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Vol 11 No 1
March 1991

Legal Studies
The variable standard of care,
contributory negligence and volenti
Richard Kidner
Reader in Law, University College of Wales, Aberystwyth

One of the problems which arises in the tort of negligence is where the
plaintiff is aware of certain characteristics of the defendant which
indicate that the defendant is incapable of achieving the usual standard of care, and yet the plaintiff enters into or continues a relationship
with that person. Entering a car driven by a drunk driver is a simple
example. There seems to be a common feeling that such a plaintiff is
'less deserving' and that it is a necessary consequence of the fault
system that he should bear at least part of the responsibility for his
loss. Recent developments, particularly in Australia, have suggested
different approaches to this problem which raise issues about the
nature and role of the standard of care, as well as about the relationship between the standard of care and various defences to negligence.
There may be other situations where similar difficulties arise, but
which are not based on the plaintiff knowing of the defendant's disability. The liability of children or of the insane are examples where it
might be felt that the blameworthiness of the actual defendant does not
justify imposing liability, even though he has failed to live up to the
standard of the reasonable man. Here again attempts have been made
to resolve this issue either by saying that there was no duty or by
varying the standard of care by attributing characteristics of the
actual defendant to the reasonable man and judging the defendant on
that basis.
The aim of this article is to discuss the various ways in which these
problems have been approached. These include regarding it as a duty
issue, or as a matter of varying the standard of care, or of applying the
various defences to negligence such as volenti non fit injuria, contributory negligence or ex turpi causa non oritur actio.

Legal Studies

The duty of care

The issue is not one of duty of care, although it is often presented as such.
Whether a duty exists depends on proximity, that is whether there is a
sufficiently close relationship between the parties, and in the case of
physical damage the required degree of proximity is that of foresight of
damage to the plaintiff. This depends on categories of circumstances, so
that we can say that all drivers owe a duty to their passengers (although
this could be negatived by consent or ex turpicausa). It follows that a learner
driver owes a duty to his passenger, and the question then relates to the
content of the duty rather than whether a duty exists or not, ie is the
standard that of the reasonable driver or the reasonable learner driver?
In the case of MLC v Evatt' this relationship between duty of care and
standard of care was confused. That case involved the question whether a
person was liable for giving advice even though he was not in the business
of giving advice. Lord Diplock argued against liability on the ground that
the only possible standard of care which could be owed would have to be
based on the reasonable professional adviser and therefore it would be
wrong to impose a duty of care on a person who was not such a
professional: in other words there was no duty because the only possible
standard of care was too high. An alternative approach would be to say
that a duty arises where the relationship is sufficiently close (in the view of
the minority in MLC v Evatt that would be if the advice was given on a
business occasion) and that the question is then one of the level of care
owed. This would depend on the circumstances, and in this particular
case could have been based on the level of skill which the plaintiff was
entitled to expect.
Another area where the duty approach might be thought applicable is
in relation to the liability of the insane. For example in Buckley v Smith
Transport' the defendant was suffering from syphilis and was under the
impression that his lorry was being driven by remote control. It was
decided that he was not liable for injuring the plaintiff because he was
unable to understand the nature of the duty which he owed and was
incapable ofdischargingit. This is not a duty issue, but rather the question
was whether, as all lorry drivers owe a duty to other road users, the
standard required ofthis particular defendant should be varied because of
his disability. The central question both in cases where the plaintiffknows
of the disability and where he does not is whether the standard of care
should be varied, or whether such defendants should be held to the
standard of the reasonable man.
The function of the standard of care
It is universally accepted that the standard of care in negligence must be
objectively determined and that 'it eliminates the personal equation and is
independent of the idiosyncracies of the particular person whose conduct
1. [1971] AC 793.
2. [1946]4 DLR 721.

The variable standard of care

is in question'.' This however does not by itself enable a court to

determine what level of care is owed in a particular case, for even if we
use the device of the mythical reasonable man we must still give him
some characteristics based on the circumstances of the case, for example
we can talk of the reasonable surgeon, the reasonable driver or the
reasonable handyman. Such a formula will solve most cases, but there
may be some instances where we may be prompted to say that the
reasonable man should be given more characteristics, such as the
reasonable newly qualified surgeon, the reasonable learner driver or the
reasonable inexperienced handyman. Such a temptation will only exist
when the relationship between the plaintiff and the defendant is closer
than that of mere foresight, usually when the plaintiff is fully aware of the
particular characteristics of the defendant to whom he then entrusts
himself. The question therefore is whether the law would be justified in
such circumstances in varying the standard of care or rather making the
standard more specific to the class of individuals of whom the defendant
is one. Whether this is so depends to some extent on the function of the
standard of care.
The standard of care performs two roles: on the one hand it offers
protection to a defendant so that he is not liable unless he has been
careless, and on the other hand it protects a potential plaintiff by
enabling him to recover compensation if he has not been given the degree
of safety he is entitled to expect. Generally these two functions will point
to the same conclusion, but there may be cases where they do not, for
example in injuries occasioned by children. In that example it could be
argued that it would be unfair to condemn a child if he was incapable of
understanding the risk created by his actions, but equally it could be said
that in their daily lives people are entitled to expect that they will not be
injured by behaviour which is out of the ordinary, whoever the actor
might be. 4
The function of the standard of care as protecting defendants does not
mean that liability should be limited to morally blameworthy acts but
the issue is whether in the circumstances of the defendant's acts he
should have behaved differently. In considering whether he could have
behaved differently his ability as an individual is irrelevant' but there is
a question as to how far the characteristics of the class of which the
defendant is a member will be relevant. As in many other areas of

3. Glasgow Corpn v Muir[1943] AC 448 at 457perLord MacMillan. However, there may be

cases where the circumstances ofthe defendant are relevant: an example is HerringtonvBRB
[1972] AC 877 where in relation to the liability ofan occupier to a trespasser it was said that
the knowledge, ability and resources ofthe 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 nail (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. Glasgow Corpn v Muir [1943] AC 448.

