MANY would have heard stories of scary things happening in car parks. While some may be urban legends, others unfortunately are true accounts. In fact, the issue of security and liability of car park operators has come under much scrutiny following the Canny Ong murder case.  

Surely it is not unreasonable to expect a certain measure of security after having to dip into one’s pocket to pay for the parking. 

Car park owners and operators are quick to point to the “park at your own risk” disclaimer – what the legal fraternity calls the “exclusion clause”. But is that good enough to absolve them of all responsibility?  

Lawyer Sivarasa Rasiah says that disclaimers and exclusions can be raised as a complete defence if the clause is clear and sufficient (as in the driver sees and understands them) but such clauses do not exclude liability under negligence. He adds that there were two cases in 1995 in which the court ruled that exclusion clauses do not exclude the defendant from the burden of proving the damage was not due to their negligence and misconduct, and that they had exercised due diligence and care. 

“The liability is based on the duty owed by car park operators to ensure that cars parked at their parking facility are not damaged or stolen,” explains Sivarasa, emphasising that this does not absolve liability on the part of the car park owner if the liability could have been foreseen. 

When floods damage cars parked at a car park, who bears liability?

He also clarifies that for car parks that are part of the privileges given to the owner of any private residence complex, the same duty to those who park should prevail. In addition, the liability of the management company of the residence can be coupled with breach of contract as the parties concerned had entered into an agreement that touches on the safety of the property and that includes their vehicles. 

For instance, it was reported in August last year that the Consumer Claims Tribunal held that condominium managements and appointed security companies were responsible for the security of the units, their owners and vehicles, and cannot hide behind exclusion clauses or notices which state “Park at your own risk”. The tribunal’s deputy chairman said such disclaimers were unfair to condominium owners as they had paid their maintenance charges; and proper and effective security measures should be in place to protect the property of the owners – their units first, and then their vehicles. 

A lawyer who wishes to remain anonymous says that if someone is not happy with the exclusion clauses at a car park, they should park elsewhere. Sivarasa takes umbrage at this. 

“The lawyer is wrong in saying so because exclusion clauses do not exclude liability on the part of car park operators. Often such clauses are drafted in wide and ambiguous language and the public often fail to understand the effect and meaning. It is a matter for the court to decide as such clauses only come into effect after damage occurs.” 

He says that if this is reason to find other car parks, it limits the choices and puts the driver in a more vulnerable position as he would have to use unauthorised car park facilities. 

That is why it has to be the judiciary that interprets the law, for instance, with respect to the suits taken by lawyers for damages suffered after the underground car park in Dataran Merdeka, Kuala Lumpur, was flooded in June last year, says lawyer Edmund Bon. 

If the installation of closed-circuit televisions in car parks becomes mandatory, it may have financial implications such as increased parking rates which may be passed down to patrons.

Then there are also establishments like restaurants and clubs that provide valet service for parking. What are their liabilities, if any? 

This is a matter of bailment which is a contract between the bailor – in this case the driver/owner of the vehicle who has entrusted property (the car) to another person – and the bailee (the valet), says Sivarasa. The purpose of such arrangement is to keep the property in safe custody or to do something with such property, the bailor paying the bailee for the service. So the valet implicitly agrees to exercise due care and diligence in keeping the vehicle and to return it to the driver/owner. 

Failure to do so is, of course, negligence; Sivarasa points out that bailment is provided for in Part IX of the Contracts Act 1950. 

When contacted, Malaysian Parking Management Association president Francis Ng says that in legal cases involving floods, thefts, break-ins and damage to vehicles, operators normally refer to their respective insurance companies. 

“We take up a Public Liability Insurance policy for RM1mil to protect us from such claims. There were cases in which the insurance company paid for damaged windscreens and other claims. Our role has always been to assist patrons and we have in many cases given a helping hand in making police reports and followed up on their claims,” says Ng. 

Legal action aside, are there ways to give more protection to vehicle owners? Sivarasa thinks by-laws on car parks and building regulations need to be improved to provide more stringent safeguards. This, he feels, should include proper facilities and maintenance so that car park operators can maintain a high standard of security. 

In July last year, Housing and Local Government Minister Datuk Seri Ong Ka Ting said his ministry was studying if the “park at your own risk” concept should be banned. He added that they were looking at such practices in other parts of the world.  

Earlier that month, the Cabinet had approved the amendments in by-laws to ensure a minimum standard of security in buildings and car parks, including the construction of floodgates for underground car parks. 

Sivarasa points out that the Domestic Trade and Consumer Affairs Ministry can regulate parking fees to prevent any exorbitant increase which is burdensome to the public. He adds that parking rates should not be an excuse not to take stringent measures because public safety and security is of paramount importance. 

Even though the car alarm sounds and an attempted break-in occurs, nothing is done about it. Car park operators should ensure that cars parked at their parking facility are not damaged or stolen.

Ng says they have held dialogues with the ministry and other relevant agencies but they have yet to know the final outcome. However, they were given to understand that there would be changes in terms of security. 

“The changes (installation of closed-circuit televisions, having guards on patrol, etc) may have financial implications such as increased parking rates which may be passed down to patrons,” says Ng. 

“At the end of the day, education on the dos and don’ts in a car park is important in the long term as drivers have to play their part too in terms of safety and