691

2 Q.B.
^

[COURT OF APPEAL]

NETTLESHIP v. WESTON
[1969 N. No. 1403]
g

1971 May 20, 21; June 30

Lord Denning M.R., Salmon and Megaw LJJ.

Road TrafficNegligenceLearner driverAmateur instructor

injured through lack of skill by learner driverDefence of
volenti non fit injuria excluded by evidenceWhether duty
of care to passenger instructorStandard of care applicable
Whether instructor contributorily negligent when accident
occurring with learner and instructor jointly in control of car
Q

p
r

p
u

r,
tt

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, (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
Nettleship v. Weston (C.A.)
[1971]
the accepted standard of care were to be varied according to
one person's knowledge of another's skill or condition (post, A
pp. 700F, O, 707G708D).

Dicta of Dixon J. in The Insurance Commissioner v.

Joyce (1948) 77 C.L.R. 39, 56-60 not approved.
Per Salmon LJ. 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 T.
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 LJ. 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 LJ.) on the evidence, both should be held Q
equally to> blame and the plaintiff should recover one-half the
agreed damages.
Per Megaw LJ. 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:
D
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 Moloney (1956) 2 D.L.R.
(2d) 369.
.:.',
Dann v. Hamilton [1939] 1 K.B. 509; [1939] 1 All E.R. 59.
F
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.
p
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. G
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. Fault 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.
H
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
2 Q.B.
Nettleship v. Weston (C.A.)
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.
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.
1

The following additional cases were cited in argument:

Buckpitt v. Oates [1968] 1 All E.R. 1145.
Kelly v. Farrans Ltd. [1954] N.1.41.
Philips v. William Whiteley Ltd. [1938] 1 All E.R. 566.
Roggenkamp v. Bennett (1950) 80 C.L.R. 292.
Ruble v. Faulkner [1940] 1 K.B. 571; [1940] 1 All E.R. 285, D.C.

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
APPEAL

694
Nettleship v. Weston (C.A.)

[1971J

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 plain- A
tiff 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 plain- B
tiff 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 suffi- **
cient 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 j)
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 the criterion p
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 G
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-Scdnsbury
[1962] S.A.S.R. 159, and Morrison v. Union Steamship Co. Ltd. of New H
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
2 Q.B.

Nettleship v. Weston (C.A.)

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
B 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 contractunless 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 Dartn 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
Q 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
E 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
p 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-a-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
G 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
[j 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
Ncttleship v. Weston (C.A.)

[1971]

The law of England has never observed an absolute standard for the
reasonable man. The question has always been reasonable care " in all the A
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 JJ
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 C
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; Ruble 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.
[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

JJ

697
2 Q.B.

Nettleship v. Weston (C.A.)

and instructor operating the controls. , Where there is a joint operation of

' that nature and an accident and injury, there is a prima facie inference that
both parties are to blame. Learner drivers do not normally hit lamp
standards and where it happens it must indicate some negligence on the
part of the instructor. The judge's finding that the plaintiff could have
switched off the engine and corrected the steering more quickly was justified
on the evidence and should be affirmed, as should also his apportionment
i of the blame equally.
Fox-Andrews Q.C. in reply. The concept of a varying standard of
duty depending on the knowledge of the person injured as to the competence or condition of the person causing the injury, if accepted, would
extend to the whole field of tort. Not only would there have to be an
inquiry as to the standard of competence of the learner driver at every
, stage, but it is possible to envisage one accident in which a pedestrian on
' the pavement, a child passenger in a back seat, an adult passenger in a
back seat, and the instructor passenger all suffered injury through the
negligent act of the learner driver with four resulting causes of action.
Those actions might be consolidated and the court would face the intolerable
problem of having to apply four varying standards of duty. [Reference
was made to Winfield on Torts, 8th ed., pp. 58, 59 on " in all the circumi stances."] The law allows a learner driver to be on the road under instruction and it is a very common situation on which guidance is necessary.
It might be possible to resolve the difficulties if the volenti principle
applied; but where the instructor has taken pains to exclude it the maxim
cannot be invoked. Walker v, Turton-Sainsbury [1952] S.A.S.R. 159
is a decision on volenti. Though the view of Dixon J. merits the greatest
consideration there is no authority in English law to support his proposition
' and his was a dissenting judgment. Philips v. William Whiteley Lid. [1938]
1 All E.R. 566 has been the subject of much criticism. [Reference was
also made to Clerk and Lindsell on The Law of Torts, 13th ed. (1969),
p. 516, para. 905, and Fleming on The Law of Torts, 3rd ed. (1965), p. 116.]
In Bennett v. Tugwell [1971] 2 W.L.R. 847 there was a bargain made
beforehand and the test was said to be objective. In the present case the
f evidence shows that the plaintiff brought his mind to bear on the insurance
cover and it cannot be said that there was any bargain or that he was
voluntarily exempting himself from the consequences of the learner's
negligence.
Cur. adv. vult.
June 30. The following judgments were read.
LORD DENNING M.R. Mrs. Weston is a married woman. She wanted
to learn to drive. Her husband was quite ready for her to learn on his
car. She asked a friend of hers, Mr. Nettleship, if he would give her some
lessons. Mr. Nettleship said he would do so, but, in case there was an
accident, he wanted to check up on the insurance. Mr. and Mrs. Weston
assured him that they had a fully comprehensive insurance which covered
him as a passenger in the event of an accident. This was correct. They
showed him the policy and certificate of insurance. Mr. Weston was
insured under an ordinary Lloyd's policy. By it the underwriters agreed to

698
Lord Denning M.K.

Nettleship v. Weston (C.A.)

