Crime rate today is higher than ever before and most of us are dependent on security companies for protection against security concerns such as fires, floods and burglaries, not just at home but also at our workplaces.
However, the question is, what happens if the security is breached in spite of hiring a security company? Is it possible to sue the company?
Citing a case as an example, a butchery was robbed by a gang that specialized in cracking lockers with angle grinders as their main tool.
The decision that the Court had to take was if there was any negligence on the part of the security company and the way it tackled the situation.
If they indeed were negligent then the Court also had to decide whether the contract clauses of the security company safeguarded it from any accountability.
Following is an extract from the judgement:
Security companies are paid for their monitoring services and their response against emergency situations to safeguard you from criminals, so what rights do you have when they fail to deliver?
An example of a High Court Case:
One evening, by breaking into a butchery through the roof, robbers prompted a security alarm.
They got away with a hefty amount of money by cutting open two lockers with the help of angle grinders.
The security company was hired by the butchery for their monitoring, emergency response, emergency reporting and maintenance services, upon being alerted by the alarm, the security company discovered that the breach had taken place through the roof.
It was reported by the officer assigned to the crime scene that following “a hurried inspection of 2 ½ minutes”, that “as far as he could see” everything was alright.
He also mentioned that he had slipped a note under the door of the butchery informing about the incident as well as the fact that there was no damage done and everything was in order.
Apparently, the issue was the fact that the break in through the roof was not viewable from the street and the security company did not have access to enter the butchery as they failed to get in touch with the manager who was the first key holder due to his cell phone being out of battery.
Moreover, the security company did not even attempt to get in touch with the business owner who was the second key holder.
They gave the reason that the business owner had previously told them rather bluntly to only contact him in emergency situations.
However, the business owner refused to give any such instruction and hence, the Court approved this as evidence.
The robbers were not held accountable for their actions and the security company was sued for damages by the butchery.
Factors to Consider in the Exemption Clause:
According to the Court, there was negligence by the security company in terms of the contract.
Moreover, it tried to evade legal charges by depending on two exemption clauses.
The first clause absolved any charges if the client is unable to provide proof of negligence or failure of performing duties.
In contrast, the second exemption clause was very generic and evaded liability by exempting the security company “from any liability whatsoever for any loss howsoever occasioned”.
Hence, due to the ambiguity in the contract, the Court administered the first clause and charged the security company to cover any damage that could be proven by the butchery owner since negligence on the part of the security company had already been proven.
A Piece of Advice for Security Companies:
Being in the service industry, it is absolutely imperative to avoid negative publicity. Moreover, in case of a service failure, the legal consequences can be irreversible.
Hence, as the first step, review your client contract with the help of your lawyer and specifically make sure that there is one precise exemption clause that can be enforced.
Also be aware that vague and generic disclaimers can be difficult to enforce in the Court, especially when it comes to the Consumer Protection Act or CPA or while considering “good faith” and “public policy”.
The Consumer Protection Act demands reasonable, just and fair terms and conditions. Moreover, the client should clearly be made aware of any disclaimers and exemptions using simple language.
As a second step, in order to avoid consequences, follow your contract. If it states something specific, such as contacting the second key holder in case you were unable to contact the first, ensure to follow such instructions.
If the client has given any instructions that contradict the contract, then ensure that you have proof of it.
This might have to be included in the contract itself with the help of your lawyer.
As the third step, ensure your emergency response does not come under any kind of negligence.
In the robbery case illustrated above, the Court was unsympathetic to the “hurried inspection” by the assigned officer.
Moreover, at the time of the trial, there was a long dispute regarding the officer’s response and whether he should have tried to inspect the premises more diligently and perhaps from an alternate route.
A Piece of Advice for Clients:
As the case demonstrated above proves that there is always room to dispute exemption clauses, counting solely on this and assuming to go through it smoothly is not a wise assumption.
The security providers’ right to safeguard themselves from liability is acknowledged by the law as long as it is legally acceptable.
However, if you are a victim of a robbery or a security breach and your security company has failed to fulfill its commitment then be sure to contact your lawyer urgently and you might just be able to get help legally and get your damages covered.