Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 (18 December 1970)

A man was injured in a car park after obtaining a ticket from an automatic machine. The company sought to rely on an exemption clause printed on the ticket and displayed inside. The court held the contract was formed when the ticket was issued, so subsequent terms were not incorporated.

Facts

The claimant, Mr Francis Thornton, a freelance trumpeter, was severely injured in an accident on 11th May 1964 at a multi-storey automatic car park operated by the defendant, Shoe Lane Parking Ltd. A notice outside the car park stated, ‘All Cars Parked At Owner’s Risk’. Mr Thornton drove up to the entrance, where a traffic light turned from red to green. He took a ticket from a machine, which caused a barrier to lift, and he drove in. The ticket stated in small print that it was ‘issued subject to the conditions of issue as displayed on the premises’. These conditions were displayed on a pillar inside the car park, opposite the ticket machine. One of the conditions purported to exempt the defendant from liability for any injury sustained by a customer while on the premises. When Mr Thornton returned to collect his car, an accident occurred before he got into it, and he sustained serious personal injuries.

Issues

The central legal issue for the Court of Appeal was whether the exempting condition, which sought to exclude liability for personal injury, was incorporated into the contract between Mr Thornton and the defendant company. This required the court to determine the precise moment the contract was formed and whether the defendant had done what was reasonably sufficient to bring the condition to the claimant’s notice before or at the time of contracting.

Judgment

The Court of Appeal unanimously dismissed the defendant’s appeal, holding that the exemption clause was not part of the contract and that the company was liable for Mr Thornton’s injuries.

Lord Denning M.R.

Lord Denning analysed the formation of the contract in the context of an automatic machine. He concluded that the offer was made by the proprietor of the machine, which was accepted by the customer when they put money into the slot. The contract was therefore concluded at that point, and any terms displayed on the ticket issued afterwards could not be incorporated into it.

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.

Lord Denning also famously stated that even if the ticket were considered a contractual document, a particularly onerous or unusual clause, such as one exempting liability for personal injury, would require special notice to be incorporated.

All I say is that it 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… It is an instance of what I had in mind in J. Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R. 461, at page 466. I said: ‘Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient’.

Megaw L.J.

Megaw L.J. agreed, emphasising that the contract was formed before the ticket was delivered to the claimant. He reasoned that once the car was driven up to the machine and the process was initiated, it was practically impossible for the customer to reject the ticket and the conditions printed on it. He stated that a customer must have a reasonable opportunity to see and agree to the terms before the contract is made, which was not possible in this situation. He concluded that the terms on the ticket were presented too late to be included in the contract.

Sir Gordon Willmer

Sir Gordon Willmer also concurred, agreeing that the contract was irrevocably concluded the moment the claimant took the ticket from the machine. He found that nothing printed on the ticket could retrospectively modify the contract. He also agreed with Lord Denning that, in any event, the clause was so ‘sweeping’ in its nature that insufficient steps were taken to bring it to the customer’s attention.

Implications

This case is a landmark authority in English contract law regarding the incorporation of terms, particularly in transactions involving automated machines (often called ‘ticket cases’). It established that a contract is formed when the customer accepts the offer by activating the machine (e.g., paying money or taking a ticket), and any terms presented after this point are not incorporated. Furthermore, it cemented the principle, known as the ‘red hand rule’, that for an onerous or unusual exemption clause to be validly incorporated, the party seeking to rely on it must take explicit and extraordinary steps to bring it to the other party’s attention.

Verdict: The appeal was dismissed. The defendant, Shoe Lane Parking Ltd, was found liable for the claimant’s injuries.

Source: Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 (18 December 1970)