Thornton v Shoe Lane Parking
Court of Appeal
Citations: [1971] 2 QB 163; [1971] 2 WLR 585; [1971] 1 All ER 686; [1971] 1 Lloyd’s Rep 289; [1971] RTR 79; [1971] CLY 1741.
Facts
The claimant parked his car in the defendant’s automated car park for a fee. A notice outside stated the charges and excluded liability for damage to cars. It did not mention anything about personal injury. A pillar near the ticket barrier (further into the premises) displayed eight lengthy ‘conditions’. The second condition stated that the defendant was not liable for any injury sustained on the premises. An automated machine near the barrier produced a ticket when the claimant entered. The ticket stated, in small lettering on the bottom, that it was ‘issued subject to conditions…displayed on the premises.’ The claimant did not see or read any of these notices.
The claimant suffered injury on the premises. They sued the defendant under occupier’s liability. The defendant sought to rely on the exemption condition on the pillar. The claimant disputed whether this clause was part of the contract between the parties.
Issue(s)
- Was the exemption condition incorporated into the contract?
Decision
The Court of Appeal held in favour of the claimant. The claimant was not aware of the condition. The defendant had not done enough to give reasonable notice of the condition. Therefore, it was not part of the parties’ contract.
This Case is Authority For…
A normal written clause is not incorporated into an unsigned contract unless:
- The claimant is aware of it;
- The defendant gave the claimant reasonable notice that the document contains contract terms; or
- A reasonable person would realise that the document contained contract terms.
However, where the clause is ‘unusual or onerous’, the defendant must do more. They must ensure that the claimant has reasonable notice of the clause itself, not just the fact that the document contains contractual clauses.
Lord Denning argued that ‘sufficient notice must usually be immediately noticable and eye-catching – ‘printed in red ink with a red hand pointing to it – or something equally startling.’
Lord Denning and Megaw LJ both thought that what constitutes ‘reasonable notice’ depends on the circumstances. A relevant factor is the nature of the intended exemption clause.
Other
Lord Denning thought that the pillar notice could not be binding in any event, because it was only visible to the claimant after the contract was created. The defendant’s offer was the notice at the entrance, which the claimant accepted by driving in. By the time the claimant could have seen the notice on the pillar, it was too late.
The same was true of the words on the ticket. Lord Denning explained that in automated machine cases, the offer is made when the machines’ owner presents the machine as able to accept money. The customer accepts when the put money in the machine. This means that any terms placed on a ticket issued by the machine cannot be contractually binding, because the customer has had no opportunity to refuse them. By the time they see the ticket, there is no way of returning it.
This indicates that ‘reasonable notice’ must be given before the contract is created. Megaw LJ agreed, stating that:
‘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.’
