Nettleship v Weston

Facts

Mrs Weston was a learner driver. Mr Nettleship, a friend, agreed to give her lessons in her car after first checking that her insurance covered him as an instructor. On her third lesson she lost control of the car and struck a lamp post, and he suffered a broken knee. He sued her for negligence.

Issue

Whether a learner driver owes an instructor only the standard of care expected of a learner, whether the defence of volenti non fit injuria applies to an instructor who knew he was riding with an inexperienced driver, and the standard to be applied.

Held

Mrs Weston was liable. The standard of care was that of a reasonably competent driver, and the instructor had not consented to the risk of her negligence so volenti failed.

Ratio

• The standard of care in driving is objective and does not vary with the experience of the driver, so a learner is judged as a competent and experienced driver would be.
• An instructor who knows the driver is inexperienced does not for that reason accept the risk of her negligence, and the defence of volenti does not apply, particularly since the instructor had asked about insurance and so had not waived any legal rights.

The judgments

Key reasoning

• A single objective standard is needed so that the courts need not make an enquiry into each driver's experience or ability, which would produce uncertainty.
• Compulsory motor insurance means that liability is in practice a means of loss distribution, which supports imposing a common standard on all drivers.
• Volenti requires agreement to waive any claim for negligence, and the fact that an instructor knew of the driver's inexperience does not show such agreement, particularly where he took the step of checking that his passenger risk was insured.

Where it fits in the module

For FHS Tort, Nettleship is a starred case on the standard of care and appears alongside the Social Action, Responsibility and Heroism Act 2015, which allows courts to consider the social value of the defendant's conduct. It tests how far the objective standard may be adjusted by factors such as inexperience, age or good motives, and so it is the baseline against which Parliament's 2015 attempt to soften the standard for those acting for the benefit of society is assessed. Students should compare it with Mansfield v Weetabix [1998] 1 WLR 1263, Orchard v Lee [2009] EWCA Civ 295 and Philips v William Whiteley [1938] 1 All ER 566.

Criticisms

• The justification from insurance blurs the question of fault with the question of loss distribution, and it does not explain why the same rule applies to activities that are not insured.
• A strictly objective standard imposes liability on a person who has done all that could be expected of a beginner, which makes negligence resemble strict liability.
• The refusal to consider inexperience treats learners the same as experienced drivers even though the instructor is in a position to control the risk, and this may suggest that the instructor's own role should be assessed through contributory negligence rather than ignored.