The Case Against Nettleship v Weston
Nettleship v Weston is undoubtedly one of the most important cases in tort law. It is highly unlikely to be overruled, but law students tend to be asked nonetheless whether they agree with the ratio of the case or whether they would have decided it differently. Here are a few arguments you could make against the decision in Nettleship v Weston:
Plaintiff’s Knowledge of Defendant’s Skills and Experience
The case confirmed that the standard of care in negligence is an objective standard and that it is not impacted by a learner driver’s level of experience and skill. While this makes sense in the case of injuries to people outside the car (e.g. pedestrians), the argument becomes less convincing with regards to the learner driver’s instructor (the plaintiff in Nettleship v Weston). An instructor knows about his or her student’s (lack of) experience and skill and should expect them to be less than experienced and skilled drivers - that is, after all, why they would seek out a driving instructor. This is to some degree reflected in the judgement since the court - despite Megaw LJ’s dissent - found the plaintiff to have been contributorily negligent. But this means that some negligence had nonetheless been put on the defendant - a defendant who was unable to have the skills of an experienced driver.
One could counter this argument by pointing out that the plaintiff inquired about the defendant’s insurance before getting in the car with her. But the ratio applies regardless of such inquiries and this should therefore not be the deciding factor in an argument about the case. If you find that whether such inquiries were made or not should impact the learner driver’s liability, you may find yourself in agreement with Salmon LJ who suggested that a special relationship may exist, freeing the learner driver from liability. But Salmon LJ concedes that this would not have freed the defendant from liability in this case since assurances over the insurance were made, thereby assigning responsibility to the defendant.
Defendant’s Set of Skills and Experience
The simplest argument against the ratio is that a learner driver simply cannot fulfil the standard we set for experienced and skilled drivers. But the simplicity of this argument is deceiving. While it is easy to understand the argument, its implications are many and they show that the argument is not as simple as it seems. Here are the two big ones:
1. While it is true that a learner driver may not be able to live up to the standard of experienced and skilled drivers, how should pedestrians know that they are being run over by a learner driver? Should it make a difference whether the car the learner driver drives is marked with a sign for learner drivers? What if the pedestrian does not see this before being run over? Does the pedestrians’ realisation of a learner car coming his or her way change the standard of care of the learner driver?
2. What would be the new standard of care for learner drivers? Can we accurately measure skills of learner drivers at a specific point in time? And does this mean that pedestrians’ ability to get compensation in tort depends on who runs them over and on the simple question whether they were negligently hurt or not?
Discouraging Learner Drivers?
Another argument I have heard in discussions with my peers about the case is the potential deterrence for potential learner drivers. Knowing they will be held to an unachievable standard (assuming learner drivers cannot drive like skilled and experienced drivers while being learner drivers), they may not want to take the risk of not conforming with that standard, resulting in a compensatory payment to be made. While this argument would have some merit in a world without insurance companies, it lacks persuasiveness in a world where car drivers need to have insurance. Therefore, the payments are never made by the drivers themselves but rather by their insurance companies. Of course, the drivers’ fees may be increased and this might be some incentive to not pick up driving. But if one is not willing to pay quite a bit for their insurance, why start learning how to drive at all? Driving a car is associated with many extra costs in the modern world and a slight increase in the insurance fees is unlikely to deter people already willing to pay more for the luxury of driving.
This argument could also be countered with the point that while it may deter some from picking up driving (a useful skill), it may make those who nonetheless choose to pursue it even better drivers. Since they know they will be held to a high standard, they may drive more carefully and put more care into their driving in order to avoid compensatory payments.
Nettleship v Weston  EWCA Civ 6