1 September 2010
“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’” That was the $100,000.00 question in the dispute between Mr and Mrs Kuzmanovski and the NSW Lotteries Corporation (Lotteries).
The facts were these:
- the game was instant scratchies;
- the variety, “Pictionary”; and
- the rules on the back of the ticket read “If the word shown in any one Game matches the picture shown in the same Game, you win the prize shown for that Game”.
It was accepted that Lotteries never intended this particular ticket (shown below) to be a winner (which was confirmed by the scanning code on the back of the ticket). However, the $100,000.00 question was, regardless of Lotteries’ intention, did the word “bathe” match the picture of the man “swimming”, therefore rendering it a winning ticket?
The Kuzmanovski’s contended that “bathe” was synonymous with “swim” and that therefore the picture matched the word and they had won $100,000.00.
Lotteries maintained that: (i) they never intended “bathe” to mean “swim”; (ii) “bathe” in fact had a different meaning to “swim”; (iii) the minor overlap between the definition of “bathe” and “swim” was not sufficient to constitute a “match” as required by the rules on the ticket; and/or (iv) the caption “swim” underneath the picture clarified that the picture did not match the word “bathe”.
Justice Rares found that “bathe” means “swim” (and therefore the word “matched” the picture), the intention of Lotteries was irrelevant, and the caption “swim” did not save Lotteries. Lotteries was hoisted by its own petard, being bound by the rules it had placed on the ticket which made no reference to a need for the word to match the caption under the picture (even though the word matched the caption for each of the examples of winning games displayed on the back of the ticket).
Justice Rares found that a contract existed between the Kuzmanovski’s and Lotteries on the terms contained on the ticket. His Honour ordered Lotteries to pay the full amount of $100,000.00 plus interest. His Honour also found that, had the contract claim failed, the Kuzmanovski’s would have had a claim for misleading and deceptive conduct under the Trade Practices Act. The damage being the disappointment and anger suffered by the Kuzmanovski’s upon realisation that their ticket was not recognised by Lotteries as a winning ticket. In monetary terms, Justice Rares considered this damage to be valued at $20,000.
We couldn’t pass up a case where someone won the lottery… from a losing ticket. The full text of the decision is here.
