The Court of Appeal has upheld a lower court ruling that the management of a car park was liable for negligence, and ordered damages amounting to about RM117,000.
It held that the claim must be allowed as a bailor-bailee relationship existed between Euro Rent A Car Sdn Bhd and Sunway Parking Services Sdn Bhd.
Further, the final appellate court agreed with the trial court that the defendant, Sunway Parking, could not rely on the exemption clause to evade liability.
Judges Hanipah Farikullah, Lee Swee Seng and Che Mohd Ruzima Ghazali, who upheld the decision of the Sessions Court in 2017, however, only provided an oral decision.
Lawyer Ameerul Aizat Noor Haslan, who represented Euro Rent, said he had written to the Court of Appeal to have a written ground as the judgment had set a precedent.
“The grounds could be of assistance to motorists and car park managements regarding their rights and liabilities,” said Aizat, who assisted counsel Fahri Azzat during the appeal hearing.
In this case, Euro Rent hired out a vehicle, bearing registration number BNS 9066, to French citizen Hemici Sofiane on April 25, 2016.
Sofiane parked the car at the The Pinnacle Sunway at Bandar Sunway in Petaling Jaya at about 2.30pm two days later, only to find the car missing at about 7pm the same day.
Sofiane informed the security officer and later went to the closed circuit television room to find out how the car was stolen.
The person who stole the car managed to tailgate another vehicle that was exiting the car park after paying the parking fee.
The driver of the stolen car could leave without the ticket because the barrier gate was too slow in preventing him from following the car in front.
The company, which sued the car park management, pleaded that Sunway Parking was negligent as it did not take steps to prevent the theft.
However, the defendant said it was only responsible for providing parking space and that it had taken reasonable precaution.
It also relied on the exemption clause to limit its liabilities that “vehicles were parked solely at the customer’s own risk”.
Sessions judge Izralizam Sanusi, who allowed the claim, said the defendant must be held liable because Sofiane had paid the fees before parking his car.
“There was a bailor-bailee relationship as Sunway Parking was in possession of the vehicle. Further, it was the responsibility of the defendant to take care of the security of the car,” the trial judge had said.
Izralizam said failure of the French national to give evidence under oath did not affect the plaintiff’s case as it would have incurred cost and delayed the trial.
He also ordered a 5% interest payment until the judgment sum was paid and costs of RM7,325 to the plaintiff.
The High Court had also on April 25, 2018 upheld the Sessions Court ruling.