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Who is the reasonable person?

A non-instrumentalist assessment of the objective standard in the tort of negligence

Maurice Banerjee Palmer, 2012 Colchester Royal Grammar School Candidate No. 9278

Who is the reasonable person?


1. Introduction .................................................................................................................................................. 3 2. Origin and context ........................................................................................................................................ 3 2.a Tort law ................................................................................................................................................... 3 2.b Negligence .............................................................................................................................................. 4 3 Identity ........................................................................................................................................................... 5 3.a Basic form ............................................................................................................................................... 5 3.b Further considerations ............................................................................................................................ 5 3.c Children .................................................................................................................................................. 6 3.d Professionals ........................................................................................................................................... 6 3.e Deficiencies and inability to meet the standard ...................................................................................... 7 3.f Form so far: ............................................................................................................................................. 7 4. Difficulty with the reasonable person ........................................................................................................... 8 4.a. Arguments in favour of the objective standard ...................................................................................... 8 4.a People of limited intelligence ................................................................................................................. 8 4.b Boys and girls ......................................................................................................................................... 9 4.c Common sense ...................................................................................................................................... 10 4.d Still on the bus? .................................................................................................................................... 11 5. Conclusion .................................................................................................................................................. 13

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1. Introduction
The reasonable person was originally the reasonable man. They have since undergone a sex change and become the neutral reasonable person. From this they have blossomed at an astonishing rate, especially over the last fifty years. They are capable of all ages and all professions and are famous for their use of London public transport. The objective standard exists in order to equalise the dispensation of justice in matters that are so susceptible to opinion one persons idea of a bodge job is anothers idea of good enough. As A.P. Herberts fictional case Fardell v Potts illustrates, it is prone to prejudice and stereotype. On a wider level the answer to who is liable between blameless parties is not inherent and needs further examination. As the reasonable person began as a male but since becoming the reasonable person should be referred to as feminine, even though it is strictly wrong, I have used neutral terms as far as possible for convenience rather than accuracy.

2. Origin and context

2.a Tort law Negligence forms part of the law of tort which is part of civil (as opposed to criminal) law in England. For reasons explained below, what tort law exactly means is not quite clear. The Oxford Dictionary of Law defines it as A wrongful act or omission for which damages can be obtained in a civil court by the person wronged [] The law of tort is mainly concerned with providing compensation for personal injury and property damage caused by negligence.1 In more straightforward terms, Street defines it as the branch of civil law relating to obligations imposed by operation of law on all natural and artificial persons. It concerns the basic duties one person owes to another whether he likes it or not.2 Tort law was developed to maintain public order and prevent chaotic retribution by wronged private individuals. The emphasis was very much on the claimant, with fourfold damages being awarded in Roman law of tort (delict) when a thief was caught red-handed3. From this evolved civilian systems which rest on essential fundamental principles of the law of delict. The rather prescriptive French system has been reduced entirely to a mere five articles in the Code Civile which have remained in force virtually unchanged for 195 years4. The German system of three more limited but still broad principles5 is a little more flexible. The European civilian systems are here mentioned because they make it clear how far the English common law has steered clear of such strong overarching principles. In negligence cases were decided on their own facts and were only brought together in the form of compilation6. For this reason, it is difficult, even dangerous to try to draw deep principles from tort, an area which evolved in English law with little coherence. Sir Thomas Holland described it as chaos with a full index7. With this in mind one can only say that tort law concerns itself with compensation for wrongs inflicted upon claimants. To achieve this it first define[s] the obligations imposed on one member of a society to his or her fellows and then provide[s] for compensation for harms caused by breach of such obligations8. The purpose of tort is the protection of interests so important that their violation warrants compensation.9 From the information above it is clear that tort law is primarily concerned with the claimant not the defendant. Unlike the early writ of trespass from which it evolved and criminal law of today, tort does not concern itself with intent. Whether or not the defendant was malicious or immoral is irrelevant, liability is established solely on the impact of the defendants actions on the claimant10. The compensation and theoretical basis for tort law, on the other hand, may have a lot more to do with morality. Instead of compensation being an amoral attempt to restore the position of the victim, it could be Kantian ethical retribution towards the offender for having committed a wrong in the first place. On the other hand, restoring
Elizabeth A. Martin (ed). (2003). A Dictionary of Law. Oxford: Oxford University Press. p.500 Margaret Brazier, John Murphy (eds). (1999). Street on Torts. London: Butterworths. p.1 Hereafter known as Street 3 Mark Lunney, Ken Oliphant (eds). (2008). Tort Law: Text and Materials. Oxford: Oxford University Press. p.1 Hereafter known as Lunney 4 P. Zweigert, H. Ktz, trans. T. Weir (eds). (1998). An Introduction to Tort Law. Oxford: Oxford University Press. p.165 5 Lunney p.1 6 Lunney p.156 7 Gerald J. Postema (ed). (2001). Philosophy and the Law of Torts. Cambridge: Cambridge University Press. p.1 8 Street pp.1-2 9 Street p.2 10 Street p.11
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the victim to his position before he was harmed as it the principle of corrective justice rests on the idea that it would be wrong for someone to be harmed through no fault of their own. If paying damages is a moral and ethical act, then the defendant must be culpable and proved to have been at fault. Although in strict liability (which exists only in certain circumstances) proof of causation is necessary for liability11. 2.b Negligence Negligence and contract have similar beginnings. Early examples of tort involved parties with direct relationship to one another rather than the idea of a general responsibility in incidents not covered by previous cases or specific rules was consistently rejected until relatively recently. Today tort deals with relationships between strangers and negligence with the wrongs that arise when an obligation, or duty of care, is breached. Mitchil v Allestree (1676) marked the introduction of the tort of negligence. Despite the lack of ill-intent on the part of the defendant that prevented the plaintiff from using the writ of trespass, the jury found the defendant liable because of the recklessness of his actions. Since then and especially in the last 75 years the tort of negligence has bloomed far beyond all other torts12. Just as the principle that made Mitchil successful was that the defendant had acted without improvidently, rashly and without due consideration13, the principle that holds up negligence today is a social one where it was not based on something internal to the defendant but on a failure to live up to an external standard, and that external standard was something which could be determined by public policy.14 The tort of negligence is defined by the Oxford Dictionary of Law as 1. Carelessness amounting to the culpable breach of a duty: failure to do something that a reasonable man (i.e. average responsible citizen) would do, or doing something that a reasonable man would not do and 2. A tort consisting of the breach of a duty of care resulting in damage to the claimant.15 From this, negligence in principle has three meanings: first as a state of mind, second as careless conduct and third as the breach of a duty to take care imposed by either common law or statute16. Negligence as a state of mind is used to distinguish from intention. The key difference is whether or not the mind of the defendant estimates that his actions would effect damage. Even if he exercises care, unless that care extends to the action which causes the harm, he has a negligent state of mind. This includes situations where the defendant had been warned that his actions would cause harm but is reckless or indifferent. It is summed up by Fry J.: negligence imports that you are acting carelessly and without that design.17 The second form of negligence is halfway between the first and third. This is careless conduct without reference to an antecedent duty of care,18 Tortious negligence, where a standard of care is breached is different to negligence as careless conduct, which refers to how the action was carried out with regard to an independent standard: when the legislature has sanctioned or authorised the use of a particular thing, and it is used for the purpose for which it is authorised, and every precaution has been taken to prevent injury, [...] if damage results from the use of such a thing independently of negligence, the party using it is not responsible.19 The difference is made clear by the statement that [a] man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them20 and as such negligence in itself is not a cause of action.21 With this background, the third (and most important) type is the breach of a duty of care. In contrast with the second form, this form of negligence does not exist in the abstract22, instead only where there is a duty to take care and where failure in that duty has caused damage.23 There is no cause of action without negligence and actual damage24 combined with the existence of the particular duty25. Therefore, the modern essential elements of negligence (as beyond this there are wide variations) are 1. the existence of a duty to take care, which is owed by the defendant to the complainant; 2. the failure to attain that standard of care,
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Glanville Williams, The Aims of the Law of Tort [1951] CLP 137 Lunney p.12 13 Mitchil v Allestree (1676) 14 Lunney p.13 quoting D. Ibbetson. 15 above n.1 pp.327-328 16 Christopher Walton, Roger Cooper, Simon E. Wood (eds). (2006). Charlesworth and Percy on Negligence. London: Sweet . 1-01 p.3 Hereafter known as Charlesworth 17 Kettlewell v Watson, [1882] 21 Ch. D. 685 18 Charlesworth 1-07 p.5 19 per Cockburn C.J. in Vaughan v Taff Vale Ry (1860) 5 H. & N. 679 at 685 20 per Lord Esher M.R. in Le Lievre v Gould [1893] 1 Q.B. 491 at 497 21 per Greer L.J. in Farr v Butters Bros & Co. [1932] 2 K.B. 606 at 618. 22 Thomas v Quartermaine (1887) 18 Q.B.D 685 at 694 and Donoghue v Stevenson [1932] A.C. 562 at 618-619 23 Donoghue v Stevenson [1932] A.C. 562 at 618-619 24 per Lord Reading C.J. J.R. Munday Ltd v London C.C. [1916] 2 K.B. 331 at 334 25 per Simon LJ. in East Suffolk Rivers Catchment Board v Kent [1941] A.C. 74 at 86-87

