 Nettleship yn Western wedi cael ei fflaen iawn ar gyfer y law ddau. Rwy'r ddau'r ddau. Mae'n admiadau'r ddau'r ddau ar y ddechrau, a'r ddau'r ddau'r cyffredin sy'n yn ôl yn dweud i'r ddechrau, a ddau'r ddau'r ddau'r ddau, ddau'r ddau'r ddau'r ddau a'r ddau'r ddau a ddau'r ddau yn ddefnyddio'n ddau i'r ddau'r ddau a ddau'r ddau'r ddau. Mae'r cwestiynau o'r cyfrifiad hefyd yn dysgu ei wneud o wneudio'r cyfrifiad i'u gynhyrchu i'w rhagorio ddoch. Ac oed i wneudio'r cyfrifiad hynny bywydd yn dod i'r cyfrifiad hefyd o'r rhagoriaeth rhaid sydd wedi'i ddweud o'r cyfrifiad hynny'n gweithio'nenghraevwyr. Felly dyna rhaid i gwych amdannu'r cyfrifiad yma eu ffordd ddynnu'n gwelwch am ddynnu. Felly, y ffordd what kind of fault do we look for when we are looking at a learner driver? If we don't have fault, what are our reasons for being willing to make her pay for the harm that Mr Nettleship suffered? So, let's look at what the case actually decided in a moment. First, let's think about the facts a little more carefully. These can be found in the judgement of Lord Denning, the Master of the Roles. Now, Lord Denning had a habit of giving very accessible home-spun descriptions of the facts. Wyddech chi'n deithasio gael iawn i gael ardwyddon. I ddweud yw, mwy o'r enghreifftan wedi'u llunio'r cysylltu. Ryddaw'n cael cael y llunio'r cyfrifysgol yw'r llunio o'r 18 ymlaen, ac yma ymlaen y drif wneud. Nesafwr yw'r ymlaen wedi'u gwybod i'r cysylltu i'r llunio'r cyfrifysgol, ac rwy'n rhaid o'n ddim yn ymlaen y mae'r cyfrifysgol i'r cyfrifysgol i'r cyfrifysgol. Mae mae oedda erdwg mae dylai gyda ac rwy'n rhaid o ffrwng o'r dweud dweud o ysgol. Ysgolwyr Ms Weston o'r dweud yn maen nhw'n gofynau. Mae'n rhaid i ddim yn cysylltu atu. Yr msteynurbell yw meddwl, rwy'n bwysig i dyfu'r gweithio i'r trafodaeth a'r pwyr ar yr anhygole, ond mae'n ddelch yn amlwg llwg ac mae'r pwysig ar y pedfodol. Cyfnodd yw ddim yn nes i gyflyn ..ryd iawn o rai yn maesien gwynch. Mae cael ei wrthynol, synthetic oedd Mrs Weston yn gallu a stop honestly. Mae yna meddwl yn maesien arniad o'r rai o mutraffol. mae'n gwybod i gyd, mae raidio'n mynd i gweithi. Mae ei gwybod i gyd yn siŵr i chi i gyfn a mae'n gwneud hynny i gyd yn agorweithio. Llywodraeth, Mrs Weston yn cael ei wneud y sportwch am y cydydd yn ei wneud i gyd. Mae y cwmp yn oed i gyd yn gwneud i gyd yr ysgolig. Mae'n gweithi, rydyn ni. Now Mr Nettleship at that point relatively quickly realises puts the handbrake on and tries to correct the steering with his other hand. That's to say with his left hand so he has to reach across his body. He'd used his right hand to put the handbrake on. Now that situation unfortunately was not remedied quickly enough and the car went over the curb and unfortunately again there was a lamp post just at the wrong point. And as a consequence the car hit the lamp post and injured Mr Nettleship's leg. Having understood the facts we can now look to the law but before we get to tall law we should pause and consider the criminal law. So Mrs Weston was actually prosecuted for a criminal offence of driving without due care and attention and she was convicted. The fine was £10 and she had points added to her licence. Now pausing there for a moment £10 doesn't sound like a lot of money but remember this was 1968. According to the Bank of England inflation has averaged about 6% from 1968 to today. And as a rough calculation that means you're looking at about £150 as a fine today. Now very importantly the criminal law set an objective standard. This was and I quote, impersonal and universal fixed in relation to the safety of other users of the highway. That meant that it didn't matter that she was a learner driver, she was expected to live up to a standard of care for the criminal law that she could not do. Do you think the criminal law sets the right standard and indeed the right penalty for the events that happened? Well setting aside criminal law for a moment let's turn to tall law and the claim that Mr Nettleship brought. It was a claim in tort specifically in the tort of negligence for damages for personal injury. Now he was claiming a little over £1000 worth of damages at the time. Which in today's money again the same kind of calculations of inflation equates to about £14,000 for the injury to his knee. At trial his claim was dismissed by Mr Justice Thesager. Now it then went on to the Court of Appeal which is the judgement that you should have read. All three Court of Appeal judges wanted to allow the appeal but their reasoning varied and in particular though for different reasons they ultimately ended up saying that only half the award should be made. Let's look in particular to Lord Denning first. He spoke first as the most senior of the three judges. He set out four stages. So the first stage for Lord Denning was what was the responsibility of the learner driver towards persons on or