Scottish Court of Session Decisions

At advising on 23rd July 1952,—

LORD JUSTICE-CLERK (Thomson).—The defenders provide bathing facilities for the people of Glasgow. The pursuer went to the defenders' establishment, the Woodside Public Baths, to have a hot bath. She had been in the habit of doing so weekly for a couple of years. The pursuer followed the normal procedure. At the window inside the entrance she said to the attendant that she wished a hot bath and tendered the price, sixpence. The attendant issued the appropriate ticket from a machine of the cash register type. The ticket is of stout paper, a little over an inch in width and about two inches long. It is headed "Glasgow Corporation—Baths and Wash-houses," while at the foot, in legible characters, there are the words "For conditions see other side." In the centre it is stamped by the machine with the date, a serial number, the price 6d. and the letters "H.B." signifying hot bath. These tickets are part of a continuous strip, and spaced out at intervals on the back of the strip are the words, in legible characters, "The Corporation of Glasgow are not responsible for any loss, injury or damage sustained by persons entering or using this establishment or its equipment." The spacing-out is so arranged that this sentence appears in complete form at least once on the back of any ticket issued, although it may be preceded by some of the later words of the immediately preceding sentence and followed by the initial words of the next succeeding sentence. Generally speaking, therefore, any person who tried to read the words on the back of the ticket would be met with the middle of a sentence. Whether that would encourage or deter the reader it is unnecessary to consider. The pursuer, having obtained the ticket, followed the usual procedure and went upstairs. Ordinarily, if there is no queue, the bather immediately hands the ticket to the bath attendant, who prepares the bath. On this particular occasion there was a queue, and the pursuer had to wait for half an hour. During this half hour she sat in a welllighted passage and had ample opportunity to read the ticket. When the bath was free, she handed over her ticket and obtained her bath. The Sheriff, altering the findings of the Sheriff-substitute, found "that the pursuer knew there was writing on the ticket, that the pursuer did not know that the writing on the ticket contained a condition relating to the terms of the contract, and that the defenders did not do what was reasonably sufficient to give the pursuer notice of the condition." The Sheriff, despite his modifications of the Sheriff substitute's findings, having upheld the latter's interlocutor in the pursuer's favour, the defenders have appealed, and their appeal is directed, and solely directed, to the final finding "that the defenders did not do what was reasonably sufficient to give the pursuer notice of the condition."

The pursuer undoubtedly looked at the ticket, as she says that she saw that it was properly stamped with the amount paid. She says that she paid no attention to anything else. The defenders say that there is no excuse for her not seeing the words "For conditions see other side"; and that the presence of these words on the front of the ticket was sufficient intimation of the conditions on the other side, and, accordingly, that the final finding is not justified.

We heard an interesting debate on the development of the law on the topic of conditions on tickets of various sorts. I shall try to resist the temptation to embark on any general discussion. Some things appear clear enough. As the party seeking to maintain the condition is doing so with a view to restricting his liability, the onus is broadly on him. Further, in certain well-known types of case, in particular those relating to carriage and deposit, it is now settled that a reference to conditions, legibly printed on the face of the ticket, is sufficient notice of conditions. The person who buys a railway ticket or a cloakroom ticket is doing a thing which is now recognised by the public in general as entering into a contract which may contain special conditions. This is a situation which is now regarded as notorious and customary. The real question is how far this now established rule is to be extended. It was submitted to us that all the elements obtaining in the carriage and deposit cases were present in the pursuer's case. There was a contract; that contract was embodied in a ticket; that ticket contained on the face of it a clear statement that there were conditions on the back; when one turned the ticket over, there were the conditions; and there was time and opportunity for any ordinary person to read the ticket.

