Judging the scope of security

15/01/2004 The Star

Burglaries and violent crimes are taking place in apartment and office buildings despite 24-hour security surveillance. Is a security guard a law enforcer, and what is the duty of care of those managing a building or its car park? SHAILA KOSHY looks into these questions and also at other countries where victims have sued for negligence.

MORE security guards seem to be making off with thousands of ringgit meant for employees' salaries or which they are supposed to deposit into the bank. Over the years, many have been prosecuted and convicted.

However, although numerous thefts have been committed while security guards were ostensibly on duty, there appear to be no reported cases in Malaysia of guards or their employers being sued for robberies or thefts that might have been prevented, if not for negligence.

According to police sources, investigations of thefts at apartment or office blocks have not shown that security guards were accomplices.

However, as negligence is not grounds for prosecution, burglary victims do not know whether the guard was sleeping on the job or had gone AWOL during the commission of the crime and hence have not sued, unlike victims in other countries.

But the Canny Ong and Noritta Samsudin murders – violent crimes against a person as opposed to “non-personal” burglaries – have changed this.

Questions have been raised about security arrangements in public building car parks and condominiums and the scope of duty of security guards.

Malaysia may soon have a landmark decision laying down the law, either way, on the job scope of security guards and the liability of security providers.

Canny's father filed a suit on June 30 against BR Property Holdings Sdn Bhd, which owns and manages the car park at the Bangsar Shopping Centre in Kuala Lumpur, from where Canny was abducted and later murdered elsewhere.

While the trial of the man accused of killing Canny continues this week, a hearing date has not been set for the writ as yet.

Noritta's family is also reported to be thinking of suing the management of the condominium where she lived and was killed.

In the United States, different rulings have been handed down in the various states on liability:

FOR the victim: In January 1999, a federal circuit court upheld a Mississippi jury's verdict against retailer K-Mart over an abduction and rape but ordered a new trial on the US$3.4mil (RM12.9mil) damages awarded;

In April 1999, the Nebraska Supreme Court upheld a verdict against a commercial building over the rape of a woman in a parking garage; and

In 1988, another court allowed a wrongful death suit against a security firm filed on behalf of a government employee who was killed by an intruder into the building.

AGAINST the victim: In 2002, the North Carolina Supreme Court ruled against an employee who sued a county in the state after she had been assaulted in a courthouse restroom; and

In May 1999, the Georgia Appeals Court affirmed a summary judgment that a shopping centre was not liable for the rape of a store clerk in the premises as it was not responsible for security inside tenant stores.

Closer to home, the Singapore High Court ruled last November that burglary victims could not sue the security guards or apartment/building management unless they could prove there had been negligence.

Justice Choo Han Teck was also reported to have held that security guards were not bound by law to prevent crime.

He said it was unfair to impose a duty on civilian guards to stop crime, adding that failure to do their duty did not mean the security guards had to compensate for the loss incurred.

He also said it was not reasonable to hold a person liable for the acts of a third party, such as a criminal.

In the case in question, a sole security guard stood watch at the gate to Seiclene House on Delta Road in February 1996 while burglars broke into Tech Pacific's office on the second and third floors and made off with S$254,000 (RM568,000) worth of goods. Even the office burglar alarm did not go off.

The judge dismissed the plaintiff's argument that there should have been more guards, saying that was not a legal question.

“If he is not satisfied with the existing arrangement, he would have to negotiate for more secure measures,” said Justice Choo.

He added that the landlord would then be entitled to increase the rent.

The judge also listed the following as examples of when guards could be sued: when there is only one door to the building and an intruder enters through that door; when they abandon their post to have tea with friends; and when they are sleeping on the job.

Many office and condominium blocks and residential areas these days claim to have 24-hour security.

Apartment residents, however, could probably vouch that although closed-circuit television cameras have been installed, there is no guard monitoring the cameras.

While many offices choose to additionally protect their premises by installing their own security devices, few apartment owners are aware of what services they pay for, as it is part of the management fee.

Jones Lang Wootton senior vice-president Kuruvilla Abraham said the developer, manager or owner of a building was responsible for providing security for the common areas but it was up to the owners or tenants of office or condominium units to do the necessary for the unit itself.

“The fee paid for security services is for provision of guards. Typically in a tenancy, management or S&P (sale and purchase) agreement, this is mentioned as one of the services provided by the building management to which the tenant pays a service charge,” said Abraham, whose firm manages high-rise office buildings and condominiums.

He said developers, owners or building managers would normally advise tenants or individual unit owners to take their own insurance cover, especially for contents.

Abraham said owners or tenants of apartments and office space generally did not ask for inclusion of a liability clause for negligence in the agreement with the building management or security firm, adding that they were not prepared to pay an additional charge over and above the service charge.

However, he added, if there was proven negligence by the security firm or building management, the tenant or individual owner could take action.

Nusantara Security Sdn Bhd group managing director T. Mohana Sundaram agreed, saying that if a crime occurred in any building his guards were working in, the victim could sue them as long as police investigations showed the guards had been negligent.

“We agree to this in the security agreement and we tell clients to check with our insurance company to make sure,” he said.

Mohana said the firm conducted a risk assessment exercise before making a submission on how many guards would be required, where the guard posts and closed-circuit television camera units should be placed if necessary, the procedures for allowing visitors in and how often patrols were needed.

“Office buildings, condominiums and housing areas have different risks and the fee will vary accordingly, but there are prospective clients who try to reduce the fee saying they don’t need so many guards or patrols,” he said.

Having minimum security for a building with many accesses is hardly sensible, but until a Malaysian court gets a case and lays down the law, it is not likely that building developers, managers or owners and security firms will be rushing to include a liability clause for negligence even when the other party is prepared to pay for the best security service.