near the highway. He thought this was simple. An objective test which was not adjusted for the skill, experience or anything else connected with the driver him or herself. He didn't elaborate exactly on why but he thought it was the result of the Road Traffic Acts which were the kinds of things engaged both in the criminal law but also the obligation on everyone to have insurance if they're going to drive a car. He said essentially the insurance fund will only operate if the individual is liable so we should make sure the individual is liable to make sure the insurance fund can then compensate any victims. So he said and I quote so the judges see to it that he the defendant is liable unless he can prove care and skill of a high standard. So for Lord Denning this was a shift in the role Fault was playing in the law of tort. He said and I quote thus we are in this branch of the law moving away from the concepts no liability without fault. We are beginning to apply the test on whom should the risk fall. So 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. Do you think the availability of insurance should affect whether you are liable or not for the actions you have done? Well that's a difficult question. You might also start to wonder about whether the lower ability of an individual should be relevant full stop. So an example of that would be whether or not you have L plates on your car. You're supposed to according to law display L plates if you're a learner driver or do those L plates signify? Should they have a role in tort law? The second thing Lord Denning spoke about was the responsibility of learner drivers towards passengers in the car and he discussed in Australian case about passengers getting into a car with a driver they knew to be drunk. And there there was no breach of the duty of care for various reasons in Australian law and Lord Denning disagreed with this. He argued that the level of care expected of a learner driver was the same if the passenger knew the driver was still learning to drive. Do you agree? Do you think that's right? So in particular Lord Denning wondered how you could set the standard of care. Would you imagine that this is a learner driver of one day, of five days, of ten days, of two months, of five months, of a year, of two years, of an even longer period? Is this a learner driver who drives every few days? Is this a learner driver who drives every morning? Is this a learner driver who only drives every few months? There are many different skills of learner drivers, let alone the amount of time they've spent driving. And he suggested this was a very difficult calculation to make and that the law shouldn't be trying to make it. Do you think that Lord Denning was right though when he said that me and knowledge that the person in the car was a learner driver was enough to change the standard of care you were owed? That's a difficult question. Third, Lord Denning wondered about the responsibility of a learner driver towards the instructor. So this is slightly different towards a normal passenger in the car. At this point he'd already mentioned, just as an aside, that during the incident there was another person in the car or passenger. It looked like it was Mrs Weston's son, though we don't actually know much detail. So now we turn to the instructor finding out that there were three people in the car. So the instructor, what is the instructor's relationship with Mrs Weston? Is it different to the son who is in the back of the car? Well, that's another difficult question. Now, Lord Denning took the view that no, it was not different. It was theoretically possible for it to be different, but it wouldn't be different automatically. Now, why did he say that? Well, he took the view that the only way it was relevant was if the instructor had voluntarily consented to the risk of getting injured in the car. And Lord Denning took the view that that was not what Mr Nettleship had done. Can you think of what evidence there was that Mr Nettleship had not consented to the risk of getting injured in the car? As a result of those three points, Lord Denning was willing to allow the claim. That is to say, he would have overturned the trial judge's decision and allowed the appeal. Mr Nettleship would have got his damages. The next issue was how much. Now, Mr Nettleship claimed for about £1,000 in those days. The trouble was that Lord Denning took the view that Mr Nettleship should have done things differently. Not that he accepted the risk, Volentine non fit inuria in a Latin tag, but instead that he was contributorily negligent. He contributed to why he suffered the harm. Now, by that logic, Mr Nettleship's damages should be reduced by the amount that he contributed. And Lord Denning said it was about half. In that, Lord Denning was relying on the trial judge who, though he had disallowed the claim to begin