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Date: Fri, 29 Aug 2008 16:40 From: John Blackie Subject: Duty of care owed by learner drivers - HCA overturns Cook
Thanks for keeping our sense of identity intact! It is assumed that the situation in Scotland is as in Nettleship. As far as I am aware, there is no Scottish case law authority on the specific issue. Nettleship did get into Walker, The Law of Delict in Scotland (2nd ed, 1981), though there no attempt is made to give general rules on learners, outside the context of road traffic. The proposition is stated simply at p 508: "A "learner" owes the same duty to his instructor or, or other passenger, as does a qualified driver". (The only authority cited is Nettleship). As far as I know there is no Scottish case law before or since, exploring specifically the position of learners. But Denning in Nettleship takes as his starting point Lord Macmillan's dictum on the nature of the reasonable person in Muir v Glasgow Corporation - the Scots Sunday school picnic tea urn case - "It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question". So it can be given a Scots pedigree. I think it has never been directly addressed in South African law either. But it is consistent with civilian approaches to ascertaining negligence. The similar issue in the field of professional negligence as determined in Wilsher v Essex Area Health Authority in Scotland is an example of the application of the principle imperitia culpae adnumeratur. (Murray Earle and NR Whitty, sv Medical Law (2007) in The Laws of Scotland - Stair Memorial Encyclopaedia para 177).
JohnB Professor John W G Blackie
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