Legal Studies

negligence the question comes down to one ofcategorisation of 'relevant'

circumstances. B-ing a child is relevant,6 but being inexperienced is not.'
When we look at the standard of care from the plaintiff's point of view
we ask whether he has received the level of safety which he is entitled to
expect. This means that a person is entitled to engage in the activities of
daily life in the expectation that he will not suffer harm from unusual or
unexpected risks. In other words what risks can a person be expected to
put up with?
In most cases the two functions of the standard of care bring about the
same result, but will not do so where the defendant is a member of a class
which is incapable of achieving the required level ofsafety. The question
is how to resolve that problem.
The legal theory of the standard of care (i) Glasgow Corpn v
Muir
The various dicta on the standard of care show that the appropriate
measure is purely objective. Thus, in Vaughan v Menlove Tindal CJ said
that
'instead, therefore, of saying that the liability for negligence should be
co-extensive with the judgment of each individual, which would be as
variable as the length of the foot of each individual, we ought rather to
adhere to the rules which requires in all cases a regard to caution such as
a man of ordinary prudence would observe'Y
However this does not resolve the
problem, for as Lord MacMillan

observed in Glasgow Corpn v Muir'

'... there is a sense in which the standard of care of the reasonable man
involves in its application a subjective element. It is still left to thejudge
to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation and what, accordingly, the
party sought to be made liable ought to have foreseen'.
Thus we posit an objectively constructed reasonable man and ask him a
subjective question. But the problem is to define the attributes which this
reasonable man in this case is supposed to possess. Does he have a
wooden leg like the actual defendant, or is he as myopic as the actual

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 vBinningham 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.

The variable standard of care

defendant or is he as over-confident as the actual defendant?" Even ifwe

were to apply a lower standard by making thejudgment on the basis of
the standard of the reasonable man who has the same disability as the
defendant, that would not necessarily relieve him of liability since in
many cases he would be negligent in engaging in the activity, such as
driving, when he knows that his disability disqualifies him from doing so.
But there may be cases where he is unaware of the defect,' 2 or where the
plaintiffknows of the defect (eg drunkeness on the part of the driver) and
knowingly puts himself into a position where he is at risk because of the
defendant's disability. Both examples raise issues as to the degree of
subjectivity (or specific categorisation) in the standard of care.
The traditional view of the standard of care as established in Glasgow
Corpn v Muir affirms the objective nature of the standard of care but
leaves unclear just how specific 'the circumstances of the case' may be
(eg the reasonable driver or the reasonable jaguar driver?). Also unclear
is which attributes of the actual defendant may be attributed to the
reasonable man (eg the reasonable driver or the reasonable 75 year old
driver?). In general the relevant circumstances will be the physical
conditions in which the act takes place, such as driving at night or on a
narrow road and should exclude those factors which describe the actor
rather than the act. Thus in the example of the elderly driver the
question would be whether the reasonable driver would have refrained
from the act in the circumstances, the latter including the state of the
road and the weather, but not including the defendant's age. In relating
the standard of care to the circumstances of the case the court can take
account of the relative lack of skill .of the defendant by referring to the
level of safety which a person is entitled to expect. Thus in Wells v Cooper 3
the question was whether the defendant householder had acted reasonably in using 3/4 inch screws to fix a door handle. The court rejected the
suggestion that the appropriate standard was that of the professional
carpenter working for reward, and said that the test was that of the
reasonable carpenter, noting that 'the defendant's experience of domestic carpentry is sufficient to justify his inclusion in the category of
reasonably competent carpenters'. Thus the court acknowledged that
minor domestic carpentry is usually done by householders, that in
relation to such matters one cannot expect any higher degree of safety,
and therefore that the applicable standard was that of the reasonable
handyman. Thus the specific attributes of the reasonable man were
determined by what risks we can be expected to put up with, in this case

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.

Legal Studies

the risk that the reasonable handyman will be too optimistic about the
holding power of 3/4 inch screws.
The legal theory of standard of care: (2) proximity derived
An alternative way of looking at the standard of care is to relate it to the
source of the obligation, that is the duty ofcare. In other words looking at
why the obligation arises may tell us something of the content of the
obligation. In most cases this approach will make no difference, except in
those cases where the plaintiffknows that the defendant suffers from some
disability which prevents him from exercising the usual level of care.
The modern view ofduty of care is that it is based on proximity, that is
on the relationship between the plaintiff and the defendant. 4 In cases of
physical damage the necessary degree of proximity is established by
foresight of damage, but in other cases a closer relationship may be
required.' 5 The argument in relation to the standard of care is that the
content of the duty flows from the relationship between the parties. Where
that relationship is one of foresight of damage there is no difficulty in
applying the standard based on the foresight of the reasonable man; but
where that relationship is different, that difference may be reflected in the
content of the standard of care. Thus in Cook v Cook, 6 where the plaintiff
was a passenger injured by a learner driver, the majority said that
'ifa person were deliberately to agree to allow a blacksmith to seek to mend
his watch, the blacksmith would be required to act as a reasonable person
should in the circumstances, though he would not be subject to the high
standard of care which would be required of a professional watchmaker.
The reason for that is not that the objective general standard required by
the law of negligence is abandoned. It is that the more detailed definition
of the content of that objective standard will depend upon the relevant
relationship of proximity from which it flows and into which the reasonable person of the law of negligence must be projected ... '
Is there any necessary link between proximity and the content of the
duty to take care? It sounds logical that if the obligation exists because of
the relationship between the parties, then the nature of that obligation
should equally be determined by that relationship. However, such a
conclusion is not a necessary one for it could equally well be argued that
proximity merely raises the obligation to take care, the nature of the
obligation being determined by other criteria. Indeed, as will be seen,
the proximity derived view of the standard of care could lead to considerable problems if universally applied and there may be very good reasons
both of principle and logic to determine duty and standard of care
separately. In addition, many, but not all, of the difficulties which the

14. See generally Kidner, 'Resiling from the Anns principle: the variable nature of
proximity in negligence' (1987) 7 LS 319.
15. See for example Muirheadv IndustrialTank SpecialitiesLtd [ 186] QB 507; SutherlandShire

Council v Heyman (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.