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prescribed by the law, thereby committing a breach of such a duty; and 3. damage, which is both causally connected with such breach and recognised by the law26, has been suffered by the complainant.27 In brief, negligence requires: 1. A duty of care owed by the defendant to the claimant 2. The defendants actions falling below that standard of care 3. A causal link between the defendants actions and the harm inflicted It is then up to the reasonable person to decide whether these three conditions exist, in Alderson Bs words: Negligence is the omission to do something which as 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.28

3 Identity
3.a Basic form The reasonable person makes their first appearance in the 1837 case Vaughan v Menlove. Dismissing Mr Menloves argument that his profound stupidity prevented him from apprehending the risk present and danger posed by his actions was dismissed, Tindal C.J set out the objective standard of care: Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgement of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.29 It gives (what seems to be the first) description of the reasonable person (here the reasonable man) a man of average prudence, or a man of reasonable sense exercising ordinary care he is never negligent, and [his] conduct is always up to standard.30 In rejecting the argument that Menloves lack of intelligence excused him, the subjective element of Mr Menloves character had been ignored for fear of foot-length justice in favour of an objective standard. This became the reasonable man and since then, the reasonable person standard (RPS). The objective standard is set out by Lord Macmillan31 as a sensible, average, anonymous man independent of the idiosyncrasies of the particular person whose conduct is in question and free both from over-apprehension and from overconfidence.32 More famously, he is known by Walter Bagehots quoted by Greer LJ that the reasonable man is the man on the Clapham omnibus33. This has been echoed by Lord Steyn in McFarlane v Tayside Health Board34 in which he decides it was relevant to ask commuters on the Underground the following question and states he is firmly of the view that an overwhelming number of ordinary men and women would answer the question with an emphatic No. The reasonable person knows, and abides by all laws relevant to what she is doing to a reasonable extent. This extent is specified by Charlesworth and Percy in the context of driving: It may not, for instance, be unreasonable to exceed the speed limit if considerations of safety permit. In conclusion, the reasonable person is generally law-abiding but principally acts with regard to safety and reasonably expected consequences of their actions in the specific circumstances. Thus far the reasonable person is an ordinarily prudent person.

