By Chidiebere C. Onyechere, BL, LLB.
![](https://thenigerialawyer.com/wp-content/uploads/2025/05/idrinstitute.png")
![](https://thenigerialawyer.com/wp-content/uploads/2024/11/TheNigerialawyer-WhatsApp-Channel1.jpg")
Introduction
Duty of care is a legal obligation owed by one person to another to act with reasonable care and diligence, ensuring that their actions and in-actions do not harm another either directly or indirectly. A duty of care is the first element of a negligence claim. Without a duty of care, there’s no basis for holding someone liable for causing harm, even if they acted carelessly. In other words, when there’s an obligation of duty of care placed on one person on behalf of another, such person must take proper measures to ensure that he/she furnishes that duty to the latter.
The locus clasicus case of Donoghue v Stevenson [1932] AC 562, established the tortious principle of duty of care and negligence, which is generally accepted today. This duty of care extends to the duty of occupiers or owners of land, premises or establishments to take reasonable care to see that visitors will be reasonably safe (including their properties) in using the premises for the purpose(s) for which they are invited or permitted to be there (Occupiers’ Liability Act 1957 s 2(2)
The decision in Anya v. Concord (2002) CLR 12(j) (SC) represents a troubling departure from established principles of negligence and the duty of care owed by business premises to their customers/patronizers. The court’s reliance on the doctrine “cars parked at owner’s risk” to absolve Concord Hotel of liability for the theft of Justice Anya’s car was not only unjust but also inconsistent with modern legal standards governing duty of care, negligence, bailment, occupiers’ liability, and consumer protection.
For better understanding, a brief look at the facts that brought about the decision in Anya V. Concord;
On 19th December, 1986, Justice K.O. Anya (retired) traveled to Owerri, Imo State, to attend a book launch. He checked into the renowned Imo Concorde Hotel and parked his Peugeot 505 AC Saloon car in the hotel premises.
The next day, 20th December, 1986, he discovered that his car had been stolen. Justice Anya subsequently sued the hotel management of Concord Hotel and the two security guards on duty for negligence, seeking damages of ₦ 150,000, including ₦ 65,000 as the car’s value.
The trial court ruled in favor of Justice Anya, holding that the hotel management owed him a duty of care and had breached that duty, thereby making them liable for the theft. Damages were awarded accordingly.
Dissatisfied, the hotel management appealed the ruling. The Court of Appeal reversed the decision, holding that the hotel management was not liable and that Justice Anya had no enforceable right of action.
Justice Anya then appealed to the Supreme Court. The apex court upheld the Appeal Court’s decision, stating that the hotel management was not liable. In its obiter dictum, the Supreme Court clarified the requirements for establishing negligence:
The defendant must owe the plaintiff a duty of care.
The duty of care must have been breached.
The breach must have caused damage to the plaintiff. (Per A. Kalgo, JSC)
The court further explained that a duty of care arises only toward a “neighbor,” defined in Donoghue v. Stevenson (1932) by Lord Atkin as anyone “so closely and directly affected” by one’s act or omission that they should reasonably be kept in contemplation.
However, as stated earlier above, it has been argued that the decision of the supreme court in the above case was a troubling departure from established principles of negligence and the duty of care owed by business premises to their customers/patronizers. The supreme court court refused to consider the principle of bailment and occupiers liability in addition to duty of care. Further, it made an oversight in its allusion as to who a neighbour is as defined by Lord Atkin. A customer/patronizer comes under the definition of a neighbour immediately he/she comes into the premises of the establishment for the purpose of patronizing it. It is trite that when a customer parks a vehicle in an establishment’s premises while patronizing its services, a duty of care arises, and mere disclaimers should not negate this obligation.
The Duty of Care in Bailment and Occupiers’ Liability
The relationship between a business and its customers creates an implied duty of care, particularly where the customer’s property is left within the control of the establishment. The doctrine of bailment applies where possession and control of the property (in this case, the car) is temporarily transferred to the hotel. Even in the absence of a formal contract, a bailment relationship arises by implication. See Ashby v. Tolhurst [1937] 2 KB 242.