The variable standard of care

proximity view attempts to solve can be dealt with by the various

defences to negligence - the issue of drunken drivers is an example of
this. A particular difficulty of policy with the proximity view is that it
introduces the unpopular doctrine of volenti by the back door, and may
even go so far as to preclude a person who merely knows of the defect
from suing, thus extending the defence from volenti to scienti. On the one
hand it is said that it is only right to deny recovery in a case where both the
defendant is unable to reach the required standard and the plaintiff is
fully aware of that fact and nevertheless continues his relationship with
the defendant. In other words a plaintiff cannot expect more by way of
safety than he knows the defendant can provide.
What follows will examine the way in which the courts have
approached this problem, and it is convenient to divide the cases into
three groups: (1) application of the purely objective principle; (2) the
holding out principle; and (3) the proximity principle. It will then be
necessary to examine the relationship between the standard of care and
the defences of volenti, contributory negligence and ex turpi causa.
The purely objective principle
The starting point for examination of this principle must be Nettleship v
Weston 7 where the plaintiff was'injured while teaching a learner driver.
Two points were accepted without argument: first, that so far as the
criminal law is concerned a learner driver is expected to adhere to the
same standard as other drivers, and it is no defence that he was doing his
best." The reason must be that the function of the criminal law is to
protect the public and the criminal law looks solely at the standard of
safety that other highway users are entitled to expect.
Secondly, there is no doubt that in relation to other highway users the
standard of care in the civil law is purely objective. Again, the reason is
the level of safety which they are entitled to expect and the fact that in
relation to them the inexperience of the driver is not a material or known
factor. In engaging in the act of driving all drivers must conform to the
reasonable standard of care appropriate for the circumstances, those
circumstances being only factors external to the individual actor.' 9 The
17. [1971] 2 QB 691. The result ofthe case was that the defendant was held liable, but the
plaintiff was held 50% contributorily negligent, Megaw LJ dissenting on this point.
18. See McCranevRiding [1938] 1 All ER 157 and R v PrestonJustices,exp Lyons [1982] RTR
173 where the learner driver was convicted ofdriving 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 [19641 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 offso 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.

Legal Studies

proximity view of the standard of care reaches the same conclusion

because the relationship between the parties is not special but depends
only on foresight of damage objectively determined.
As to the special factors in Nettleship, that is the passenger's knowledge
of the driver's inexperience, Lord Denning took a robust attitude. He
said that
'seeing that the law lays down, for all drivers ofmotor cars, a standard of
care to which all must conform, I think that even a learner driver, so long
as he is the sole driver, must attain the same standard towards all
passengers in the car, including the "instructor" ,20
He made plain that his reasons were overtly due to policy saying that
'.. . the injured person is only able to recover if the driver is liable in law.
So the judges see to it that he is liable, unless he can prove care and skill
of a high standard ...

Thus we are, in this branch of the law, moving

away from the concept: "No liability without fault". We are beginning to
apply the test: "on whom should the risk fall". Morally, the learner
driver is not at fault: but legally20she is liable to be because she is insured
and the risk should fall on her.
This view was criticised in Cook v Cook2' on the grounds that social policy
is a matter for the legislature and not for the courts, but although in
Nettleship the point was made rather bluntly, it is quite proper to adopt a
policy argument when principle and authority presents the court with a
choice. However, it is interesting that neither Lord Denning nor Megaw
LJ advanced an argument based on principle, but rather both judges
relied on the uncertainties which would arise from adopting the proximity view, principally that there could be no one standard for learner
drivers but rather that the standard would need to vary depending on the
degree of experience ahd skill of the learner.
Other cases also illustrate the general principle that vis-a-vis 'unrelated' plaintiffs the incompetent or inexperienced defendant owes the
usual standard of care. Thus in The Lady Gwendoline22 a brewing company
(Guinness) who also operated ships were required to conform to the
standard of the reasonable shipowner in controlling their shipping
activities, and could not plead their inexperience in such matters: the
standard was not that of the reasonable brewer who operated ships.
Again in Wilsher v Essex HealthAuthority23 Mustill LJ made it clear that the
'notion of a duty tailored to the actor, rather than to the act which he
elects to perform, has no place in the law of tort'. The only exception to
this principle seems to be children where it is thought that the test is the

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

21. (1986) 162 CLR 376 at 386.

22. [1965] P 294.

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

The variable standard of care

standard of the reasonable child of that age. 24 However, that view did not
go unchallenged since in the leading case, McHale v Watson,24 Menzies J
vigorously dissented, arguing that the adult standard should apply since
'the law of negligence is primarily concerned with the circumstances
under which a person who suffers damage may recover compensation,
and there is no necessary connection between legal liability to make
compensation and- moral culpability'. That is true, but equally the
exception for children probably has a great deaLto do with the fact that
children will not always be covered by insurance. If the contest is
between two 'innocent' and uninsured parties, the traditional ideas of
fault are more likely to be resuscitated.
However, inexperience or incompetence may not be the only factors
which limit the defendant's ability to reach the usual standard. He may
be inhibited by lack of resources or by an obligation which he owes to
another or to the state. Lack of resources would not normally be relevant25 but an example of the latter problem is Knight v Home Office26
where the deceased committed suicide in prison and it was argued that
had he been detained in a secure mental hospital (as was intended) he
would not have had the opportunity to kill himself. Pill J said that 'it is
for the court to consider what standard of care is appropriate to the
particular relationship and in the particular situation', and he held that
the standard of care owed in a prison was not as high as in a psychiatric
hospital. This can be justified, not on the grounds of lack of resources
(although the judge said that that was relevant to a limited extent), but
rather on the ground that the function ofa prison is different from that of
a psychiatric hospital and that the other obligations owed by the prison
(for example in relation to security) may be one of the 'circumstances of
the case' which limit or vary the duty to the inmates. 'The duty is tailored
to the act and function to be performed'.
Concerning cases where there is a particular relationship between the
parties there are other cases which take the same line as Nettleship v
Weston. The cases on drunken driving all affirm that the driver owes a
duty to the passenger, although the latter may be held to be contributorily negligent. A similar kind of case is Grego~y v Kely where the
plaintiff accepted a lift in a car knowing that the footbrake did not work:
here the defendant could not argue that he only owed the duty of a
reasonable driver of a car with no brakes. The plaintiff was held to be

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. HerringtonvBRB [1972] AC 877 is an exception but it may be argued that in occupiers
liability the status ofthe parties is relevant: however this is not a convincing argument as it
is not obvious that a plaintiff should be 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
Brimmelt [1977] QB 859.
28. [1978] RTR 426.

