IS THAT JOURNEY REALLY NECESSARY?

New Zealand Listener, Volume 19, Issue 468, 11 June 1948, Page 10

IS THAT JOURNEY REALLY NECESSARY?

| A Disquisition on Small Print and Liability

} Written for "The Listener’ \

* by

PULEX

T this time of year, we are all engaged in making up our income-tax returns. We know that we must disclose everything we have received in the way of income, and that we can deduct only the expenditure allowed by law. We make up our annual reckoning conscious of the fact that the Minister of Finance, through his active and seemingly all-seeing agent, the Commissioner of Taxes, has involved us in a pastime similar to that of "the good old game of Doodelumbuck-the more you put down, the more he takes up." The prospective taxpayer is supplied with a mass of printed information to occupy his reading-time in between power cuts. But whether or not he reads" it all, it does not matter a bit; because he is bound by all the provisionspenal and otherwise-of the Land and Income Tax legislation. It is entirely a one-sided affair. The position is different when a person buys a tram, or railway, or steamship, or airplane tickets. Here, there are two parties-the carrier and the passenger. And every such ticket involves a contract between them, with rights and responsibilities on the part of each. The issue and acceptance of a ticket is, in law, a "contract" which, in simple terms, may be defined as an agreement which creates, or is intended to create, a legal obligation. A contract is concluded whén one party has communicated to another an offer, and that other has accepted it. The communication of an offer takes place when it is brought to the knowledge of the person to whom it is made. __A Ticket is a Contract Anyone who buys a passenger ticket of any kind usually looks upon*it merely as a token of payment of the fare, or as a voucher that such payment has been made. It is veally much more than that. It is evidence that a passengercarrying concern, be it the Railways Department, the municipal tramway authority, or a steamship company, has offered to transport the: passenger from one stated place to another on certain conditions, which may or may not appear on the ticket. That is the offer. The intending passenger, on paying the

amount of the fare and receiving the ticket, accepts that offer, The contract between them is complete. Passenger-carrying concerns, however, have a habit of limiting their legal responsibilities by attaching conditions

to the ticket (which is, as we have seen, their offer to the passenger). These may be lengthy and cover a variety of circumstances, such as a limitation of a shipping company’s liability towards the passenger in ; the event of collision or ‘ wreck. Or they may % take the form of a brief reference merely, as in the case of a tram ticket, to the fact that it is issued subject to the by-laws, rules, or regulations of the owning municipality. In the case of a ticket issued by the New Zealand Railways Department, there is nothing in the way of conditions mentioned on the ticket. There have been cases before~ the Courts in which passengers have claimed damages from

the ticket-issuing party, which the latter has resisted on the grounds that the~ conditions on the ticket, or attached to it by reference, have exempted it from liability. Let us see how far, in law, the passenger is bound by conditions appearing in the ticket itself, or by reference to bylaws or otherwise. Reasonable Steps When an intending passenger accepts a ticket containing printed conditions, and signs it (as is the case with most tickets issued by shipping companies), he is bound by those conditions whether he reads them or not, and even if he cannot read. Most tickets, however, pass from hand to hand, without any signature being required. When an intending passenger accepts such a ticket, to which conditions are attached-either printed in full or by reference to regulations-reasonably sufficient steps must by taken by the party issuing the ticket to bring the limitative conditions to the notice of the passenger, under the usage of proper conduct in the circumstances. The question whether reasonable steps have been taken is one of fact. It is here that the parties usually join issue in an action by a passenger. A question of law is always for the Court to decide. In ticket cases the law ‘is settled before the case starts: it is 'a question of simple contract. But, as

has been shown, the contract is not complete until its terms have been communicated to the accepting party, and he has freely. accepted those terms. When we say of anything that it is a question of fact, we mean that it is to be decided by a jury on the evidence. It has been laid down by the highest authority that the proper questions to ask the jury in a ticket case are:

1. Did the passenger know there was writing or printing on the ticket? 2. Did he know that the writing or printing on the ticket contained conditions relative to the contract of carriage? 3. Did ‘the passenger-carrying’ concern do what was reasonably sufficient to give the passenger notice of the conditions? The passenger-carrier must prove all these three matters in its favour to the satisfaction of the jury. If it does not, then it is proved that notice of the conditions of the contract was not brought to the notice of the passenger, who can succeed despite the limitation of the passenger-carrier’s liability set out in conditions. The effect of the jury’s answer to these questions is this: If the person receiving the ticket did not see or know there was any writing on the ticket, he is not bound by the conditions. If he knew there was writing on the ticket, and knew or believed that the writing contained conditions, then he is bound by the conditions. If he knew there was writing on the ticket but did not know or believe that the writing contained conditions, nevertheless he would be bound by the conditions, if the delivery of the ticket to him in such a manner that he could see that there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions. No definite rule has been laid down (and it probably cannot be laid down) (continued on next page)