In Ulteen v. Nichols [1894] 1 QB 92, the court held that where a customer leaves goods in the care of an establishment, the proprietor assumes a duty to take reasonable care of the property. Similarly, in Coldman v. Hill [1919] 1 KB 443, it was established that a parking arrangement in a commercial setting creates a duty on the part of the proprietor to ensure the safety of the vehicle.
The Occupiers’ Liability Act in many jurisdictions imposes a duty on occupiers/owners of establishments to ensure that visitors (including customers) and their properties are reasonably safe while on the premises. By allowing parking on its property, Concord Hotel assumed responsibility for the security of vehicles parked there. The mere posting of “cars parked at owner’s risk” sign does not automatically absolve them of this duty. See White v. Blackmore [1972] 2 QB 651.
Disclaimers and Exclusion Clauses
The court’s acceptance of the “cars parked at owner’s risk” caveat as a complete defense is problematic. Exclusion clauses/disclaimers must be reasonable and brought to the attention of the customer at the time of contract formation See Thornton v. Shoe Lane Parking [1971] 2 QB 163. A sign on the wall, often inconspicuous, does not suffice as proper notice.
Moreover, under the Unfair Contract Terms Act 1977 (UK) and similar consumer protection laws in other jurisdictions, businesses cannot exclude liability for negligence through blanket disclaimers where they exercise control over the premises.
Comparative Jurisprudence: A More Just Approach
Other jurisdictions have rejected the “parked at owner’s risk” defense where negligence is proven. In Mandella v. Rodaros (1966) 57 DLR (2d) 644, the Canadian court held that a parking lot operator owed a duty of care to prevent theft, regardless of disclaimers. Similarly, in Sydney City Council v. West (1965) 114 CLR 481, the Australian High Court ruled that a disclaimer does not negate the duty of care where the establishment benefits from the customer’s patronage.
Conclusion.
The decision in Anya v. Concord is a regressive step that undermines consumer rights and the fundamental principles of negligence and duty of care. Businesses that invite customers onto their premises and benefit from their patronage must bear a corresponding duty to protect the properties of such customers. It even imposes more liability on a business or establishment in the event that the customers after parking within the premises of the business, hands over the car key to the security personnel and explicitly inform them about his/her car’s location. Or,
If the management of the business or establishment issues a parking tag that must be presented before exiting, this can imply an acknowledgment of responsibility for the car’s safety. In such cases, if something goes wrong, they may be held liable for negligence.
The “cars parked at owner’s risk” doctrine, when applied rigidly, fosters irresponsibility and leaves customers vulnerable. Courts should instead enforce a duty of care, ensuring that establishments take reasonable measures to safeguard their customers’ vehicles and other properties at large.
Written By: Chidiebere C. Onyechere, BL, LLB. (Managing Partner, Valiant Legal Consult).
“History of Rivers State Judiciary: A Compendium of Personalities on the Bench.” Authored by Ampim Gogo Blankson, Esq., Deputy Director at the Rivers State Ministry of Justice, in collaboration with the Rivers State Judiciary 💰 Cover Price: ₦20,000.00 (Twenty Thousand Naira) Bukky Law Books, Rivers State High Court Complex, Moscow Road, Port Harcourt – 📞 08034868754📞 08034729738📞 Enquiries: ______________________________________________________________________ From Constitutionalism To Federalism And "Speaking Truth To Power": Get Your Copies Of Prof. Ozekhome's Books Tackling Nigeria's Critical Issues 
For Enquiries: 📞 +234 704 044 9375 | +234 814 813 4773 | +234 816 872 3532 ✉️ educodexl@gmail.com
______________________________________________________________________Grab Your Complete Law Reports Now!!! IP, Company, Evidence & Land Cases - All Volumes With Digital Index!!!
To get a copy kindly Call 07044444777, 07044444999, 08181999888, https://alexandernigeria.com/ ______________________________________________________________________
[A MUST HAVE] Evidence Act Demystified With Recent And Contemporary Cases And Materials