with, had found as a matter of fact that Mr Nettleship was responsible for half of the damages if the claim would have been successful. But Lord Denning had another way of analysing this. He said, well, contributory negligence is one way to look at this. But there's another way you could look at it. You could look at the driving of the car as a dual matter between the instructor and the learner driver, such that they're both doing it together. And if there was a claim by the instructor, he was half responsible because he was half in control of the car. And by that same logic, the claim would be reduced by half. Now, there were two other judges in the case. Lord Justice Salmon agreed with Lord Denning on a large number of points. There was one significant point of disagreement, though. And this was the idea that if you get into a car with someone who knows a learner driver, in some way that learner driver owes you a lower standard of care. That was the point that Lord Denning had rejected. Now, Lord Justice Salmon discusses this at some length. He said, for instance, as a starting point, and I quote, A learner driver is responsible and owes a duty in civil law towards persons on or near the highway to drive with the same degree of skill and care as that of the reasonably competent and experienced driver. That's a good starting point. However, he then said, the duty in civil law springs from a relationship which the driver by driving on the highway has created between himself and persons likely to suffer damage by his bad driving. This is not a special relationship, nor in my respectful view, is it affected by whether or not the driver is insured. On grounds of public policy, neither this criminal nor civil responsibility is affected by the fact that the driver in question may be a learner, infirm or drunk. So already, Lord Justice Salmon disagreed on the reason for why this duty existed. He said it was by the fact of being in a relationship, by the fact of the task that you're performing, driving on a road. From that step, he continued the idea of a relationship and said that the person who gets into a car knowing that the individual driving the car cannot exercise the level of skill of a reasonable driver in some way accepts that. He suggested that what else can you do other than merely knowing of the skill and getting in the car to show that you accepted it? Did you write a letter? Do you make a sign? Do you say it out loud? And so he suggested that this would ordinarily lower the duty of care. However, Lord Justice Salmon pointed something else out. He said, nonetheless, there's something on the facts here which suggests that that was not what happened with Mr Nettleship, that he did not accept the risk of being injured in the car. What piece of evidence persuaded Lord Justice Salmon, you should have already spotted, it was the same piece of evidence you referred to persuading Lord Denning. But why do you think it persuaded Lord Justice Salmon, otherwise much more willing to accept that you get into a car taking the risk voluntarily when you know the driver is of a lower standard? Let's turn to the third judge. Now, Lord Justice Magor was quite an interesting approach. He didn't talk about in any detail why the duty of care existed as the reasonable standard. What he got into instead was focusing just on the question of whether, knowing that you are getting into a car with someone who cannot drive as well, can only accept a lower standard of care. His argument was quite detailed, and he agreed with Lord Denning in outline, but he provided further examples and said, well how would this possibly work? We would know to know in detail how good this driver was. We'd also need to know in detail how good the instructor was, because surely a good instructor owes more care than a very novice instructor, similarly to a good driver owing more care than a novice driver. And he drew other analogies, he suggested is this the same for a doctor, a junior doctor who's just arrived on his first day owes a lower standard of care, whereas a more senior doctor before he becomes a consultant owes more care. Is it the same for a solicitor? Can you think of any other professions where this might be the same, where it might not be the same? How in practice would you work that out? How much time and effort would you spend in trying to decide exactly how good this person was and what evidence would you use? He also noted that this was not an issue of moral blame. I'm going to quote again. It is not a valid argument that such a principle that it attributes torsious liability to one who may not be morally blameworthy, for torsious liability has in many cases ceased to be based on moral blameworthiness. For example, there is no doubt whatever that it misses Weston had knocked down a pedestrian on the pavement when the accident occurred, she would have