Thornton v Shoe Lane Parking Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE MEGAW
Judgment Date18 December 1970
Judgment citation (vLex)[1970] EWCA Civ J1218-2
CourtCourt of Appeal (Civil Division)
Date18 December 1970
Between:
Francis Charles William Thornton
Plaintiff Respondent
and
Shoe Lane Parking Limited
Defendants Appellants

[1970] EWCA Civ J1218-2

Before:

The Master of the Rolls (Lord Denning),

Lord Justice Megaw and

Sir Gordon Willmer.

In The Supreme Court of Judicature

Court of Appeal.

Appeal of defendants from Judgment of Mr. Justice Mocatta on 18th June, 1970.

Mr. A. MACHIN (instructed by Messrs. Barlow Lyde and Gilbert) appeared on behalf of the Appellant Defendants.

Mr. JOHN NEWEY, Q.C., and Mr. M. BURKE-GAFFNEY (instructed by Messrs. Alastair Thomson and Partners) appeared on behalf of the Respondent Plaintiff.

1

THE MSTEE OF THE ROLL: In 1964 Mr. Thornton, who was a free-lance trumpeter of the highest quality, had an engagement with the B.B.C. at Farringdon Hall. He drove to the City in his motorcar and went to park it at a multistorey 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 bottom: "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 Limited. The Judge awarded him £3,637. 6s.11d.

2

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. They rely on the ticket which was issued to Mr. Thornton by the machine. They say that it was a contractual document and that it incorporated a condition which exempts them from liability to him. 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 tothe conditions of issue as displayed on the premises". That is all.

3

Mr. Thornton says he looked at the ticket to see the time on it, and put it in his pocket. He could see there was printing on the ticket, but he did not read it. He only read the time. He did not read the words which said that the ticket was issued subject to the conditions as displayed on the premises.

4

If Mr. Thornton had read those words on the ticket and had looked round the premises to see where the conditions were displayed, he would have had to have driven his car on into the garage and walked round. Then he would have found, on a pillar opposite the ticket machine, a set of printed conditions in a panel. He would also have found, in the paying office (to be visited when coming back for the car) two more panels containing the printed conditions. If he had the time to read the conditions — It would take him a very considerable time — he would read this.

"CONDITIONS: The following are the conditions upon which alone motor vehicles are accepted for parking:

1. The customer agrees to pay the charges of Shoe Lane Parking Developments Limited", and so on.

2. The Customer is deemed to be fully insured at all times against all risks (including, without prejudice to the generality of the foregoing, fire, damage and theft, whether due to the negligence of others or not) and the Company shall not be responsible or liable for any loss or misdelivery of or damage of whatever kind to the Customer's motor vehicle, or any articles carried therein or thereon or of or to any accessories carried thereon or therein or 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."

5

There is a lot more. I have only read about one-tenth of the conditions. The important thing to notice is that the Company seeks by this condition to exempt themselves from liability, not only to 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 usuallyInsured 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.

6

We have been referred to the ticket cases of former times from Parker v. The South Eastern Railway Co. (1877 2 C.P.D. 416) to McCutcheon v. MacBrayne Limited. (1964 1 W.L.R. 125). They were 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: see Watkins v. Rymill (1833) 10 Q.B.D. at page 188; Thompson v. L.H.S., 1930, 1 K.B. at page 47. 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.

7

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 that 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 thoseterms as long as they are sufficiently brought to his notice before-band, 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 (1949 1 K.B. 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 U.D.C. (1940 1 K.B. 532), on terms which have been offered and accepted before the ticket is issued.

8

In the present case the offer was contained in the notice at the entrance giving the charges for garaging and saying "at owner's risk", i.e. at the risk of the owner so far as damage to the car was concerned. The offer was accepted when Mr. Thornton drove up 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. In particular, it could not be altered so as to exempt the company from liability for personal injury due to their negligence.

9

Assuming, however, that an automatic machine is a booking clerk in disguise — so that the old fashioned ticket cases still apply to it. We then have to go back to the three questions put by Lord Justice Mellish in Parker v. The South Eastern Railway Co. (1877) 2 C.P.D. at page 423, subject to this qualifications Lord Justice Mellish used the word "conditions" in the plural, whereas it would be more apt to use the word "condition" in the singular, as indeed the Lord Justice himself did on the next page. After all, the only condition that matters for this purpose is the exempting condition. It is no use telling the customer that the ticket is issued subject to some "conditions" or other, without mores 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 hisattention. (Alternatively, if the plural "conditions" is used, it would be better prefaced with the word "exempting", because the exempting conditions are the only conditions that matter for this purpose.) Telescoping the three questions, they come to this: the customer is bound by the exempting condition if he knows that the...

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