[1971]

indemnify Mr. Weston and "any person driving the car with his permission against liability at law for damages in respect of bodily injury to any
person" including any passenger. On being so assured, Mr. Nettleship
said he would give her some lessons.
On October 25, 1967, Mrs. Weston took out a provisional driving
licence. Mr, Nettleship went with her in the car on Sunday, October 28,
and Sunday, November 5, and gave her driving lessons. He found her
very receptive to instruction and a very good learner driver. On Sunday,
November 12, he went with her on her third lesson. She sat in the driving
seat. He sat beside her. She held the steering wheel and controlled the
pedals for the clutch and foot brake and accelerator. He assisted her by
moving the gear lever: and applying the hand brake. Very occasionally
he assisted in the steering.
They came to a road junction where there was a halt sign. They had to
turn left. She stopped the car. He moved the gear lever into neutral and
applied the hand brake. The road was clear. He said to her: " Move off,
slowly, round the corner." He took off the hand brake. She let in the
clutch. He put the gear lever into first gear. The car made a smooth start.
She turned the steering wheel to the left and the car moved round the corner
at walking pace. He said to her: "Now straighten out." But she did
not do so. She panicked. She held the steering wheel, as he said, " in a
vice-like grip ": or, as she said: " my hands seemed to freeze on the wheel."
He at once took hold of the hand brake with his right hand and tried to
get hold of the steering wheel with his left hand to straighten it out. He
nearly succeeded. But by this time the nearside of the car had mounted the
kerb. As bad luck would have it, there was a lamp standard just by the
kerb at that point. The nearside struck the lamp standard. Mr. Nettleship
was injured. His left knee-cap was broken.
On January 25, 1968, Mrs. Weston was convicted by the Sheffield
magistrates of driving without due care and attention. She was fined 10
and her driving licence was indorsed.
Mr. Nettleship now claims damages for negligence against Mrs. Weston.
She denies negligence, alleges contributory negligence, and also pleads that
he impliedly consented to run the risk of injury. The judge dismissed the
claim. He said that the only duty owed by Mrs. Weston to Mr. Nettleship
was that she should do her best, and that she did not fail in that duty.

JJ

*--

rj)

The Responsibility of the Learner Driver in Criminal Law

Mrs. Weston was rightly convicted of driving without due care and
attention. In the criminal law it is no defence for a driver to say: " I was
a learner driver under instruction. I was doing my best and could not help G
it." Such a plea may go to mitigation of sentence, but it does not go in
exculpation of guilt. The criminal law insists that every person driving a
car must attain an objective standard measured by the standard of a
skilled, experienced and careful driver. That is shown by McCrone v.
Riding [1938] 1 All E.R. 157, where a learner driver "was exercising all
the skill and attention to be expected from a person with his short experi- JJ
ence," but he knocked down a pedestrian. He was charged with driving
" without due care and attention " contrary to section 12 of the Road
Traffic Act 1930, now section 3 (1) of the Road Traffic Act 1960. The

699
2 Q.B.
L

Nettleship v. Weston (C.A.)

Lord Denning M.R.

magistrates acquitted him, but the Divisional Court directed them to convict. Lord Hewart C.J. said, at p. 158, that the
" standard is an objective standard, impersonal and universal, fixed in
relation to the safety of other users of the highway. It is in no way
related to the degree of proficiency or degree of experience attained
by the individual driver."

Again in Reg. v. Evans [1963] 1 Q.B. 412 an experienced driver was

overtaking another car at the dip in the road. He crashed head-on into
an oncoming car and the driver of it was killed. He was charged with
causing death by driving in a manner dangerous to the public, contrary to
section 1 of the Road Traffic Act 1960. Salmon J. directed the jury that
" even although the dangerous driving was caused by slight negligence, the
slightest negligence on his part, he is guilty . . ." The Court of Criminal
I Appeal affirmed the conviction, and said, at p. 418:
" . . . if a driver in fact adopts a manner of driving which the jury
think was dangerous to other road users in all the circumstances, then
on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive, or even doing his incompetent
best. Such considerations are highly relevant if it ever comes to
>
sentence . . . "
So the criminal law is clear. No one would dream of throwing any
doubt on it. Mrs. Weston was convicted in accordance with it. The conviction is admissible in civil proceedings as prima facie evidence of negligence: see Stupple v. Royal Insurance Co. Ltd. [1971] 1 Q.B. 50, 72.
I The Responsibility of the Learner Driver Towards Persons on or near the
Highway
Mrs. Weston is clearly liable for the damage to the lamp post. In the
civil law if a driver goes off the road on to the pavement and injures a
pedestrian, or damages property, he is prima facie liable. Likewise if he
goes on to the wrong side of the road. It is no answer for him to say:
7 " I was a learner driver under instruction, I was doing my best and could
not help it." The civil law permits no such excuse. It requires of him the
same standard of care as of any other driver. " It eliminates the personal
equation and is independent of the idiosyncrasies of the particular person
whose conduct is in question": see Glasgow Corporation v. Muir [1943]
A.C. 448, 457 by Lord Macmillan. The learner driver may be doing his best,
but his incompetent best is not good enough. He must drive in as good a
' manner as a driver of skill, experience and care, who is sound in wind and
limb, who makes no errors of judgment, has good eyesight and hearing, and
is free from any infirmity: see Richley (Henderson) v. Faull. Richley,
Third Party [1965] 1 W.L.R. 1454 and Watson v. Thomas S. Whitney &
Co. Ltd. [1966] 1W.L.R. 57.
The high standard thus imposed by the judges is, I believe, largely the
[ result of the policy of the Road Traffic Acts. Parliament requires every
driver to be insured against third party risks. The reason is so that a
person injured by a motor car should not be left to bear the loss on his
own, but should be compensated out of the insurance fund. The fund is

700
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Nettleship v. Weston (C.A.)

