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Nettleship v Weston, [1971] 2 Q.B. 691 (1971)

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*691 Nettleship v Weston Mixed Judicial Consideration

Court Court of Appeal (Civil Division) Judgment Date 30 June 1971 Report Citation [1969 N. No. 1403]; [1971] 3 W.L.R. 370 [1971] 2 Q.B. 691

Court of Appeal Lord Denning M.R. , Salmon and Megaw L.JJ. 1971 May 20, 21; June 30 Road Traffic—Negligence—Learner driver—Amateur instructor injured through lack of skill by learner drive—Defence of volenti non fit injuria excluded by evidence—Whether duty of care to passenger instructor—Standard of care applicable— Whether instructor contributorily negligent when accident occurring with learner and instructor jointly in control of car The plaintiff, an experienced driver, agreed to give a friend's wife some driving lessons in her husband's car, after satisfying himself that the car was insured against risk of injury to a passenger. He took her out on the road and found her a careful learner. But on the third occasion, when she was holding the steering wheel and controlling the pedals and he was moving the gear lever and handbrake, she failed to straighten out after turning left, and panicked. Despite the fact that the car was moving at walking pace and the plaintiff's efforts to straighten out, it mounted the kerb and struck a lamp standard. The plaintiff sustained injuries including a broken knee-cap. The learner was shortly afterwards convicted of driving without due care and attention.

The plaintiff brought an action for damages in respect of the learner's negligence. She denied negligence, alleged contributory negligence, and claimed alternatively that the plaintiff had impliedly consented to run the risk of injury. Thesiger J. dismissed the plaintiff's claim on the grounds, inter alia, that he had voluntarily assumed the risk of injury and that in any event the learner was not in breach of the only duty owed to her instructor, which was to do her best, the standard of care being reduced by reason of the special relationship. He made an alternative finding that if there was a breach of duty the plaintiff had been contributorily negligent and that the parties were equally to blame.

On appeal by the plaintiff:

Held, allowing the appeal,

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Nettleship v Weston, [1971] 2 Q.B. 691 (1971)

(1) that the plaintiff, by checking on his position under the car insurance before agreeing to give the lessons, had shown expressly that he did not consent to run the risk of injury which might occur through the learner's known lack of skill, so that she could not rely on the defence of volenti non fit injuria to bar his claim. (2) (Salmon L.J. dissenting) that the duty of care owed by the learner driver to the passenger instructor was the same objective and impersonal standard as that owed by every driver, including the learner, to passengers, the public and property on and off the highway in the criminal and civil law. That standard was not affected or reduced by reason of the instructor's knowledge of the learner's lack of skill and experience. Accordingly where the learner had driven without due care and attention she was in breach of her duty to the plaintiff and was liable in damages. Per Lord Denning M.R. and Megaw L.J. Uncertainty, confusion and injustice would result if in the law of England *692 the accepted standard of care were to be varied according to one person's knowledge of another's skill or condition (post, pp. 700F, G, 707G-708D). Dicta of Dixon J. in The Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39 , 56-60 not approved. Per Salmon L.J. Although the learner driver owes a duty to his instructor to use reasonable care and skill, their special relationship is relevant in deciding what is reasonable skill in all the circumstances. This is a question of fact and degree. The learner cannot, in the normal case, owe his instructor a duty to drive with a degree of skill which they both know he does not possess (post, pp. 704B-C, 705A-B). (3) (Megaw L.J. dissenting) that where learner and instructor were jointly controlling the driving they were prima facie jointly responsible for the accident, and ( per Lord Denning M.R.) in the absence of evidence that one or other was to blame, ( per Salmon L.J.) on the evidence, both should be held equally to blame and the plaintiff should recover one-half the agreed damages. Per Megaw L.J. Nothing in the evidence justifies a finding of contributory negligence against this plaintiff. Dann v. Hamilton [1939] 1 K.B. 509 doubted. Decision of Thesiger J. reversed.