10

Legal Studies

contributorily negligent, but if the proximity view had been taken he

would have received nothing at all. The argument in these cases is
exemplified by the rejection of the defence of volentiin Dann v Hamilton29 on
the grounds that the defendant should not be exculpated altogether
merely because his wrongdoing is obvious.
The idea that the standard of care cannot be varied by the nature of
the relationship between the parties is also illustrated by MLC v Evatt
where it was argued that the only objectively determinate standard of
care in a negligent misstatement case is that of the professional adviser.
Lord Diplock said that 'there is no halfway house between that and the
common law duty which each man owes his neighbour irrespective of his
skill - the duty of honesty'. However, rather than have the effect of
raising the standard required of the non-professional adviser, the Privy
Council felt that as this standard was too onerous, no duty was owed at
all.3' As seen above this case confuses the issues of duty and standard of
care, but is a good illustration of the problem of 'fairness' that can arise
where the plaintiff knows of the inexperience of the defendant.
The holding out principle
A view which can be seen as a halfway house between the purely
objective principle and the proximity view, is the idea that the standard
of care may be varied where the defendant has held himself out as only
possessing a limited degree of skill. This is somewhat akin to the volenti
defence, that is that the plaintiff agrees that he should only be owed a
limited level of care, and for that reason the idea is likely to be treated
with the same strictness as that defence. Indeed it is most likely to arise in
cases where there is a contractual relationship between the parties. An
example is Philipsv Whiteley where the plaintiff had her ears pierced by a
jeweller and later complained of an ear infection.33 GoddardJ said that
the defendant had taken reasonable steps as a jeweller and was not
required to conform to the standards of the reasonable surgeon. The
reason was that the jeweller does not hold himself out as having any
greater skill than that of a reasonablejeweller and the plaintiff, knowing
who the defendant was, could not expect any higher standard of care.
Thus the duty to take care exists because of the relationship between the

29. [1939] 1 KB 509.

30. [1971] AC 793.
31. Does this mean that if I 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.

The variable standard of care

11

parties, but the content of that duty is limited because the plaintiff was
aware3 4 that the defendant held himself out as having limited skills.
This argument fits in with the view that where the parties are in a
contractual relationship the law of tort should not impose any higher
standard of care than exists under the contract. 35 Thus it could be said
that in Philipsv Whiteley the relationship was essentially contractual and
the law of contract would only require the defendant to act as a reason.able jeweller.
While it is agreed that the holding out principle (or that of voluntary
assumption of responsibility) 36 may increase the standard of care
required, the problem is whether it ought to be allowed to reduce the
level of care. Where a specific declaration of lack of skill is made by a
person acting in the course of a business that might run into difficulties
with the Unfair Contract Terms Act 1977 as being a term or notice which
restricts liability which would otherwise arise,3 7 but that would not be so
where the limitation arises solely from the obligations derived from the
objective relationship of the parties. Thus thejeweller cannot reduce his
duty by saying that he is incompetent at piercing ears for he must at least
be held to the standard of the reasonable jeweller. Actually the ear
piercing example is not a very good one for it can easily be argued that
the standard ofcare is that which people in general are entitled to expect,
and as ear piercing byjewellers is universal, that must be the appropriate
standard, even apart from the holding out issue. The matter can be
tested by asking whether a woman who has her ears pierced by ajeweller
could be held to be contributorily negligent, and the answer must be no.
She has not disregarded her own safety as ear piercing by jewellers is
common practice.
The problem does arise if we take the example of a blacksmith
repairing a watch. Here there are a number of possibilities: (i) the
appropriate standard is that of the reasonable blacksmith (either by
reason of holding out or by the proximity test of the standard of care) (no
damages); (ii) the standard is that of the reasonable watch repairer (full
damages); (iii) the standard is as in (ii), but the plaintiffis contributorily
negligent (reduced damages) or has consented (no damages). Philipsv
Whiteley can be explained either because the ear piercing did not in fact
cause the damage or because the ordinary standard of care was applied
in that the standard of the jeweller represents the level of safety a person
is entitled to expect whoever is doing the piercing. Accordingly there
seems no good reason for saying that the holding out principle can

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. Reidv Rush and Tompkins [1989] 3 All ER 228; TaiHingLtdvLiu ChongHingBank [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 [197112 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.

12

Legal Studies

reduce the standard of care below that which a person is entitled to

expect for that relevant act, and that problems such as that of the
blacksmith and the watch repairer can be resolved by contributory
negligence or consent.
The proximity principle
There are a number of cases, mainly from Australia, which say that as
the duty to take care is governed by the nature of the relationship
between the parties, it follows that the content of that duty should also be
governed by that relationship. The story begins with the judgment of
Dixon J in The Insurance Commissioner v Joyce, 5 a case of a passenger
injured by the negligence of a drunk driver. He outlined three ways of
dealing with the problem, but discarded the idea of adopting the ordinary level of care and then applying the defences of contributory negligence or volenti. He said
'It appears to me that the circumstances in which the defendant accepts
the plaintiff as a passenger and in which the plaintiff accepts the accommodation in the conveyance should determine the measure of duty and
that it is a more satisfactory manner of ascertaining their respective
rights than by opposing to a fixed measure of duty exculpatory considerations, such as voluntary assumption of risk or contributory
negligence'.
Thus the level of care owed is determined by the relationship between
the parties, of which an important factor is whether the plaintiffknows of
the defendant's defect. Dixon J thought that in practice this approach
would not produce any different result from adopting the alternative
approach, but it should be remembered that if the proximity test is used
the plaintiffgets no damages. This is the same result as the application of
volenti, but that doctrine has been looked on with disfavour"9 and is only
rarely applied. If contributory negligence is used the result will be
different for there the plaintiff will receive a portion of his damages.
The proximity view was recently approved by the High Court of
Australia in Cook v Cook' where the plaintiffpassenger was injured by the
negligence of an unlicensed driver. The court adopted the view that the
standard should be that of an inexperienced driver4 because the 'special
and exceptional facts may so far transform the relationship between
driver and passenger that it would be unreal to regard the relevant
relationship as being simply the ordinary one ofdriver and passenger...'
The idea is that as the duty arises out of the relationship, therefore the
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 [1990] 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.