[1971]

better able to bear it than he can. But the injured person is only able to
recover if the driver is liable in law. So the judges see to it that he is "
liable, unless he can prove care and skill of a high standard: see The
Merchant Prince [1892] P. 179 and Henderson v. Henry E. Jenkins & Sons
[1970] A.C. 282. Thus we are, in this branch of the law, moving away
from the concept: " No liability without fault," We are beginning to apply
the test: " On whom should the risk fall? " Morally the learner driver
is not at fault; but legally she is liable to be because she is insured and the B
risk should fall on her.
The Responsibility of the Learner Driver towards Passengers in the Car
Mrs. Weston took her son with her in the car. We do not know his age.
He may have been 21 and have known that his mother was learning to
drive. He was not injured. But if he had been injured, would he have Q
had a cause of action?
I take it to be clear that if a driver has a passenger in the car he owes
a duty of care to him. But what is the standard of care required of the
driver? Is it a lower standard than he or she owes towards a pedestrian
on the pavement? I should have thought not. But, suppose that the
driver has never driven a car before, or has taken too much to drink,
or has poor eyesight or hearing: and, furthermore, that the passenger D
knows it and yet accepts a lift from him. Does that make any difference?
Dixon J. thought it did. In The Insurance Commissioner v. Joyce (1948)
77C.L.R.39,56,hesaid:
" If a man accepts a lift from a car driver whom he knows to have
lost a limb or an eye or to be deaf, he cannot complain if he does
not exhibit the skill and competence of a driver who suffers from E
no defect. . . . If he knowingly accepts the voluntary services of a
driver affected by drink, he cannot complain of improper driving
caused by his condition, because it involves no breach of duty."
That view of Dixon J. seems to have been followed in South Australia:
see Walker v. Turton-Sainsbury [1952] S.A.S.R. 159; but in the Supreme
Court of Canada Rand J. did not agree with it: see Car and General F
Insurance Co. v. Seymour and Moloney (1956) 2 D.L.R. (2d) 369, 375.
We have all the greatest respect for Sir Owen Dixon, but for once
I cannot agree with him. The driver owes a duty of care to every
passenger in the car, just as he does to every pedestrian on the road:
and he must attain the same standard of care in respect of each. If
the driver were to be excused according to the knowledge of the passenger,
it would result in endless confusion and injustice. One of the passengers
may know that the learner driver is a mere novice. Another passenger may
believe him to be entirely competent. One of the passengers may believe
the driver to have had only two drinks. Another passenger may know
that he has had a dozen. Is the one passenger to recover and the other
not? Rather than embark on such inquiries, the law holds that the
driver must attain the same standard of care for passengers as for JJ
pedestrians. The knowledge of the passenger may go to show that he
was guilty of contributory negligence in ever accepting the liftand thus
reduce his damagesbut it does not take away the duty of care, nor

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2 Q.B.

Nettleship v. Weston (CA.)

Lord Denning M.R.

does it diminish the standard of care which the law requires of the driver:
^ see Dann v. Hamilton [1939] 1 K.B. 509 and Slater v. Clay Cross Co.
Ltd. [1956] 2 Q.B. 264, 270.
I would only add this: If the knowledge of the passenger were
held to take away the duty of care, it would mean that we would once
again be applying the maxim: ' Scienti non fit injuria." That maxim
was decisively rejected by the House of Lords in cases between employer
J and workmen; see Smith v. Baker & Sons [1891] A.C. 325: and by
Parliament in cases between occupier and visitor: see section 2 (4) of
the Occupiers' Liability Act 1957, overruling London Graving Dock Co.
Ltd. v. Horton [1951] A.C. 737. We should not allow it to be introduced
today in motor car cases even though it was backed by Sir Owen Dixon.
But that was in 1948. He might think differently today.
^

'

>

,
*

The Responsibility of a Learner Driver towards his Instructor

The special factor in this case is that Mr. Nettleship was not a mere
passenger in the car. He was an instructor teaching Mrs. Weston to
drive.
Seeing that the law lays down, for all drivers of motor cars, a
standard of care to which all must conform, I think that even a learner
driver, so long as he is the sole driver, must attain the same standard
towards all passengers in the car, including an instructor. But the
instructor may be debarred from claiming for a reason peculiar to himself.
He may' be debarred because he has voluntarily agreed to waive any
claim for any injury that may befall him. Otherwise he is not debarred.
He may, of course, be guilty of contributory negligence and have his
damages reduced on that account. He may, for instance, have let the
learner take control too soon, he may not have been quick enough to
correct his errors, or he may have participated in the negligent act
himself: see Stapley v. Gypsum Mines Ltd. [1953] A.C. 663. But, apart
from contributory negligence, he is not excluded unless it be that he has
voluntarily agreed to incur the risk.
This brings me to the defence of volenti non fit injuria. Does it
apply to the instructor? In former times this defence was used almost
as an alternative defence to contributory negligence. Either defence
defeated the action. Now that contributory negligence is not a complete
defence, but only a ground for reducing the damages, the defence of
volenti non fit injuria has been closely considered, and, in consequence,
it has been severely limited, knowledge of the risk of injury is not
enough. Nor is a willingness to take the risk of injury. Nothing will
suffice short of an agreement to waive any claim for negligence. The
plaintiff must agree, expressly or impliedly, to waive any claim for any
injury that may befall him due to the lack of reasonable care by the
defendant: or, more accurately, due to the failure of the defendant to
measure up to the standard of care that the law requires of him. That
is shown in England by Dann V. Hamilton [1939] 1 K.B. 509 and Slater
v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264; and in Canada by Lehnert v.
Stein (1962) 36 D.L.R. (2d) 159; and in New Zealand by Morrison v.
Union Steamship Co. Ltd. of New Zealand [1964] N.Z.L.R. 468. The
doctrine has been so severely curtailed that in the view of Diplock L.J.:

702
Lord Denning M.R.

Nettleship v. Weston (CA.)

