1. [1971] AC 793.

2. [1946] 4 DLR 721.

3. Glasgow Corpn v Muir [1943] AC 448 at 457 per Lord MacMillan. However, there may be cases where the circumstances of the defendant are relevant: an example is Herrington v BRB [1972] AC 877 where in relation to the liability of an occupier to a trespasser it was said that the knowledge, ability and resources of the defendant would be relevant. See also Goldman v Hargrave [1969] 1 AC 645.

4. Another example is Buckley v Smith Transport [1946] 4 DLR 715 (the case of the insane lorry driver) where the moral blameworthiness of the actual defendant was nil (unless he knew the nature of his disability), but on the other hand a member of the public is entitled to expect that he will not be hit by erratically driven lorries. Or is being struck by a syphilitic lorry driver one of the risks we must expect to put up with?

5. Glnsgow Corpn v Muir [1943] AC 448.

6. McHale v Watson [1966] ALR 513; Ryan v Hickson (1975) 55 DLR 3d 1967.

7. Nettleship v Weston [1971] 2 QB 691; The Lady Gwendolen [1965] p 294.

8. (1837) 3 Bing NC 468, 132 ER 490.

9. See also Blyth v Birmingham Waterworks (1856) 11 Ex 780, 156 ER 1947: ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do’.

10. [1943] AC 448 at 457.

11. See generally Seavey, ‘Negligence - subjective or objective’ (1927) 41 Harv LR 1 where it is argued that the reasonable man in the instant case does possess the physical characteristics of the actual defendant and will bejudged accordingly. This may involve a different (and even higher standard), eg the man with poor eyesight should realise that he should not drive.

12. Eg, automatism which is a possible defence in tort: Roberts v Ramsbottom [1980] 1 All ER 7: however the defendant was held liable because he should have realised that his driving would be impaired.

13. [1958] 2 QB 265.

14. See generally Kidner, ‘Resiling from the Anns principle: the variable nature of proximity in negligence’ (1987) 7 LS 319.

15. See for example Muirhead v Industrial Tank Specialities Ltd [1986] QB 507; Sutherland Shire Council v Hyman (1985) 60 ALR 1; Caparo v Dickman [1990] 1 All ER 705.

16. (1985) 162 CLR 376; noted by S. Todd (1989) 105 LQR 24.

17. [1971] 2 QB 691. The result of the case was that the defendant was held liable, but the plaintiff was held 50% contributorily negligent, Megaw LJ dissenting on this point.

18. See McCrane v Riding [1938] 1 All ER 157 and R v Preston Justices, cx p Lyons [1982] RTR 173 where the learner driver was convicted of driving without due care and attention even though he was following the orders of his professional instructor.

19. There is one case implicitly against this view: in Waugh v Allan [1964] 2 Lloyd's Rep 1 the plaintiff was injured by the defendant lorry driver who had suffered a coronary thrombosis. He had been ill before commencing driving but had recovered and the House of Lords held he was not negligent in undertaking driving. Lord Reid said that he was not negligent in driving off so soon after his illness and ‘no other fault could be imputed to him’. Negligence while driving was not alleged, but the comment suggests that he would not have been liable. The case could be argued as one of automatism, ie after the heart attack he could not be said to have been driving at all, but this explanation is not really satisfactory and one wonders why users of the highway should bear the risk of unexpected illness on the part of drivers.

20. [1971] 2 QB 691 at 699-701.

21. (1986) 162 CLR 376 at 386.

22. [1965] P294.

23. [1987] QB 730 at 750, CA. Reversed on appeal on a different issue [1988] AC 1074.

24. McHale v Watson (1966) 115 CLR 199; see also Ryan v Hickson (1975) 55 DLR 3d 196 where it is argued that a child who engages in an adult activity (here driving a snowmobile) may be held to the adult standard.

25. Herrington v BRB [1972] AC 877 is an exception but it may be argued that in occupiers liability the status of the parties is relevant: however this is not a convincing argument as it is not obvious that a plaintiff should he entitled to expect a higher level of care from a person with greater resources.

26. [1990] 3 All ER 237.

27. Dann v Hamilton [1939] 1 KB 509 (contributory negligence not pleaded); Owens v Brimmell [1977] QB 859.

28. [1978] RTR426.

29. [1939] 1 KB 509.

30. [1971] AC 793.

