Scottish Court of Session Decisions

Lord Justice-Clerk.—Three points were argued before us on this reclaiming note—(First) Did the condition printed on the ticket and exempting the defenders from liability for the negligence of their servants afford a good defence? (Second) If not, had negligence causing the accident been established against the defenders? and (Third) If so, had the defenders made out their case of contributory negligence on the part of the pursuer?

(First). In my opinion the first of these questions falls to be answered in the negative. I do not propose to canvass the numerous authorities which were cited to us. I think the decisions are perhaps capable of reconciliation, but in some respects the opinions expressed by the many eminent Judges in the House of Lords and other Courts who have considered and decided the cases cannot, in my opinion, be so reconciled, at least if they are severed from the particular circumstances of each case, as the defenders sought to sever them.

So far as the present case is concerned the result of the authorities may be expressed thus, that the common law right of a passenger to be carried with due care and without negligence on the part of the carrier can only be displaced if it is shown that by special contract this right has been surrendered, and such special contract may be express or implied, or the passenger may be barred from maintaining his original common law right.

In this case, the pursuer embarked at Scalloway on the defenders' vessel with a view to his making a voyage to Aberdeen and back. Shortly after the vessel left Scalloway the pursuer received a return ticket for which he paid. The original ticket has not been produced, but it is admitted that No. 10 of process is a duplicate of that ticket. The small print on it contains the conditions printed in Answer 2. The defenders maintain in their fifth plea that “the pursuer having accepted the passenger's ticket issued by the defenders, subject to the condition thereon, and being aware of said condition, all as condescended on, the defenders are entitled to absolvitor.” In my opinion the onus of making good that plea lies on the defenders, and I think they have failed to discharge it. I do not think the ticket constituted the contract between the parties.

The three questions which seem to have been formulated originally in Parker's case, and which were expressly approved of by Lord Herschell in Rowntree's case, I accept as aptly expressing the points to be determined.

There is no difficulty as to the first question. The pursuer admits that he knew there was printing on the ticket. As to the second and third questions, in my opinion the evidence in the case would not justify us in answering either of them in the affirmative. On the contrary I think both of them, as a result of the proof, fall to be answered in the negative. The pursuer says in his evidence in chief (I admit in answer to leading questions) that he did not know that the printed matter contained conditions relating to the contract of carriage. In cross-examination the precise question was not put to the pursuer, counsel apparently preferring (I am far from saying unwisely) to rely on the legal inference to be drawn from the acceptance of the ticket with the condition printed on it. But I think the true result of the pursuer's evidence, supplemented by that of other witnesses with experience of the defenders' tickets, is that it was not brought home to the pursuer that there were conditions relating to the terms of the contract of carriage set out in the small type. The proof for the defenders is not in my opinion sufficient to alter this result.

I think that the defenders have not made out that they did what was reasonably sufficient to give the pursuer notice of the conditions. They adopted a card the size of the familiar railway ticket with its very limited area as their basis, and this compelled them to adopt for printing the condition the smallest type known. They printed in larger type the word “over,” to direct special attention to what was printed on the back of the ticket. Nothing, however, was done to direct attention to the condition printed on the face of the ticket in small type, which for any passenger must have been difficult to read, and for many passengers impossible to read without artificial assistance and very favourable surroundings—though the pursuer does not say that with ordinary care, if he had directed his attention to it, he could not have read it. We were referred to several methods of directing attention to such conditions which have been adopted by other steamship companies. I think the defenders contented themselves with doing the very least they could have done to give the necessary notice of the condition to their passengers, that that very least was not in fact effective, and was not reasonably sufficient. [His Lordship then dealt with the questions of negligence and contributory negligence, and stated his reasons for deciding them in the pursuer's favour.]

Lord Dundas.—On the merits of the case, I have no difficulty in holding that the Lord Ordinary's conclusion is right. That there was negligence on the defenders' part—not, indeed, of a gross kind, but quite sufficient to found liability in damages—seems to me to be clear. [His Lordship then examined the evidence with regard to negligence.]

A more difficult point in the case, which logically precedes consideration of the merits, and is of general interest and importance, arises out of the defenders' 5th plea in law. A mass of cases, Scots and English, was cited to us. I think there is, as is perhaps natural, some conflict here and there amongst judicial dicta; but the decisions themselves do not appear to me to be so out of harmony with one another as learned counsel would have us suppose. I have, however, no intention of discussing the various cases in detail. I am content to base my opinion upon the principles (or I would rather say, the rules) laid down in a passage, which has become a locus classicus, in the judgment of Mellish, L. J., in Parker v. South-Eastern Railway Co.; from which sprang the three questions afterwards approved by the House of Lords in Richardson v. Rowntree, as the proper ones to leave to a jury in such cases. I refrain from quoting the passage at length; but I shall endeavour to apply the learned judge's directions to the facts of the present case. The pursuer depones, and (like the Lord Ordinary) I accept his evidence as true, that he know there was printed matter on the ticket, but that he did not know or believe that it contained conditions; and, in these circumstances, Mellish, L. J., says that “nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions.” The theory is that, though a pursuer depones that he did not know or believe that printed matter on the ticket (of the existence of which he was aware) contained conditions, yet he may be barred from succeeding in his suit if the Court (or the jury, as the case may be) are satisfied that the defenders did what was reasonably sufficient to give him notice that there were conditions. On that assumption, he may be held as assenting to the conditions, in spite of his evidence to a contrary effect. The issue raised is the same as that expressed in the third question in Rowntree's case,—“Did the defendants do what was reasonably sufficient to give the plaintiff notice of the conditions?” This question (as well as the second of the three questions) must be answered in the negative, if the pursuer is to succeed.¸

