If a person is in another person’s premises and their relationship is such that the occupier and the invitee mutually benefit, then there is a duty of contract. In this regard, the occupier is responsible for ensuring that the premises are safe and the invitee cannot be harmed while at the premises. It is stated in the Contributory Negligence and Personal Injuries Act chapter 54 that the occupier must take reasonable steps to prevent any foreseen harm to invitees. In this case, Kelsey Parks was an invitee to D & D shopping mall (Phang & Yihan, 2012). Consequently, D & D shopping mall had a duty to protect Parks from any possible harm.
In suing for damages, Parks will need to show her contractual relationship with D & D shopping mall. She comes to the shopping mall every weekend and usually uses the car park. Therefore, there was no reason why she would not have used the parking that day. Even though there was a notice, Parks can still sue the shopping mall for damages. The red hand rule, as explained by Lord Denning in Thornton, requires any peculiar clause to be brought to the attention of people in the clearest method possible. However, for the case of Parks, the warning was not in the manner that any person would see. Nevertheless, the shopping mall may argue that Parks ought to have seen the notice on the entrance. However, according to Contributory Negligence and Personal Injuries Act, section 3(1) the fault of the claimant for damage shall not be used as an excuse to defeat the claim but can only reduce the claim (O’Sullivan & Hilliard, 2012).
On the other hand, Parks may not be able to exempt herself from the fact that she ought to have known that cars are parked at owners’ risk which had been on the notice from the beginning. It was determined in J. Spurling Ltd v Bradshaw (1956) having had several dealings of the same nature before, the defendant ought to have been aware of the exemption clause. Parks had dealt with D & D shopping mall for a long time and therefore ought to have known that the mall accepted no liability for any vehicle in the parking lot. Consequently, the shopping mall may be exempted from liability. On the same note, the exemption clause requires that reasonable notice be made. As was held in the case of Thompson v London Midland & Scottish Railway (1930) there was a reasonable notice despite the exemption clause being referred to in a different place (Tabalujan & Toit-Low, 2009). Therefore, D & D shopping mall would be exempted from the damage of the car because they had referred to the clause in red.
However, the new notice would not exempt D &D from liability. To begin with, Parks was used to get warnings in the parking area and not at the entrance. Similarly, the Unfair Contract Terms Act section 2(1) states that liability for negligence cannot be excluded just because there was a personal injury suffered. In the case of Donoghue v Stevenson (1932), Lord Atkin’s “neighbor” principle provides that one must take reasonable care to avoid acts or omissions that one can reasonably foresee might injure a neighbor (Phang, Chan & Chiu, 2004). In this regard, D & D shopping mall should have gone a step further to even disable the automatic bar to prevent people from entering. The functioning of the automatic bar would have been confused to mean that all was well. Therefore, Parks has ground to sue for body injuries but minimal chances of succeeding in car damages.
References
O’Sullivan, J. & Hilliard, J. (2012). The Law of Contract. London: Oxford University Press.
Phang, A. B., Chan, G., & Chiu, H. Y. (2004). Basic Principles of Singapore Business Law. Stanford: Thomson Learning.
Phang, A. B. & Yihan, G. (2012). Contract Law in Singapore. Alphen aan den Rijn: Kluwer Law International.
Tabalujan, B. S. & Toit-Low, V. D. (2009). Singapore Business Law. Singapore: Business Law Asia.