31. Does this mean that if 1 have my watch repaired by a blacksmith he does not even owe the standard of the reasonable blacksmith? The answer must be no because MLC v Evatt was dealing with the criteria for the existence of a duty in relation to statements, and the problem over the appropriate standard of care was a policy reason for denying a duty. In the case of the blacksmith there is no doubt that he owes a duty not to cause physical damage carelessly, and the only question is whether this imports the standard of the reasonable blacksmith, the reasonable watchmaker, or the duty to refuse to do the job.

32. [1938] 1 All ER 566. See also Miller v Millward [1935] NZLR s 12.

33. In the event the judge was not satisfied that the earpiercing caused the infection.

34. The same principle should apply if the plaintiff is not actually aware, but the defendant has taken reasonable steps to bring his limited skills to the attention of a reasonable person in the position of the plaintiff.

35. Reid v Rush and Tompkins [1989] 3 All ER 228; Tai Hing Ltd v Liu Chong Hing Bank [1986] AC 80. However, in many cases, especially where implied terms are concerned, the contractual duty will be the same as the tort duty.

36. In Nettleship v Weston [1971]2 QB 691 Salmon LJ argued that the learner driver had voluntarily assumed the ordinary standard of care by saying that she was insured.

37. Smith v Eric Bush [1990] AC 831.

38. (1948) 77 CLR 39.

39. The volenti doctrine cannot be applied in road accident cases: s 149(3), Road Traffic Act 1988; Pitts v Hunt [ 19901 3 WLR 542.

40. (1986) 162 CLR 376; see also Chang v Chang [1973] 1 NSWLR 708 (a learner driver case) and Roggenkamp v Bennett (1950) 80 CLR 292 (a drunk driver case).

41. It was decided on the facts that the driver was in breach of even that lower standard and that the plaintiff was contributorily negligent. Cook was followed in Ricketts v Laws (1988) 14 NSWLR 311 with the same result.

42. In Nettleship v Weston [1971] 2 QB 691 Lord Denning reduced the plaintiff's damages on the grounds of joint responsibility for the accident: ‘their joint driving must come up to the high standard required of a single individual’ and in the absence of evidence to the contrary they must be held equally responsible. This seems rather onerous on the supervisor. Salmon LJ adopted contributory negligence to reduce the damages, but this was rejected by Megaw LJ.

43. Would it be possible to say that a non-instructor/passenger is contributory negligent, but an instructor/passenger is not? The answer may well be yes.

44. Cook v Cook (1986) 162 CLR 376 at 382.

45. [1971] 2 QB 691 at 70%9.

46. Ibid at 703.

47. (1948) 77 CLR 39.

48. Salmon LJ was referring to a drunk driver case.

49. [1963] 2 QB 43.

50. See also McCornzskey v McDermott [1974] IR 75 where the plaintiff was the navigator in the defendant's car in a rally: it was held that the standard was that of the reasonable competitive rally driver.

51. The volenti doctrine was excluded by Diplock LJ. Compare Murray v Harringay Arena [1951] 2 KB 529 where a spectator was struck by a puck at an ice hockey match: it was held that it was an implied term of the contract that the spectator takes the risk of damage incidental to the game. See also Hull v Brooklandr Auto Racing Club [ 19331 1 KB 205.

52. [1983] 1 QB 1034.

53. Dixon J was the only judge in Insurance Commissioner v Joyce (1948) 77 CLR 39 fully to espouse this principle and in his dissent he thought that the plaintiff should be compensated because there was no evidence that he fully appreciated the driver's drunken condition.

54. (1986) 162 CLR 376.

55. (1988) 14 NSWLR 311.

56. [1954] 2 All ER 368.

57. But compare Latimer v AEC [1952] 2 QB 701 where the difficulty of remedial measures after a flood in a factory justified exposing the workers to a risk. In both these cases it may be argued that the risk is justified, but that does not answer the question of who should bear the burden of the risk. In Latimer the employer may have been justified in resuming work, but was he justified in imposing the risk of injury arising from that decision on the employees, or should he have assumed it himself?

58. [1963] 2 QB 43.

59. [1987] 1 QB 730 at 750, CA. The issue of standard of care did not arise in the House of Lords: [1988] AC 1074.

60. This was recognised by Dixon J in Insurance Commissioner v Joyce (1948) 77 CLR 39.

61. This is where the instructor is not slow to correct the error of the learner.

62. Justice in this context relates to the existing structure of the tort of negligence and not to the rather different demands of social policy.

63. See for example Titchener v British Railways Board [1983] 3 All ER 770; Morris v Murray [1990] 3 All ER 801..

64. [1939] 1 KB 509.

