Nettleship v Weston

A learner-driver owes passengers, including a supervising instructor, the same objective standard of care as a reasonably competent and experienced driver. The learner’s inexperience and the passenger’s knowledge of it do not reduce that standard.

Knowledge of a risk does not by itself establish volenti non fit injuria. The defence requires acceptance of the risk in circumstances amounting to an express or implied waiver of a claim for failure to exercise the legally required care. An instructor’s contribution to the accident may instead reduce damages for contributory negligence.

A learner-driver panicked during her third lesson and failed to straighten the car after turning at a junction. The car mounted the kerb, struck a lamp standard and injured the friend who was instructing her. Before agreeing to teach her, the instructor had obtained an assurance that the motor insurance covered him as a passenger.

The instructor claimed damages in negligence. The learner denied negligence and relied on contributory negligence and voluntary assumption of risk. Thesiger J dismissed the claim because she had done her best, although he provisionally assessed the parties as equally responsible.

The instructor appealed. The central questions were whether a learner owed her instructor the objective standard of an experienced driver, whether the instructor had accepted the risk, and whether his damages should be reduced for contributory negligence.

1. Appeal allowed unanimously. By a majority, the judgment dismissing the claim was set aside and judgment was entered for the plaintiff for £510.26, being half the agreed damages. Megaw LJ would have awarded the whole amount.

2. Lord Denning MR and Megaw LJ held that a learner-driver must attain the standard of the reasonably competent and experienced driver. That objective standard applies to passengers, including an instructor who knows of the learner’s inexperience, as it applies to other road users. A fluctuating standard based on a passenger’s knowledge would create uncertainty and inconsistency. Salmon LJ agreed that the objective standard governs liability to the public, but considered that a learner’s special relationship with an instructor would ordinarily make the learner’s known inexperience relevant.

3. The instructor’s knowledge that the defendant was inexperienced did not establish volenti non fit injuria. Lord Denning MR held that knowledge and willingness to encounter a risk are insufficient without an express or implied agreement to waive a claim for failure to exercise the care required by law. Megaw LJ similarly held that knowledge of inexperience alone was insufficient. The instructor’s prior inquiry about comprehensive insurance showed that he had not accepted injury without a remedy.

4. Salmon LJ reached the same outcome because the insurance assurance formed part of the relationship between the parties. It amounted to the learner’s acceptance of responsibility for injury caused by failure to meet the ordinary driver’s standard and defeated any defence of voluntary assumption of risk.

5. Lord Denning MR and Salmon LJ upheld the judge’s alternative finding that the instructor was contributorily negligent. He shared control of the car and could have applied the hand brake sooner. The learner panicked and the instructor failed to react sufficiently quickly, so they were equally responsible. Megaw LJ dissented on this issue because the evidence did not show that the instructor had fallen below the standard of a competent instructor.

1. Court of Appeal: The appeal was allowed unanimously. The judgment dismissing the claim was set aside. By a majority, judgment was entered for the plaintiff for half the agreed damages.
2. High Court: Thesiger J dismissed the negligence claim on 22 October 1970, holding that the learner’s duty was to do her best. He provisionally apportioned responsibility equally in case that conclusion was wrong.