Gray v London and North Eastern Railway Company
| Jurisdiction | Scotland |
| Judgment Date | 10 July 1930 |
| Docket Number | No. 119. |
| Date | 10 July 1930 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Ld. Moncrieff.
ContractConditionCarrierRailwayNotice on passenger's ticket referring to conditions in time tables and billsConditions excluding railway company's liabilityWhether passenger bound by conditions.
In an action by a passenger against a railway company to recover damages for personal injury sustained by him while travelling on one of their trains, the defenders maintained that, under the contract of carriage, they were exempted from liability. When the accident occurred the pursuer was travelling on a "pleasure party" ticket, issued at a fare less than the ordinary fare. The ticket bore on the front, in legible print, "See Back," and on the back, also in legible print, "This ticket is issued subject to the General Notices, Regulations, and Conditions in the Company's current Time Tables and Bills." The defenders' current time tables contained a section headed "General Notices, Regulations, and Conditions," which included a condition that the holder of a ticket issued at a fare less than the ordinary fare should have no right of action against the company in respect of injury however caused. The pursuer admitted that he knew that there was printing on the back of his ticket, and that he must have read what was printed on the back of a similar ticket when travelling on previous occasions, but deponed that what he read had conveyed nothing to him.
Held that the condition formed part of the contract, in respect that the reference on the ticket to the conditions in the defenders' time tables was reasonable notice of their existence and terms, and (per Lord Ormidale and Lord Anderson) in respect further that, as the pursuer knew that there was printing on the back of the ticket and admitted that at some time he must have read the printing, he must be taken to have known that it referred to conditions of the contract of carriage; and defenders assoilzied.
Thompson v. London, Midland, and Scottish Railway Co.ELR,[1930] 1 K. B. 41, followed.
On 13th April 1929 William Gray, commission agent, Edinburgh, brought an action against the London and North Eastern Railway Company, concluding for payment of 5000 as damages for personal injuries sustained by him while travelling as a passenger in one of the defenders' trains from Glasgow to Edinburgh.
The defenders admitted for the purposes of the action that the pursuer's injuries were caused by the negligence of their servants, but maintained that they were not liable in damages, in respect that it was part of the contract of carriage between them and the pursuer that they should not be liable for injuries to him, however caused. They also maintained that the damages claimed were excessive.
A proof was allowed and led, and, on the question of the terms of the contract of carriage, the following facts were established:The pursuer, who carried on a bookmaker's business both by post and at race meetings, was in the habit of travelling from Waverley Station, Edinburgh, to Glasgow several times a week to attend greyhound racing meetings. He usually travelled with other bookmakers, and the custom was that an employee of one of the bookmakers obtained for the party "pleasure party" tickets, which were issued by the defenders, on written application, to parties of twelve or over at the price of 4s. 2d. each, the ordinary return fare being 7s. 8d. On the day of the accident a clerk named Angus M'Donald obtained "pleasure party" tickets, after filling up and signing the usual application form which he obtained from the booking clerk. He handed one of the tickets to the pursuer, and the pursuer was travelling on the return half of that ticket when he was injured. The pursuer's ticket bore on the face the words "Pleasure Party," "not valid by L. M. S. train," "See Back," and on the back of both outward and return halves the words, "Not transferable. Available only on day of issue. This ticket is issued subject to the General Notices, Regulations, and Conditions in the Company's current Time Tables and Bills." The ordinary return ticket omitted the words "Pleasure Party," "Not valid by L. M. S. train"; and on the back of the return half the words, "Available for three months from date of issue," were substituted for "Available only on day of issue," and the words "and Bills" at the end of the notice were omitted. Otherwise the two tickets were identical. The defenders' time tables, which were on sale at their stations and which might be consulted gratuitously at their stations, contained a section setting out, "General Notices, Regulations, and Conditions." This section contained "Conditions of Issue of ordinary passenger tickets," followed by "Conditions of Issue of Excursion Tickets and other tickets issued at fares less than ordinary fares." It was one of the latter conditions that the holder should have no right of action against the Company in respect of injury, however caused. The time tables were indexed, and the item "General Notices, Regulations, and Conditions" appeared in the index. The application form for "pleasure party" tickets contained no reference to conditions. A number of bills and a booklet issued by the defenders and relating specifically to pleasure parties were produced, none of which referred to special conditions. One bill containing the General Notices, Regulations, and Conditions was exhibited in the main booking hall of the Waverley Station, but to buy a ticket for Glasgow it was not necessary to enter the main booking hall. The material passages from the evidence of the pursuer and of Matthew Strang, passenger manager for the defenders' Southern Scottish Area, are set out infra.1
The defenders pleaded, inter alia:"(1) The pursuer having entered into the said contract of carriage with the defenders subject to the condition that he should have no right of action against the defenders in respect of any injury sustained by him on the said journey, however caused, the defenders should be assoilzied."
