The claimant had suffered damage at the defendant’s car park. The defendant relied upon an exemption clause printed on the ticket, and now appealed against rejection of its defence under the clause.
Held: The appeal failed. The more extreme an exemption clause, the clearer is the notice required to be given before it will be regarded as having been incorporated into the contract.
Megaw LJ said: ‘When conditions sought to be attached all constitute . . the sort of restriction . . that is usual . . it may not be necessary for a defendant to prove more than that the intention to attach some conditions has been fairly brought to the notice of the other party. But at least where the particular condition relied on involves a sort of restriction that is not shown to be usual . . a defendant must show that his intention to attach an unusual condition of that particular nature was fairly brought to the notice of the other party. How much is required as being . . reasonably sufficient to give the plaintiff notice of the condition, depends on the circumstances.’ In relation to the particular condition restricting liability for personal injury as I have said to say – ‘In my view, however before it can be said that a condition of that sort, restrictive of statutory rights, has been fairly brought to the notice of a party to a contract there must be some clear indication which would lead an ordinary sensible person to realise, at or before the time of making the contract, that a term of that sort relating to personal injury, was sought to be included.’
Lord Denning MR said: ‘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’, however ‘No customer in a thousand ever read the conditions [on the back of a parking lot ticket]. 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.’
Lord Denning MR, Megaw LJ, Sir Gordon Willmer
[1971] 1 All ER 686, [1971] 2 WLR 585, [1971] 2 QB 163, [1970] EWCA Civ 2, [1971] 1 Lloyd’s Rep 289, [1971] RTR 79
Bailii
Occupiers Liability Act 1957
England and Wales
Cited by:
Cited – TICC Limited v Cosco (UK) Limited CA 5-Dec-2001
The claimants sought to have incorporated by notice into a contract of bill of lading, the terms of a freight surcharge. Notice had been given to the shipping agents in Hong Kong only. The shippers claimed the surcharge under the 1992 Act, saying . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – Brodie, Marshall and Co (Hotel Division) Ltd v Sharer 1988
The defendant resisted payment of his estate agent’s charges. The agency contract gave the agent sole selling rights, but the purchaser was found on the vendor’s own initiative. The terms made commission was payable if ‘we introduce directly of . .
Lists of cited by and citing cases may be incomplete.
Contract, Personal Injury
Leading Case
Updated: 31 October 2021; Ref: scu.182831