Court: Queens' Bench.
Judges: Lord Denning M.R.; Megaw L.J. and Sir Gordon Willmer.
Date decided: 17 December 1970.
The plaintiff drove his car into a new automatic car park. He had not been there before. A notice on the outside gave the charges and stated that all cars were “parked at owner's risk.” A traffic light on the entrance lane showed red and a machine produced a ticket when the car had drawn up beside it. The plaintiff took the ticket and, the light having turned green, he drove on into the garage where his car was parked by mechanical means. On the plaintiff's return to collect the car there was an accident and he was severely injured. The plaintiff claimed damages from the defendant garage. The defendants contended, inter alia, that the ticket incorporated a condition exempting them from liability.
The ticket stated the car's time of arrival and that it was to be presented when the car was claimed. In the bottom left hand corner in small print it was said to be “issued subject to conditions … displayed on the premises.” On a pillar opposite the ticket machine a set of eight printed “conditions” was displayed in a panel. In the second condition it was stated that the garage would not be liable for any injury to the customer occurring when his car was on the premises. Mocatta J. held that the defendants were half to blame for the plaintiff's accident and awarded him £3,637 damages.
Lord Denning described the ticket:
The ticket was headed “Shoe Lane Parking.” Just below there was a “box” in which was automatically recorded the time when the car went into the garage. There was a notice alongside: “Please present this ticket to cashier to claim your car.” Just below the time, there was some small print in the left hand corner which said: “This ticket is issued subject to the conditions of issue as displayed on the premises.” That is all.1)
Lord Denning considered that it was not easy for Thornton to read the terms and conditions, if he knew of their existence from reading the ticket. He would have had to entered the garage, left his car and walked around to the pillar on which they were displayed, or go to the paying office. If he had done this, “it would take him a very considerable time” to actually read the conditions2).
Importantly for Denning MR, the operator sought to exclude liability for personal injuries. His Lordship noted that:
The important thing to notice is that the company seek by this condition to exempt themselves from liability, not only for damage to the car, but also for injury to the customer howsoever caused. The condition talks about insurance. It is well known that the customer is usually insured against damage to the car. But he is not insured against damage to himself. If the condition is incorporated into the contract of parking, it means that Mr. Thornton will be unable to recover any damages for his personal injuries which were caused by the negligence of the company.3)
Lord Denning noted that the old ticket 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.4)
This case differed because the ticket was issued by an automatic machine, after the money was paid. Though the customer “may protest to the machine, even swear at it […] it will remain unmoved.”5) Accordingly, the contract was concluded at the time Thornton inserted the money in the machine (the time he became “committed beyond recall”).6)
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 before-hand, 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: see Olley v Marlborough Court Ltd  1 KB 532. The ticket is no more than a voucher or receipt for the money that has been paid (as in the deckchair case, Chapelton v Barry Urban District Council  1 KB 532) on terms which have been offered and accepted before the ticket is issued.
Lord Denning held that the offer was made “at owner's risk”, but this meant “at the risk of the owner so far as damage to the car was concerned.”7)
Assuming, in the alternative, that the old ticket cases did apply to the situation, Denning MR held that the proper test was to include notice of the actual excluding provision - “It is no use telling the customer that the ticket is issued subject to some “conditions” or other, without more: for he may reasonably regard “conditions” in general as merely regulatory, and not as taking away his rights, unless the exempting condition is drawn specifically to his attention.” 8) The test, accordingly would be that:
the customer is bound by the exempting condition if he knows that the ticket is issued subject to it; or, if the company did what was reasonably sufficient to give him notice of it.9)
Lord Denning recognised that the more onerous the provision, the greater the requisite notice must be:
is so wide and so destructive of rights that the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way.10)
Lord Denning held that the excluding provision did not form part of the contract, as Thornton did not know have actual knowledge of the provision, and the garage “did not do what was reasonably sufficient to give him notice of it.”11)
Lord Megaw did not decide the precise moment at which the contract was concluded.12) His Lordship held that the case was a ticket case, and the applicable authority from Hood v Anchor Line (Henderson Bros) Ltd  AC 837 held that “if it is found that the company did what was reasonably sufficient to give notice of conditions printed on the back of a ticket the person taking the ticket would be bound by such conditions.”13) His Lordship used the three limb test enunciated in McCutcheon v David MacBrayne Ltd  1 WLR 125: ”(1) Did the passenger know that there was printing on the railway ticket? (2) Did he know that the ticket contained or referred to conditions? and (3) Did the railway company do what was reasonable in the way of notifying prospective passengers of the existence of conditions and where their terms might be considered?”14)
In this case, Thornton knew that there was writing on the ticket, but the defendants had not met their burden of proving that Thornton knew that the ticket contained conditions.15) With regards to the third question, Lord Megaw accepted Lord Dunedin's statement that
it is in each case a question of circumstance whether the sort of restriction that is expressed in any writing (which, of course, includes printed matter) is a thing that is usual, and whether, being usual, it has been fairly brought before the notice of the accepting party.16)
Lord Megaw agreed with Lord Denning that notice must be of the exclusion provision which is being relied on, not of conditions generally:17)
When the conditions sought to be attached all constitute, in Lord Dunedin's words  AC 846, 847, “the sort of restriction … that is usual,” it may not be necessary for a defendant to prove more than that the intention to attach some conditions has been fairly brought to the notice of the other party. But at least where the particular condition relied on involves a sort of restriction that is not shown to be usual in that class of contract, 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. How much is required as being, in the words of Mellish LJ, 2 CPD 416, 424, “reasonably sufficient to give the plaintiff notice of the condition,” depends upon the nature of the restrictive condition.18)
Assessing whether the garage operators had done what was “reasonable fairly to bring to the notice of the plaintiff, at or before the time when the contract was made, the existence of this particular condition”19), Megaw LJ also suggested that the importance of the right at issue effected the notice that would be reasonably required:
This condition is that part of the clause - a few words embedded in a lengthy clause - which Lord Denning M.R. has read, by which, in the midst of provisions as to damage to property, the defendants sought to exempt themselves from liability for any personal injury suffered by the customer while he was on their premises. Be it noted that such a condition is one which involves the abrogation of the right given to a person such as the plaintiff by statute, the Occupiers Liability Act 1957. True, it is open under that statute for the occupier of property by a contractual term to exclude that liability. In my view, however, before it can be said that a condition of that sort, restrictive of statutory rights, has been fairly brought to the notice of a party to a contract there must be some clear indication which would lead an ordinary sensible person to realise, at or before the time of making the contract, that a term of that sort, relating to personal injury, was sought to be included.20)
Lord Megaw held that it could not be assumed, that “as a matter of general knowledge, custom, practice, or whatever is the phrase that is chosen to describe it, that when one is invited to go upon the property of another for such purposes as garaging a car, a contractual term is normally included that if one suffers any injury on those premises as a result of negligence on the part of the occupiers of the premises they shall not be liable.”21)
Lord Megaw further held that the defendants had not taken adequate steps fairly to bring to the notice of Thornton not only the exclusion provision, but “any special conditions” in aggregate:
I think it is a highly relevant factor in considering whether proper steps were taken fairly to bring that matter to the notice of the plaintiff that 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 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 fiction, if not 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.22)
Lord Willmer agreed with the Denning MR and Megaw LJ, and noted that the distinguishing feature of this case to the older ticket cases was the use of an automatic ticket machine. Where the ticket is dispensed by a machine, there is no opportunity to refuse the ticket after reading the conditions. Accordingly, “any attempt to introduce conditions after the irrevocable step has been taken of causing the machine to operate must be doomed to failure.”23) His Lordship concluded that “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.”24).