The following cases are referred to in the judgments: Baker v. Market Harborough Industrial Co-operative Society Ltd. [1953] 1 W.L.R. 1472, C.A. . Bennett v. Tugwell [1971] 2 W.L.R. 847; [1971] 2 All E.R. 248 . Car & General Insurance Co. v. Seymour and Maloney (1956) 2 D.L.R. (2d) 369 . Dann v. Hamilton [1939] 1 K.B. 509; [1939] 1 All E.R. 59 . Glasgow Corporation v. Muir [1943] A.C. 448 ; [1943] 2 All E.R. 44, H.L.(Sc.) . Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575, H.L.(E.) . Henderson v. Henry E. Jenkins & Sons [1970] A.C. 282; [1969] 3 W.L.R. 732 ; [1969] 3 All E.R. 756, H.L.(E.) . Insurance Commissioner, The v. Joyce (1948) 77 C.L.R. 39 . Lehnert v. Stein (1962) 36 D.L.R. (2d) 159 . London Graving Dock Co. Ltd. v. Horton [1951] A.C. 737; [1951] 2 All E.R. 1 , H.L.(E.) . McCrone v. Riding [1938] 1 All E.R. 157, D.C. . Merchant Prince, The [1892] P. 179, C.A. . Morrison v. Union Steamship Co. Ltd. of New Zealand [1964] N.Z.L.R. 468 . Reg. v. Evans [1963] 1 Q.B. 412; [1962] 3 W.L.R. 1457; [1962] 3 All E.R. 1086, C.C.A. . Reg. v. Scammell (Practice Note) [1967] 1 W.L.R. 1167; [1967] 3 All E.R. 97; 51 Cr.App.R. 398, C.A. . Richley (Henderson) v. Faull. Richley, Third Party [1965] 1 W.L.R. 1454; [1965] 3 All E.R. 109 . Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264; [1956] 3 W.L.R. 232; [1956] 2 All E.R. 625, C.A. . Smith v. Baker & Sons [1891] A.C. 325 , H.L.(E.) . Stapley v. Gypsum Mines Ltd. [1953] A.C. 663; [1953] 3 W.L.R. 279; [1953] 2 All E.R. 478, H.L.(E.) . *693 Stupple v. Royal Insurance Co. Ltd. [1971] 1 Q.B. 50; [1970] 3 W.L.R. 217; [1970] 3 All E.R. 230, C.A. . Walker v. Turton-Sainsbury [1952] S.A.S.R. 159 .

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Nettleship v Weston, [1971] 2 Q.B. 691 (1971)

Watson v. Thomas S. Whitney & Co. Ltd. [1966] 1 W.L.R. 57; [1966] 1 All E.R. 122, C.A. . Wooldridge v. Sumner [1963] 2 Q.B. 43; [1962] 3 W.L.R. 616; [1962] 2 All E.R. 978, C.A. . The following additional cases were cited in argument: Buckpitt v. Oates [1968] 1 All E.R. 1145 . Kelly v. Farrans Ltd. [1954] N.I. 41 . Philips v. William Whiteley Ltd. (1938] 1 All E.R. 566 . Roggenkamp v. Bennett (1950) 80 C.L.R. 292 . Rubie v. Faulkner [1940] 1 K.B. 571; [1940] 1 All E.R. 285, D.C. . APPEAL from Thesiger J. sitting at Sheffield Assizes. The plaintiff, Eric Nettleship, issued a writ against the defendant, Mrs. Lavinia Weston, claiming damages for personal injuries loss and damage sustained by him in consequence of an accident in Mansfield Road, Sheffield, Yorkshire, on November 12, 1967, when a Morris 1100 motor car driven by the defendant, in which he was a passenger, collided with a lamp post, which collision was caused by her negligence in the driving, management and control of the car. By paragraph 3 of his statement of claim he stated that so far as might be necessary he would rely on the happening of the collision as constituting prima facie evidence of negligence on the defendant's part; and by paragraph 4 that so far as necessary he would rely on the defendant's conviction on January 25, 1968, before the magistrates' court at Sheffield, of driving without due care and attention on the occasion in question as constituting prima facie evidence of negligence on her part. By her defence the defendant admitted the collision but claimed that at all material times she was to the plaintiff's knowledge a driver of little skill or experience and the holder of a provisional driving licence driving under the plaintiff's supervision, he being an experienced driver and the holder of a full driving licence. Further she claimed that at all material times the plaintiff had been instructing her in the driving, management and control of a motor car; and that he was sharing the driving, management and control of the car with her in that he was in sole control of and from time to time operated the gear lever and handbrake, that the clutch pedal was operated by her only when he so directed, the steering was when necessary controlled and/or corrected by him, and he directed her driving generally. She denied that the accident was caused by or that she was guilty of the alleged or any negligence. Alternatively she claimed that the plaintiff knew or ought to have known from the circumstances set out in her defence that driving with her involved risk of injury by reason of her lack of skill and experience and that acting as he did he impliedly consented to run the risk. In the further alternative she alleged that the accident was caused or contributed to by the plaintiff's negligence; and full particulars were given of the alleged contributory negligence. Thesiger J. on October 22, 1970, dismissed the plaintiff's claim. The plaintiff appealed on the grounds (1) that the judge misdirected himself in *694 holding that the plaintiff consented to run the risk of injury by reason of the defendant's lack of skill and competence; (2) that his finding that the plaintiff permitted the defendant to drive on a main road before she was sufficiently skilled or experienced was against the weight of the evidence and/or irrelevant; (3) that he was wrong in law in holding that the duty of the defendant to the plaintiff was to do her best; (4) that he misdirected himself in holding that the defendant did not do anything that the plaintiff should not have expected; (5) that he was wrong in law in holding that the plaintiff had failed to prove against the defendant a breach of the duty owed by her to him; (6) that he was wrong in law in holding that there could be a reduction in the standard of care owed by the defendant to the plaintiff by reason of the plaintiff's implied consent to take the risk of such a reduction; (7) that he misdirected himself in holding that the plaintiff did impliedly consent to take the risk of a lower standard of care owed to him by the defendant; (8) that he misdirected himself by giving no or no sufficient weight to the fact of the defendant's conviction in a court of summary jurisdiction for driving without due care and attention and/or to her failure in her defence to aver that the conviction was erroneous or irrelevant; (9) that his alternative finding that the plaintiff and the defendant were equally to blame was against the weight of the evidence; (10) that his judgment was wrong and ought to be set aside; and (by a supplementary notice of appeal) (11) that the judge misdirected himself in finding and/or that there was no evidence to support the finding that the defendant was in sole control of the gear lever or at any material time operated it. James Fox-Andrews Q.C. and Victor Watts for the plaintiff. First, the duty of care owed by the learner to the instructor is the duty to take reasonable care, an objective and impersonal standard which disregards all idiosyncrasies. The law of England does not recognise differing standards or degrees of the duty of care. The objective standard has stood the test of time and any departure from it to a varying standard which would require numerous factors to be determined before the duty of care in a particular case could be applied would create more difficulties and injustices than it would solve: see on the essentials of negligence and