I have come to be of opinion, with the Lord Ordinary, that the thirds question (like the second) ought here to be answered in that sense. I do not think that the defenders did what was reasonably sufficient to give the pursuer notice of the condition. The appearance of the ticket itself (No. 10 of process is a facsimile) goes far to support this view. It is the size of an ordinary railway ticket; the names of the ports of departure and destination are clearly printed; but the remainder of the ticket's face is covered with printed matter of so insignificant a type as to attract the minimum of attention to its presence. Whether it be legible or illegible would, of course, depend upon the eyesight of the passenger, the conditions of light, and other surrounding circumstances. But there is nothing ex facie of the ticket to draw attention to this obscure legend, or to indicate that it contains a condition of any sort, bearing upon or modifying the ordinary legal relations of passenger and company to one another. As the Lord Ordinary points out, “there is no arresting phrase, word, or sign on the ticket itself referring to the condition, such as ‘Read this’ or ‘N.B.’ or the sketch of a hand with index finger directing to the condition. There is no attempt to compel attention to the printed matter by having some prominent word thereof, such as ‘Conditions’ set in a bolder type.” The printed matter could not, I think, have been presented in a more unobtrusive manner, compatibly with its appearance on the ticket at all. The pursuer does not, in his evidence, take his stand upon illegibility. He says quite frankly in cross-examination: “Prior to the accident, although I was travelling regularly from 1906, and occasionally before that, I never on any occasion read the condition on the front of the ticket. I saw that there was something printed on the front of the ticket, but I never thought of reading it.” In the course of his examination in chief he had said in answer to the learned judge: “When I got the ticket, I just looked at it to see if the ports of embarkation and destination were right, and that was all. I suppose there would be some printing on it, but it did not occur to me to read it. The type of that printing is so small that it is pretty difficult to read it.” This passage occurs later on: “(Q.) Did you know that the printed matter which you say you saw contained conditions at all? (A.) No, I did not. (Q.) Is there anything on the ticket in the nature of attention being called in any way to the conditions or the nature thereof? (A.) No, there is nothing.” I think the gist of this evidence is that nothing on the face of the ticket conveyed to the pursuer's mind any notice that it contained conditions. But it is not only the pursuer's impression one has to consider. The question is whether the defenders were entitled to assume that a person receiving this ticket in such a way as to perceive that something besides the names of the ports was printed on it would understand that it contained contractual conditions—“whether people in general would in fact, and naturally, draw that inference.” The quotation is from the opinion of Mellish, L.J., in Parker's case, already referred to. His lordship states, and I agree, that the company must “take mankind as they find them,” and do what is “sufficient to inform people in general that the ticket contains conditions.” Now, the Pursuer has adduced a considerable body of “people in general,” travellers on this line, who depone that they never read this printed legend,—some of whom found it more or less illegible even with the aid of spectacles; others of whom give reasons like those stated by a witness named Pole, which I quote: “It was not perhaps because it was illegible that I did not know what was on it, but if it had been in bigger type I might have read it. I would not say that I did not take the trouble to see what was on my ticket. I say that, if the type had been of sufficient size that commanded attention, and not put in the most unobtrusive manner possible, I would have been compelled to read it.” Looking to the ticket itself, and to the whole evidence in regard to it, I come to the conclusion, agreeing with the Lord Ordinary, that the defenders did not do what was reasonably sufficient to give the pursuer notice of the conditions. It would not, I think, be difficult for them in the future to find means of sufficiently conveying to the minds of their passengers in general that their tickets do contain conditions.

For the reasons stated, I am of opinion that we should adhere to the interlocutor reclaimed against.