[1971]

" the maxim in the absence of expressed contract has no application

to negligence simpliciter where the duty of care is based solely upon
proximity or 'neighbourship' in the Atkinian sense": see Wooldridge v. Sumner [1963] 2 Q.B. 43, 69.

Applying the doctrine in this case, it is clear that Mr. Nettleship did
not agree to waive any claim for injury that might befall him. Quite
the contrary. He inquired about the insurance policy so as to make sure
that he was covered. If and in so far as Mrs. Weston fell short of the "
standard of care which the law required of her, he has a cause of action.
But his claim may be reduced in so far as he was at fault himselfas
in letting her take control too soon or in not being quick enough to
correct her error.
I do not say that the professional instructorwho agrees to teach
for rewardcan likewise sue. There may well be implied in the contract C
an agreement by him to waive any claim for injury. He ought to insure
himself, and may do so, for aught I know. But the instructor who is
just a friend helping to teach never does insure himself. He should,
therefore, be allowed to sue.
Conclusion thus far
In all that I have said, I have treated Mrs. Weston as the driver who
was herself in control of the car. On that footing, she is plainly liable
for the damage done to the lamp post. She is equally liable for the injury
done to Mr. Nettleship. She owed a duty of care to each. The standard
of care is the same in either case. It is measured objectively by the care
to be expected of an experienced, skilled and careful driver. Mr. Nettleship
is not defeated by the maxim volenti non fit injuria. He did not agree, E
expressly or impliedly, to waive any claim for damages owing to her failure
to measure up to the standard. But his damages may fall to be reduced
owing to his failure to correct her error quick enough. Although the judge
dismissed the claim, he did (in case he was wrong) apportion responsibility.
He thought it would be just, and equitable to regard them as equally to
blame. I would accept this apportionment.
p
Joint Responsibility
Thus far I have considered the learner as the driver of the car and
the instructor as a passenger, albeit a very special kind of passenger. But
I doubt whether that is the right way of looking at the problem. I prefer
to regard the learner driver and the instructor as both concerned in the
driving. Together they must maintain the same measure of control over G
the car as an experienced, skilled and careful driver would do. That is,
I think, obvious. Their joint driving must come up to the high standard
required of a single individual. If there is an accident, such as would not
have occurred with a careful driver, then one or other, or both, must have
been at fault. Either the instructor did not have as much control over the
driving as he should have done or the learner took more on himself than JJ
his experience warranted, or did something silly, even for a learner.
In the absence of any evidence enabling the court to draw a distinction
between them, they should be held to be both to blame and equally to

703
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1

Nettleship v. Weston (C.A.)

Lord Denning M.R.

blame: see Baker v. Market Harborough Industrial Co-operative Society

Ltd. [1953] 1 W.L.R. 1472. If they are both equally to blame and one of
them is injured, then he can sue the other for negligence, but his damages
would be reduced by one half because of his own contributory negligence:
see Stapley v. Gypsum Mines Ltd. [1953] A.C. 663. So by this simple
route, I arrive at the same result.

j Final Conclusion
In my opinion when a learner driver is being taught to drive a car
under the instruction of an experienced driver, then, if the car runs off
the road and there is an accident in which one or other or both of them
are injured, it should be regarded as the fault of one or other or both of
them. In the absence of any evidence enabling the court to draw a
, distinction between them, they should be regarded as equally to blame,
' with the result that the injured one gets damages from the other, but
they are reduced by one half owing to his own contributory negligence.
The only alternative is to hold that the accident is the fault of neither,
so that the injured person gets no compensation from anyone. To my
mind, that is not an acceptable solution, at any rate in these days of
compulsory insurance.
>
I would, therefore, allow the appeal and hold that the damages (now
agreed) be divided half-and-half.

'

SALMON L.J. I need not recite the facts which have been so lucidly
stated by Lord Denning M.R. I entirely agree with all he says about the
responsibility of a learner driver in criminal law. I also agree that a
learner driver is responsible and owes a duty in civil law towards persons
on or near the highway to drive with the same degree of skill and care
as that of the reasonably competent and experienced driver. The duty
in civil law springs from the relationship which the driver, by driving on
the highway, has created between himself and persons likely to suffer
damage by his bad driving. This is not a special relationship. Nor, in my
respectful view, is it affected by whether or not the driver is insured. On
grounds of public policy, neither the criminal nor civil responsibility is
affected by the fact that the driver in question may be a learner, infirm or
drunk. The onus, of course, lies on anyone claiming damages to establish
a breach of duty and that it has caused the damage which he claims.
Any driver normally owes exactly the same duty to a passenger in his
car as he does to the general public, namely, to drive with reasonable care
and skill in all the relevant circumstances. As a rule, the driver's personal idiosyncrasy is not a relevant circumstance. In the absence of a
special relationship what is reasonable care and skill is measured by the
standard of competence usually achieved by the ordinary driver. In
my judgment, however, there may be special facts creating a special relationship which displaces this standard or even negatives any duty, although the
onus would certainly be upon the driver to establish such facts. With
minor reservations I respectfully agree with and adopt the reasoning and
conclusions of Sir Owen Dixon in his judgment in The Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39. I do not agree that the mere
fact that the driver has, to the knowledge of his passenger, lost a limb

704
Salmon L.J.

Nettlcship v. Weston (CA.)

