POFA 2012 and on site attendants, hand taken photo evidence.

FMH1977

A question that is relevant to a recent NTK I received that references POFA 2012:

Does POFA 2012 keeper liability still apply if the car park had an onsite attendant who took photo evidence of the parking infringement and could have challenged or identified the driver at the time if they chose to?

The photo evidence on the NTK is hand taken (multiple angles and close ups of the vehicle). I happen to know this car park has an employee/agent on site who pounces with a camera as soon as the driver is out of site. This means they had the opportunity to both (a) warn the driver at the time if the company was truly concerned about infringement of terms having a legitimate negative impact and (b) request the drivers details or at least take a photo of them. 

If POFA 2012 exists for cases where the driver cannot be identified at the time or determined afterwards, then it seems that does not apply if you had the means to identify the driver but did not attempt to.

Chat GPT says "Keeper liability under POFA 2012 only applies when the operator does not know who the driver was" and "if it could be shown that the company is misusing POFA where they had a clear opportunity to identify the driver, an adjudicator (e.g. at POPLA or in court) might view their case less favourably, because it undermines the principle that POFA is only for when the driver cannot reasonably be identified.'

I'd like to know what the experts on this forum think.

Car1980

Identity is defined as name and serviceable address.

Whether they do not attempt to gain this information at the time is probably not relevant because a Notice to Keeper is an invitation to provide this information.

You could argue that blindly charging people under a contract affects the legitimate interest aspect of the contract though I suppose ie. if they see someone park over a line, the purpose of the contract would be to avoid using up the space adjacent. Watching someone walk off and then charging them instead of pointing out their car is parked in breach would undermine the entire point of the contract.

FMH1977

Thanks for sharing your thoughts. Yes it seems they are more interested in collecting the fines than in preventing the incident, which does suggest they are not that concerned with any negative impact of the incident. 

Coupon-mad

Parking firms almost always only make money when people are caught out by them.

Just as shocking: they ALL make EVEN MORE MONEY (well over the PCN face value) by doing the wrong thing by consumers, turning down appeals & letting cases go to debt collectors. No other trader gets that.