Lord Salvesen.—On the first and only interesting question, whether the condition freeing the defenders from responsibility for the negligence of their servants was imported into the contract of carriage which the pursuer entered into with them, I have come to be of the same opinion as your Lordships. I agree that it has not been proved that the pursuer knew of the conditions and assented to them either expressly or impliedly by accepting his ticket without objection. This, however, is not necessary in order to free the defenders from responsibility, if they did what was reasonably sufficient to give the pursuer notice of the conditions by which they sought to limit their common law liability. The test of this, as expressed by Lord Justice Mellish in Parker's case, is that, if the carrier does what is sufficient to inform people in general that the ticket contains conditions, then a particular pursuer ought not to be in a better position than other persons on account of his exceptional ignorance or stupidity or carelessness. In the general case I think that the carrier satisfies this test if, on the face of the ticket which he issues and which constitutes evidence of the contract of carriage, there is printed, in type such as ordinary persons can easily read, the conditions upon which he contracts, or if there is printed upon the face of the ticket a notice which calls the passenger's attention to conditions in similar type printed upon the back. In the present case, although the condition founded on is on the face of the ticket, it is in such small type that it cannot be read at all by many persons without the aid of spectacles, and can only be read by most in a good light such as is not generally available in the cabin of a passenger steamer. Moreover we must not leave out of view in this connexion the evidence of a considerable number of persons of average intelligence, who may be taken as typical of mankind as we find them,

which is to the effect that these persons, although they have often travelled by the defenders' boats, were quite unaware that there was on the face of the tickets issued to them a printed condition limiting the defenders' common law liability. This evidence goes some way towards showing that the defenders did not do what was reasonably sufficient to give the passengers who travelled by their lines notice of the conditions. I confess that this evidence would not have impressed me much if the ticket had been of a different form and size and the conditions had been printed upon it in type easily read, for it would only have shown that many people are careless of their own interests. Coupled as that evidence is, however, with the extreme smallness of the type, it appears to me sufficient to support the result at which the Lord Ordinary has arrived.

We had a very full citation of authorities on this particular branch of the law, and some of these were represented as conflicting. For my own part I think there is no conflict. There are, indeed, dicta by Lord Chelmsford and Lord Hatherley in the case of Henderson v. Stevenson, which, read by themselves and apart from the context, are not in harmony with later decisions. These dicta were made the subject of comment in the case of Harris, and especially by Blackburn, J., with whose opinion I respectfully concur. All the authorities subsequent to the decision in Henderson v. Stevenson proceed on the assumption that the broad propositions of Lord Chelmsford, as stated in the last paragraph on page 76 of the report, do not state the law as it has now been settled. Were it otherwise, the third of the questions which were put to the jury in the case of Richardson v. Rowntree, and were there approved by the House of Lords, would be entirely superfluous if the first and second were answered in the negative, for it would then be plain that assent to the terms of the contract of carriage had not been proved in fact. In every case where conditions have been found not binding upon passengers it was because the Court held, as a mixed question of fact and law, that the carrier did not do what was reasonably sufficient to give the pursuer notice of the special conditions on which alone he was prepared to carry passengers.

On the question of fault and contributory negligence I am content with the findings of the Lord Ordinary. …

Lord Guthrie.—No question of law is raised by the pursuer's case of fault. [His Lordship then examined the evidence with regard to fault.]

The defenders' case based on the words printed on the front of the pursuer's ticket, namely, to read the condition short:—“The Company is not liable for any injury … to passengers … by negligence of their servants,” raises a question of onus. Is the onus on the pursuer or the defenders, and what is its extent?

I agree with your Lordships that the onus is on the defenders, and that the extent of the onus is that they must prove that they took reasonable means to bring to the pursuer's notice that the ticket contained conditions relating to carriage, which conditions varied, or might vary, their common law liability. On the one hand, the condition in question is clearly expressed, and is not hidden away among other conditions; it is so printed that the pursuer could not check his place of embarkation and disembarkation, and the class of ticket, as the defenders were entitled to expect that he would do, without seeing the print containing the condition; and while the pursuer was on his outward journey—the accident happened at at the end of the return journey—he had ample opportunity to read the condition on the ticket while it was still undivided. On the other hand, the defenders have done nothing to indicate on the front of the ticket—in marked contrast to what they have done for the conditions on the back of the ticket—that the print containing the condition in question is something that the passenger ought to read, and is expected to read, as, for instance, by the word “Notice,” or by the use of red ink, or larger type, for the half dozen essential words of the condition. But it seems to me sufficient to say that, if a passenger is to be bound by a condition on a ticket varying his common law rights, of the existence of which it is not proved that he was aware, that condition must be printed so as to be reasonably legible, allowing for the contingencies of bad light, blurred type, feeble eyesight, and short time for examination, all of which the defenders were bound to anticipate. As it happens in this particular case, however, it is not even necessary to take any of these contingencies into account, for in ordinary light, examining a fresh copy of the ticket in question, by the aid of spectacles restoring vision to the normal, and with ample time, I cannot read the condition. I can only read it, and that with difficulty, in brilliant light. To negative the defenders' case on this head does not seem to me to conflict with any of the decisions or even with any of the dicta when properly read. I read the statements of learned Judges, and in particular Lord Bramwell, Lord Blackburn, and Mr Justice Stephen, as to the obligation of a passenger, who takes a ticket seeing that there is printing on it, which printing he does not take the trouble to read, as assuming that the printing was in point of fact reasonably legible. Whether the defenders, in order to discharge their obligation to bring the condition to the passenger's notice, would have been bound, in addition to providing reasonably legible type, to have called the pursuer's special attention to the print by any such word as “Notice,” or the use of red ink, or by some other device, does not arise in this case. It is enough that the condition was not reasonably legible.