[1971]

or an eye or is deaf can affect the duty which he owes the passenger to
drive safely. It is well known that many drivers suffering from such A
disabilities drive with no less skill and competence than the ordinary man.
The position, however, is totally different when, to the knowledge of the
passenger, the driver is so drunk as to be incapable of driving safely.
Quite apart from being negligent, a passenger who accepts a lift in such
circumstances clearly cannot expect the driver to drive other than
dangerously.
B
The duty of care springs from relationship. The special relationship
which the passenger has created by accepting a lift in the circumstances
postulated surely cannot entitle him to expect the driver to discharge a
duty of care or skill which ex hypothesi the passenger knows the driver is
incapable of discharging. Accordingly, in such circumstances, no duty is
owed by the driver to the passenger to drive safely, and therefore no
question of volenti non fit injuria can arise.
^
The alternative view is that if there is a duty owed to the passenger to
drive safely, the passenger by accepting a lift has clearly assumed the risk
of the driver failing to discharge that duty. What the passenger has done
goes far beyond establishing mere "scienter." If it does not establish
" volens," it is perhaps difficult to imagine what can.
Such a case seems to me to be quite different from Smith v. Baker & JJ>
Sons [1891] A.C. 325 and Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264.
Like Sir Owen Dixon, I prefer to rest on the special relationship between the
parties displacing the prima facie duty on the driver to drive safely rather
than on the ground of volenti non fit injuria. Whichever view is preferable, it follows that, in spite of the very great respect I have for any judgment of Lord Asquith, I do not accept that Dann v. Hamilton [1939] 1
K.B. 509 was correctly decided. Although Sir Owen Dixon's judgment E
was delivered in 1948, I cannot think of anything which has happened
since which makes it any less convincing now than it was then.
I should like to make it plain that I am not suggesting that whenever
a passenger accepts a lift knowing that the driver has had a few drinks, this
displaces the prima facie duty ordinarily resting on a driver, let alone that
it establishes volenti non fit injuria. Indeed, Sir Owen Dixon dissented in p
Joyce's case, because he did not agree that the evidence was capable of
establishing that the plaintiff passenger knew that the driver was so drunk
as to be incapable of exercising ordinary care and skill, In practice it
would be rare indeed that such a defence could be established.
There are no authorities which bear directly on the duty owed by a
learner driver to his instructor. I have dwelt upon the authorities concerning the relationship between a drunken driver and his passenger because G
to some extent there is an analogy between those two classes of case. But
the analogy is by no means exact. The drunken driver is in sole charge of
the car. His condition may be such that the passenger knows that it is
impossible for him to drive with any care or skill. On the other hand, the
learner driver and his instructor are jointly in charge of the car. The
instructor is entitled to expect the learner to pay attention to what he is ,JJ
told, perhaps to take exceptional care, and certainly to do his best. The
instructor, in most cases such as the present, knows, however, that the learner
has practically no driving experience or skill and that, for the.lack of this

705
2 Q.B.
1

'

>

'

'

Nettleship v. Weston (C.A.)

Salmon LJ.

experience and skill, the learner will almost certainly make mistakes which
may well injure the instructor unless he takes adequate steps' to correct
them.. To my mind, therefore, the relationship is usually.such that the
beginner does not owe the instructor a duty to. drive with, the skill and competence to be expected of an experienced driver. The instructor knows that
the learner does not possess such skill and competence. The alternative
way of putting the case is that the instructor voluntarily agrees to run the
risk of injury resulting from the learner's lack of skill and experience.
The point may be tested in this way: suppose that the instructor is paid
for the lessons he gives and there is a contract governing the relationship
between the parties, but the contract is silent about the duty owed by the
learner to the instructor. It is well settled that the law will not imply any
term into such a contract unless it is necessary to do so for the purpose
of giving to the contract ordinary business efficacy, Could it really be said
that in order to give this contract ordinary business efficacy, it is necessary
to imply a term that the learner owed the instructor a duty to drive with
the degree of skill and competence which both parties know that he does
not possess? If the law were to imply such a term, far from it giving the
contract business efficacy, it would, in my view, only make both itself
and the contract look absurd.
Nor can I think that even when there is no payment and no contract,
the special relationship between the parties can as a rule impose any such
duty upon the learner. Indeed such a duty is excluded by that relationship.
If, however, the learner, for example, refuses to obey instructions or
suddenly accelerates to a high speed or pays no attention to what he is
doing and as a result the instructor is injured, then, in my view, the
learner is in breach of duty and liable to the instructor in damages. The
duty is still the duty to use reasonable care and skill in all the relevant
circumstances. What is reasonable depends, however, on the special relationship existing between the learner and his instructor. This relationship
in my view, makes the learner's known lack of skill and experience a highly
relevant circumstance.
I do not think that the learner is usually liable to his instructor if an
accident occurs as a result of some mistake which any prudent beginner
doing his best can be expected to make. I recognise that on this view,
cases in which a driving instructor is injured while his pupil is driving may
raise difficult questions of fact and degree. Equally difficult questions of
fact and degree are, however, being assessed and decided in our courts
every day. The law lays down principles but not a rule of thumb for
deciding issues arising out of any special relationship between the parties.
A rule of thumb, if it existed, might no doubt remove difficulties, but
could hardly produce justice either in practice or in theory.
It does not appear to me to be incongruous that a learner is responsible
for acts or omissions in criminal law and indeed to the public at large in
civil law and yet not necessarily responsible for such acts or omissions to
his instructor. The learner has no special relationship with the public.
The learner, is certainly not liable to his instructor if his responsibility
is excluded by contract. I can see no reason why, in the absence of contract,
the same result should not follow from the special relationship between the
parties.