I agree that, if these elements are present in the usual carriage and deposit case, the defenders must succeed. But the argument lays too much emphasis on the ticket itself. It assumes that, because in carriage and deposit cases the "ticket" has been given a definite function, as embodying the conditions binding both parties to the contract, all pieces of paper popularly called tickets are to be similarly regarded. In fact, "tickets" may perform different functions. The ticket in the present case was a domestic check on the defenders' running of their establishment, the register and the ticket having taken the place of the old-fashioned turnstile. It also performed the function of a receipt. Further, as the defenders were affording a variety of services, some sort of voucher was necessary in order to ensure that the pursuer got what she paid for and only what she paid for. This latter was the significance of the "ticket" which would Lord strike the pursuer. She wanted a hot bath, she paid for a hot bath. Justice-Clerk. She got a voucher for a hot bath, and, unless she produced the voucher to the hot bath attendant, she would not get a hot bath. If she wanted something extra for the enjoyment of her hot bath, that extra would be stamped on her ticket and would be her warrant for being supplied with it. It was therefore a convenient, practical method, both from her point of view and the defenders', of passing her into the establishment and thereafter passing her on to the particular facility which she was to be afforded. My view of the evidence is that this voucher aspect of this "ticket" was the significant aspect, and that, if the pursuer regarded it as a pass or voucher or as a receipt for sixpence which entitled her to be given a hot bath, she was entitled so to regard it. There was no evidence that the public regarded it in any other way.

No doubt a railway ticket has these elements also; it is a domestic check, a receipt and a pass to the train; but I am not satisfied on the evidence in the present case that a "ticket" for a hot bath in the Woodside Public Baths has yet acquired the special contractual feature which the law now ascribes to a railway ticket.

If that be so, the Sheriff was right to regard this "ticket" as in substance a voucher. If so, the pursuer could not be reasonably expected to study it for conditions, and it follows that in the absence of some other method of calling her attention to its "conditional" function the defenders cannot be said to have done what was reasonably sufficient to give the pursuer notice of the condition.

In my opinion the appeal should be refused.

LORD MACKAY .—Glasgow Corporation provide, as I understand it, both bath-houses at various points for the cleansing of their citizens and wash-houses where their female citizens may bring clothes, &c., to cleanse, they doing the work themselves. I take it as a certainty that they have not obtained any Parliamentary sanction to exclude themselves from all the common law duties of all kinds resting on those who allow persons on to their premises. The baths are at any rate described by both parties as "public baths."

Now, the pursuer took advantage of this right, or of the invitation, and came as one of a number of frequenters on a morning of June about 10 o'clock, paid sixpence and was shown in and upstairs. The pursuer, who has not yet led a proof of her material averments, but was allowed only a limited proof about the "conditions," so-called, of a "contract," so-called, effected by her receipt of a "ticket," was, she says, by the negligence of defenders' bath attendants allowed to fall down an interior stair and suffer serious injury. For the present purpose, of course, I must and do assume that she will prove these averments of fault and damage.

What then of the alleged contract for complete exemption from liability, and that of all kinds? (And I here take leave to note that, if good, then this exemption will cover all forms of responsibility, it may be for mere negligence, it may be for malicious attack, it may be for a grossly dangerous system of arranging hot baths, and it may be for the grossest application of steam-heated water to the body of the bather. There is no possibility of eliminating any of these from among the things prohibited.) Well, of that alleged contract, it is true that two Sheriffs in succession have negatived its existence, that both have made twelve detailed findings in fact, which except in two immaterial respects confirm each other, and none of which we are asked to review or alter, except No. 12.

As I understand that, with (it may be) very slightly varied reasonings, both my colleagues and I have arrived at the conclusion that we ought not to interfere, I might easily rest on the broad view that in a question of this factual sort two concurrent judgments in fact should not easily be interfered with in the third Court; that for such interference a very plain error of fact indeed, or a discovery of some quite fallacious law, would be desiderated: and, lastly, that the defenders had no, just no, proposals for any amendment on our part of the alleged findings in fact, basic and detailed, to enable their escape.

But, while that alone might suffice, the argument took shapes and turns, under which the defenders strongly and perseveringly tried to say that the matter of a condition typed or printed behind a "ticket," with which, in whatever background, an entrant "is issued," became in effect a question of law; that "tickets" of all sorts, in however varied conditions, must always be read as forming some part of a written contract; that, whatever the proof, they cannot be held to be mere "vouchers" of the price of a bath having been duly paid; nor mere "receipts," which, I think, is another and worse word for the above; nor to be mere "toll-tickets"; nor to be something like the "check" issued to football match attenders, however thronging and unnumbered the crowd.