On 4th December 1929 the Lord Ordinary (Moncrieff) assoilzied the defenders.
At advising on 10th July 1930,
LORD JUSTICE-CLERK (Alness).The pursuer, who is a commission agent in Edinburgh, sues the defenders for 5000 in respect of injuries which he sustained while travelling as a ticket holder in one of the defenders' trains between Glasgow and Edinburgh. The pursuer's claim is based on the alleged negligence of the defenders. The defenders, for the purposes of the action, admit that the accident out of which the pursuer's claim arises was caused by the negligence of their servants, for whom they are responsible, and they do not challenge the amount of damages, if due, as these were assessed by the Lord Ordinary. They plead, however, that the pursuer entered into a special contract of carriage with them, which was subject to the condition that he should have no right of action against them in respect of any injury sustained by him on the journey, and that they are therefore entitled to decree of absolvitor. The onus is, of course, on the defenders to establish this defence.
The circumstances under which the pursuer obtained his ticket are not in dispute. As a bookmaker, he was in the habit of travelling regularly between Edinburgh and Glasgow in order to attend greyhound-racing meetings in the latter city. On the journey he was usually accompanied by certain persons who were engaged in the same mission. The pursuer and his friends obtained at the Waverley Station, through a representative named M'Donald, cheap travel tickets to Glasgow, which are issued by the defenders to parties, such as the pursuer's party, exceeding twelve in number. It was while the pursuer was a holder of one of these "pleasure party" tickets, as they are termed, that the accident occurred.
On the front of the pursuer's ticket were the words "See Back." On the back of the ticket was a notice in these terms: "This ticket is issued subject to the General Notices, Regulations, and Conditions in the Company's current Time Tables and Bills." The defenders' time tables contain, and for a long time have contained, a section setting out "Conditions of Issue of Excursion Tickets and other Tickets issued at fares less than ordinary fares." These conditions provide, inter alia:"Neither the
holder nor any other person shall have any right of action against the Company or any other railway company or person owning, working, or using any railway, vehicles, vessels, or premises (whether jointly with the Company or otherwise) upon which such tickets may be available in respect of (a) injury (fatal or otherwise), loss, damage, or delay, however caused; or (b) loss of, or damage or delay to, property, however caused." Founding on this condition, which, say the defenders, was imported into the contract between the pursuer and them, they maintain that they are relieved from liability in respect of the accident referred to. The Lord Ordinary, after evidence led before him, assoilzied the defenders, and against his interlocutor this reclaiming note has been taken by the pursuer.
The problem raised is one which is familiar to the Courts, and which has been repeatedly made matter of decision by them. In the result, it appears to me that the principles which regulate the decision of a case such as this are well settled. The Courts have recognised that there are three classes of case to be dealt with, where, as here, it may be deemed that the pursuer is not proved to have been aware of the conditions expressed or referred to in the ticket held by him(1) There are cases in which there is no reference to conditions on the face of the ticket and no direction to read what is printed on the back, and the pursuer is ignorant that there is anything on the ticket other than what appears on the face; (2) there are cases in which the pursuer may know that there is something printed on the ticket, but is unaware that it imports...
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