Disclaimer at parking lots not ‘absolute’
NST 2/8/2005 R. Sonia

KUALA LUMPUR, Mon.

The Consumer Claims Tribunal today brought hope to motorists who lose their vehicles or belongings at paid parking lots.

It ruled that disclaimers of "Vehicles are parked at your own risk" were not absolute. In awarding RM25,200 to a massage therapist and his wife who lost their car in a parking lot, tribunal president Hussain Mohamed Dewa said: "There is an implied guarantee of reasonable care and skill that there is security for cars parked there. An exclusion clause, therefore, is not absolute."

Low Lok Ann, 44, and his wife Tai Kim Siew, 43, told the tribunal they had parked their Toyota Unser 1.8 at the IOI Mall parking lot in Puchong, run by Commercial Wings Sdn Bhd, at 2.19pm on Nov 7, 2003.

They said they had gone to the mall to shop. Two hours later, they found their van missing. Low’s tools, including his portable table and massage chair, were in the vehicle.

When the management claimed he had parked at his own risk and it was not liable for the loss, Low took the matter to the tribunal.

He claimed service providers had to provide a reasonable standard of care to consumers and could not rely on exemption clauses to avoid liability.

Commercial Wings Sdn Bhd, represented by its lawyer Ong Lay Pooi, claimed there was a clear disclaimer notice at the parking lot entrance as well as on the parking ticket which said cars were parked at the owner’s risk.

This, said Ong, meant the claimant agreed to the terms and conditions to parking there and was bound by them.

She also said they were only required to provide a reasonable standard of care and skill, which had been done.

When Ong said the tribunal should not take into account negligence, Hussain asked: "How then were the vehicle and items lost?"

When Ong said the value of the car had been compensated by the insurance company, Hussain countered that the items in the vehicle were still missing due to the theft.

Hussein awarded the maximum amount that can be claimed at the consumer tribunal: RM25,000.

In addition, he ordered the management company to pay the maximum of RM200 in costs to Low.

Decisions of the tribunal are final but those unhappy with a decision can file an application in the High Court for judicial review.

When contacted, two practising lawyers agreed with Hussain’s decision. Lim Cze Mien said the question was what constituted a "reasonable" standard of care.

"I should think it should mean that you should find your car where you parked it and not find that it has disappeared," she said.

Geetha Supramaniam said exclusion clauses should depend on the circumstances of the case. "Even at apartment buildings, it says park at your own risk. Does that mean I’m paying my management fees for them to exclude liability?

"If you’re only allowing me to park there, then why do you have security cameras?"