706
Salmon LJ.

Nettleship v. Weston (CA.)

[1971]

For the reasons I have stated, I would, but for one factor agree with the .
judge's decision in favour of the defendant. I have, however, come to the A
conclusion, not without doubt, that this appeal should be allowed. Mr.
Nettleship when he gave evidence was asked:
" Q. Was there any mention made of what the position would be
if you were involved in an accident?
"A. I had checked with Mr. and Mrs. Weston regarding insurance,
and I was assured that they had fully comprehensive insurance which B
covered me as a passenger in the event of an accident."
Mrs. Weston agreed, when she gave evidence, that this assurance had been
given before Mr. Nettleship undertook to teach her. In my view this
evidence completely disposes of any possible defence of volenti non fit
injuria. Moreover, this assurance seems to me to be an integral part of
the relationship between the parties. In Hedley Byrne & Co. Ltd. v. Heller
& Partners Ltd. [1964] A.C. 465, the House of Lords decided that the
relationship which there existed between the parties would have imposed
a duty of care upon the defendants in giving the plaintiffs information but
for the fact that the defendants gave the information "without responsibility." This disclaimer of responsibility was held to colour the whole
relationship between the parties by negativing any duty of care on the part
of the defendants.
Much the same result followed when a passenger accepted a lift in
a car which exhibited a notice stating: "Warning. Passengers travelling
in this vehicle do so at their own risk.": Bennett v. Tugwell [1971] 2
W.L.R. 847. The present case is perhaps the converse of the cases of
Hedley Byrne and Bennett v. Tugwell.
On the whole, I consider, although with some doubt, that the assurance
given to Mr. Nettleship altered the nature of the relationship which would
have existed between the parties but for the assurance. The assurance
resulted in a relationship under which Mrs. Weston accepted responsibility
for any injury which Mr. Nettleship might suffer as a result of any failure
on her part to exercise the ordinary driver's standards of reasonable care
and skill.
As for contributory negligence, I agree with Lord Denning M.R. that
the judge's finding on this issue should not be disturbed. Mrs. Weston had
only twice before the occasion in question sat at the wheel of a car. She was
very careful and did her best, but she could not even change gear. Mr.
Nettleship did this for her. All she did, under his instruction, was to
depress and release the clutch pedal, apply the footbrake, use the
accelerator, and attempt to steer as directed. Mr. Nettleship manipulated
the gear lever, applied the hand brake, and on occasion had to take hold
of the steering wheel to correct her errors. At the time of the accident
the car was travelling at only about four miles per hour. At this pace,
it could be stopped almost instantaneously by the hand brake. If, when
Mr. Nettleship saw her driving straight at the lamp post about 20 feet away,
he had applied the hand brake a little more quickly, no accident would
have occurred. This was a natural inference which the judge was in my
view entitled to draw, and which indeed I would have drawn myself, whatever the instructor or his friend, the insured learner, may have said to the

"

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Nettleship v. Weston (CA.)

Salmon L.J.

contrary. In my view, neither was guilty of any serious negligence, but

both were at fault and equally to blame. She panicked as beginners
sometimes do, and he did not react as quickly as he should have done.
This was die judge's conclusion and I can find no reason for disagreeing
with it. I would accordingly allow the appeal and order that judgment
should be entered for the plaintiff for half the amount of the agreed
damages.

I
L.J. The relevant facts have already been stated.
The important question of principle which arises is whether, because
of Mr. Nettleship's knowledge that Mrs. Weston was not an experienced
driver, the standard of care which was owed to him by her was lower than
would otherwise have been the case.
In The Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39. 56-60,
Dixon J. stated persuasively the view that there is, or may be, a " particular
relation" between the driver of a vehicle and his passenger resulting in
a variation of the standard of duty owed by the driver. He said, at p. 56:
" The case of a passenger in a car differs from that of a pedestrian
not in the kind or degree of danger which may come from any want
of care or skill in driving but in the fact that the former has come
into a more particular relation with the driver of the car. It is because
that relation may vary that the standard of duty or of care is not
necessarily the same in every case. . , . the gratuitous passenger
may expect prima facie the same care and skill on the part of the
driver as is ordinarily demanded in the management of a car. Unusual
conditions may exist which are apparent to him or of which he may
be informed and they may affect the application of the standard of
care that is due. If a man accepts a lift from a car driver whom
he knows to have lost a limb or an eye or to be deaf, he cannot
complain if he does not exhibit the skill and competence of a driver
who suffers from no defect."
He summarised the same principle in these words, at p. 59:
" I t appears to me that the circumstances in which the defendant
accepts the plaintiff as a passenger and in which the plaintiff accepts
the accommodation in the conveyance should determine the measure
of duty
"
MEGAW

,
'

'

Theoretically, the principle as thus expounded is attractive. But, with

very great respect, I venture to think that the theoretical attraction should
r yield to practical considerations.
As I see it, if this doctrine of varying standards were to be accepted as
part of the law on these facts, it could not logically be confined to the duty
of care owed by learner drivers. There is no reason in logic why it should
not operate in a much wider sphere. The disadvantages of the resulting
unpredictability, uncertainty and, indeed, impossibility of arriving at fair
r and consistent decisions outweigh the advantages. The certainty of a
general standard is preferable to the vagaries of a fluctuating standard.
As a first example of what is involved, consider the converse case: the
standard of care (including skill) owed, not by the driver to the passenger,

708
Megaw L.J.

Nettleship v. Weston (C.A.)