had been liable to the pedestrian. Yet so far as any moral blame is concerned, no different considerations would apply in respect to the pedestrian from those which apply in respect of Mr Nettleship. Do you think this is quite so simple? Are there any other situations not just about your skill and experience which could also come into play? What about an illness? What if you were suddenly struck ill while you were driving? What standard of care should be expected of you then? Should you apply the same principles do you think? Well, there's an argument that you should if you had no reason to know when you started driving that you would become ill. But what about other people who are not actually what we might regard as fully capable of understanding their conduct? What if you were, to take a difficult word, insane for a moment? Would you be liable in tort law? And on the worksheet there's a reference to a case which you might choose to look up from just last year, 2015, on this particular problem. Now, we've seen some examples of tort law. We've seen some defences and we've seen some parts of liability. We've talked about negligence and we've looked a lot at fault. We've also considered the idea of a defence of consent and a defence of contributory negligence. You might also have spotted in law justice McGaw's judgment a reference to terpus causa. This just means an unlawful or illegal cause. So if you are encouraging someone to commit a crime, the law might view, if the crime was committed and you were injured somehow, you as not being able to sue and there might be a defence on that basis. Now, there are some questions we could consider further if we wanted to. In particular, what about regulation? Should we instead require that driving lessons, particularly the first three, five or ten lessons, take place off main roads such that this accident would be less likely to happen? Or should we require that early lessons should take place in a dual controlled car? That's to say that the instructor has control of pedals as well. Now, another question we might ask ourselves is when can you actually put yourself under a higher standard of care? This is one of the issues that law justice McGaw discussed. What if you tell your passengers, I'm an amazing driver? Is that enough to put you under a higher standard of care? Do you say I'm a great lawyer, I'm a great doctor? If you hold yourself out as having a higher standard of care, is that slightly different behaviour than lowering your standard? Should that be easier to do? Okay. Another issue you might like to think about is how insurance actually works. You might think that once I'm insured, if I suffer loss, my insurance company pays me, and that's the end of the matter. But assuming you are okay with a bit of a simplified version of this, let's look for a moment at what insurance actually does. So, for the payment of a premium, the insurer agrees to cover the insured party against certain risks happening in certain ways. So, the insurer seeks to make money by working out how much he is likely to pay out and adding a bit, then dividing it amongst the premiums. He also typically uses the money from the premiums to invest so that he makes investment income as well. He might also reinsure the risks, passing on to yet another person, some of the risks that he's taken on from you. However, at the end of the day, what the insurer is essentially doing is spreading the risk amongst all the people who are insured. So, it's not simply that the insurance company pays, it's that the premiums of everybody who's taking out insurance cover my loss every time I pay insurance, or to cover some guy over there who suffers a loss one day, some girl over there who might suffer loss the next day. That means that it's never really the insurer who's taking a hit, it's everybody who's taking a hit. Can you see how this rephrases the question? It's no longer so much about me suffering a loss or my insurer paying for it, it's me suffering a loss or all the insurers paying for it. In the case of road traffic situations, since compulsory insurance exists and has done since about the 1930s, it means everybody who's driving bears the risk of some accidents. Does that make you think differently about the situation? Do you think it's right that insurance operates this way? Well, there's lots of issues here and there. What we can say is that insurance this way means that there's more likely to be compensation for a victim. It's not quite the same as taxation where costs are taken up by the state and then passed to all the taxpayers because the number of people is smaller and because, one hopes, the state isn't exactly making profit in the way that public large-scale insurance like this would do because it's run by private companies. Does the insurance background make you think differently about nettleship on Western?