 26, para 114, CA (Lewison LJ's dicta applied regarding appellate restraint on interfering with factual findings).

VIII. Outcome

LAW