[1971]

but by the passenger instructor to the learner driver. Surely the same
principle of varying standards, if it is a good principle, must be available
also to the instructor, if he is sued by the driver for alleged breach of the
duty of care in supervising the learner driver. On this doctrine, the standard
of care, or skill, owed by the instructor, vis-a-vis the driver, may vary
according to the knowledge which the learner driver had, at some moment
of time, as to the skill and experience of the particular instructor. Indeed,
if logic is to prevail, it would not necessarily be the knowledge of the driver
which would be the criterion. It would be the expectation which the
driver reasonably entertained of the instructor's skill and experience, if
that reasonable expectation were greater than the actuality. Thus, if the
learner driver knew that the instructor had never tried his hand previously
even at amateur instructing, or if, as may be the present case, the driver
knew that the instructor's experience was confined to two cases of amateur
instructing some years previously, there would, under this doctrine, surely
be a lower standard than if the driver knew or reasonably supposed that
the instructor was a professional or that he had had substantial experience
in the recent past. But what that standard would be, and how it would
or should be assessed, I know not. For one has thus cut oneself adrift
from the standard of the competent and experienced instructor, which up
to now the law has required without regard to the particular personal skill,
experience, physical characteristics or temperament of the individual instructor, and without regard to a third party's knowledge or assessment of
those qualities or characteristics.
Again, when one considers the requisite standard of care of the learner
driver, if this doctrine were to apply, would not logic irresistibly demand
that there should be something more than a mere, single, conventional,
standard applicable to anyone who falls into the category of learner driver:
that is, of anyone who has not yet qualified for (or perhaps obtained) a full
licence? That standard itself would necessarily vary over a wide range, not
merely with the actual progress of the learner, but also with the passenger's
knowledge of that progress: or, rather, if the passenger has in fact overestimated the driver's progress, it would vary with the passenger's reasonable assessment of that progress at the relevant time. The relevant time
would not necessarily be the moment of the accident.
The question, what is the relevant time, would itself have to be resolved
by reference to some principle. The instructor's reasonable assessment of
the skill and competence of the driver (and also the driver's assessment of
the instructor's skill and competence) might alter drastically between the
start of the first lesson and the start of a later lessson, or even in the course
of one particular spell of driving. I suppose the principle would have to be
that the relevant time is the last moment when the plaintiff (whether instructor or driver) could reasonably have refused to continue as passenger
or driver in the light of his then knowledge. That factor in itself would
introduce yet another element of difficulty, uncertainty and, I believe,
serious anomaly.
I, for my part, with all respect, do not think that our legal process
could successfully or satisfactorily cope with the task of fairly assessing or
applying to the facts of a particular case such varying standards, depending
on such complex and elusive factors, including the assessment by the court,

"

pj

fj

709
2 Q.B.
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'

Nettleship v. Weston (C.A.)

Megaw LJ.

not merely of a particular person's actual skill or experience, but also of

"another person's knowledge or assessment of that skill or experience at a
particular moment of time.
Again, if the principle of varying standards is to be accepted, why should
it operate, in the field of driving motor vehicles, only up to the stage of the
driver qualifying for a full licence? And why should it be limited to the
quality of inexperience? If the passenger knows that his driver suffers from
some relevant defect, physical or temperamental, which could reasonably be
expected to affect the quality of his driving, why should not the same
doctrine of varying standards apply? Dixon J. thought it should apply.
Logically there can be no distinction. If the passenger knows that his
driver, though holding a full driving licence, is blind in one eye or has the
habit of taking corners too fast, and if an accident happens which is
attributable wholly or partly to that physical or that temperamental defect,
why should not some lower standard apply, vis-a-vis the fully informed
passenger, if standards are to vary?
Why should the doctrine, if it be part of the law, be limited to cases
involving the driving of motor cars? Suppose that to the knowledge of
the patient a young surgeon, whom the patient has chosen to operate on
him, has only just qualified. If the operation goes wrong because of the
surgeon's inexperience, is there a defence on the basis that the standard of
skill and care is lower than the standard of a competent and experienced
surgeon? Does the young, newly qualified, solicitor owe a lower standard
of skill and care, when the client chooses to instruct him with the knowledge
of his inexperience?
True, these last two examples may fall within the sphere of contract;
and a contract may have express terms which deal with the question, or it
may have implied terms. But in relationships such as are involved in this
case, I see no good reason why a different term should be implied where
there is a contract from the term which the law should attach where there
is, or may be, no contract. Of course, there may be a differencenot
because of any technical distinction between cases which fall within the
law of tort and those which fall within the law of contractbut because
the very factor or factors which create the contractual relationship may be
relevant to the question of the implication of terms. Thus, if it is a contract
because of consideration consisting of the promise of payment, that very
fact may be relevant. I do not say that it is relevant. I do say that
it may be relevant. Or the amount or the circumstances of the payment
may be relevant. That is not a question which arises here, and I think
that it would be unwise to consider it hypothetically.
In my judgment, in cases such as the present it is preferable that there
should be a reasonably certain and reasonably ascertainable standard of
care, even if on occasion that may appear to work hardly against an inexperienced driver, or his insurers. The standard of care required by the
law is the standard of the competent and experienced driver: and this is
so, as defining the driver's duty towards a passenger who knows of his
inexperience, as much as towards a member of the public outside the car;
and as much in civil as in criminal proceedings.
It is not a valid argument against such a principle that it attributes
tortious liability to one who may not be morally blameworthy. For tortious
2 Q.B. 197126

710
Megaw LJ.

Nettleship v. Weston (C.A.)

