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Thornton v Shoe Lane Parking Ltd

[1971] 2 QB 163; [1971] 1 Lloyd's Rep 289; [1971] 2 WLR 585; [1971] 1 LLR 289; [1970] EWCA Civ 2; [1971] RTR 79; [1971] 1 All ER 686

Overview

The plaintiff drove to the entrance of defendant's multi-story car park and received a ticket from a machine. This ticket referred to certain ‘conditions of issue' which could be found inside the premises. The plaintiff proceeded into the car park and while there suffered personal injury due to the defendant's fault. However, the defendant denied liability because of the terms of an exclusion clause displayed on a pillar inside the car park. It argued that these terms formed part of its contract with the plaintiff.

The Court of Appeal found that the exclusion clause did not form part of the contract and, therefore, did not protect the defendant. In particular, Lord Denning held that reasonably sufficient notice of the exemption clause was necessary for a term to be included in a contract. In cases where exclusion clauses are destructive of plaintiffs' rights, Lord Denning famously held that reasonably sufficient notice would require that the clause be 'printed in red ink with a red hand pointing to it – or something equally startling.'

This case (involving automatic ticketing machines) was distinguished from 'ticket cases' in which tickets are, in Sir Willmer's words 'proffered by a human hand'.

Facts

Lord Denning succinctly described the circumstances in which the claim arose in this case, describing a familiar process of parking a car in a garage and obtaining an automatic ticket:

In 1964 Mr. Thornton, who was a free-lance trumpeter of the highest quality, had an engagement with the BBC at Farringdon Hall. He drove to the City in his motorcar and went to park it at a multi-storey automatic car park. It had only been open a few months. He had never gone there before. There was a notice on the outside headed "Shoe Lane Parking". It gave the parking charges: "5/" for two hours: 7/6d. for three hours", and so forth; and at the bottoms "All cars parked at owner's risk". Mr. Thornton drove up to the entrance. There was not a man in attendance. There was a traffic light which showed red. As he drove in and got to the appropriate place, the traffic light turned green and a ticket was pushed out from the machine. Mr. Thornton took it. He drove on into the garage. The motorcar was taken up by mechanical means to a floor above. Mr. Thornton left it there and went off to keep his appointment with the B.B.C. Three hours later Mr. Thornton came back. He went to the office and paid the charge for the time the car was there. His car was brought down from the upper floor. He went to put his belongings into the boot of the car. But unfortunately there was an accident. Mr. Thornton was severely injured. The Judge has found it was half his own fault, but half the fault of the Shoe Lane Parking Ltd. The Judge awarded him £3,637.6s.lld.

On this appeal the garage company do not contest the Judge's findings about the accident. They acknowledge that they were at fault, but they claim that they are protected by some exempting conditions. ...

The relevant 'conditions of issue' could be found inside the premises on car park pillars and near the payment office. Amongst these terms was an exclusion clause stating:

'... the Company shall not be responsible or liable for ... injury to the Customer or any other person occurring; when the Customer's motor vehicle is in the Parking Building howsoever that loss, misdelivery, damage or injury shall be caused; and it is agreed and understood that the Customer's motor vehicle is parked and permitted by the Company to be parked in the Parking Building in accordance with this Licence entirely at the Customer's risk.'

Relevantly, the case turned on whether or not this term formed part of the defendant's contract with the plaintiff.

Judgment

Lord Denning (Master of the Rolls)

On the issue of whether or not the relevant term was incorporated into the contract Lord Denning stated:

'We have been referred to the ticket cases of former times … concerned with railways, steamships and cloakrooms where booking clerks issued tickets to customers who took them away without reading them.  In those cases the issue of the ticket was regarded as an offer by the company.  If the customer took it and retained it without objection, his act was regarded as an acceptance of the offer … These cases were based on the theory that the customer, on being handed the ticket, could refuse it and decline to enter into a contract on those terms.  He could ask for his money back.  That theory was, of course, a fiction.  No customer in a thousand ever read the conditions. If he had stopped to do so, he would have missed the train or the boat.

None of those cases has any application to a ticket which is issued by an automatic machine. The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it; but it will remain unmoved.  He is committed beyond recall.  He was committed at the very moment when he put his money into the machine.  The contract was concluded at the time.  It can be translated into offer and acceptance in this way: the offer is made when the proprietor of the machine holds it out as being ready to receive the money.  The acceptance takes place when the customer puts his money into the slot.  The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money.  The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise.  He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late.  The contract has already been made …';

'In this case the offer was in the notice at the entrance and was accepted when Thornton drove to the entrance and ‘by the movement of his car, turned the light from red to green, and the ticket was thrust at him.  The contract was then concluded, and it could not be altered by any words printed on the ticket itself. …'

[my emphasis]

 

Red HandDenning MR indicated that a customer would be bound by exempting conditions only if he knows the ticket is issued subject to the condition or if the company 'did what was reasonably sufficient to give him notice of it'.  And, Lord Denning opined, in order to provide proper notice in cases where the exempting clause is quite destructive of the plaintiff's rights 'it would need to be printed in red ink with a red hand pointing to it – or something equally startling.' (emphasis added)

 

Lord Justice Megaw

In this case the plaintiff knew there was writing on the ticket but did not know it contained or referred to conditions.  Where the conditions include restrictions that are unusual then 'a defendant must show that his intention to attach an unusual condition of that particular nature was fairly brought to the notice of the other party'.  What is reasonably sufficient notice depends on the nature of the restrictive condition.

No sufficient notice was given here at or before the contract was concluded.  The 'first attempt to bring to his notice the intended inclusion of those conditions was at a time when as a matter of hard reality it would have been practically impossible for him to withdraw from his intended entry upon the premises for the purpose of leaving his car there'. Megaw LJ continued;

It does not take much imagination to picture the indignation of the defendants if their potential customers, having taken their tickets and observed the reference therein to the other to contractual conditions which, they said, could be seen in notices on the premises, were one after the other to get out of their cars, leaving the cars blocking the entrances to the garage, in order to search for, find and peruse the notices!  Yet unless the defendants genuinely intended that potential customers should do just that, it would be a fiction, if not a farce, to treat those customers as persons who have been given a fair opportunity, before the contracts are made, of discovering the conditions by which they are to be bound.

 

Sir Gordon Willmer

Reached the same conclusion.

It seems to me that the really distinguishing feature of this case is the fact that the ticket on which reliance is placed was issued out of an automatic machine. I think it is right to say - at any rate, it is the fact so far as the cases that have been called to our attention are concerned - that in all the previous so-called "ticket cases" the ticket has been proffered by a human hand, and there has always been at least the notional opportunity for the customer to say - if he did not like the conditions - "I do not like your conditions: I will not have this ticket." But in the case of a ticket which is proffered by an automatic machine, there is something quite irrevocable about the process. ... I do not propose to say any more upon the difficult question which has been raised as to the precise moment when a contract was concluded... but at least it seems to me that any attempt to introduce conditions after the irrevocable step has been taken of causing the machine to operate must be doomed to failure. ... it seems to me that the learned Judge below was on the right track when he said, towards the end of his judgment, that in this sort of case, if you do desire to impose upon your customers stringent conditions such as these, the least you can do is to post a prominent notice at the entrance to the premises, warning your customers that there are conditions which will apply. ...