Marcus is a senior investment banker at the prominent Australian bank, Eastpac. He drives a very expensive car to work and parks it in ‘Park Safe’, a secured parking bay in Sydney’s CBD. Upon entering the car park an attendant hands Marcus a ticket. The ticket indicates which parking space he has for the day, along with the date and time the ticket expires. As Marcus occasionally works until the early hours of the morning, he always purchases the full-day ticket, knowing that Park Safe has an attendant on duty 24 hours a day. However, Marcus does not check the back of the ticket which lists, in substantially smaller print, a number of items, including the following:

Park Safe takes no responsibility for any damage caused to any vehicle, parked or otherwise on Park Safe premises, however such damage may be caused. Occupants use Park Safe at their own risk.

Marcus parks his car in the designated spot, locks it and walks to his office. Upon his return from work later that day, Marcus goes to retrieve his vehicle and notices both backlights smashed. He then approaches the driver’s door and notices scratch marks along the paintwork and a smashed window. When Marcus opens his car, he finds that the glovebox forced open and that several items are missing. Outraged and upset, Marcus leaves his keys inside the car and goes to the attendant’s desk to inquire about the damage. He is there for 20 minutes and in that time his car is stolen. Marcus wishes to claim full compensation for the value of his vehicle from Park Safe. His car insurance had expired a few days prior to this incident and he had not had time to reinsure the vehicle.

This is a contract law based question. The following assessment tasks address the problem faced by Marcus. He wants to know what his chances are in getting his losses covered by the car park company. To answer that question you will need to consider if the exclusion clause will enable Park Safe to avoid liability.

Assessment tasks

1. Please identify the legal issue(s) raised in the question and briefly state the law relating to each issue.

2. Apply the law specifically to the facts of the question, and advise Marcus of his chances of gaining compensation from Park Safe for his losses.

3. Discuss whether the question, particularly in relation to any of the legal issues or factual circumstances raised, created the possibility of alternate arguments. Critically assess one alternate position and briefly explain why this might arise. You only need to address one situation here. If you are of the view there are no situations of that type arising, then explain why you feel that, again by critical assessing your position on this.