[1971] 1 All ER 686
Court of Appeal
Thornton drove his car up to the barrier of a multi-storey car park which he had not parked in before. Outside the car park was a notice which said at the bottom 'All Cars Parked At Owners Risk'. Thornton took a parking ticket from the machine at the barrier; on the ticket was printed 'This ticket is issued subject to the conditions of issue as displayed on the premises'. He looked at the ticket to see the time on it. He saw that there was printing on the ticket, but he did not read it. If he had read the ticket he would have had to walk around the car park to search for the conditions. He then drove into the car park. When he returned he paid the car park charge. Whilst putting his belongings into the boot of his car there was an accident and he was severely injured. One of the conditions displayed in the car park said that Shoe Lane Parking 'shall not be responsible... for any... injury to the Customer... occurring when the Customer's motor vehicle is in the Parking Building howsoever that... injury shall be caused'. Shoe Lane Parking claimed that this clause exempted them from any liability to Thornton.
The issue before the court was whether the clause was incorporated into the contract.
Lord Denning MR
We have been referred to the ticket cases of former times from Parker v South Eastern Ry Co to McCutcheon v David MacBrayne Ltd. 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 and Thompson v London, Midland and Scottish Ry Co. 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.
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 those terms as long as they are sufficiently brought to his notice beforehand, 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. 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), on terms which have been offered and accepted before the ticket is issued. In the present case the offer was contained in the notice at the entrance giving the charges for garaging and saying 'at owners risk', ie at the risk of the owner so far as damage to the car was concerned. The offer was accepted when the plaintiff 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.
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 Mellish LJ in Parker v South Eastern Ry... 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... Telescoping the three questions, they come to this: 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. Counsel for the defendants admitted here that the defendants did not do what was reasonably sufficient to give the plaintiff notice of the exempting condition. That admission was properly made. I do not pause to enquire whether the exempting condition is void for unreasonableness. 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. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it, or something equally startling.
However, although reasonable notice of it was not given, counsel for the defendants said that this case came within the second question propounded by Mellish LJ, namely that the plaintiff 'knew or believed that the writing contained conditions'. There was no finding to that effect. The burden was on the defendants to prove it, and they did not do so. Certainly there was no evidence that the plaintiff knew of this exempting condition. He is not, therefore, bound by it...
I do not think the defendants can escape liability by reason of the exempting condition. I would, therefore, dismiss the appeal.