3.b Further considerations The reasonable person is not an inflexible fiction, it should reflect the circumstances and evidence in the particular case. Indeed, her flexibility is one of her distinguishing assets as [t]he definition of the reasonable person is not complete unless the words in the circumstance are embodied.35
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i.e. that it is not too remote: see Chap. 4., below, paras 4-01 to 4-31 in Charlesworth Charleswoth p.17 para 1-33 28 Blyth v Birmingham Waterworks co (1856) 11 Ex at 784 29 per Tindal C.J. in Vaughan v Menlove (1837) 132 ER 490 (CP) 30 ibid 31 A fuller list of statements can be found in Charlesworth p.417 in the fifth footnote 32 Glasgow Corporation v Muir [1943] A.C. at 457. 33 per Greer LJ at 224 in Hall v Brooklands Auto-Racing Club (1933) 1 KB 205 34 [2000] 2 A.C. 59 35 Street p.237

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The flexibility of the reasonable person extends beyond the identity of the defendant. The gravity of the potential harm can be taken into account where the defendant is aware of it (this is different to the thin skull rule which operates after negligence has been proved) when determining what the standard of care ought to be. In Paris v Stepney Borough Council36 the House of Lords decided that the gravity of the potential risk must be taken into account when deciding what the standard of care of the reasonable person must be37. The wider implications of the decision are noted in Lunney where it states that, as opposed to the standard being decided with respect only with respect to the defendants actions, the content of the defendants duty of care must be tailored to the known, or reasonably foreseeable, characteristics of the individual claimant.38 The standard must therefore be adjusted in circumstances where harm is more likely to be occasioned, as well as where harm is more serious, due to a known peculiarity of the claimant. Reasonable care is not being exceeded; instead it is taking into account relevant known characteristics of the claimant and circumstances.

3.c Children The reasonable person readily becomes a child of like age, intelligence and experience.39 This phrase comes from the case Mullin v Richards40 in which the Court of Appeal judged that a reasonable 15-year old girl would not foresee a shard of plastic from the ruler, with which she was play-fencing, snap off and go into the other girls eye. In fact, the RPS with regard to children allows for surprisingly dangerous conduct. An act as inherent with danger as throwing a metal spike was not considered dangerous as it would be to expect a degree of sense and circumspection which nature ordinarily withholds till life has become less rosy41 Throwing a metal spike at a tree was not judged to be negligent conduct for the boy in question in McHale v Watson as it was decided that a boy of that age lacked the necessary foresight and prudence to judge the wood and spike and the likely consequences of their collision. The defendants statement in Orchard v Lee42 illustrates this perfectly At the time they were completely out of my mind. I was playing tag and taunting: the boy was not taking care, but he was not negligent as it was not expected that he take care as he was 13 year-old boy playing tag. In this case the standard of conduct in negligence had to be considered by reference not to the reasonable man but to the reasonable child of the age of 1243 For children it is a standard that should objectively be expected of a child of that age and a child is only negligent when it is careless to a very high degree.44 Revisiting the earlier definitions of the reasonable man that defined him almost as a paragon of excellence and A.P. Herberts satirical claim that he was [d]evoid, in short, of any human weakness, with not one single saving vice45 one sees how the reasonable man has developed and refined. 3.d Professionals At the opposite end of the spectrum are professionals and the reasonable person becomes the reasonable professional equally readily. According to Street there are three key problems to bear in mind while considering actions against professionals46: (a) Disputes within the profession as to what constitutes proper practice, (b) The consequences of [their] negligence may be astronomical47, (c) Pressure on the NHS means that doctors, particularly junior doctors, are overstretched and increasingly required to carry out tasks beyond their competence and greater patient choice has augmented the problem. Tindal C.J. stated in 1838 that the reasonable professional undertakes to bring a fair, reasonable and competent degree of skill.48 Today the Bolam test, as set out by McNair J., defines him thus:

[1951] AC 367 Quote from the judgement, one judge says that the standard should be the same, only paying attention to the defendants conduct without regard to different people at the other end. 38 Lunney p.171 39 This is from Hutchinson LJ in Mullin quoting Mr Stephens who is quoting Owen J. Lunney p.195 40 [1998] 1 ER 920 41 McHale v Watson 115 CLR 199 per Kitto J p.215 42 [2009] EWCA Civ 295 43 per Waller LJ at para. 8 44 Orchard v Lee at 11 45 A.P. Herbert (1930). Misleading Cases in the Common Law. 1st. ed. London: Wm. S. Hein Publishing. p.16 46 Street p.246 47 An architect who makes a mistake designing a block of flats puts hundreds of lives at risk and creates astronomical repair costs 48 Lanphier v Phipos (1838) 8 C. & P. 475, per Tindal C.J.


