Hinkson v Holder

JudgeHusbands, J.A.,Belgrave, J.A.
Judgment Date16 November 1990
Date16 November 1990
CourtDivisional Court (Barbados)
Docket NumberNo. 15 of 1989

Divisional Court

Husbands, J.A.; Belgrave, J.A.

No. 15 of 1989


Mr. Leslie Haynes for the appellant.

Mr. Fruendal Stuart for the respondent.

Tort - Damages — Driving test — Instructor's van damaged as respondent was reversing — Claim for damages by instructor — Whether entitled to succeed — Instructor accepted risk — Respondent did not agree to accept liability — Appellant/instructor not entitled to succeed.


This is an appeal from a decision of the magistrate for District “C” who on the 23rd of March 1988 dismissed an action brought in that court by the plaintiff/appellant in which he claimed damages in negligence from the defendant/respondent.


The facts in the case which were not disputed showed that the appellant was a professional driving instructor who had agreed to teach the respondent to drive on the appellant's motor van S.1567. The respondent paid the appellant $20.00 for each driving lesson.


A date was fixed by the Ministry of Transport and Works on which the respondent was to take a driving test under the supervision of one of the official driving inspectors from that Ministry.


The appellant said that he knew that the said test was set for 1986–07–28. He told the respondent that he should not take the test on that date as he was of the opinion that the respondent had not yet acquired the driving skills necessary to enable him to pass the test.


He said that the respondent was adamant that he was ready to take the test and insisted on taking it on the date which was set. The appellant acceded to the respondent's request and took him to the Ministry of Transport and Works at the Pine, St. Michael on 1986–07–28 on being paid the usual fee of $100.00 by the respondent.


The appellant warned the respondent that his van was new and that he should not hit it during the taking of the test. He said the respondent made no reply when he was given that warning. The respondent attempted to take the test as was instructed by the inspector. But he did not make much progress. He failed to surmount the first hurdle.


In reversing the van into the poles as directed by the inspector the respondent drove too close to the poles on his left and the left side of the van collided with two of the poles as he was driving, thereby damaging the left side of the van. The bill for the repairs to the van amounted to $400.00 which was paid by the appellant. The appellant claimed that sum from the respondent and a similar sum of $400.00 for loss of earnings sustained during the 4 days the van was undergoing repairs. His claim failed.


The learned magistrate took the view that the appellant was fully aware that the respondent was not competent to take the driving test on the scheduled date but had none-the-less permitted him to use his van for that purpose. The learned magistrate was of the opinion that the appellant had accepted the risk that the van might be damaged by the respondent and that he could not place upon the respondent responsibility for any damage caused to the van by merely warning him not to hit his new van.


The relevant extract from the statement of reasons given by the magistrate is in these terms:–

“In the present case the plaintiff admits that he knew the defendant on the morning of his driving test did not possess the necessary skill and competence but in the opinion of the court, voluntarily agreed to run the risk of injury resulting therefrom. It is also the court's opinion that the plaintiff by merely saying “Do not hit my van” does not waive his acceptance of any resulting damage. His knowledge of the defendant's lack of competence and skill is therefore a “highly relevant circumstance.” The court, after examining the above-mentioned case of Nettleship v. Weston as it dealt with the relationship between an instructor and a learner and on whom rests the responsibility for any damage caused by the learner, came to the conclusion that the case against the defendant should be dismissed”.” Costs to the defendant in the sum of $250.00 was awarded.”


The appellant's appeal to this court is on the grounds that (1) the decision is against the weight of the evidence and (2) that the magistrate erred in law.


Counsel for the appellant argued that the learned magistrate erred in law in holding that the plaintiff/appellant had accepted the risk that his van would be damaged by the defendant/respondent as the plaintiff/appellant was well aware that defendant/respondent had not attained the skills of a competent driver by the time he was due to take the test.


Counsel argued that the respondent was liable to the appellant for the damage caused to the van in as much as it was he who had insisted on taking the test although he was advised not to do so.


Counsel for the appellant cited Nettleship v. Weston [1971] 3 All E.R. 581 in support of his submission.


Counsel for the respondent argued that the learned magistrate had come to the correct decision when she dismissed the claim of the plaintiff/appellant. He submitted that Nettleship's case showed that the magistrate had arrived at the right conclusion and that her decision should be affirmed by this court.


The decision in Nettleship's case shows that a learner driver was held to be liable for one half the damages suffered by her instructor who was injured when the car which she was driving ran into a lamp post causing the instructor to sustain a fracture of the left knee cap.


In as much as counsel on both sides in this case are relying on the Nettleship case to support their submissions it might be useful for the relevant parts of Lord Denning's judgment in that case to be set out. Lord Denning himself had set out his views as follows:–

“The responsibility of a learner-driver towards his instructor.”

The special factor in this case is that Mr. Nettleship was not a mere passenger in the car. He was an instructor teaching Mrs. Welton to drive. Seeing that the law lays down, for all drivers of motor 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...

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