The variable standard of care

13

content of the duty must be related to that relationship, but that does not
explain why, either at the duty or at the standard of care stage, the
relationship should be regarded as any more specific than that of driver
and passenger. Why adopt the relationship of passenger/learner driver
rather than just passenger/driver?
Cook v Cook did not need to adopt this view as the defendant was held to
be negligent even on the standard of the inexperienced driver, and
anyway the driver was not merely a learner driver but rather a person
who held no licence of any kind at all. Furthermore the plaintiff incited
the defendant to drive even knowing that she had no licence. Thus the
defences of volenti, contributory negligence and ex turpi causa would have
been available. The problem might have arisen if the driver had held a
provisional licence, for in such a case it would be difficult to say that a
passenger/teacher was contributorily negligent42 (unless her instruction
was negligent) when such circumstances are sanctioned, and even
required, by the law.43 In this situation it might be asked whether it is
right for the proximity view to place the burden of injury on the
passenger/instructor when it is clear that someone has to take the risk as
learner drivers must be taught. In insurance terms the problem is not
large, since learners already pay a higher premium mainly to cover the
risk of damage to third parties and the element of the premium attributable to injury to instructors must be small. This approach was rejected
in Cook v Cook on the ground that social policy was a matter for the
legislature and not for the courts, but the consequences of non-liability
are more serious for a plaintiff in such a situation than the consequences
for a defendant who is held liable.
However, there will be cases, such as Cook v Cook itself, where the
defendant is uninsured, where the Australian courts would argue that
the matter must be resolved by legal theory unencumbered by social
policy. The majority refer to the example of the blacksmith mending a
watch and say that the degree of definition incorporated into the standard (ie the number of attributes given to the reasonable man) will
depend on the relevant relationship of proximity. 'The more detailed
definition of the objective standard of care for the purposes of a particular category of case must necessarily depend upon the identification of
the relationship of proximity which is the touchstone and control of the
relevant category'.'
There are a number of problems with this view. The first is that it is
not necessarily logical to use the relationship which gives rise to the duty

42. In Nettleship v Weston [1971] 2 QB 691 Lord Denning reduced the plaintiff's damages
on the grounds ofjoint responsibility for the accident: 'theirjoint 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.

14

Legal Studies

of care to determine the content of that care. Once the obligation to take
care arises the standard can equally logically be determined by other
factors, and if one element in the standard of care is to be not only the
carelessness of the defendant but also the standard of safety which the
plaintiff is entitled to expect, it is sensible that this should be so.
Secondly, the formula does not explain which attributes of the actual
defendant the reasonable man should be regarded as possessing. This
was an argument used by Megaw LJ in Nettleship v Weston45 when he said
'if this doctrine were to apply, would not logic irresistibly demand that
there should be something more than a single, conventional standard
applicable to anyone who falls into the category of learner driver...?
That standard itself would necessarily vary over a wide range, not
merely with the actual progress of the learner, but also with the passenger's knowledge of that progress...'
Hence the standard owed at the first lesson would differ from that owed
just before the driver takes a driving test, and indeed may vary thereafter.
Equally would it be relevant that the passenger knows that the driver,
albeit qualified, is nervous, temperamental or over-confident? These
criticisms were rejected by the court in Cook v Cook, but only by arguing
that the standard would only be varied in exceptional and rare circumstances, which were referred to as 'special and exceptional in the sense
that they so alter the ordinary relationship of driver and passenger that it
would be plainly unreasonable' for the ordinary standard to apply. This
is not really an answer to the criticisms of Megaw LJ especially as the
proximity based view eschews policy and social expediency and is based
on legal theory. The theory requires us to take account of the duty
relationship between the parties, but only to specify additional attributes
in exceptional circumstances.
Finally the consequences of this view may also be objected to on the
grounds that the result of applying it will often be the same as applying
the defence of volenti and that has been regarded with disfavour. What is
more the result of complete non-compensation could also apply where
the plaintiff merely knows of the risk (scienti) rather than consents to it,
and that would be a considerable and objectionable limitation on the
range of compensation.
However, the proximity based view is an attempt to express a general
notion ofjustice and fairness in such cases and has not been limited to
Australia. Thus in Nettleship v Weston46 Salmon LJ adopted the view of
Dixon J in The Insurance Commissioner v Joyce,47 saying that 'the special
relationship which the passenger has created by accepting a lift in the
circumstances postulated 4 surely cannot entitle him to expect the driver
to discharge a duty of care or skill which ex hypothesi the passenger knows
the driver is incapable of discharging', and he only held the learner
45. [1971] 2 QB 691 at 708-9.
46. Ibid at 703.
47. (1948) 77 CLR 39.
48. Salmon LJ was referring to a drunk driver case.

The variable standard of care

15

driver liable in Nettleship on the grounds that by saying that she was
insured she had voluntarily accepted responsibility.
Similar sentiments can be found in Wooldridge v Sumner"9 where a
horseman engaged in a competition took a corner too fast and the horse
ran into the plaintiff who was standing on the edge of the show area.
Sellers LJ said that
'the relationship ofspectator and competitor or player is a special one, as
I see it, as the standard of conduct of the participant, as accepted and
expected by the spectator, is that which the sport permits or involves.
The different relationship involves its own standard of care'.
Equally Diplock LJ made the point that the spectator knows that the
competitor will concentrate on winning and that in the 'agony of the
moment' he may make a mistake, which because of the expectations of
the spectator, could not be regarded as negligence."0 The case cannot be
explained as one of volenti,5" but perhaps its effect can be tested by
amending the facts. If we assume that the competition was taking place
in field bounded by a fence and that the horse injured A, who was a
spectator inside the fence, and also B, who was a passer by on the road
beyond the fence, could B sue but not A? If the proximity related
standard of care applies then B could sue, but if the explanation is that
what limited the standard of care was not the relationship between the
plaintiff and the defendant, but rather the circumstances of the accident
(rather than the attributes of the defendant), then B could not sue. The
latter is a feasible answer, although in these particular circumstances it
may be rather fine to distinguish between the standard of care of a
horseman in the circumstances of a competition and the standard of care
of a horseman/competitor.
Another case which can be explained as either being based on the
relationship of the parties or the circumstances of the case is Marshallv
Osmond52 where a police car pursued suspected criminals and, in stopping, skidded into the criminal's car, injuring one of them. In holding the
driver of the police car not liable it was said that volenti was not applicable
but that the duty was based on the circumstances of the case, ie the
chase. This would mean that if any other road user had been injured in
the chase he would not have been able to sue. This view looks at the
blameworthiness of the defendant and assumes that being injured by a
police car pursuing criminals is a risk of life which we must all accept.
The relationship view would assume that the pursuit isjustified, but that
it is not a risk which should be placed on third parties.
49. [1963] 2 QB 43.
50. See also McComiskgy 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 HarringayArena
[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 Hall v Brooklands Auto Racing Club [1933] 1 KB 205.
52. [1983] 1 QB 1034.