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[T]he test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill49. The Bolam test is used in determining issues of liability where breach of duty by professionals, or other persons applying professional skill, is alleged.50 The reasonable professional must largely exhibit the degree of skill which a member of the public would expect from a person in his or her position51. Yet these are still value judgements. To decide exactly what the standard of care to be expected of an ordinary skilled man is, one must make reference to common and good practice within that profession and where covers a range of standards, then the lowest is taken. (Note that even expert opinion is not sacrosanct, it may, on occasion, be disregarded if it considered not to be at all reasonable or responsible). Above all, regardless of common practice, if a professional conducts themselves in a such a way that an ordinary, reasonable and prudent person should or ought to have foreseen the risk, then they are negligent; in this case the rule is putting to test not the defendants skill but their common sense according to the prudence of any ordinary person.52 Inexperience is no excuse as reference is made only to the post held53. 3.e Deficiencies and inability to meet the standard The level of skill required of a person is that of a person of ordinary intelligence carrying out that act. A person incapable of attaining the standard of care generally expected by the objective standard is not exempt from it and as above, inexperience within a post or in a position is no excuse. The classic example is that of the learner driver in Nettleship v Weston54 in which it was found that the standard does not adjust according to experience of the driver, even if the claimant (the passenger in this case) is aware that the driver is unable to meet the objective standard of care. Here again, the Bolam test is used as driving is considered a special skill. The driver, regardless of her abilities, was held to the same objective standard of the reasonably prudent driver. In Phillips v Whitely Ltd 55 the jeweller, despite performing a task with more semblance to one a surgeon would carry out, was only required to show the skill of a jeweller doing the work, instead of that of a surgeon. Though the above decision may seem slightly dubious on the basis of public policy (for the public good jewellers ought to take care to avoid infection as a result of their work) it is confirmed by Arthur Guinness, Son & Co (Dublin) Ltd v The Freshfield (Owners)56 where the claim that the brewers ignorance of running a ship excused them from the same standard of care was rejected with Winn L.J. holding them instead to the standard of reasonable shipowners. Adults whose ability to meet the standard of care is restricted in some other way by an affliction of some sort such as disability or illness, are not held to precisely the same standard of care as above57. Furthermore, a person who did not know something that a reasonable person in the circumstances would have known is still at fault as they ought to have known it. In general, a person with inferior skill or judgement is not, as Mr Vaughan had suggested, held to a lower standard than usual, nor is a person possessing superior skill or judgement held to their own ordinary standards - even if they possess some special ability as reference is made only to their position not their personal skills. For instance a mechanic is not expected to keep his own car in any better working order than a poet: here he is only an ordinary member of the public 3.f Form so far: The reasonable person seems rather straightforward so far. They embody the ordinary and sensible person in the circumstances of the defendant. Though much has been made of their supposed exceptional knowledge58, they are not so much an encyclopaedia but a whiteboard; their knowledge is never exceptional instead it is
Bolam v Friern Hospital Management Committee, [1957] 1 W.L.R. 582 at 586 Charlesworth 9-02 p.552 51 Street p.248 52 Edward Wong Finance Co v Johnson Stokes & Master [1983] UKPC 32 53 Wilsher v Essex Area Health Authority [1988] AC 1074 54 [1971] 2 QB 691, [1971] 3 All ER 581, CA, The importance of this case is often overstated, as the main question addressed by the Court of Appeal is not whether the standard of care should be variable overall for learner drivers, but whether the standard should be variable according to the relationship between the passenger and driver; in this case the passenger was well aware of the drivers lack of skill but this did not hold the driver to the standard of care which the passenger knew her to be capable of, but the objective standard of care largely for expediency as [t]he certainty of a general standard is preferable to the vagaries of a fluctuating standard. 55 [1938] 1 All E.R. 566. 56 [1965] p. 294. 57 Mansfield v Weetabix [1998] 1 WLR 1263 58 R.E. Megarry (1955). Miscellany-at-Law: A Diversion for Lawyers and Others. 1st. ed. London: Sweet & Maxwell
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adjusted for the circumstances. They are infinitely plastic, capable of assuming any age or profession but at the same time stubborn and unchanging in their ordinariness and sensibility. Their abnormality is their immunity to strange fits of passion and momentary lapses of judgement. They certainly do not represent a human person, or even the average of human behaviour, but behaves all the time how rational and humans behave the majority of the time. In light of the changes she makes to fit the role and position of the defendant, Lord Macmillans statement in Muir v Glasgow Corporation59 is the most apt definition to describe the way in which the reasonable person assumes the role and position of the defendant independent of the idiosyncrasies of the particular person whose conduct is in question. The reasonable person fills the space inside the defendants outline with a sensible grey.

4. Difficulty with the reasonable person

4.a. Arguments in favour of the objective standard

4.a People of limited intelligence Some people are incapable of reaching the standard of care of the reasonable person. Some may not be able to attain this level of care because of a personal tendency towards carelessness and recklessness; they show little to no respect, even a disdain for others and as such make no effort to take due care in their actions. There are similar other people who are merely indifferent and fail to take reasonable care out of habit or ignorance. A third group of people who cannot reach the standard of care of the reasonable person also exists, but they are incapable of reaching the standard of care of the reasonable person in the true and strong sense of the word, incapable. While the first two groups neglect their duty of care (possibly unconsciously at times, but nevertheless neglect) the third is prohibited from doing so by their very nature, it is out of their control. Through mental handicaps or disability it is absolutely impossible, no matter how prudent they are, for them to take what is classed as reasonable care, on certain occasions. No explanation of the consequences of such a situation is required for it to be clear that it is disquieting that a vulnerable and often victimised group of the population appears to be perpetually at fault, indeed as Moran puts it, they are Living on the Fault Line60. The question is whether it is possible to construct the reasonable person in such a way in which the principle of avoidability is respected with regards to mentally handicapped. Tortious liability is a spectrum which ranges from subjective and strict liability and the objective standard lies halfway between these two. The fault principle in tortious liability contrasts with strict liability. Under strict liability, only causation needs to be proved for a defendant to be found liable even if they take reasonable care. But this is instinctively unfair and exists only in rare circumstances. In contrast, under the fault principle, the defendant must be found to have been at fault to be liable. The argument in favour of the objective standard in this situation can be divided into two sections: policy considerations and moral considerations. Oliver Wendell Holmes points out the difficulty for the courts of having a standard of care which reflects the infinite varieties of temperament, intellect and education which made the internal character of a given act so different in different men61. To ascertain a defendants personal capacity to take care against which their action could be measured would require a probing, possibly exhaustive examination of their character, habits and history with regard to the same and different actions before embarking on the task of deciding exactly how much care they took. Whether or not one believes that a wholly subjective standard would be fairer or not, it is quickly evident that [b]ecause of administrative limitations, the law can only work with the sphere of external manifestations of conduct.62 While most decisions in these matters ought not to be made primarily on the basis of expediency, the associated effort, costs and room for abuse of the system make an entirely subjective standard of care unfeasible. The deterrence rationale advocates a high standard in the face of it being unattainable for some, with the intention of increasing general well-being by discouraging naturally careless people or people with a tendency to be careless to continue to be careless. Exactly how people of limited intelligence are to be