65. Section 149(3), Road Traffic Act 1988 replacing s 148(3), Road Traffic Act 1972; Pitts v Hunt [1990] 3 WLR 542; Winnik v Dick 1981 SLT 101; contra Ashton v Tunzer [1981] QB 137.

66. Nettleship v Weston [1971] 2 QB 691 per Salmon LJ; Winnik v Dick 1981 SLT 101; Ashton v Turner [1981] 1 QB 137; contra Dann v Hamilton [1939] 1 KB 509.

67. Morris v Murray [1990] 3 All ER 801.

68. See Jaffey, , ‘Volenti non fit injuria’ [1985] CLJ 87 at p 102 Google Scholar. The fact that in Nettleship v Weston the plaintiff's knowledge that the defendant was insured altered the situation in his favour is also relevant, as is the policy behind the Road Traffic Act 1988.

69. [1990] 3 All ER 801.

70. Fox LJ considered this point but said that ‘the wild irresponsiblity of the venture is such that the law should not intervene to award damages and should leave the loss where it falls’.

71. [1971] 2 QB 691 at 701. See also Dube v Labar (1986) 27 DLR 4th 653 to the same effect. However the doctrine was applied in relation to an exclusion notice in a car in Bennett v Tugwell [1971] 2 All ER 248.

74. [1926] AC 725; see also ICI v Shutwell [1965] AC 656.

73. See Jaffey, , ‘Volenti non fit injuria’ [1985] CLJ 87 CrossRefGoogle Scholar where he says that the difference between the proximity view and volenti is semantic only.

74. [1990] 1 QB 1 at 35. See also Thackwell v Barclays Bank [1986] 1 All ER 676 (a case of conversion of a cheque); and Saunders v Edwards [1987] 1 WLR 1116 (fraudulent misrepresentation to avoid stamp duty on the sale of a lease).

75. [1990] 3 WLR 542.

76. (1978) 138 CLR 438 (not cited in Ashton v Turner. Jackson v Harrison distinguishes the earlier case of Smith v Jenkins (1970) 119 CLR 397 which was applied in Ashton v Turner. See also Goldbolt v Fittock (1964) NSWR 22.

77. The court distinguished Smith v Jenkins (1970) 119 CLR 397 where the passenger was injured by the negligent driving of the defendant of a car which they had jointly stolen.

78. [1990] 3 WLR 542 at 549. He did so on the ground that it then becomes unnecessary to assess the degree of the moral turpitude involved, and he specifically rejected public conscience as a test for the applicability of the maxim.

79. Per Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116 at 1134.

80. The ex turpi defence is not affected by s 149(3), Road Traffic Act 1988; Pitts v Hunt [1990] 3 WLR 542.

81. In Pitts v Hunt at first instance [1989] 3 WLR 795 it was suggested that it is possible to hold the plaintiff to be 100% contributorily negligent. However, in the Court of Appeal [1990] 3 WLR 542 it was said that this is logically unsupportable. The Law Reform (Contributory Negligence) Act 1945 requires that the court must be satisfied that there is fault on the part of both parties, and, if that is so, presupposes that the person suffering the damage will recover some damages as the Act states that the plaintiff's damages shall be reduced and not eliminated. Beldam LJ said that ‘to hold the claimant is 100% responsible is not to hold that he shared in the responsibility for the damage’.

82. Owens v Brimmell [1977] QB 859.

83. For example the slightly drunk passenger is contributorily negligent but the very drunk is not (except where the lift was planned in advance) because at the time of entering the car he is unable to appreciate the risk. See Owens v Brimmell [1977] QB 859 and Dixon v King [1975] 2 NZLR 357.

84. [1938] 1 All ER 566; Wooldridge v Sumner [1963] 2 QB 43 might at first sight appear to be such a case, but it might have been possible to hold the plain tiff contributorily negligent on the ground that he had disobeyed an instruction from the steward of the course to retreat behind the running track whereas he only went behind the line of tubs in front of the track marking out the competition area.

85. However, a learner does not have a right to be taught, and if he is known to be much more dangerous than the usual learner it might be contributorily negligent to teach him.

86. [1963] 2 QB 43.

87. [1958] 2QB 265.

88. Eg, the relatively problem (ie that a plaintiff is better off if he is injured by a very negligent defendant rather than a slightly negligent defendant). There are also problems of balancing responsibility for different sources of the injury, as in the seat belt cases.