Carroll v an Post National Lottery Company

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello.
• Judgment Date: 17 April 1996
• Neutral Citation: [1996] IEHC 50
• Docket Number: 8178p/1993,[1993 No. 817P]
• Court: High Court
• Date: 17 April 1996

CARROLL v. AN POST NATIONAL LOTTERY CO

BETWEEN

STEPHEN CARROLL

PLAINTIFF

AND

AN POST NATIONAL LOTTERY COMPANY

DEFENDANT

[1996] IEHC 50

8178p/1993

THE HIGH COURT

Synopsis:

AGENCY

Agent

Type - Commission - Contractor - Independence - Lottery - Statute G - Scheme - Operation - Conditions - Licensed operator - Negligence - Damage - National lottery - Payslip of player processed twice by operator - Payslip with winning choice of numbers not processed by operator - Lottery scheme operated in accordance with conditions - Condition exempted lottery company from liability for negligence of operators - Whether conditions brought to the notice of player - Whether exemption clause so unusual or onerous as to require special notice be given of terms of exemption clause - (1993/8178 P - Costello P. - 17/4/96) [1996] 1 I.R. 443

|Carroll v. An Post National Lottery Company|

CONTRACT

Breach

Damages - Liability - Exemption - Clause - Validity - National lottery - Payslip of player processed twice by operator licensed by lottery company - Payslip with winning choice of numbers not processed by operator - Lottery scheme operated in accordance with conditions - Condition exempted lottery company from liability for negligence of operators - Whether conditions brought to the notice of player - Whether exemption clause so unusual or onerous as to require special notice be given of terms of exemption clause - Sale of Goods and Supply of Services Act, 1980 (No. 16), s. 39 - (1993/8178 P - Costello P. - 17/4/96) [1996] 1 I.R. 443

|Carroll v. An Post National Lottery Company|

GAMING AND LOTTERIES

Lottery

Statute - Scheme - Operation - Conditions - Licensed operator - Negligence - Damage - National lottery - Payslip of player processed twice by operator - Payslip with winning choice of numbers not processed by operator - Lottery scheme operated in accordance with conditions - Condition exempted lottery company from liability for negligence of operators - Whether conditions brought to the notice of player - Whether exemption clause so unusual or onerous as to require special notice be given of terms of exemption clause - (1993/8178 P - Costello P. - 17/4/96) [1996] 1 I.R. 443

|Carroll v. An Post National Lottery Company|

NEGLIGENCE

Lottery company

Agent - Duty - Breach - Player - Loss - Company exempted from liability - National lottery - Payslip of player processed twice by operator - Payslip with winning choice of numbers not processed by operator - Lottery scheme operated in accordance with conditions - Condition exempted lottery company from liability for negligence of operators - Whether conditions brought to the notice of player - Whether exemption clause so unusual or onerous as to require special notice be given of terms of exemption clause - (1993/8178 P - Costello P. - 17/4/96) - [1996] 1 IR 443

|Carroll v. An Post National Lottery Company|

WORDS AND PHRASES

"Supply of a service"

Lottery - Statute - Scheme - Operation - Tickets purchased by public - Tickets sold by licensed operators - Operators not supplying a service - (1993/8178 P - Costello P. - 17/4/96)

|Carroll v. An Post National Lottery Company|

Citations:

NATIONAL LOTTERY ACT 1986 S28(1)

SALE OF GOODS & SUPPLY OF SERVICES ACT 1980 S3

NATIONAL LOTTERY ACT 1986 S2

NATIONAL LOTTERY ACT 1986 S3

NATIONAL LOTTERY ACT 1986 S10

NATIONAL LOTTERY ACT 1986 S28(1)(d)

NATIONAL LOTTERY ACT 1986 S7

GAMING & LOTTERIES ACT 1956–1979

BOWSTEAD ON AGENCY 10ED 18

SALE OF GOODS & SUPPLY OF SERVICES ACT 1980 S39

SALE OF GOODS & SUPPLY OF SERVICES ACT 1980 S40

NATIONAL LOTTERY ACT 1986 S28

CHITTY ON CONTRACT 27ED PARA 12.07 – 12.13

PARKER V SOUTH EASTERN RAILWAY CO 1876 CPD 618, 1877 2 CPD 416

THORNTON V SHOE LANE PARKING LTD 1971 1 AER 686

OLLEY V MARLBOROGH COURT LTD 1949 AER 127

INTERFOTO PICTURE LIBRARY LTD V STILETTO VISUAL PROGRAMMES LTD 1988 1 AER 439

THOMPSON V LONDON MIDLAND & SCOTTISH RAILWAY CO 1930 1 KB 41

SPURLING V BRADSHAW 1956 3 AER 121

NATIONAL LOTTERY ACT 1986 S32

NATIONAL LOTTERY ACT 1986 S7(1)(2)

1 Mr. Justice Costello. Delivered the 17th day of April 1996.

INTRODUCTION.