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[1943] UKHL 2 Chapter title in Moran 61 The Common Law, Oliver Wendell Holmes p.86 62 J.G. Fleming (1998). The Law of Torts. 19th. ed. Agincourt: The Law Book Comp.1998 p.108

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deterred from breaching the standard of care when they do not know they are doing it is not explained. They would not be deterred just from breaching the standard of care but from engaging in any activity63. Neither of the policy arguments in support of the RPS is convincing: the impossibility of measuring a defendants conduct by their own standard renders an entirely subjective standard impractical and use of the objective standard as a deterrent for carelessness does not work. Despite the simplicity, because arguments on practicality have not been illuminating and the answer must lie in the moral dimension. The notions of general capacity and outcome responsibility are crude and clumsy justifications of the system as it is, rather than a compelling moral doctrine that provides a basis for further action. The exceptional position of people with cognitive difficulties in that some of them are permanently living on the fault line but are not at fault to me still seems irreconcilable. This said, the problem may be overstated: people who are incapable of attaining the standard of care demanded by a position are unlikely to fill it.

4.b Boys and girls The reasonable person began life as the reasonable man; in A.P. Herberts fictional Fardell v Potts the judge declared I find that at Common Law a reasonable woman does not exist64. Though women have since ostensibly been included into the standard by replacing man with person there is a strong conflict in the RPS between boys and girls. Every person knows that in general boys as less careful, more boisterous and more likely to cause accidents than girls, who are usually far more prudent. The question is whether the RPS should be adjusted accordingly. One would not suggest that male drivers should, though causing the great majority of accidents, be allowed a lower standard of care than female drivers and nor would it in any other situation be acceptable for the standard of care to be adjusted for gender in adults. Evidently cases involving children are special. As stated above, for children the standard of conduct in negligence [has] to be considered by reference not to the reasonable man but to the reasonable child of the age [of the defendant]65. Adult defendants are not judged by the reasonable adult of their age, but an ageless standard, and this is the reason for the distinction being drawn between boys and girls. Moran and those who comment on her work primarily blame this on romantic and stereotyped portrayals of boyhood66 by nostalgic judges. On the other hand there may be a more reasoned solution. Children are regarded differently from adults in the RPS and their age is used to determine where the standard of care is because a minors normal condition is one of recognized incompetency67. A child of six years old cannot possibly be expected to maintain the standard of care normal for a twelve year old because the standard considers the development of a child. A child of six is withheld the sense and circumspection of the twelve year old until they become twelve. It follows that since, due to ordinary childhood development, a boy does not possess the sense and circumspection of a girl, he ought not to be held to a standard which nature ordinarily withholds till life has become less rosy68. It is possible that the divide does not exist in practice. There has not been a case with a boy and girl playing together in which a boy has been considered less culpable than the girl and [t]here is no evidence here that a higher level of care is being expected of girls than would be expected of boys. Furthermore, the divide should not exist in principle either. First, taking the more administrative approach, adjusting the standard for gender is difficult to do. Even the adjustment for age alone has resulted in some controversial decisions, so deciding what the ordinary and reasonable standard of care for a child at that stage in their development, taking into account the difference between the genders would invite inconsistency. Second, the assertion that boys are only capable of a lower standard of care is factually dubious. If most boys were completely incapable of the same standard of care as girls it would be justified on a (nonadministrative) basis to allow them a lower standard of care, in order to fulfil the avoidability requirement that Oliver Wendell Holmes stresses. But the great proportion of cases involving boys and the common knowledge that boys cause accidents more than girls are not evidence to boys not being capable of the same standard of care, merely that boys have a greater tendency to be careful. Being careful is being able to appreciate risk and then avoid that risk in ones actions. Boys are not four times as stupid, unobservant and thoughtless as girls69, regardless of their age academic results prove this. Nor are boys three times less physically able, coordinated or dextrous their sporting enthusiasm is ample evidence to the contrary. In

Mayo Moran (2003). Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective standard. 1st. ed. Oxford: Oxford University p.31 Hereafter Moran 64 n.45 above p.20 65 Orchard v Lee [2009] per Waller LJ at para. 8 66 Jeremy Horder Can the Law Do Without the Reasonable Person? University of Toronto Law Journal Volume 55, Number 2, Spring 2005, pp. 253-269. p.257. Hereafter known as Horder 67 Charbonneau v. MacRury, 153 A. 457, (N.H. 1931) Note this is an American case 68 McHale v Watson 115 CLR 199 per Kitto J p.215 69 Horder p.259