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the criterion of the reasonable man Winfield on Torts, 8th ed. (1967). p. 55, and Salmond on Torts, 5th ed. (1969), pp. 283, 284. The only view supporting a varying standard is that expressed in the dissenting judgment of Dixon J. in The Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39 , which advances the concept of separate standards of care relating to special facts, relationships, and unusual conditions, such as the passenger who knowingly accepts the voluntary services of a driver affected by drink. Joyce's case is mentioned in Winfield at p. 745, but only in a footnote on the maxim volenti non fit injuria, where all the Commonwealth cases on the subject are collected. The approach of Dixon J. is also contrary to that in the United States which is the same as the English approach. [Reference was also made to Roggenkamp v. Bennett (1950) 80 C.L.R. 292 ; Walker v. Turton-Sainsbury [1962] S.A.S.R. 159 , and Morrison v. Union Steamship Co. Ltd. of New Zealand [1964] N.Z.L.R. 468] . If the court accepts that our law recognises only the fixed and objective standard the defendant was in breach of that standard. Even if the *695 measured standard attracts the court the defendant was also in breach of any lower duty of care. If it were held that she was not, it is difficult to conceive of any successful claim ever being made against a learner driver. Secondly, there was not only no voluntary assumption of the risk by the plaintiff, but, on the contrary, the evidence of his care about the insurance policy cover expressly excludes such acceptance. The application of the maxim volenti non fit injuria is authoritatively settled. The principle has been whittled down over the years since the Employers' Liability Act 1880 . The test now is that to establish the defence the defendant must show some communication from which it can clearly be inferred that the innocent party not only put his mind to the question whether to take the risk on himself but that there was an express contract unless there is a special relationship: see Wooldridge v. Sumner [1963] 2 Q.B. 43 , per Diplock L.J. at p. 69, referring to Kelly v. Farrans Ltd. [1954] N.I. 41 , 45. [Reference was also made to Glanville Williams on Joint Torts and Contributory Negligence (1951), p. 314 and Charlesworth on the Law of Negligence, 4th ed. (1962) pp. 547, 548, referring to Dann v. Hamilton [1939] 1 K.B. 509] . The maxim presupposes a tortious act and if applicable bars an already existing cause of action. But it is difficult to foresee a bargain that the plaintiff will excuse the learner from future acts of negligence. It is not customary for learner drivers to drive negligently and cause damage, so that it does not follow that an instructor is voluntarily undertaking a task which will probably lead to a situation where he will suffer injury. The only reasonable inference from the care taken over the policy is that this plaintiff did not assent, so that volens really has no application in the present case. Thirdly, the finding of contributory negligence if there was a breach of duty, and the proportions of 50/50 are wholly unjustified on the evidence, where the defendant herself said that the plaintiff did all he could to avoid an accident. Fourth, the plea of guilty to the charge of careless driving has the effect under the Civil Evidence Act 1968 and R.S.C., Ord. 18, r. 7 A (3) of placing on the defendant the onus of pleading denial and proving that she was not negligent. The conviction applied the standard of care of an experienced driver and is the objective standard. The judge did not pay sufficient regard to the evidence of the conviction. Barry Chedlow Q.C. and Hugh Galpin for the defendant. First, though the objective test of reasonable care is always the same vis-à-vis third parties, and also towards a passenger who gets into a car with a driver under a disability who has held himself out as an ordinary driver, and that standard applies to the learner driver who puts himself behind the wheel of a car and so holds himself out to be a competent driver, the position is different as between the learner driver and the instructor. In the present case, when the lady got into the car for her first lesson, and also at the time when the accident happened, she owed the plaintiff instructor no duty at all, and is not liable unless she was reckless or intended to injure the driver in or about the driving of the car. That was the position while she was a novice, holding herself out as a person of no skill, whatever might have been the position after 20 lessons or on the day before she took her driving test. *696 The law of England has never observed an absolute standard for the reasonable man. The question has always been reasonable care "in all the circumstances," varying with the risk involved: see Philips v. William Whiteley Ltd. [1938] 1 All E.R. 566 . Judges try cases every day in which they apply the test of what is reasonable care "in all the circumstances." In the case of learner and instructor, where the instructor knows that the learner has no skill, the application of a lower duty of care has a ring of reality about it which the average man in the street would accept as reasonable. The phrase "in all the circumstances" is used in the Road Traffic Act 1960, s. 1 , where questions of public policy and the protection of the public are involved. It may cover not only the material conditions surrounding the vehicle at the time but also the condition of the driver. It is clearly the concern of public policy that the objective test should apply. But where the instructor knows that the learner has no skill at all, his knowledge is one of "the circumstances" determining the lower measure of the duty of care owed by the learner. Walker v. Turton-Sainsbury [1952] S.A.S.R. 159 , where The Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39 was referred to, is relied on. [Reference was also made to Glasgow Corporation v. Muir [1943] A.C. 448 ; Rubie v. Faulkner [1940] 1 K.B. 571 ; and Street on Torts, 4th ed. (1968), pp. 121, 123, 124.] A duty of care owed to one person and not to another is not unusual in law and in practice.