16 Legal Studies
It is interesting to note that in none of the proximity type cases did the
application of that principle make any difference,5 3 which may suggest
that theory may be heading in a different direction from our sense of
justice. Thus it may be commonly agreed that where a person knows of
the disability of the defendant and nevertheless puts himself into a
relationship with him, he should bear part of the blame, but should not
be uncompensated altogether. Thus in both Cook v Cook 4 and in Ricketts v
Laws"5 the inexperienced drivers were held to be in breach of even the
lower standard of care and both passengers were held to be contributorily negligent. The danger of adopting the volenti doctrine by the back
door, or even sliding into a scienti doctrine is a serious risk under this
principle.
However, there are cases where the standard of care is reduced, but
these can be regarded as being based on 'the circumstances of the case'
rather than the attributes of the individual defendant. A clear example is
Watt v Hertfordshire CC16 where the saving of life justified taking a risk, 57
but there may be cases, such as Wooldridge v Sumner 8 where there is little
distinction between the circumstances of the case and the attributes of
the defendant as known to the plaintiff. However, the general proposition in this country at least is that expressed by Mustill LJ in Wilsher v
EssexArea HealthAuthoriy59 when he said that 'this notion ofduty tailored
to the actor, rather than to the act which he elects to perform, has no
place in the law of tort'.
The standard of care and defences to negligence
The problems inherent in adopting a variable standard of care based on
the attributes of the defendant or the relationship between the parties,
and the common feeling that where a person knows of the defendant's
disability he is to some extent responsible for his own damage, have led
to the application of various defences to this situation. The effects of the
defences of violenti and ex turpi causa are the same as adopting a lower
standard of care and saying that the defendant has not been in breach of.
it, whereas contributory negligence attributes responsibility to both

53. DixonJ was the only judge in Insurance Commissioner vJoyce (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 vAEC [ 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 isjustified, but that does not answer the question ofwho 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 ofstandard of care did not arise in the House of

Lords: [1988] AC 1074.

The variable standard of care

17

parties. In most cases it makes no difference whether the lower standard

view is adopted or .volenti is applied, but there will be cases where the
result will be different," such as the straightforward learner driver
case.6 ' However, the lower standard view is probably not acceptable in
theory, and the question is whether the defence can fulfill the requirements ofjustice62 and whether they amount in effect, to adopting varying
standards of care.
Volenti non fit injuria
This doctrine has met with disfavour for some time although it is
occasionally applied where the risk is glaringly obvious.6" There has
been a long debate, beginning with Dann v Hamilton,64 as to whether it
should be applied where the plaintiff is aware of the defendant's disability. Most cases of this kind involve drunken drivers, but that debate is
rather sterile as it is now clear that the Road Traffic Act prevents the
application of the volenti doctrine in road accident cases. 65 It is often said
that the doctrine applies but for the statutory exclusion, 66 and indeed it
has been applied in similar circumstances where the statutory bar does
not apply.67
However, it is arguable that the doctrine should not apply in any case
where the defendant is required to be insured or where the plaintiff
knows that the defendant is in fact insured. 68 The reason is that as volenti
must be based on express or implied agreement, it should not be
assumed that the plaintiff would, if asked, have agreed to absolve the
insurance company in relation to risks for which the defendant has
already paid his premiums, even if he would have been prepared to
absolve the defendant personally. It is not enough to say that the
insurance company stands in the shoes of the defendant, for what would
one make of the reply that the plaintiff would not be willing to take the
risk if the defendant is insured?
Nevertheless in Morris v Murray6 9 the doctrine was applied to the case
of a passenger in a plane operated by a drunk pilot, and it was pointed
out that a clearer case ofgreat danger could hardly be imagined, and that
the sort of errors of judgment which an intoxicated pilot might make
60. This was recognised by Dixon J in Insurance Commissioner vJoyce (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
vHunt [1990) 3 WLR542; WinnikvDick 1981 SLT 101; contraAshton v Turner[1981] QB 137.
66. Nettleshipv 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. SeeJaffey, 'Volenti non fit injuria' [1985] CLJ 87 at p 102. The fact that in Nettleship v
Weston the plaintiffs 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.

18

Legal Studies

were likely to have a disastrous result. Nevertheless it is perhaps unfor-

tunate that this case was not resolved by contributory negligence,'
especially in the light of the bar on the use of volenti in the analogous
circumstances ofdrunk drivers ofmotor vehicles. The problem is whether
the plaintiff should be regarded as wholly responsible for his injuries in
entering the plane knowing of the pilots condition and whether the pilot
should be exculpated merely because the risk he created was obvious. The
difficulty is that the pilot was wholly responsible for the accident happening and the passenger was responsible for being injured by that negligence
by being in the wrong place at the wrong time. No doubt the plaintiff was
careless for his own safety, but it may be doubted whether he should be
regarded as wholly responsible for his injuries.
However, volenti was not applied in Nettleship v Weston" (which was
decided before the Road Traffic Act 1972), where Lord Denning said that
'nothing will suffice short of an agreement to waive any claim for
negligence', and in Letang v Ottawa Electric Railway2 it was said that the
plaintiff must have 'freely and voluntarily, with the full knowledge of the
risk he ran, impliedly agreed to incur it'. The fiction of implied consent in
the circumstances ofan obvious risk is dangerous for it allows the courts to
deny a remedy to the plaintiff when he has been very careless for his own
safety, even where the defendant has also been very careless. Hence the
need to deal strictly with this defence, and the natural desire injustice to
see both parties as partly responsible for the damage.
All this suggests that except in extreme cases there is a general
unwillingness to adopt a solution whereby a plaintiffloses all his damages
because of his knowledge of the defendant's disability, and hence that to
adopt a proximity or relationship based view of the standard of care
(which would have the same result) would be out of step with current
trends. Indeed it would be wrong to allow the proximity view to subvert
the strict controls on the volenti' 3 doctrine, for example by allowing it in
cases short of agreement or by saying that the bar on proceedings
contained in the Road Traffic Act 1988 does not apply where there is no
duty in the first place. However, there may be one exception to this, for it
seems that the ex turpi causa doctrine is now being applied in limited
circumstances, where once volenti might have been chosen.
Ex turpi causa non oritur actio
This maxim has only recently made an appearance in the law of negligence, and again the revival began in Australia. There are now two

