Exclusion clauses are no longer your immunity card in the car park industry
In recent years, there have been many suits by the customers to the clients claiming for damages in the car park due to breaking of the glass window, stolen car parts (commonly stolen are tyres due to the easy accessibility) and in some cases, stolen cars.
What happens when they would want to make a claim towards the parking operator or even the landlord of the car parking space? In the case of Berjaya Development Sdn Bhd v. Keretapi Tanah Melayu Bhd , it is decided that “ The burden of proving a claim lies on the person alleging the claim. So it is here, the burden is on the Plaintiff to prove his claim before the burden moves to the defendant. Section 101 Evidence Act 1950 refers…”
What this would mean is that the burden of proof would be on the Plaintiff’s part and he would need to prove the damage that he has in fact suffered to the satisfaction of the court. If he fails to prove both the liability and the quantum of damages, he loses the action.
If you are reading this, you are most probably thinking that it is alright as most places, the management would placed signs that either state “PARK AT YOUR OWN RISK” or “THE MANAGEMENT IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO VEHICLE”. These are known as exclusion clauses which the management is obligated to deliver the message clearly and unambiguous. In the case of Malaysian Newsprint Industries Sdn Bhd v Perdana Cigna Insurance Bhd & Ors , it is determined that the exclusion clause would be meaningless if it is not being communicated to the people effectively. Hence, such clause must be clearly seen and must be easily understood by the general public.
These exclusion clauses are interpreted strictly and contra-profarentum rule would apply. The contra-proferentem rule is a legal doctrine in contract law which states that any clause considered to be ambiguous should be interpreted against the interests of the party that created, introduced, or requested that a clause be included. Thus, if the damage was done by the management that runs the car park, they would be liable for the damage caused. However, if the management has put up signs and notices stating that they are not responsible for theft or damage, it would be harder for them to bring up a case PROVIDED that the management has shown due care in the car park area.
Do I owe any Duty of Care towards the people in my car park?
This brings me to another point, which is focused on Due Care (also known as Duty of Care), the conduct that a reasonable man or woman will exercise in a situation, in looking out for the safety of others. If one uses due care, then an injured party cannot prove NEGLIGENCE. This is one of those nebulous standards by which negligence is tested. Each juror must determine what a “reasonable” man or woman would do. In the landmark case of Donoghue v Stevenson , Lord Atkin had formulated a general principle to govern the existence of a duty of care which is known as the neighbour principle. “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
In most car parks, it is not merely a premise to allow people to park their car within the compound. This is because there is always guidelines that need to be followed by the parkers and such guidelines would give rise to bailor-bailee relationship. One such example would be “Important – This ticket must be presented at cash register for time stamping and payment before proceeding to remove vehicle from station” and “This card must be presented to Attendant when vehicle is being removed from station”.
This highlights the relationship between of the parker and the parking management as bailor and bailee as stated in the case of Walton Stores Ltd. v Sydney City Council (1968) “ The steps to be taken to enable the plaintiff to regain physical possession of its motor car from the defendant’s building involve more than its removal by simply driving it away. Its removal required a bilateral transaction in the terms of the document. It may be that the defendant did not have a lien at common law upon the vehicle of its parking charges but the contract which regulated the legal relationship of the parties plainly evinced their intention that the holder of the card or ticket had either to pay or tender payment of the amount of the charges for the storage of the vehicle before he was entitle to demand possession of it. To a demand for the vehicle unaccompanied by payment or tender of payment of the charges, the proprietor of the parking station would be entitled to respond with a qualified refusal to the effect that its charges first be paid. It should also be observed that condition of the parking condition contained on the ticket in the present case also operates to preserve the custody of the vehicle by the defendant against a demand made by the ticket-holder during hour when the parking station is closed. If, as Professor Winfield has said, the salient feature of bailment is the element of possession, the matters to which I have just referred appear to me to point to the fact that in the present case the defendant did have possession of the subject vehicle.”
Hence, it can be said that in most commercial car parks in Malaysia, the relationship between the parker and the operator is clearly established as bailor-bailee relationship. The question arises as to what could we do to ensure that your car parks are more secure from suits deriving from NEGLIGENCE?
In the case of Euro Rent A Car Sdn Bhd V Sunway Parking Services Sdn Bhd it is said by the court that the Defendant had failed to prepare an automated barrier system that is effective. The system within the location allowed cars that have not paid / insert the parking ticket at the exit to leave the premise. This condition made it easy for car to make unauthorized exit with ease and no obstruction. In this case, the plaintiff’s car was brought out of the premise without any payments nor the exit ticket.
Secondly, they have failed to place a security guard or any other deterrent when the defendants themselves have admitted that there are weakness that are caused by the barriers and looping systems.
Lastly, the defendants have failed to place a security officer in the control room to watch over the CCTV, to review and ensure that there are no suspicious activities happening (in this case, the plaintiffs car was used to tailgate another car for an unauthorised exit and having an immediate response to prevent the theft from happening.
How do I protect myself from being accused of negligence?
Actions must be taken by the proprietor of the car parks to ensure that they would not have to appear in court. There are plenty ways to show that can also be taken to show that the management has shown due care in the car parks, such as:
- Having a well lit car park
- Having CCTVs at all the appropriate angles and locations
- Making sure that their parking terminals have an entry and exit to enable timestamping
- Transforming the Car Park into a fully cashless system to prevent ticketing abuse