Key points
- The standard of care of a person undertaking a task is that expected of a reasonably competent person
- Voluntary assumption of risk is not a defence if there was a mere knowledge of the risk but no express or implied agreement to waive any claim for injury
Fact
- C was giving a friend’s wife, D, driving lessons in her husband’s car
- C was injured when D struck a lamp and sued for negligence
- It was argued by D that D was not liable as C had knowledge of her inexperience
Held (Court of Appeal)
D was liable in negligence; D fell below the standard of of care of a reasonably competent driver, which applied to her despite her inexperience
Lord Denning MR
Standard of care
- Uncertainty and impossibility of arriving at fair and consistent decisions would result if standard of care varied according to one person’s knowledge of another’s skill or condition: p. 707
Volenti defence did not apply: p. 701 – 702
- ‘Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant’
- In the current case, it is clear that Mr. Nettleship did not agree to waive any claim for injury that might befall him
- By checking his position under car insurance before giving lessons, C had shown expressly that he did not consent to the risk of injury
Megaw LJ
Standard of care
- The standard of care required by the law is the standard of the competent and experienced driver
- Similarly, the standard of care required by a new surgeon or solicitor is that of a competent and experienced surgeon or solicitor respectively
- It is not a valid argument against such a principle that it attributes tortious liability to one who may not be morally blameworthy. For tortious liability has in many cases ceased to be based on moral blameworthiness.