Nettleship v Weston
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE MEGAW |
| Judgment Date | 30 June 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0630-1 |
| Date | 30 June 1971 |
| Court | Court of Appeal (Civil Division) |
Appeal of plaintiff from judgment of Mr. Justice Thesiger on 22nd October, 1970.
[1971] EWCA Civ J0630-1
The Master of the Rolls (Lord Denning)
LOrd Justice Salmon and
Lord Justice Megaw
In The Supreme Court of Judicature
Court of Appeal
Mr. J. R. B. Fox-Andrews, Q. C., and Mr. Victor Watts (instructed by Messrs. Amery-Parkes & Co., agents for Messrs. Branson, Bramley & Co. of Sheffield) appeared on behalf of the Appellant Plaintiff.
Mr. Barry Chedlow, Q. C., and Mr. Hugh Galpin (instructed by Messrs. James & Charles Dodd) appeared on behalf of the Respondent Defendant.
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 hint 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 Lloyds policy. By it the underwriters agreed to 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 25th October, 1967, Mrs. Weston took out a provisional driving licence. Mr. Nettleship went with her in the car on Sunday, 28th October, and Sunday, 5th November, and gave her driving lessons. He found her very receptive to instruction and a very good learner-driver. On Sunday, 12th November, 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 comer." He took off the hand brake. She let in the clutch. He put thegear lever into first gear. The car made a smooth start. She turned the steering wheel to the left and the car moved round the comer 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. Hr. Nettleship was injured. His left knee-cap was broken.
On 25th January, 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 endorsed.
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.
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 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 MoCrone v. Riding (1938) 1 A. E. R. 157, where a learner-driver "was exercising all the skill and attention to be expected from a person with his short experience", 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 Magistrates acquitted him, but the Divisional Court directed them to convict. Lord Hewart, Lord Chief Justice, said 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 Retina 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. Mr. Justice Salmon, as he then was, directed the jury that "even though the dangerous driving was caused by slight negligence, the slightest negligence on his part, he is guilty." The Court of Criminal Appeal affirmed the conviction, and said:
"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 throwingany 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. (1970) 3 W. L. R. at page 223.
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: "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 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. at page 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 v. Farrell (1965) 1 W. L. R. 1454: Watson v. Whitney (1966) 1 W. 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 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 itthat he is liable, unless he can prove care and skill of a high standard; see The Merchant Prince (1892) P. 179; Henderson v. Henry E. Jenkins & Sons Ltd. (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 risk should fall on her.
THE RESPONSIBILITY OP 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 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 hearings and, furthermore, that the passenger knows it and yet accepts a lift from him. Does that make any difference? Mr. Justice Dixon thought it did. In the Insurance Corporation v. Joyce (1948) 77 C. L. R. at page 56, he said:
"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 If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improperdriving caused by his condition, because it involves no breach of duty."
That view of Mr. Justice Dixon 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 Mr. Justice Band...
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