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Jolley v Sutton London Borough Council70 notices warning of danger were displayed, and ignored. In Gough v National Coal Board71 the boy in question (and his peers) had been reprimanded for the careless actions that caused the injury in question72. Yet in both cases their boyish curiosity was cited as reasonable justification for their actions. Where this is applicable to children in general, it would be justified, but allowing for conscious imprudence in boys, imprudence that parents and figures of authority strive to eradicate73, takes widespread fault as pure human nature. This can be extended to the question of learner drivers. It is a fact that learner drivers are less prudent and/or less careful drivers than experienced drivers. F. James and J.J. Dickinson attribute this for learner drivers in general to natural exuberance and the wish to test ones ability74. Excluding those who are deliberately careless (and are likely to continue to be careless drivers) this group is not exactly like boys, as, through lack of skill, they often are not aware of their fault, rather than being aware of their fault but being inclined towards recklessness. Nonetheless, they can be considered in the same way because even though they are notionally without fault, a learner driver who has been prudent and paid attention but was unable to drive to the ordinary standard, would not be congratulated by relevant authorities (again, parents, driving instructors etc.) for crashing or causing an accident, even if they did everything they could. James and Dickinsons natural exuberance is just an excuse, not a reason. As they were nevertheless at fault it is therefore nonsensical that they should be exempted from being judged or held to their own standard. Treating boys equally is not unfairly expecting of them an impossible level of care, it is recognising that boys and girls are largely equally able to take care and it is a common fault, not a biological incapacity that boys do not so often take care. These moral shortcomings that encourage reckless behaviour may be inherent in boyhood75 but it does not mean they are or should be accepted. Therefore, the standard should not be set at the level for a reasonable child of the age and gender of the defendant, but a reasonable child of the age of the defendant with the average level of prudence between boys and girls.