2 The National Lottery is now a national institution. Established by statute (the National Lottery Act, 1986) it is operated under license by An Post National Lottery Company (the defendant in this action). On Saturday January 9th 1993 the plaintiff became a participant in one of the games in the National Lottery. He had obtained four "playslips" from the Post Office in Cork Street, Dublin (an authorised Lotto agent premises) earlier in the day. He brought them to his place of business nearby and chose six numbers on each of the 8 panels on each of the four playslips. Having done so he later returned to the Post Office and gave to someone who appeared to be a member of the staff in the Post Office (who was in fact the Lotto Agent's husband) the requisite fee for playing the game (£16.00) and the four playslips. The Agent's husband entered four playslips in a computer terminal on the premises and obtained for the plaintiff four printed tickets on which the numbers chosen by the player were printed and returned four playslips and the four tickets to the player. These tickets were the means by which the plaintiff participated in the National Lottery draw that evening. The plaintiff's case is that due to the carelessness on his part, the Agent's representative put one playslip twice into the terminal and omitted to place one of the plaintiff's playslips in the terminal. This meant that when he handed the plaintiff back four tickets two were duplicates. It also meant that he failed to obtain a ticket for the plaintiff which contained the numbers chosen by the plaintiff on the playslip he failed to enter in the terminal. This error was not noticed by the plaintiff until two days later. The plaintiff says that the winning number in the National Lottery drawn that Saturday evening was one of those selected by the plaintiff on the playslip for which no ticket was obtained, and as a result of the negligence of the Lotto Agents representative he was deprived of winning a half share in the sum of £506,000.00 which was the jackpot prize payable to those who had selected the winning numbers only one other player having selected the winning numbers. The claim is based on negligence or alternatively on an allegation of breach of an implied term in the contract entered into between the plaintiff and the defendant company. The defendant denies liability on a number of grounds. The issues which arise are as follows:

3 whether the Agent's husband was negligent and if so whether the defendant company was vicariously liable for his negligence;

4 whether there was a term to be implied in the parties contract imposing a duty of care on the defendant company (i) by the Sale of Goods and Supply of Services Act 1980or (ii) by the Court, and if so was the defendant company in breach of it;

5 whether there are enforceable exemption terms in the parties" contract which exempt this defendant company from liability;

6 whether the plaintiff was guilty of contributory negligence;

7 whether the act of alleged negligence caused the plaintiff any loss;

8 if recoverable, the level of damages.

9 To consider these issues I must first examine the relevant provisions of the 1986 Act, and then turn to the Rules of the game which the plaintiff played, the details printed on the playslips which the plaintiff obtained (a crucial aspect of the case), and the agreement entered into by the defendant company and its Lotto Agent.

THE NATIONAL LOTTERY ACT 1986.

10 The 1986 Act defines "the National Lottery" as meaning any lottery game held by the Minister for Finance or under licence in accordance with the rules contained in "a scheme" under section 28(1) of the Act. The Act permits the Minister to grant a licence to a company to hold the lottery on his behalf (sections 2 and 3). A company so authorised is referred to in the Act as "the company" (section 10). The Minister has in this case granted a licence to An Post National Lottery Company, a subsidiary of An Post. The company is required to prepare and submit to the Minister a scheme setting out the rules of the game (section 28) and the section goes on to provide;

"A lottery game comprised in the National Lottery shall be held by the company in accordance with the rules contained in a scheme under this sub-section approved of by the Minister in force in relation to that game" (see section 28 (1)(d)).

11 The rules relevant to these proceedings are known as "the Lotto 6/39 Rules" and are dated the 20th of August 1992.

12 Section 7 permits the company to authorise persons to sell National Lottery tickets. The authorization must be in writing and subject to such terms and conditions as are determined by "the company" with the consent of the Minister (section 7). The section also prohibits the sale of National Lottery tickets by anyone who is not the holder of an authorization under the section.

13 Section 32 provides that the Gaming and Lotteries Acts, 1956 to 1979are not to apply to the National Lottery.

THE RULES.

14 The "Lotto 6/39 Rules" contained detailed particulars relating, inter alia, to the method of playing what is called an "on-line game", the drawings and division of prizes, the payment of prizes, the method of claiming a prize and a number of general provisions. For the purposes of these proceedings I should draw attention to the following;

15 The National Lottery is based on the use of computer technology and, not surprisingly, part of the vocabulary relating to that technology is employed in the Rules. Each agent has a terminal supplied by the Company (defined as the "on-line computer" hardware and software by which ... Lotto transactions are entered and processed and tickets generated). They further provide that the playslip completed by the player...