(continued from previous page) governing the question whethe the ticket holder must be held to have known the conditions, if any, on the ticket he purchased. It is purely a question of fact in each case, and the findings of the jury on the fact will not be interfered with unless found to be clearly contrary to the evidence. The Judge Did Not Read Them Few people take the trouble to read conditions, even those as brief as appear on a tram ticket. In one of these cases, Lord Russell of Killowen, Lord Chief Justice of England, a lawyer of great eminence, said he had travelled on hundreds of tickets. He added that he had never wasted his time in reading the conditions, because he knew that if he objected to them, he would have to stay at home. He knew that any intelligent and educated person accustomed to travel and to looking after himself must, on purchasing a ticket with conditions limiting the issuing party’s liability for his transport, be held bound to have known what these conditions were. It would put the law of contract in a chaotic state if a person, by simply not reading, or saying that he had not read, his ticket contract, and consequently did not know of its conditions, could avoid the effect of those conditions and recover damages as a result of some happening from which the conditions on the ticket plainly exempted its issuer. Steerage and Saloon The highest courts have held that a jury may take into consideration the class of person claiming. In one case, in 1894, the claimant, a steerage passenger, paid her. passage money and received a ticket on which there were a great many conditions attached. The jury found that the steamship company did not bring to the passenger sufficient notice of the conditions. The case ended in England’s highest Court, the House of Lords, which upheld the ‘jury’s verdict, upon which the company’s. liability to pay damages depended. One of the Law Lords put it this way: "The ticket in question in this case was for a steerage passenger-a class of persons of the humblest description, many of whom have little education and ‘some of them none. I think, having regard to the facts here, the smallness of the type in which the alleged conditions were printed, and the absence of any calling of attention to the alleged conditions, there was quite sufficient evidence." Their Lordships declined to hold upon such facts that the passenger was bound by the conditions. The decision was different in a case where a passenger shown to be "a lady of education," "a lady of intelligence," facts which must have been obvious to the people who handed her the ticket. Her case did not succeed as the steamship ticket was headed "Passenger contract," and, in large plain type in the (continued on next page)

| READ THE SMALL TYPE

(continued from previous page) first line were the words "Mrs. Cooke is entitled, subject to the conditions hereon," to travel, etc. In the most recent of these cases, heard in 1941, a railway ticket issued to the plaintiff was originally printed so that it had on its face the words: "For Conditions, see Back." The datestamp, however, had been so placed as to obliterate those words. As has been already explained, each case .must depend on its own facts. The Lord Chief Justice (Lord Caldecote) said that the words which showed that the

Tailway company had done what was sufficient to bring the conditions to the passenger's notice were blotted out; therefore, the company had not taken steps to bring them to the passenger’s notice, for the obvious treason that, as His Lordship pointed out, "it is no use printing words in much "clearer type than anything else on

the ticket if the next thing they do is to blot those words out." The passenger was not debatred by the conditions under which the railway company would not be liable; and she got her damages. Conditions Must Be Reasonable If conditions printed on the ticket and brought to the passenger’s notice are unreasonable or .contrary to law, they may be of no value to the issuing company or passenger-carrier. A_ carrier may, however, lawfully contract himself out of his liability, and it depends on the terms of his contract whether he has done so.* Railway tickets in this country are not printed and issued "subject to conditions on the back," as are the tickets of railway companies in England. The Railway Regulations, made under the authority of the Government Railways Act, 1926, have the force of an Act of Parliament. They are publicly notified by means of a notice or publication in the New Zealand Gazette. Consequently, every intending passenger has notice of the conditions attaching to every railway ticket issued. The Tram Traveller Tram tickets are, of their nature, small.. A reference that the ticket is issued subject to the local tramway bylaws and regulations is sufficient notice to the passenger. If, before he trusts himself on a municipally-owned tram, he has any doubts, then it is up to him to call at the office of the Town Clerk and read those by-laws for himself. He can

then decide whether the smallness of the fare justifies any risk to which he may expose himself by reason of any by-law limitation of the municipality’s liability towards him. If he does not put himself to this trouble, he has had reasonable notice, on the face of the ticket, that the ticket is issued subject .to conditions which he can read for. himself, One last word. On the tickets issued in the Wellington Corporation’s trams ‘appears the polite request: "Please destroy on alighting.’ (As the journey must be ended, the contract of transport

is no more.) What could happen if this injunction were disobeyed? The writer ~--who has travelled often on the trams, always without reading the printed words on the ticket, and without ever having seen a tramways _ by-law -does not know, It may well be that the litter on Wells ington’s streets, so obvious a subject for the correspond-

ence columns. of the City’s daily Press, derives much material from the passengers ready compliance with this courteous demand,

*The late Hon, P. J. O'Regan, ‘on his appointment to the Legislative Council, introduced a Bill making it illegal for any passenget-carrying concern to avoid its ordinary liability for damages for negligence, whereby a passenger suffered death or injury, by the inclusion of limitative conditions in a ticket. The Bill was not proceeded with, owing to the approaching end of the Session, +