A woman who was allegedly robbed last week by an Uber driver and an accomplice announced plans to sue the ride-hailing firm for emotional distress and loss. — Reuters pic

KUALA LUMPUR, May 31 ― Exclusion clauses and Uber’s unique relationship with its drivers could make it difficult for a woman to successfully sue the firm over her robbery on one of its rides, lawyers suggested.

Wong Mei Yan, 26, was allegedly robbed last week by an Uber driver and an accomplice, and later suffered a miscarriage of her month-old pregnancy. She announced plans to sue the ride-hailing firm for emotional distress and loss on Saturday.

Speaking to Malay Mail Online, corporate and technology lawyer Edwin Lee noted that the terms and conditions of Uber’s service included a boilerplate clause disavowing all responsibility for any damages resulting from the use of any of its services.

“Contractually speaking, Uber will not be liable if something unfortunate happens to their passengers,” Lee said.

While acknowledging that transport operators have been found indirectly liable for their employees’ activities before, Lee noted that Uber’s relationship with its drivers was not as clearcut.

He said Uber maintained that drivers in its network were “independent contractors”, although he added that some foreign jurisdictions have rejected this and concluded that Uber is an employer.

“In Malaysia, this has not been tested. So, if this lady were to bring the suit, it is going to be an opportunity for our courts to rule on this,” he added.

According to civil litigation lawyer Ong Yu Jian, Wong would also need to show that Uber was negligent in recruiting the driver.

The driver from the incident last week has been arrested, but police did not disclose if he has previous criminal records.

“Unless she finds evidence that the driver has prior criminal background and Uber did not conduct the necessary background checks on the suspect,’ Ong said.

KL Bar committee member Alex Anton Netto argued, however, that Uber should be responsible for the actions of the drivers despite the existence of the exclusion clause.

He further suggested a review of such disclaimers, saying there must not be situations where employers could absolve themselves entirely of liability for actions committed by their hirelings on duty.

“Because what kind of precedent are they setting? Everyone who books rides now would be very worried,” he told Malay Mail Online when contacted.

Despite citing Uber’s disclaimer, Lee said it could be negated by the Consumer Protection Act 1999 if negligence is detected.

Lawyer Fahri Azzat went further to say that exclusion clauses could be nullified by the Act even without negligence.

“I would attack the clause as being void under the Consumer Protection Act 1999. Specifically, Section 24C (for being procedurally unfair) and 24D (for being substantively unfair).

Section 24C states that a contract is procedurally unfair if it results in an unjust advantage to the supplier or the consumer while Section 24D holds that a contractual term is unfair if it is harsh, oppressive, unconscionable, and excludes or restricts liability for negligence without adequate justification.

Uber must also prove that it performed due diligence in vetting the driver in question, Fahri said.

Wong’s lawsuit, if she proceeds with it, would be the first of its kind in Malaysia, but not in the world.

In 2015, Reuters reported that a woman from New Delhi, India, who alleged she was raped and beaten by a Uber driver, had filed a lawsuit against the ride-hailing company.

In her lawsuit, she claimed that Uber failed to maintain basic safety principles. The court filing did not disclose any details on how the case was settled.

Uber declined comment when contacted by Malay Mail Online.