Car damaged by carpark gate

[tiredTraveller]

This weekend I parked in a carpark above a shop in Nottinghamshire that seemingly used to be a pay & display, however all machines were marked as 'not in use' and everyone seemed to be parked freely.

 

My problem is that on entry to the carpark, which is up a very narrow ramp almost exactly the width of a car with a small pavement either side of the ramp at the bottom, the metal gate which was held back with a length of chain and a padlock moved. This happened when I was half way past the gate and the top of the bolt at the bottom dug into the side of the rear passenger door, leaving a scratch through the paint and down to the primer that is around 2/3 of the width of the door.

 

I entered the carpark slowly and carefully in a normal sized car, didn't mount the pavement on either side and due to the width of the road there was no way of moving away from it - there was literally nowhere else for the car to be. I initially stopped to make sure I was lined up okay because it looked a bit tight, but the gate wasn't obstructing the entry at all at that point so it seemed safe to continue.

 

Although all the machines were covered over with 'not in use' plastic covers in the parking companies corporate colours (and the one where someone had cut through so the keypad was visible also said 'not in use' on the screen) the parking company had their pay & display terms and condition board at the top, complete with the obligatory 'you agree to the following terms... we are not responsible for any loss or damage' paragraph that you could only actually read after the point the damage occurred so I'd think that you couldn't reasonably expect to have agreed to that term when it happened.

 

The fact that everyone was parked for free and the T&Cs were related to pay & display makes me wonder if the parking company named are still responsible for the carpark though. Likewise I didn't actually shop in the store the carpark is above on that day, as I entered on the understanding that it was a public pay & display carpark with the intention of paying for a stay and nowhere did I see a 'customers only' sign.

 

I have photos of the damage, the T&Cs board and the gate but I didn't see any CCTV covering the entrance, or any of the carpark whilst I was there (and I can't really go back - I live about 150 miles away).

 

So... where do I stand with this? Is this going to be something that I'm going to have to take on the chin and pay to fix myself (not had an official assessment, but my friendly mechanic says it's beyond the point of T-cut), or would either the parking company or the shop the carpark is above have any liability?

 

 

(Sorry if I've missed any useful information - I don't really want to give too much away just yet, but if I've been a bit too guarded...)

[citizenkain]

chalk it down to experience

[ericsbrother]

Who was driving the gate at the time? seriously, if you hit a fixed object it is your fault and your fault only. If you complain to the car park owner you may end up with a counterclaim so it would be wise to sort out the damage that YOU caused to your car yourself.

[BazzaS]

Who was driving the gate at the time? seriously, if you hit a fixed object it is your fault and your fault only. If you complain to the car park owner you may end up with a counterclaim so it would be wise to sort out the damage that YOU caused to your car yourself.

 

The OP noted : "the metal gate which was held back with a length of chain and a padlock moved"

 

So, NOT a fixed object.

If the OP was parking lawfully, and if the gate wasn't secured adequately to prevent it moving : why is that not negligence by the car park firm?

[ericsbrother]

You could say it was negligence and I am saying that the OP wasnt invited to park there other than by the gate being open. The owners of the land have certain obligations under the Occupiers Liability Act but the OP has to consider whether their obligations outweigh his need to look out for himself as a potential trespasser. If he feels as though the balance is in his favour then go for it but I would reckon that the damage was brought about by his own action and he would be better off sorting it out for himself rather than risk losing more than his court fees.

[BazzaS]

You could say it was negligence and I am saying that the OP wasnt invited to park there other than by the gate being open. The owners of the land have certain obligations under the Occupiers Liability Act but the OP has to consider whether their obligations outweigh his need to look out for himself as a potential trespasser. If he feels as though the balance is in his favour then go for it but I would reckon that the damage was brought about by his own action and he would be better off sorting it out for himself rather than risk losing more than his court fees.

 

At the point the damage occurred, are you saying that the OP was trespassing? By driving onto a car park used by the public that had an open gate?

 

Why are you claiming he was trespassing? Because the pay machines were out of use?. I'm not sure this would make it trespass even if the OP knew they were out of use (perhaps it was now free parking?) and even so : if the OP couldn't see that the machines were out of use when approaching the barrier : how were they to conclude they didn't have permission to access the car park.

 

I think you were wrong to say it was "the OP's fault as they hit a fixed object" as the gate moved.

I don't know why you are again advancing a false premise (first that it was a fixed object, now that the OP was trespassing) : on what basis are you claiming it was trespass?

The OP believed it to be a public car park, and the gate was open; so at what point would it be reasonable to conclude the OP moved from being a lawful visitor to a trespasser (if at all!). Certainly not at the point the damage occurred, so it is irrelevant to the OP's cause of action.

[steampowered]

Why did the damage only happen to you and no one else?

 

Did the gate physically move and smash into your car with enough force to cause a dent? Or when you say "it moved" do you just mean it was sitting in an unusual position and you drove into it?

[BazzaS]

I read it as gate was "secured" by a chain, which allowed the gate to move so that what was a clear path no longer was.

 

"the metal gate which was held back with a length of chain and a padlock moved. This happened when I was half way past the gate and the top of the bolt at the bottom dug into the side of the rear passenger door"

 

If it was a scratch from front of car to back its harder to show that the OP didn't drive into the obstruction.

But, starting at the rear passenger door? If they wanted to claim it wasn't part of the gate moving they'd have to claim the OP changed direction while driving through, or somehow threw the car sideways ......

Edited May 23, 2013 by BazzaS