Legal................................................
Why you could end up paying the price of free parking...
QMy bike was parked in a locked car park in central London. I paid £6 for the privilege and it then transpired that my bike was stolen, probably by use of battery powered angle grinders on my security chain. Can I sue the car park owners?
AThe car park is providing a service for reward, it therefore falls within the meaning of the Consumer Rights Act 2015. Section 49 of The Act says that a service is to be performed with reasonable care and skill, and in light of the fact that the car park attendants told you that motorcycle theft is a weekly occurrence and they have taken no steps to reduce theft it seems to me that most judges would find that the provision of parking in a secure car park for motorcycles falls below the expectations of a reasonable consumer.
You also have a second element of claim which is a bit more technical, and relies on an old common law concept called bailment. Bailment has a long history and would apply in your case. If you asked me to look after something of yours I need to take reasonable care of it. If I do it without you paying me for it then I have to do it non-negligently. If you ask me to look after your bike, and I leave it in a public place with the key in the ignition and the motorcycle is stolen that would be negligent and I would be liable to you in bailment. But if you are paying me for a service then I must use reasonable care and skill. It adds little to section 49 of the Consumer Rights Act so you do not often have it raised in consumer disputes.
Your more obvious remedy is the Consumer Rights Act 2015. This means, I would suggest to most reasonable judges, that if I leave my motorcycle in a car park which is advertised as secure then you keep an eye on the CCTV cameras, you listen out for rogues with battery powered angle grinders and you challenge people leaving the car park, especially when they are pushing a motorcycle.
However, common law says that a person is not usually liable for the “mischievous intervention” of another person. The law has some odd terms, usually in Latin and this is no exception. Novus actus interveniens is the magic phrase. The test is “if the intervention of a third party caused the harm or loss did it obliterate the wrong doing of the car park owners” and there I think you may be in difficulty but any decision will be fact sensitive. The judge at this point has a wide discretion. He or she will decide as a matter of fact rather than law whether allowing thieves free and unchallenged access to a car park is causative of theft.
The judge hearing your case will have to weigh up all three competing arguments and decide, on the facts, whether it is right for a car park to advertise itself as secure but let rascals with angle grinders have free range in their car park and then push bikes out past a barrier. As a regular court room lawyer I see judges trying hard to do the right thing and the delight of English law is that it is flexible and our judges are pretty fair minded.
I couldn’t guarantee a win on these facts but any lawyer who guarantees a win in front of a judge is either foolhardy or new to the job, but I reckon you are in with a decent chance if you could provide evidence of a number of bikes being stolen from that garage. As a firm we have used forums and Facebook to track down witnesses and that would be a good place for you to start. Bikers help other bikers and if we can make London less of a honey pot for thieving little scrotes, then any brother or sister biker will be there to help you.
However, if your bike was parked on the highway, even if you have to pay for the parking as you have to in central London, or you were in a free car park then you have no realistic remedy, because in order for there to be a contract there has to be the provision of “consideration” which in a normal contract term means that you have paid for the service or provided something else of money or monies worth for the service. Simply parking your bike in a place which you do not have to pay for it creates virtually no legal duties upon the land owner who has permitted the parking of your motorcycle. On street parking does not raise the inference of safety and paying for bike parking simply permits you to park on the street which would otherwise be an offence.
As a regular London rider I’d pay triple the £1 per day for bike parking if the Mayor’s Office organised shackle points at bike parks. I’d pay whatever it took if we could harpoon the thieving scum who make taking a bike into London a lottery as to ever seeing your bike again.