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 DubevLabar(1986) 27 DLR4th 653 to the same effect.
However the doctrine was applied in relation to an exclusion notice in a car in Bennett v
Tugwel [1971] 2 All ER 248.
72. [1926] AC 725; see also ICI v Shatwell [1965] AC 656.
73. SeeJaffey, 'Volenti non fit injuria' [1985] CLJ 87 where he says that the difference
between the proximity view and volenti is semantic only.

The variable standard of care

19

distinct approaches to the issue. The first, and more traditional view, is
based directly on public policy, and the second holds that the illegality is
only relevant in so far as it affects the standard of care which one party
can be expected to owe to the other- in other words the relationship view
of the standard of care.
The public policy view is most clearly expressed in cases involving
fraud, especially contractual cases. Thus is Euro-DiamLtd v Butlers74 Kerr
LJ said that
'the ex turpi causa defence ultimately rests on a principle of public policy
that the courts will not assist a plaintiff who has been guilty of illegal (or
immoral) conduct of which the courts should take notice. It applies if in
all .the circumstances it would be an affront to the public conscience to
grant the plaintiff the relief he seeks because the court would thereby
appear to assist in or encourage the plaintiff in his illegal conduct or to
encourage others in similar acts'.
This view may be appropriate where the plaintiff has been guilty of
fraud, but is more difficult to apply to cases of the kind being considered
here. However, the public policy view was adopted by Beldam LJ in Pitts
v Hunt75 where a passenger was denied compensation when he incited an
unlicensed and uninsured driver to drive recklessly. He said that the
plaintiff wasjointly concerned in an act that amounted to manslaughter
and that therefore public policy precluded his claim.
One problem with the public policy view is that it requires ajudgment
based on public conscience as to whether the illegality is so serious as to
preclude recovery, and also whether there is a sufficient causal link
between the illegality and the damage. Distinguishing between grades of
illegality and degrees of causative effect causes such difficulties that the
alternative approach to illegality is preferable.
That alternative approach, currently adopted in Australia, and perhaps also here, is that it is the character of the act rather than its illegality
alone which causes the court to deny a duty of care. Thus in Jackson v
Harrison76 the passenger was injured while travelling with a driver who
had been disqualified from driving. The maxim was not applied because
the illegality did not affect the standard of care which could reasonably
be expected of the driver.7 Mason J said that
'the denial of relief should be related not to the illegal character of the
activity but rather to the character and incidents of the enterprise and to
the hazards which are necessarily inherent in its execution. A more
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 Saundersv Edwards [1987] 1WLR 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 Harrisondistinguishes the
earlier case of Smith vJenkins (1970) 119 CLR 397 which was applied in Ashton v Turner. See
also Goldbolt v Fittock (1964) NSWR 22.
77. The court distinguished Smith vJenkins (1970) 119 CLR 397 where the passenger was
injured by the negligent driving of the defendant of a car which they had jointly stolen.

20

Legal Studies

secure foundation for denying relief, though more limited in its application - and for that reason fairer in its operation, is to say that the plaintiff
must fail when the character of the enterprise in which the parties are
engaged is such that it is impossible for the court to determine the
standard of care which is appropriate to be observed'.
Although this approach assumes that in certain circumstances no duty
at all is owed by the defendant, it might nevertheless be possible to
develop the theory so as to hold that the circumstances may lower the
level of care but not abolish it altogether. No case has yet done so, and
this may be because the application of contributory negligence might be
more appropriate in such cases.
This approach was adopted by Balcombe LJ in Pitts v Hunt" and
seems to have been approved by Dillon LJ who also gave as a reason that
the damage arose directly from the illegality. Thus the Court of Appeal
seems to have moved in the direction of the Australian solution so that
the question is whether in the circumstances of the case an appropriate
level of care could not, for whatever reason, be established. This view
owes something to the public policy basis of the defence but also regards
the particular circumstances of the case to be decisive. However, the
question is whether, in considering the circumstances of the case, it is
appropriate to consider the particular relationship between the parties.
This seems to be inevitable where one is dealing in joint participation in
an illegal act, but it is not illogical to reject the particular relationship as
an element in the standard of care and yet to accept it as relevant to the
defence ofex turpicausa. The reason is that in this area is it not the fact of
illegality which bars-the claim, but rather the joint participation in the
illegality and therefore one must look to the degree of responsibility
which the one party can be said to have undertaken towards the other.
Also the adoption of this view would prevent the courts from taking the
view that it should 'on the first indication of unlawfulness affecting any
aspect of a transaction, draw up its skirts and refuse all assistance to the
plaintiff, no matter how serious his loss nor how disproportionate his loss
to the unlawfulness of his conduct'.79
Even though the defence of ex turpi causa is undoubtedly applicable to
tort, one should be wary that it does not simply replace the volenti
doctrine, which has not only foundjudicial disfavour in the past but has
also in motor vehicle cases been excluded by legislation." It should not
be used merely as a way to avoid the effect of s 149(3), Road Traffic Act
1988 in cases of great foolhardiness, but rather the public policy justification for the defence should be kept in mind. The plaintiff loses
because he has done something illegal which in the circumstances of the

78. [1990] 3 WLR542 at 549. He did soon 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
[19901 3 WLR 542.

