Nettleship v Weston 1971

Legal Case Summary

Nettleship v Weston [1971] 2 QB 691

The case of Nettleship v Weston¹ concerned the concept of a duty of care which is a fundamental element of the tort of negligence. The tort of negligence originates from the case of Donoghue v Stevenson.² Negligence is defined as “A tort consisting of the breach of a duty of care resulting in damage to the claimant”.³ In terms of imposing a duty of care, Lord Atkins stated that such a concept should be based upon the premise that, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.⁴ Commonly referred to as the ‘Neighbour principle’ the premise includes the requirements of proximity⁵ and reasonable foreseeability.⁶ If a duty of care is deemed to be owed then it must then be established that a breach of that duty has occurred. A breach will be demonstrated if the defendant’s actions are deemed to fall below the standard of care which is regarded as appropriate to the duty owed. The test is an objective one, based upon the standard of the ‘reasonable man’ in the same situation; “the omission to do something which a reasonable man…would do, or doing something which a prudent and reasonable man would not do”.⁷

Facts in Nettleship v Weston

The specific facts of the case surrounded a claim of damages with regards to an injury suffered by a passenger in a road traffic accident. The claimant was a friend of the defendant and was teaching her to drive. Prior to such an arrangement the claimant had sought assurances from the defendant that appropriate insurance had been purchased in the event of accident. On the third lesson the defendant was executing a simple manoeuvre⁸ at slow speed when she panicked which resulted in the car crashing into a lamppost injuring the claimant. The defendant was subsequently convicted of driving without due care and attention. The issues that arose in the case with respect of damages were; should the defendant be held to the same standard as any other driver, had the claimant accepted the risk of being injured and was the defendant solely responsible considering the fact that she was not in complete control of the vehicle.⁹

Conclusions in Nettleship v Weston

There were three distinct conclusions that formed the outcome of this case: Firstly, that the defence of volenti non fit injura¹⁰ was not applicable; Secondly, that the duty of care owed by a learner driver to the public (including passengers) was to be measured against the same standard that would be applied to any other driver; and, Finally that both the learner and the instructor were jointly responsible for the accident and therefore a reduction of damages of 50% for contributory negligence was appropriate. The judgement in the case largely centred on the second conclusion as being the most controversial issue, indeed judicial opinion on such an issue was split.¹¹ It was concluded that the defendant had failed to “measure up to the standard of care that the law requires”¹² following the cases of Dann v Hamilton¹³ and Slater v Clay Cross Co. Ltd.¹⁴

Salmon L.J. dissented with such an opinion arguing that the ‘special-relationship’ created between the learner and the instructor is “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”;¹⁵ due to the fact that, “the instructor knows that the learner does not possess such skill and competence”.¹⁶ Such an argument was based on the reasoning in the case of The Insurance Commissioner v Joyce¹⁷ which held that the standard of duty required could be variable based upon the relationship between the parties. It was held in overall in Nettleship that an in-depth analysis of the relationship between the parties, while theoretically attractive, should “yield to practical considerations”¹⁸ in such cases. Despite the fact that the standard of care owed was the main focus of this case, the result has had little impact upon the law of tort in general. Indeed it is seen as a specific exception with regards to motorists and a person’s lack of specialist skills¹⁹ or possession of heightened expertise²⁰ can lower or raise the standard of care that is owed respectively.

In fact it was the combination of the first and third conclusions that had the most impact with regards to the application of the tort of negligence in subsequent cases. In deciding that the defence of volenti was not applicable Lord Denning stated that the defence had become “severely limited”²¹ as a consequence of the changes to the defence of contributory negligence. The decision in this case along with the subsequent statutory provision of s148 of the Road Traffic Act 1972 led to the conclusion in Pitts v Hunt²² that the defence of volenti is no longer available in road traffic cases.²³ Indeed, the decision in this case endorsed not only the notion that the new defence of contributory negligence²⁴ was the most appropriate in such cases but also the perceived fairness of the ‘apportionment principle’²⁵ in general.

As a result the defence of contributory negligence has become the most common defence used in this area and standard reductions have been set for common occurrences such as the failure to wear a seat belt²⁶ or passengers travelling in a motor vehicle when they are aware that the driver is drunk.²⁷ The impact of the case of Nettleship can be highlighted by the comparison of the case of Owens v Brimmell²⁸ with the case of Morris v Murray.²⁹ The facts of both cases are virtually identical with only one key difference; Morris involved a passenger on a light aircraft rather than a car. It was held in Morris that the claimant received no compensation for his loss due to the defence of volenti non fit injura where as it was held in Owens that the damages should be reduced by 20% for such an occurrence. A reduction of 20% is now the standard reduction in cases of this type.³⁰

Footnotes

^{1 1971} 2 QB 691 to be later referred to as Nettleship without further citation

^{2 1932} AC 562

³ Dictionary of law, (6^th edition, Oxford University Press, 2006) – definition of ‘negligence’ at p.353

⁴ Per Lord Atkins, Donoghue v Stephenson ¹⁹³² AC 562 at p.580

⁵ “closely and directly affected” ibid

⁶ “reasonably to have them in my contemplation” ibid

⁷ Per Alderson B: in Blyth v The Company of Proprietors of the Birmingham Waterworks ¹⁸⁵⁶ 156 ER 1050

⁸Specifically, Turning left at a junction

⁹ The instructor was operating the gears and the handbrake

¹⁰Latin Phrase: no wrong is done to one who consents.

¹¹ With Salmon LJ dissenting – to be discussed further, infra

¹² Supra n.1 at p701

^{13 1939} 1 KB 509

¹⁴¹⁹⁵⁶ 2 QB 264

¹⁵ Supra n.1 at p705

¹⁶ ibid

¹⁷ (1948) 77 CLR 39

¹⁸ Per Megaw LJ Supra n.1 at p706

¹⁹ Phillips v Whitely Ltd ¹⁹³⁸ 1 All ER 566

²⁰ Bolam v Friern Hospital Management Committee¹⁹⁵⁷ 1 WLR 582

²¹ Supra n.1 at p.701

^{22 1991} 1 QB 24

²⁴ s1 (1) Law Reform (Contributory Negligence) Act 1945

²⁵ Ibid, Kidner, R., Casebook on Torts, (11^th Edition Oxford University Press, 2010) at p.186

²⁶ Froom v Butcher ¹⁹⁷⁶ QB 286

²⁷ Owens v Brimmell ¹⁹⁷⁷ QB 859

²⁸ Ibid to be later referred to as Owens without further citation

^{29 1991} 2 QB 6 be later referred to as Morris without further citation

³⁰ Green v Gaymer ¹⁹⁹⁹ WL 33232687, Gleeson v Court ²⁰⁰⁸ RTR 10