Duty of care to protect customers?

1st August 2019

A violent attack on hotel guests in London highlights concerns for any business inviting customers or guests into their premises. Walker Morris’ Commercial Dispute Resolution team, considers the potential practical implications arising from this recent, shocking case.

Reports of violence on the high street are on the rise. Unfortunately, even the briefest of internet research reveals a worrying number of incidences of violence in our shops, businesses and streets.  Within just the last year alone there have been: a stabbing in Waitrose; a lethal knife attack on Harlesden High Street; separate killings, knife attacks, boiling water and acid attacks in Colchester town centre; violence, gun crime, drugs and prostitution forcing shops, pubs and other businesses to close in Swansea High Street; and armed robbery and a stabbing with scissors at Co-op stores in Greater Manchester, to mention but a few.

The importance of the Cumberland Hotel case

It is clear that vital work is needed to protect retailers’ employees and premises. However, the recent case of Al Najar & Ors v The Cumberland Hotel (London) [1] (the shocking case in which three sisters were brutally attacked at the former Cumberland Hotel) gives rise to additional concerns for any business inviting customers or guests into its premises, because it considers the extent to which such businesses owe a duty of care to protect their customers.

What can businesses do?

As explained in more detail below, the High Court concluded in this case that a business owes a duty to invited guests/customers to take reasonable care to protect against injury caused by the criminal acts of third parties.

The increasing incidences of violence on the high street, and the attention that this issue is attracting within the media and at industry and Government level [2], mean that it is likely, were the question to arise in the context of any business inviting people onto its premises, that a court would find the risk of violence to staff and/or customers to be reasonably foreseeable.

The key for responsible businesses will therefore be to ensure that they take sufficient steps to safeguard not only their staff, but also their customers. Such measures as are appropriate will differ from business to business, and potentially even from site to site, but they could (non-exhaustively) include:

• undertaking detailed and regular security/risk assessments
• implementing such, policies/procedures and security measures as are necessary to address any risks identified
• keeping such policies/procedures and measures under review and up-to-date and ensuring that they are followed at all times (perhaps by undertaking random spot-checks)
• ensuring that security staff are properly trained or qualified as appropriate, and that all training and qualifications are kept up-to-date and under review
• ensuring that security equipment is up-to-date and in full working order at all times
• ensuring that all other staff are trained so as to be alive to the risks of violence to staff and customers, and that they are aware of security measures and procedures to be followed in the event of any incident
• implementing, and ensuring that all staff are aware of and use, a reporting system for incidences of violence or related matters.

Cumberland Hotel case: Cause for concern

In this case the attacker accessed the hotel room of three sisters and carried out a theft and violent hammer attack, inflicting critical and permanent injuries on all three sisters. The sisters took legal action alleging that the hotel’s security had been insufficient.  The High Court considered whether a business owes a duty to invited guests (or, by analogy, to any customers) to take reasonable care to protect against injury caused by the criminal acts of third parties; and concluded that it did.

The High Court undertook an up-to-date review of the circumstances in which English law may impose liability arising from omissions (such as, here, an omission to take steps to prevent the danger of a theft and violent attack). The court decided that the correct approach was to apply the ‘omissions principle’ identified by the Supreme Court in the 2018 case of Robinson v Chief Constable of West Yorkshire [3], namely: “In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.”  It concluded that, by inviting guests to stay, a hotel assumes a responsibility to protect guests from danger as per (i) above.

A duty of care can, therefore, arise. Again by analogy, a duty of care could potentially also arise on the part of retailers, banks, bars, restaurants, cinemas, theatres, arenas, local authorities or indeed any business which invites guests or customers into its premises.

In this particular case, however, the hotel escaped liability overall, as the High Court decided that security was taken seriously at the hotel and that the hotel did take reasonable care to protect its guests. The hotel was not, therefore, in breach of its duty.

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[1] [2019] EWHC 1593 (QB)
[2] A group of major retailers and industry bodies has signed an open letter urging the UK Government to do more to tackle rising levels of violence. The letter has been published as the Government closes its recent call for evidence into violence and abuse towards shop staff.
[3] [2018] UKSC 4, see para. 34.  See also our recent article, published in the Commercial Litigation Journal, which looks at the Robinson case and the extent to which it challenges received wisdom about the implication of duties of care in tort.