As I easily, on a review of the authorities (supposed) to this effect since the year 1877 (i.e., since Parker v. South Eastern Railway Co ), find no good reason for so regarding these authorities as a professed sanction by successive Courts, now reaching to all and sundry "tickettakers" and to whatever classes of invitees for a small money payment, and that universally, and irrespective of (a) any variation of the background of cases, (b) any general knowledge, or "judicial knowledge," of a customary exclusion or limitation of common law, I shall try and put pithily and shortly the fallacies which, to my thinking, underlay that argument.

The idea at one time, and perhaps at no special juncture more so than just after Hood v. Anchor Line 1918 SC (HL) 143 proceeded on an erection of three alleged "questions," which were so sufficiently borrowed and afterwards approved from the Judges in Parker and which, as so sanctioned, were of such scope and authority that they sufficiently covered all possible cases of issue of tickets; they were to be taken as together exhaustive and exclusive, each of the other, and juries might in every case be safely left to answer all three or which one or more a presiding Judge thought fit; and no further judicial reference to the surrounding circumstances or to the facts in proof should be required, and, in short, so any jury might be charged.

The Sheriff-substitute puzzled himself, logically enough and perhaps without definite result, as to the perfect logic of the relationship inter se of the "three questions." I think, for my part, that his puzzlement was right. The questions now subjected to logical examination do not (even if once so widely spoken of) adequately correspond and interlock so that it suffices in any set of proved facts to say you may answer this one question alone and lay aside that, and so on. Nevertheless, I am far from expecting to be taken as saying that Parker or the later decision of Richardson, Spence & Co. v. Rowntree is to be set aside. The fact is, as I see it, that neither case did profess to be a deliverance of the type required. Both concerned aspects only of railway carriage. I dislike having to repeat what Mellish, L.J., said in Parker. But his words (at p. 421) go only to this (in a cloakroom ticket case, where the company affording such unneeded facility only sought to repudiate or limit the amount of their responsibility to £10 for each parcel deposited):

"In an ordinary case where an action is brought on a written agreementwhich is signed by the defendant,"

(why defendant only?) "the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents." (I pause to emphasise that this stipulates a formal written contract.) "The parties may, however, reduce their agreement into waiting, so thatthe writing constitutes the sole evidence of the agreement, without signing it; but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it." (Italics are mine.) He also asked (at p. 422) "whether the railway company were entitled to assume that a person depositing luggage, and receiving a ticket in such a way that he could see that some writing was printed on it, would understand that the writing contained the conditions of contract," and he continued "this seems to me to depend upon whether people in general would in fact, and naturally, draw that inference." Baggallay, L.J. (at p. 425), agreeing in the result, makes important use of three important words:

"He would be equally bound if he was aware or had good reason to believe that there were upon the ticket statements intended to affect the relative rights of himself and the company, but intentionally or negligently abstained from ascertaining whether there were any such…"

I am not aware that these careful qualifications were ever in any Court withdrawn. He finishes the paragraph with these words "Whether the plaintiff had any such knowledge or information, or good reason for belief,is a question of fact to be determined by the evidence." (Italics are mine.) I must say now that those arguments, which we may by this time regard as usual, seem completely to ignore all these words.

Now, from 1894 up to the time of Hood the cases were all of rights of railway transport vouched by tickets bought at a provided ticket office, or even of tickets issued after the unfortunate passenger was irrevocably committed to the already half-way voyage. But for a time it seemed to be thought, or to be assumed, that the "railway cases" were the universal type for any or all sorts of contract. For my part, after frequent and now further study, the case is quite otherwise. The essential ratio of all these cases, even the so-called "railway cases," was that the contract made was in each case a "special" one: that there was no prior anticipation, an anticipation supposed to be shared by all members of the travelling public, that every railway undertaking to convey or to volunteer acceptance of passengers' luggage to remain till called for was fenced by restrictive conditions: rather, the fact is that we all who travel by rail, at any rate to this day, do not suffer this hampering assumption; we do not anticipate any such thing, if, when we travel, we pay the full railway ordinary rate. The question in all cases (and above all) was whether other persons invited to enter into "special relationships" such as are mentioned, "cheap excursion," or "specially provided train," were to be so expectant, that for this facility the carrying company would provide a set of equally special conditions. In our Outer House we have Grieve v. Turbine Steamers, Limited, and Caird v. Adam, where a counterissue was allowed:

"Whether at the time of the accident…he was a passenger…under and in terms of the conditions which are set forth on the ticket…whereby the defenders are not responsible for personal injury…"

These, I think, were the first attempts to escape thus by ticket from all responsibilities.

