Home | Cases | Thornton v Shoe Lane Parking Ltd

 

Key information

Court
Court of Appeal

Judges
Denning MR
Megaw LJ
Willmer

Issues
Incorporation of terms

Full case
BAILII

AustraliaThornton 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

 

Facts

The plaintiff drove to the entrance of defendant's multistory 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.

Held

The Court of Appeal found that the exclusion clause did not form part of the contract and, therefore, did not protect the defendant.

Lord Denning (Master of the Rolls)

His Honour stated (my emphasis):

'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. …'

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 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.’

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.

‘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.’

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