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[MEGAW L.J. Would the duty of care of a newly qualified surgeon to a patient who knew that he was inexperienced be any lower than that of an experienced surgeon?] If the newly qualified surgeon held himself out as fully qualified he could not rely on his inexperience to excuse himself. The different standards of care in criminal law and in negligence have been part of our law for many years without creating any great practical difficulties. [Reference was also made to Buckpitt v. Oates [1968] 1 All E.R. 1145 , 1158.] Secondly, though the court may not like the application of the maxim volenti non fit injuria in the circumstances of the present case, the inspection of the insurance policy before undertaking to give the lessons does not necessarily negative volenti. At least there was consent by the instructor to forgo the ordinary standard of duty otherwise owed by a driver to a passenger. His evidence supports the view that he anticipated minor hazards; and his inspection of the policy is consistent with seeking to protect himself should she do something monstrously reckless or intentional. If he had been asked: "What duty of care do you expect from this lady?" his answer must have been "None in and about the driving of the car save only that she shall not do anything reckless or intentional to hurt me." If the concept of the lower standard of duty owed by learner driver to instructor is not accepted, the defence of contributory negligence must be available to the driver. It would be strange if a person could get into a car with a driver whom he knows to be affected by drink, the driver could plead contributory negligence and succeed, but that the same plea is not available for the driver where the instructor gets into a car knowing that the driver cannot drive. Particularly would it be strange when as a matter of fact the driving of the car is in law a joint operation with both learner *697 and instructor operating the controls. Where there is a joint operation of that n...