4.c Common sense The reasonable man is perfection personified, [a]ll solid virtues are his76 [Quote from Moran]. Like the bonus pater familias he is a man as men ought to be, [] the personification of the social conscience of the court or jury77.]. While vulnerable to satire and humour, his apparent perfection is justified and unsurprising it would be absurd to determine carelessness according to a careless person78. The problem is that this quintessence of prudence becomes a receptacle for ideas of morality and what a good person is, rather than a merely careful person. Moran makes the similar point that labelling shortcomings as either normal and natural or as peculiar implies moral judgements but does not justify them79. Ideas of common sense begin to replace fact and minorities risk being discriminated against. Moran sums it up neatly Instead, behind the veneer of common sense one can trace the complicated hierarchy of a deeply inegalitarian world-view. And history suggests that notions of what is normal, natural, or ordinary have long been, and continue to be, one of the primary vehicles for inequality.80 As unfair as it sounds, this argument may have traction. The reasonable person standard is so set out because it is something applicable to all people, so as to avoid foot-length justice. A key reason for this is so that every person is entitled to expect roughly the same, or better, treatment whoever they deal with. The objective standard, from this perspective, is not strictly objective. It takes a subjective view, but from an
[2000] UKHL 31 [1953] 2 All. E.R. 1283 (C.A.). 72 The injury was actually to the boy, who was claimant in this case, but these facts are irrelevant. Moran also emphasises the importance of the boys awareness and makes the similar, but makes the point that the child is still below the age of criminal responsibility and therefore should not be responsible in tort either. 73 Moran argues the opposite (in a different context) pp.156-157 and with a great deal of evidence, but to me it appears outdated. On such an issue the judgement must be made on empirical research appropriate to context, much like the feminist call to context discretionary idea. 74 F. James and J.J. Dickinson, Accident Proneness and Accident Law, 63 Harv. L. Rev. 769 (1950) p.769 75 Moran p.290 76 n. 45 above p.14 77 Francis H. Bohlen. Fifty Years of Torts. Harvard Law Review. Vol. 50, No. 8 (Jun., 1937), pp. 1225-1248 78 Although the reasonable person does, in fact, allow for carelessness for instance with children, workers in particularly fatiguing conditions. 79 Moran p.144 80 Moran p.145
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external position, that of the average person on the receiving end of the defendants actions. If the average persons opinion of ordinary and reasonable behaviour is biased and idealised, then that is surely immaterial. The difficulty then becomes deducing what the average expectation is. Except that the role of law in society is to protect the weak from the strong, the minority from the majority and the abnormal from the normal. The above argument may make logical sense from that perspective, but it omits two key elements of tort and law in general. First, though it is debatable whether tort should focus on the rights and needs of the claimant, it is rare indeed to claim that it only respects the claimant. To hold the defendant to the claimants standards alone is breaches the moral equality between the parties just as the subjective standard does. Second, the tort of negligence does not blindly follow common opinion or practice. In Edward Wong Finance Co v Johnson Stokes & Master81, for example, common practice was judged unreasonable and this is why the ordinary reasonable person is primarily reasonable rather than ordinary. An unreasonable expectation of everyone, no matter how widespread, would not be allowed. Further, the laws purpose to uphold certain values overrides everything; a rule that is obviously unfair and based on stereotype should not be permitted as it is not fair, just and reasonable. Common sense as a guide may have been dispensed with, but it is more difficult to put something in its place that is not laden with unjust value judgements. A more factual standard can be set out on two levels82. The standard should be set at a level where harm would not in ordinary circumstances be occasioned. For example, it should not accommodate carelessness in a driver that would result in an accident in normal driving. For an accident to be excusable, the external circumstances would have to be such that a well-qualified and moderately experienced driver would not be expected to cope (this would be determined by regulatory standards the requirements of the Highway Code and the ordinary driving test) and the reaction must be proportionate to the circumstances a driver met by an unprecedented avalanche and a deer simultaneously blocking their path might be excused from damage they cause as a direct result, but proceeding to reverse into a car on the other side of the road and collide into another as they leave the scene would not. Second, where no legal basis is available or where it needs to be supplemented, the external perspective should be used. While the driver may only recently have passed their test, without P-plates, the driver behind them only sees another driver, not necessarily an inexperienced driver the ascertaining of a of their skill by fluffy dice, bumper stickers and the model of the car is not sufficient as it too variable for every driver. Whether a L-plated or P-plated driver should be allowed a lower standard is difficult. From an external perspective, any other driver can expect a lower standard of care, they know the inexperience driver is only capable of a lower standard that is the precise purpose of the plates. But is it right that the defendant should dictate what the claimant should accept? It quickly becomes troublingly tricky when one begins to appreciate that within the very position of the learner and recently-passed driver is a variable level of skill. Very soon, the defendant would be able to claim that the claimant should have expected such poor driving as it was only their first lesson. At the heart of the objective standard is equality between the parties, and allowing inexperienced drivers such leeway gives excessive power to the defendant as well as excusing fault (as mentioned concluding 4.b Boys and girls above). 4.d Still on the bus? It has been suggested that the reasonable person has alighted from the bus to learn to drive properly. Since Greer LJs statement in 1933, the reasonable person has become infinitely more complex, as shown above. How this comes together is shown below. The next great difficulty with the reasonable person is the extent to which their identity matches that of the actual person. Lord Macmillan sought to eliminate the idiosyncrasies of the individual in question in 1943 but this is at risk with the growing complexity and flexibility of the RPS. Moran warns that the standard threatens to disappear into a description of the actual person83. When it becomes a description of the actual person it is no longer objective, but subjective. The standard must have at least some flexibility: children are not expected to behave as adults and jewellers are not expected to behave as surgeons. It is taken as given that the situation is taken fully into account, the standard is formed by removing the actual person and putting the reasonable person in those shoes. The question is how much the fiction should match the reality. The emphasis is on knowledge. Where a defendant had no experience of something and it was not incumbent upon them to have experience of it, they are not culpable for resulting harm. One cannot employ
n.52 above Note how even this standard is filled with value judgements. See [section above] where the first definitions of the reasonable man are entirely made up of value judgements. Admittedly, it is impossible, at least for me, to construct a measure free of common sense and entirely on fact. 83 Moran p.3
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hindsight (known as being wise after the event)84 instead, [t]he care to be taken will be proportionate to the circumstances known.85 It is only as soon as one becomes aware of risk that one is obliged to guard against it86. (Although ignorance is no excuse for not guarding against something of which one should have known.) It is, however, primarily an external standard. As briefly mentioned above, the distinction between what is relevant and what is idiosyncrasy depends on the role of the actual person. This can be summed up in the question: from the external perspective, what external role does the person play? A jeweller from the perspective of his customers is evidently a jeweller, and trained as such and would not be expected to maintain the standards of a surgeon87. Though he may be employed as a junior doctor, he does not perform operations or carry out treatment as one; from the patients perspective they entered the hospital to be treated by a proper doctor and expect that standard of care8889. It must be noted that this works in conjunction with existing standards, so while the learner driver made their ability clear (from an external perspective their role was evidently one of a bad driver) they are not excused from the obligation to drive well and while the jeweller really ought to have sterilised the needle, his professional standards did not require him to do so and was not therefore breaching his duty of care. In the same way, a defendant that staggers blindly towards their customer cannot claim that the customer could not reasonably have expected a good service, having clearly seen the defendants incompetence as first it would probably breach the existing duty of care and second, that persons individual condition it is not relevant to their role. This neatly leads onto the question of what is and what is not a relevant consideration. A clearer way of illustrating my interpretation than using a case, with all its peculiarities is using an analogy, Paralympic Swimming. Competitors are organised according to their disability, so swimmers with the greatest physical impairment are in class 1 and those with the least impairment are in class 10. Classes 11-13 are for swimmers with varying levels of sight and class 14 is for intellectually impaired swimmers. But no reference is made to hearing impairments, which would severely impact on a Goalball or 5-a-side Football player at the Games. For breaststroke special consideration is given to the strength of the swimmers legs, and they are classified in that regard as well because leg strength is particularly important in breaststroke. The adjustments and qualifications are made according to what is relevant in that discipline. Therefore, to decide which characteristics of the actual person should be given to the reasonable person, one must decide which of these form part of the external role perspective and this is decided by what is necessary to, and ordinarily impacts, on their role. In Guinness case90 the brewers inexperience in running boats was dismissed as that does not form part of the external role perspective. I contrast my approach with that of Anthony Duffer and Mayo Morans suggested solution of culpable indifference. Horder sums it up neatly By parity of reasoning, use of the indifference test permits us to distinguish between the mentally deficient person, or child, perhaps doing his or her (incompetent) best but failing to avoid harm, and the mentally normal, adult defendant who fails in similar circumstances. It is the latter, but (in all probability) not the former who displays culpable indifference in his or her actions.91 He continues with an example from criminal law (I will have to clumsily mix civil and criminal law here), in which a mentally deficient person who has sexual intercourse with a non-consenting victim is excused because of their inability to perceive non-consent as opposed to someone who perceives and ignores the non-consent. The problem that is not ignored but that Horder passes over is that no matter how innocent the defendant, it is still rape. No matter how innocent the defendant is in their mind (and this is where the entanglement of criminal and civil law becomes problematic: mens rea is essential to criminal culpability and irrelevant to civil liability) the act is not changed, they have still raped the other person. And this is the approach that should be taken in tort: precedence should be given to the external rather than internal element on negligence. It is significant that tortious liability does not include a mens rea element, an internal indicator of negligence, and an objective (largely external) standard is used to determine a breach of duty. With something as morally objectionable as rape, it is difficult to sympathise with the defendant and this may cloud judgement. The question of who should bear the cost when neither party is at all at fault