[1971]

liability has in many cases ceased to be based on moral blameworthiness.

For example, there is no doubt whatever that if Mrs. Weston had knocked A
down a pedestrian on the pavement when the accident occurred, she would
have been liable to the pedestrian. Yet so far as any moral blame is concerned, no different considerations would apply in respect of the pedestrian
from those which apply in respect of Mr. Nettleship.
In criminal law also, the inexperience of the driver is wholly irrelevant.
In the phrase commonly used in directions to juries in charges of causing Q
death by dangerous driving, the driver may be guilty even though the jury
think that he was " doing his incompetent best": see Reg. v. Evans
[1963] 1 Q.B. 412, 418 and Reg. v. Scammell (1967) 51 Cr.App.R. 398.
There can be no doubt that in criminal law, further, it is no answer to a
charge of driving without due care and attention that the driver was inexperienced or lacking in skill: see McCrone v. Riding [1938] 1 All E.R.
157. In the present case, indeed, there was a conviction for that offence. C
If the criminal law demands of an inexperienced driver the standard
of care and competence of an experienced driver, why should it be wrong
or unjust or impolitic for the civil law to require that standard, even vis-a-vis
an injured passenger who knew of the driver's inexperience?
Different considerations may, indeed, exist when a passenger has
accepted a lift from a driver whom the passenger knows to be likely, JJ
through drink or drugs, to drive unsafely. There may in such cases sometimes be an element of aiding and abetting a criminal offence; or, if the
facts fall short of aiding and abetting, the passenger's mere assent to
benefit from the commission of a criminal offence may involve questions
of turpis causa. For myself, with great respect, I doubt the correctness on
its facts of the decision in Darin v. Hamilton [1939] 1 K.B. 509. But the
present case involves no such problem.
E
It is submitted on behalf of Mrs. Weston that even if the standard of
care be, as I think it is, the same for a learner driver vis-a-vis a passenger
as it is vis-a-vis a member of the public outside the car, yet in this case
the doctrine of volenti non fit injuria applies and provides a defence. If
there were special facts and circumstances which showed that the passenger
not merely was aware of, but accepted for himself, the risk of injury caused p
by the driver's lack of skill or experience, that doctrine would provide a
defence. But the mere fact that the passenger knows of the driver's inexperience is not enough.
In the present case, so far from there being such special facts and circumstances, the indications are all the other way. I have no doubt that the
proper inference of fact to be drawn from the care which Mr. Nettleship
took to investigate the comprehensiveness of Mr. Weston's insurance policy G
is that he would have declined to undertake the task of teaching Mrs. Weston
if he had been told: " If you are injured as a result of Mrs. Weston's lack
of skill or experience, you' will have to bear your loss without remedy
against anyone." That is not a case of volenti non fit injuria.
On the question of contributory negligence, with all respect to my Lords
and to the judge, I find myself unable, having read and reread the evidence, JJ
to see in what respect Mr. Nettleship fell below the standard of care and
skill of a competent instructor supervising a learner driver. There is no
conceivable reason why, having regard to what he had seen of Mrs.

711
2 Q.B.

Nettleship v. Weston (C.A.)

Megaw L4.

Weston's driving during the three lessons, he should not have permitted her
^ to undertake the manoeuvre which she undertook, at the time and place
where she undertook it. From the first warning of trouble to the collision
with the lamp post, on the uncontradicted evidence of distance and speed,
the time which elapsed could not have exceeded three seconds. Only one
wheel of the car went over the kerb, and that by a matter of inches only.
The suggestion that Mr. Nettleship could and should have switched off the
B ignition, as well as using his hands on the brake and the steering wheel
during those three seconds, is, I venture to think, quite unrealistic. Apart
altogether from the well-known factor of "thinking time," any sudden
or dramatic action in such circumstances may well accentuate the panic
and thus actually increase the danger. In short, I can see nothing done
by him which he ought not to have done, and nothing left undone by him
which he ought to have done. Moreover, Mrs. Weston herself said, in
C examination-in-chief, that Mr. Nettleship " did all he could to stop the
vehicle before it crashed." Where, as here, the only participants and the
only eye witnesses say that the plaintiff did all he could, how can that
evidence be overridden?
I would allow the appeal in full and hold that Mr. Nettleship is entitled
to the whole of the agreed amount of damages.
D

Appeal allowed.
Judgment of Tkesiger J. set aside. Judgment for the plaintiff for 51026 (being
half agreed damages), with costs in Court
of Appeal and in court below.
E

Solicitors: Amery-Parkes & Co. for Branson, Bramley & Co., Sheffield;
James & Charles Dodd.
M. M. H.

[COURT OF APPEAL]

PANORAMA DEVELOPMENTS (GUILDFORD) LTD. v.

FIDELIS FURNISHING FABRICS LTD.
[Plaint No. 70/11875]
J

1971 May 26

Lord Denning M.R., Salmon and Megaw L.JJ.

CompanySecretaryAuthorityContracts within ambit of company's administrationWhether within ostensible authority

of secretaryHiring cars to meet company's customers
ContractConstructionSubstance or form of transactionCars
hired by company secretary for companyHiring agreements
fj
signed by secretary personallyWhether company bound
The plaintiffs ran a car hire business. The defendant company appointed B as their secretary. B hired cars from the
plaintiffs ostensibly for the defendants' business. He told the