Have you ever parked you vehicle in a mall or parking lot with signs posted up like this:
“DISCLAIMER: USERS OF THIS CAR PARK DO SO AT THEIR OWN RISK. MANAGEMENT DOES NOT ACCEPT LIABILITY FOR ANY ACCIDENTS, DAMAGE, OR LOSS INCURRED.”
Chances are you have, because these notices or disclaimers are everywhere. And apparently doing a fabulous job at making people think if you or your vehicle gets damaged in one of their parking spaces, the owner has absolutely no responsibility for the loss.
Believe it or not, these signs fool you into thinking you have no recourse if you suffer some type of loss on their compound, no matter what the reason. Why they’re so effective at fooling the public is largely due to ignorance of the law and the fact that these types of disclaimers have never been made illegal.
Let’s put a spin on the above disclaimer to give it some context. Let’s suppose you walked into a hospital to schedule an elective surgery. Right as you’re about to sign the paperwork authorizing the doctors to do their work, you look up and see a large disclaimer hanging prominently on the wall saying:
“DISCLAIMER: USERS OF THIS HOSPITAL DO SO AT THEIR OWN RISK. MANAGEMENT DOES NOT ACCEPT LIABILITY FOR ANY ACCIDENTS, DAMAGE, OR LOSS INCURRED.”
Yikes! These signs would scare away business. But I bet now you’re starting to understand how misleading these disclaimers can be. It’s well known if doctors acted negligently when performing a surgical procedure on you, they can be sued for compensation for any damage caused. [Generally, negligence occurs if a person fails to take reasonable precautions that any prudent person would take and their actions cause someone else harm.] The same principle applies for owners of these parking spaces! Very important here is section 5(1) of the Unfair Contract Terms Act, Chapter 82:37 (available online) which states:
“(1)A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.
(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.”
Section 13(3) of this Act specifies that in relation to a notice (disclaimer), the requirement of reasonableness means it should be fair and reasonable to allow reliance on the disclaimer, having regard to all the circumstances obtaining when the liability arose or, but for the notice, would have arisen.
To break this down in simple language, owners of parking spaces cannot remove responsibility from themselves if a user of the carpark is injured or dies due to their negligence. Where there is property damage arising out of negligence, it must be determined if it was reasonable in all the circumstances to allow the owner to rely on the disclaimer to exclude liability. However, the fact that you were aware of the disclaimer is not by itself to be used against you as having accepted the risk of loss.
So know your rights and spread the knowledge. Be safe T&T!
Copyright © 2021 Neela Ramsundar, LL.B (HONS), L.E.C is a Civil Litigation Attorney at Law & Certified Mediator.
Disclaimer: The contents of this article are for general informative purposes only. It does not provide legal advice and does not create an attorney-client relationship with any reader. For legal advice on your specific situation, please contact an Attorney-at-Law of your choosing directly. Liability for any loss or damage of any kind whatsoever allegedly incurred a consequence of using content in this article is thus hereby excluded to the fullest extent permitted by law.