The variable standard of care

21

case is so serious that the defendant cannot be expected to owe him the
usual level of care. Consent or knowledge, even in the circumstances of
an unlawful act, is not by itself enough.
Contributory negligence
Many of the problems of the variable standard of care and of the volenti
doctrine have been solved by the application of contributory negligence
where the effect is generally merely to reduce rather than eliminate the
plaintiffs damages. 8' This represents a different approach to liability,
being based more on causation than on duty, so that the defendant did
owe a duty to the plaintiff, was in breach of that duty, but the damage
was not wholly caused by him. (It is not necessary that the carelessness
ofthe plaintiff should contribute to the accident happening, but only that
it contributes to the damage that results from the defendant's negligence.) In this way the responsibility for putting himself at risk when he
knows of the defendant's disability can be recognised without too drastic
an effect. The cases on drunk drivers are now resolved in this way, 82 even
though it has some odd effects.83 However, this principle will only apply
where the plaintiff is careless for his own safety, knowing of the plaintiffs
disability, and there may be some cases where the relationship view of
the standard of care could apply but contributory negligence would not.
The ordinary learner driver case would be an example, as would Philipsv
Whiteley. 4 These are cases when a person is justified in taking a known risk, in the latter because it is common practice to have ears pierced by
jewellers, and in the former because somebody must take the risk of
teaching people to drive and the particular plaintiff should not be
penalised for doing so.85
Strictly speaking the application of contributory negligence does not
vary the standard of care, but rather limits the consequences of the
breach by reducing the damages payable. Nevertheless it does perform a

81. In PittsvHunt 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, ifthat 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 ofentering
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; Wooldridgev Sumner [1963] 2 QB 43 might at first sight appear to
be such a case, but it might have been possible to hold the plaintiffcontributorily negligent
on the ground that he had disobeyed an instruction from the steward ofthe 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.

22

Legal Studies

similar function by taking into account the relationship of the parties and
fulfilling a desire to limit recovery where the relationship between the
parties is such that a plaintiff cannot be expected to be fully protected
against the consequences of the defendant's negligence. Hence the balance between the blameworthiness element of the standard of care and
the expected level of safety can be maintained.
Conclusion
The argument that as the duty of care is now determined by proximity it
is therefore logical to determine the content of that duty by reference to
the relationship between the parties, is probably misguided. The conclusion does not logically follow from the premise, and the theory does not
help us to determine in which cases the attributes of the defendant which
are known to the plaintiff should be ascribed to the reasonable man so as
to vary the standard of care. The only exception relates to children where
the standard is that of the reasonable child of that age. The issue is
important not only because application of the proximity principle would
deny a remedy to a number of plaintiffs, but also because it tends to
concentrate on the blameworthiness of the plaintiff to the exclusion of the
defendant. It might be thought that in a fault based system this is the
correct approach, but the pragmatic approach of the common law has
always taken account of the function and consequences of a rule. Hence
it might be right to ask who should bear the risk and what degree ofsafety
in the circumstances a plaintiff is entitled to expect, and perhaps at a
higher level how the losses should be allocated between different groups
(including the taxpayer). To adopt the proximity view would be to
restrict those choices and limit the extent to which negligence can fulfil
its role as an accident compensation system..
Even though the purely objective principle should be applied, this
does not mean that the situation surrounding the event should be
ignored completely because the standard will always relate to 'the
circumstances of the case', and often the relationship between the parties
can be incorporated as one of those circumstances: Wooldridge v Sumner 6
may be an example. While the actual level of skill of the defendant is not
an element which is relevant here, skill may be relevant as one of the
circumstances of the case where it can be argued that the plaintiff could
expect no higher degree of safety than that provided by the relatively
unskilled defendant. Wells v Cooper87 is an example of this (where the
question was whether the defendant was careless in using 3/4 inch screws
when fixing a door handle). In adopting the standard of the reasonable
carpenter rather than the reasonable professional the court was bringing
together both the blameworthiness of the defendant and the degree of
safety which the plaintiff can expect in the circumstances.
A further suggestion is that where the parties are in a relationship
which is closer than mere foresight, the standard should be that which
86. [1963] 2 QB 43.
87. [1958] 2 QB 265.

The variable standard of care

23

the defendant holds himself out as possessing. This is rather like the
volenti doctrine and should be treated with the same scepticism. While
the standard could be varied by the consensual variation, there is the
problem of implied variation. The same strictness which is applied to
volenti should apply to such cases.
Indeed the strictness with which volenti is applied probably means that
it has little value as a way of amending the applicable level of care,
although where there is both consent and illegality the ex turpi causa
doctrine is now more commonly applied than before. However, there is a
suspicion that this is so, not because the ex turpi defence is different in
nature to the volenti defence, but in fact that it applies for similar reasons
but avoids both the common law and statutory restrictions on the volenti
defence. This would mean that its application is haphazard in that a
plaintiff will lose where his foolhardiness occurs in the circumstances of
an illegal act but not otherwise. One cannot be sure that the current tests
to distinguish between those unlawful acts which should and should not
make the difference sufficiently differentiate between the two defences.
The preferred solution is contributory negligence which has the virtue
of preserving the theory of the wholly objective standard of care while at
the same time recognising that by placing himself in a position of risk the
plaintiff has been partially responsible for his own damage. However,
contributory negligence is not always an ideal solution and suffers from
its own theoretical problems.88
However, this survey does show that there is general agreement that it
is appropriate to reduce or exclude liability in cases where the plaintiff
knows of the lack of skill ofthe defendant and entrusts himself to his care.
This is not a conclusion of social policy, but rather the natural outcome
of a fault based system, albeit one in which the level of safety which a
person is entitled to expect is a relevant factor. The best way to achieve a
balance between these factors is not to adopt a proximity based view of
the standard of care, but to retain the traditional wholly objective view,
tempered by the application of contributory negligence. The standard of
care is not a simple concept and it has in the past been too easy to accept
that it is enough merely to say that it is objectively determined. While
that is a necessary factor, it does not tell us what those objective criteria
are nor how they are determined, and the function of the standard of care
as a concept which protects both plaintiff and defendant should be borne
in mind.

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.