Last reviewed 20 October 2020
Barrister Robert Spicer looks at how the courts have ruled on duty of care and negligence in violent attacks by third parties.
What is negligence?
A claim for compensation for injury or death based on the tort of negligence requires four general conditions to be proved by the claimant.
A duty of care must be owed by the defendant to the claimant.
The duty of care must have been breached.
The injury or loss suffered by the claimant must have been due to the breach of duty of care.
The injury or loss must have been a reasonably foreseeable consequence of the defendant’s acts or omissions.
Intruder attack in a hotel room
The High Court has given guidance on these issues in the recent case of Al-Najar v Cumberland Hotel (London) Ltd (2019).
The facts, in summary, were that A and other guests suffered serious injury from being attacked in their hotel room by an intruder who entered the room after they had left the door on the latch. The intruder was a persistent criminal offender who had a drug habit. He was familiar with the layout of the hotel and stated that he had been there many times before.
The guests claimed compensation for their injuries.
The issues concerned the scope of the hotel’s duty of care to protect guests from the criminal activities of a third party, the reasonable foreseeability of the attack, and causation. The consideration of these issues by the High Court has general significance for civil lability in health and safety measures.
The High Court ruled that the claims failed. Its decision was as follows.
There was no general liability in tort for private bodies and public authorities for pure omissions. The common law duty of care for omissions arose where a person had assumed responsibility to protect another from danger. In this case, the hotel owed the claimants, as invited guests, a duty to take reasonable care to protect them against injury caused by the criminal acts of third parties. The criminal attack did not amount to a new intervening event, breaking the chain of causation, because the duty was to take reasonable care to protect guests from such attacks.
It was reasonably foreseeable to the hotel that a third party might gain entry and injure guests by a criminal assault, with serious consequences. The likelihood of such an attack was extremely low. This was relevant to the reasonable steps which the hotel should take. The hotel took security very seriously and had exercised reasonable care. There was no continuous monitoring of CCTV cameras, but it was not suggested that this would be normal in hotels because of the low likelihood of such an attack.
There was no need for CCTV in lifts or staircases, nor for an alarm system to alert security staff when room doors were open, nor to alert guests to close their doors. It was common sense for guests to close their doors, particularly in large hotels where many guests had general access. The number of security patrols was adequate to show that the hotel had acted reasonably. There was no optimum number of security patrols nor a requirement to have them at particular times. It was not necessary to greet guests arriving after 11pm, nor to install key access to lifts.
Even if further security measures had been in place, they were unlikely to have prevented an attack. The third party would probably not have been identified as a non-guest. Any notice concerning the importance of closing room doors would not have added anything to guests’ understanding.
The attacker knew his way around the hotel and could have tailgated another guest into the lifts if they had key card access.
It would always be possible to identify something which would probably have prevented an attack, but the hotel had not acted in breach of any duty of care to the claimants.
Attack in a young persons’ centre
A similar “attack” case in the context of health and safety is Keating v Wirral MBC (2007). K was employed at a residential child care officer in a respite centre. The centre accommodated children and young persons with severe learning, physical or behavioural difficulties.
K was an experienced employee but she had little training in the management of emotionally disturbed children. In June 2002 she was attacked and injured by X, a child. She was told before she started her duty that another worker had been bitten on the face by X that day.
She claimed compensation from her employer in negligence. The claim succeeded and the court made the following points.
The systems within the centre for dealing with children with very challenging behaviour were not satisfactory.
There was no set written procedure for handover when K came in duty.
K had not been given any analysis as to risk following the biting incident. There should have been a risk assessment. There had been no analysis of behaviour, triggers or effective control in relation to K.
When the injury was suffered, K was dealing with two children on her own despite the fact that each child needed supervision by one staff member. If there had been appropriate staffing levels and a proper handover, the incident would not have taken place.
K knew that the child was prone to violence. She should have called other staff to help and was 25% contributorily negligent.
Attack on TV repair person
Another example is the case of McGinness v Endeva Service Ltd (2006), where M, a field service engineer, was assaulted and suffered knife wounds in an area of Glasgow known to be dangerous while repairing a television set in a private house.
He claimed compensation from his employer, arguing that it had been in breach of its common law duty of care to provide him with a safe system of work.
His claim failed. The Scottish court found that the evidence fell well short of what would be required to show, on the balance of probabilities, that the employer was in breach of its common law duty of care. M had failed to prove that the foreseeable risk of a field service engineer being assaulted was so great as to justify a double manning system.