Commercial | Risk Advisory
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In my article on Coronavirus Regulations – What national Lockdown 3 means for hotels, I highlighted the limited circumstances in which hotels are permitted to open to receive paying guests in this third national 'lockdown'.
Plainly all those responsible for the operation of hotels will need to draw on their abundant levels of creativity and resilience in the coming months.
As the weeks turn into months, and the months then pass, attention will turn to the re-opening of hotels and, specifically, what steps are needed to reduce the level of 'risk' to guests, colleagues and other visitors.
The Home Secretary's announcement yesterday about the 'managed isolation process' for UK nationals arriving home from 'red list' countries should, logically, lead to an increase in demand for UK holidays this year, meaning more visitors and higher revenues and, of course. Arguably, this makes the need for careful planning prior to re-opening even clearer.
The question we have worked through with our Clients in the last year is a recurring one.
What measures do we need to put in place to reduce the risk of infection transmission and ensure that our hotel is 'Covid secure'?
The starting point is a thorough and careful assessment of risk, with employees consulted as required by the Health and Safety at Work Act 1974. The whole of the operation must be carefully considered, and assessments of risk recorded and (perhaps most importantly) monitored for effectiveness. The assessment of workplace risk must be a dynamic one; it is not enough to draft a beautifully clear and comprehensive risk assessment and leave matters there; risks evolve and so therefore must the process of assessing risk.
The risks associated with operating a hotel are not confined to Covid-19 and the transmission of the virus. This much was made clear in the Court of Appeal last week in the case of James v The White Lion Hotel, a case which has just been concluded by my colleague Mike Bird, a partner in our sister firm Enable Law. The importance of a suitable and sufficient assessment of risk was clear for all to see.
Mr James tragically lost his life having fallen from a window to his second-floor bedroom at The White Lion Hotel in Upton upon Severn, where he had been staying as a guest whilst attending a wedding nearby. Mr James was 41, and left a wife and 2 children, aged 5 and 10 at the time of his death. He had been a Flight Sergeant with the RAF with 30 years' service. During the night, Mr James had opened the lower half of the sash window and had positioned himself on the ledge. There was no clear evidence to explain why he might have done this, or how he may have been positioned on the sill, and there was much speculation: it was a particularly hot night, he had been suffering in the heat and unable to sleep, earlier in the day he and his friend had leant out of the window to smoke a cigarette, he may have sleepwalked, or fallen asleep with his head pout of the window and somehow toppled out – but the result was that he lost his balance and at 0246 distant CCTV showed that he fell. He was found at around 0400 dead on the pavement below.
The hotel was a small, independent historic Grade II listed building, with 13 rooms and many attractive period features. This did not make it exempt from its obligations under the Health & Safety at Work Act 1974 not to expose guests to risks to their health and safety.
After investigation by Worcester Regulatory Services, the hotel owners were prosecuted under s3 of the H&SAW 1974 and just before trial pleaded guilty, admitting a failure to carry out a suitable and sufficient risk assessment of the windows in their hotel bedrooms – had this been done, a "low risk" would have been identified and they would have fitted restrictors to the windows at a cost of around £7 or £8, without damaging the aesthetic of the windows. The hotel was fined a hefty £34,000 plus costs.
Mr James death could have been avoided.
The windowsill was particularly low to the ground (460mm) and the lower sash could be opened wide (650mm), wide enough for an adult (or a child) to fall out of. It was noted that restrictors had not been fitted to this window, nor several others like it in the hotel (though some restrictors had been fitted to other windows). A bed had been placed across the window, but the mattress height was above the level of the lower sill, and the sash mechanism was also defective meaning that the window would not reliably stay open – but the hotel's suggestion that these were protective factors was rejected. and that, had the hotel operator carried out a suitable assessment of risk to guests from their use of that hotel room, restrictors could easily have been fitted at minimal cost.