I come now to Hood. The surprising result to all of Hood was that a well-educated and fully qualified business man was paying a very full and high tariff for an Atlantic crossing, and, while he was held to have successfully proved that he neither saw the condition nor knew that any such direct conditions were to be looked for in the case of this powerful company, yet when nearly drowned by negligence he found himself to be restricted (not it is true out of all liability whatever, for such liability was fully admitted) but in matter of money to a limited recovery of £10. The other facts as to a contract effected were heavily against him, as his competent agent in New York had bought a contract form (not a cardboard ticket) and had taken it to Hood's house, where it lay in his bedroom for a whole week or so, within an outer envelope which contained in full and plain formal print a reference to the contents; and when the said large print contained a warning to the purchaser of the passage to look within. He was held to have been negligent of his own interests in not reading and looking within.

But this case brings up fully the real effort of the defenders' counsel here. They here refused to debate or enter at all upon the "disputed question," as they called it, whether the point of proving acceptance of such conditions was a question of fact, or whether it was one of law. They did not make the venture, nevertheless, to assert that it was purely law. Now that refusal is against the weight of authority in the House. Viscount Haldane, after stating the problem as containing the words "reasonably necessary as matter of ordinary practice" to do more, spoke of the function of the Judge of fact, in relation to appeal Courts. He said (at p. 147):

"Whether all that was reasonably necessary to give him this notice was done is, however, a question of fact, in answering which the tribunal must look at all the circumstances and the situation of the parties. On this question even your Lordships sitting here are a tribunal of fact far more than of law, and what we have to do as lawyers is no more than to see that we have shaped for ourselves the question of fact to which I have referred. If this is borne in mind, I think that it explains decisions which are not really divergent."

(Italics are mine.)

In addition to that most cogent statement, I would only now add that there is ample and repeated authority, throughout the various instances, that what Lord Haldane called "the circumstances and the situation of the parties" will necessarily differ from one set of such "situations" to another, and, further, that the question of proving any general anticipation that the alleged "contract" is likely to be a conditioned one is a question on which the onus is on the defenders. I do not follow the alleged progress of the law further into M'Kay v. Scottish Airways, and the like later examples. These were mostly or all carriage cases, and new types of carriage, and so forth. But I do not think they add to or take away anything from the necessary qualities of the onus of proof needed to exclude (and not to limit only) all liability.

I may, for my part, just add that, agreeing with but even perhaps reinforcing the views of both the Sheriffs, I should, on the proof, hold that no conditioned contract at all was entered into by the issue of this "ticket." It reverses common sense to say that the ticket was bought. What was done was that an entrance was secured to get a "hot bath." The pasteboard did not even remain to the end as a voucher or title to be duly bathed, or as the voucher to be produced as the condition of recovering property, as in deposit cases; it merely went into a bath attendant's hands to enable her to ask the approacher her exact requirement as to the heat (&c.) of the bath. Also, in my view, the defenders were very far from doing all that was "reasonably sufficient." Again, I am of opinion that the typed "ticket" was not described as a contract at all, was not such indeed unless and until, even if then, a person did turn over, and did read.

Last of all, this observation: if it were necessary, I should myself agree with the Sheriff-substitute, and would tend to disagree strongly with the learned Sheriff in one point only, when he postulates that:

"If the ticket had been a railway ticket, or a cloakroom ticket, the notice would, I think, have been sufficient."

I would be of opinion that, issued at such an entry office, neither the small print occurring as the third item at the very foot of the front, nor yet the still smaller print at the back, was reasonably good, when especially the said important print behind is found to be in three parts, two of them incomplete and unintelligible, i.e., the first and the last met by the eye, and the third situated between these two being, even if read carefully, not:

"I agree that you should not be liable,"

but rather:

"The Corporation of Glasgow are not responsible for any…injury or damage…"

This looks to me like a false statement of the law or a mere statement of fact, rather than:

"I stipulate that I release you by this taking of my ticket from all responsibilities otherwise laid by law."

In all these respects, therefore, I would refuse the appeal.

LORD PATRICK .—I have had the advantage of considering the opinion of the Lord Justice-Clerk and wholly agree with it.