Thornton v Shoe Lane Parking 1971
Over the years there have been many cases which have effectively rewritten and defined the law. Over 2014, our regular legal contributor Claudia Gerrard will be looking at six of those cases, particularly those concerning the law of tort and contract.
About the writer: Claudia Gerrard is a Legal Consultant working for Excello Law and she specialises in law relating to the security, leasing and parking sectors. Visit www.excellolaw.co.uk.
The cases range from the late 19th century to the 1970s. However, the first in the series is the case of Thornton versus Shoe Lane Parking, decided in 1971. It remains one of the key cases in contract law covering incorporation of terms into a contract and exclusion clauses. Its significance centres on when a contract is concluded, particularly where a machine is involved in the transaction. As we’ve seen, it may be difficult to decide when a contract is concluded; when the parties have reached a firm agreement on what is being provided, when it will be provided and how much it is going to cost. If the parties disagree on any of the key terms, you need certainty on which terms will apply. The law allows you to incorporate terms in a number of circumstances. For example, the legislation on supply of goods and services automatically incorporates some terms in consumer contracts and may incorporate terms in contracts between businesses.
In terms of exclusion clauses, these are often included in contracts. They are intended to act as a legal device to prevent someone being liable to another person if that person is injured or their property is damaged. They are also widely used in commercial contracts in the security industry to reduce potential liability if something goes wrong. These issues were the ones to be faced by the Court of Appeal in 1971. Cases which go to an appeal court often include important points of law which may be unclear or not otherwise dealt with by legislation or other case law. In this case, though, the facts were simple and straightforward. The case concerned a car park where the site operators had included a clear sign at the entrance to the car park. The sign stated that parking was ‘at the [driver’s] risk’. The owners of the car park were clearly attempting to prevent claims by users if a vehicle was damaged or stolen while on the premises. Such notices are still regularly used by site operators of all sorts. From a legal point of view, at that time. this was completely acceptable.
In the case, access to the car park was through an automatic barrier, so that when a motorist drove up to the barrier, a machine dispensed a ticket. On the reverse of the ticket, there was a statement that the ticket was issued ‘subject to conditions displayed on the premises’. This was , to all intents and purposes, a contract for supply of services, namely for use of a car park. The statement on the back of the ticket made it clear that other terms and conditions applied. Upon entering the car park, there was another notice excluding liability for personal injury to customers. When a motorist (Mr Thornton) was injured in the car park, the owners refused to pay him any compensation for his injury. The leading judge in the Court of the Appeal was Lord Denning, later the Master of the Rolls, who was known for his controversial and sometimes unusual judgments. Even though the other two judges didn’t completely agree with Lord Denning, the Court found in Mr Thornton’s favour.
The court decided that where an exclusion clause is particularly onerous and had a significant impact, a car park should specifically mention the clause to its customers. For these purposes the notice formed a clause of the contract and could be valid if the car park had correctly incorporated it. The court thought that Mr Thornton should have been told specifically about the notice in Shoe Lane car park because it was so onerous. At the time, any site operator could exclude liability where a driver was injured or even killed on its premises. It was sufficient for a car park or other site operator to use a notice, such as Shoe Lane Parking had used, which said ‘no liability for personal injury [or death]’. Now there are two Acts of Parliament which stop car parks, and other public premises, from using an exclusion clause in the same way as Shoe Lane Parking.
The Unfair Contract Terms Act 1977 and subsequently the Unfair Terms in Consumer Contracts Regulations 1999 mean it is unlawful to use a contract clause to avoid liability for death or personal injury caused by your negligence. You can no longer use such a notice in a car park or any site to which members of the public have access. Had that been the position in 1971, when Mr Thornton was injured in the car park, the case might not have had the longevity which it has enjoyed. The main decision of the court, however, was that the warning on the ticket was given too late. The contract to use of the car park was completed when the motorist drove up to the barrier and activated the machine.
This is why the case is still good law more than 40 years after it was first heard. The fundamental rule for including any term into a contract is that the parties must be aware of and agree to the terms before the contract is concluded. The key issue for the court was to decide when the contract was in fact concluded. Lord Denning looked at the sequence of events and decided that, after the machine issued a ticket to Mr Thornton, it was too late for Mr Thornton to change his mind. He had paid his money and couldn’t turn back from the barrier. Therefore, he should have already been told by Shoe Lane Parking that, if he was injured, they wouldn’t pay him any compensation. Once a contract is completed, either by payment or by signature, no-one can change that contract unless both parties agree to the variation. As Lord Denning eloquently put it: “None of those [earlier] 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.”
This principle remains good law. If any person wants to rely on an exclusion clause, it must be drawn to the attention of the other party before the contract is concluded. The time of conclusion will vary, of necessity, depending upon the nature of the contract concerned. However, there were clear ramifications for any site operators and for car park operators in particular. Ultimately, once a customer has committed to entering a car park or other premises, it is too late to place warning notices inside the car park which try to exclude liability. Such notices are ineffective in law. The other general implication is that not only must a site operator provide a valid notice, which means before the customer pays their money or enters the barrier, but the notice must also be large enough so that a customer can clearly see it. This goes some way to explaining the very large notices which are often seen warning of potential dangers or exclusions. One final thought: when Mr Thornton drove into the multi-storey car park in Shoe Lane before attending a BBC concert in Farringdon, he probably had no idea that his accident would result in legal history.
