A case in point
In a matter recently before the Supreme Court of Appeal, a car owner had left his vehicle (keys inside) at a car wash, agreeing to collect it at lunchtime. However, alerted by a vehicle tracking company and police, the owner discovered that the car had been stolen. The car wash was clearly negligent – the car was parked in the street in a high-crime area, the gate was left open with no access control, and no measures were in place to safeguard customers’ vehicles.
Where the truth lies; and the safe keeper’s duty
Critically, the Court rejected the car wash owner’s evidence that car owners were supposed to wait at the premises for their cars to be cleaned. Instead the Court accepted as true the car owner’s evidence that he had by agreement left his car for “safekeeping, returnable on demand”. That meant that the agreement was one of “deposit” and consequently the car wash had “a legal obligation to exercise reasonable care in respect of the goods entrusted to him” and would be liable for damages if the car was lost or damaged unless it could show that the loss occurred unintentionally and without negligence.
Secondly, the car wash tried to rely on an “owner’s risk” clause, but our law requires that such a term should be “pertinently brought to a customer’s attention” and in this case it wasn’t. Instead of being prominently displayed (on a wall for example) it was “…..placed at an obscure spot on a table in the car wash office”.
A timely warning …
The car wash must pay the car owner his damages – a timely warning to such businesses to take legal advice on how best to protect themselves from this sort of liability.