The Hotel operator accepted that as a general principle, they owed a duty of care to their guests (Section 2 of the Occupiers Liability Act 1957 in terms of civil liability and Section 3 of the Health and Safety at Work Act 1974 under the criminal law.)
However, despite its guilty plea to the Health and Safety prosecution the hotel operator denied liability for Mr James' widow's claim. The operator's defence being that there is no duty to a visitor who willingly accepts a risk as his (saying that is what Mr James had done here); Mr James took an obvious risk of which he was aware. This, said the hotelier, overrode any criminal conviction for any failure to risk assess the window.
Thus, the hotel operator did not accept either that it had a duty in this situation, nor that if it did, its failure to risk assess had caused the death.
The Hotel contended that it was Mr James' own fault entirely, and that a Hotel operator is not required to prevent a guest from taking an obvious risk where the guest themselves has decided of their own free will to take that same risk. The hotel operator went so far as to say that this meant that there was no duty owed to a guest.
In other words: the Hotel is not required to save the guest from themselves.
The Judge rejected the principle of the hotelier's argument – the hotel was primarily liable. However there then needed to a careful process of weighing up the facts to establish whether any blame should be shared, possibly to the extent that the visitor was totally to blame. The Judge did that, deciding that Mr James was 60% to blame. The judge also decided that because the Hotel had pleaded guilty to the H&SAW offence, it was automatically liable in the civil courts.
The Court of Appeal agreed with the Judge in finding that the hotel had a duty, and was liable, but said that the guilty plea to the H&SAW offence did not automatically mean that civil responsibility followed – it was all part of the balancing exercise.
A hotel could not escape responsibility just because a guest was doing something unexpected or even "against the rules" of the hotel.
The starting point is that a duty is placed on the operator of the hotel.
They are responsible for the safe operation of their hotel and they must ensure that guests are suitably protected against identifiable risks.
The criminal law requires such an operator to ensure, so far as is reasonably practicable, the health and safety of their guests. In criminal proceedings the question is whether the guest has been exposed to a material risk and, where that has been the case, whether the Hotelier reduced the level of risk to that which was 'as low as was reasonably practicable'.
The prosecution does not have to prove that any breach caused the death – the death merely confirms the existence of the risk in the first place. A hotelier should always assume it has a duty to keep guests reasonably safe.
The Hotel accepted their risk assessment was insufficient. The risk identified was one that could be reasonably foreseen. The costs of obtaining and installing restrictors that would have prevented the accident happening would have been low, the process easy and the impact negligible.
Even if (which was not proven) Mr James had been in the act of smoking a cigarette against the rules, the use of the hotel room in this way was considered a 'fact of life for all hoteliers" and did not mean that a hotel owner could wash their hands of the consequences: the failure was to risk assess properly in the first place, and make the place safe.
It was expressly noted in the criminal case in the Crown Court that processes in the hotel had improved and that no risks remained.
The Judge in the separate civil proceedings, which was looking at causation as well as at breach of duty, found that the Hotel operator had breached their duty and that if they had not done so, Mr James would not have died – there was a direct causal link. To reflect Mr James' part in his own demise, the amount of damages ought to be reduced by 60% to take account of Mr James' 'contributory negligence'.
The Court of Appeal was not asked to, and did not, interfere with that approach either.
The warning to Hoteliers is clear; it is essential that a suitable and sufficient assessment of risk is made in order to discharge the duty of care on hoteliers in the criminal and civil law.
Resilience, patience and forbearance will be required in the months ahead to counter the effects of the most obvious risk that has dominated the regulatory landscape for almost a year. As the UK learns more about the 'roadmap' out of lockdown it will become increasingly possible to travel across the country and should see customers returning through the doors of hotels nationwide. With this return to 'normal' comes a challenge; the challenge to re-open safely and effectively.
However, that is not the only risk requiring careful attention.
Covid 19 will dominate the agenda but it must not be the only item on the agenda, as the Hoteliers at The White Lion will attest given the penalties that may be given by the criminal and civil courts across the country.