84 85

Charlesworth p.479 para. 7-49 ibid p.468 para. 7-22 86 Paris v Stepney Borough Council [1951] A.C. 367; Porteous v N.C.B., 1967 S.L.T. 117 87 Phillips v Whitely Ltd [1938] 1 All E.R. 566 88 Wilsher v Essex Area Health Authority [1988] AC 1074 89 This may be in doubt if a trainee practitioner makes an ordinary mistake, the patient having signed an agreement to allow a trainee to treat them instead of a proper practitioner. 90 Arthur Guinness, Son & Co (Dublin) Ltd v The Freshfield (Owners) [1965] P. 294. 91 Horder p.256

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is the most difficult yet. In Mansfield v Weetabix92 the defendant was driving a van when hypoglycaemia came over him and he lost all control over his body. Unsurprisingly, he crashed and damaged a shop. Damage was created though no one was at fault the defendant had no way of knowing he was going to suffer from an onset of hypoglycaemia and there was nothing the claimant could have done to have mitigated or prevented damage. Neither of the outcomes from the moral dilemma is appetising as either way a faultless man must suffer for something he has not done. Mansfield calls into question two elements of the objective standard: whether it is merely a duty to be careful and prudent or whether it a duty to exercise a certain level of care; and where it stands on moral grounds where neither the claimant nor defendant is at fault. The answer to the first question may at first seem obvious: if the standard of care were to be judged according to whether or not the defendant were prudent and considered danger it would resemble more the first type of negligence described in 2.b Negligence and would present the administrative nightmare of the subjective standard. On the other hand, if a defendant was sufficiently prudent by taking all necessary care and is still found negligent because events turned out that way that system resembles more strict liability than fault-based liability. It must be remembered that this is in relation to actions as opposed to thoughts93 so the administrative problems of the subjective standard would not be met and it would remain the third type of negligence as it is a question of what actions one takes to avoid harm. The moral question is in stalemate. Either way, an innocent party will be burdened with damages. Jules Colemans opinion that the party that inflicted damage is in a weaker moral position in such a situation is not appealing because it reverts straight away to the facts, it is more a description of the problem without a moral solution rather than a moral solution in itself. Kantian corrective justice is of little use because any correction restoring the claimants position is unfair to the blameless defendant. Outcome responsibility interpreted in a certain way may provide a solution. Normally this would advocate punishing the defendant because he must bear responsibility for the way things have turned out for him, even though by chance. But if one turns it round, and consider the shopkeepers responsibilities one sees that he has willingly (rather than unwillingly like the defendant) taken on this responsibility. The shopkeeper can expect numerous mishaps, flood, burglary, building decay, for example, and takes responsibility for them to an extent that he defines himself through insurance and how he stocks the shop. The alternative is that drivers are risk being liable for millions of pounds as they drive past jewellery shops and thousands as they drive past newsagents but have no control whatsoever over this liability. Negligence imports neglect of a duty, so when a defendant has done absolutely everything in his power how can he be found negligent? The question of the reasonable person cannot be addressed in a one-dimensional fashion. Internal and external fault must be considered. While it is not enough to say that merely being prudent and giving thought to ones actions is enough94, internal components (those of which an external observer would have no knowledge) like knowledge and experience are taken into account to some extent but the external role perspective is predominant: whatever the average claimant expects from a person as part of the defendants role is what is taken into account and it is judged by what is expected from the external role perspective and relevant regulations. All this is then balanced by higher principles, laws and rules that might be contradicted.

5. Conclusion
Not being part of a civil law system with grand overarching themes, negligence is formed in piecemeal. As theorists attempt to unite a collection of seemingly discrete, disparate and sometimes conflicting decisions, ideas and principles under a single doctrine, the reasonable person standard, certain elements are inevitably lost or overlooked. Aristotle noted, that every law is necessarily universal while there are some things which it is not possible to speak of rightly in any universal or general statement95 since no law can be framed that will include or fairly address all circumstances, the definition put here must, like all others, be considered with discretion. The reasonable person, born in 1837 as the reasonably man, at first seems an odd, but easy to deal with character. In any situation, even non-legal, it would be easy to invoke the reasonable person and decide the solution according to social norms. But as soon as the circumstances become more complicated, the defendant less uniform and fault less clear, caveats or refinements must be introduced. The reasonable person is placed in the defendants shoes, but in that exact situation, with their knowledge at the time and with behaviour determined by a mixture of external expectations of someone in their role and relevant
92 93

[1997] EWCA Civ 1352 Gardner, in handwritten notes 94 Gardner, in handwritten notes 95 Aristotle and J.A. Smith (2006). Ethics. 1st. ed. Fairford (Glos.): The Echo Library. p.99

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regulations. And yet the problem is not solved. Without further empirical research the effect on minorities is not fully known, without deeper investigation into the purposes and principles of tort law that invite consensus the question of who should bear the damages when neither party is at fault is not resolved and as tolerance for mentally handicapped people grows the line between those excused from liability those who are merely careless is not yet satisfactorily drawn. Nevertheless it seems that the objective standard of the reasonable person is here the best to use. Strict liability is too often unjust and arbitrary and a subjective standard does nothing for general welfare and presents an administrative nightmare. As long as it is delicately handled, the flexibility of the RPS allows for unprecedented situations and accommodates various claimants and defendants while remaining an objective measure. Because it respects rules and regulations as well as looking to general opinion it blends the positivistic basis on which the standard was formed and the normative values that are necessarily and inevitably present with little conflict and usually for the best. And (noting how modern many of the cases cited are) with a growing repository of sophisticated and refined examples from case law and a fantastic influx of pioneering work on the subject over the last ten years, understanding and refinement of the standard is moving forward at an unprecedented rate.

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To be placed in the place of the actual person in the circumstances. Having experienced what the actual . person experienced and knowing what the actual person knew in the course of events, unless according to their duty they ought to have known more, they act in accordance with relevant rules and the how they are more, externally expected to act according to the role they play and within overriding laws, principles and morals. y

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