Tuesday, January 14, 2020

A P Herbert: Fardell v Potts


This will be liked by the lawyers amongst us.

By way of initial comment, the test in many legal situations is: “What would a reasonable person have done?”  In my day this standard of the mythical reasonable person was known as the reasonable man and woe betide a litigant who fell below the standard expected of a reasonable man in a like situation.  The term was introduced in Victorian days and remains an important concept in legal systems.  In England this person was, in many cases, referred to as “the man on the Clapham omnibus”, a hypothetical ordinary person in an ordinary context exercising reasonable skill, judgment and care.  Falling short of that standard would be evidence of negligence.  The reasonable man has been referred to as “this excellent but odious character” which, in today’s language, would be “this exemplary character but a pain in the arse”.  In Australia, the “Clapham omnibus” expression has inspired the New South Wales and Victorian equivalents, “the man on the Bondi tram” and “the man on the Bourke Street tram”.

A Brixton to Clapham horse-drawn omnibus on display at London Bus Museum.

A P Herbert (1890-1971) was an English humorist, novelist, playwright and law reform activist who served as an Independent Member of Parliament (MP) for Oxford University from the 1935 general election to the 1950 general election, when university constituencies were abolished.  He is today fondly remembered for his satirical writings about the law and legal/judicial systems, often in the form of judgments and reports.  These appeared so realistic that on more than one occasion they were reported upon as being true.  His writings actually inspired law reform in some situations.

Here is A P Herbert’s work on the concept of the reasonable man, a lengthy read but worth it.  It dates from Herbert’s 1927 volume of cases and reports called Uncommon Law.  It is also interesting as a look back to a time when attitudes, expressions and outlooks were quite different from today.  Despite the satire, the backdrop is correct for its time.  To use just one example, may years ago when I was a law student, the study of the law of torts (civil wrongs such as negligence, defamation etc) had a topic "Abnormal legal persons", which cavered "infants, lunatics and married women". 


The Court of Appeal to-day delivered judgment in this important case.

The Master of the Rolls:

In this case the appellant was a Mrs. Fardell, a woman, who, while navigating a motor-launch on the River Thames collided with the respondent, who was navigating a punt, as a result of which the respondent was immersed and caught cold. The respondent brought an action for damages, in which it was alleged that the collision and subsequent immersion were caused by the negligent navigation of the appellant. In the Court below the learned judge decided that there was evidence on which the jury might find that the defendant had not taken reasonable care, and, being of that opinion, very properly left to the Jury the question whether in fact she had failed to use reasonable care or not.

The jury found for the plaintiff and awarded him two hundred and fifty pounds damages. This verdict we are asked to set aside on the ground of misdirection by the learned judge, the contention being that the case should never have been allowed to go to the Jury; and this contention is supported by a somewhat novel proposition, which has been ably, though tediously, argued by Sir Ethelred Rutt.

The Common Law of England has been laboriously built about a mythical figure-the figure of ‘The Reasonable Man’. In the field of jurisprudence this legendary individual occupies the place which in another science is held by the Economic Man, and in social and political discussions by the Average or Plain Man. He is an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen. No matter what may be the particular department of human life which falls to be considered in these Courts, sooner or later we have to face the question: Was this or was it not the conduct of a reasonable man?

Did the defendant take such care to avoid shooting the plaintiff in the stomach as might reasonably be expected of a reasonable man? (Moocat v. Radley (1883) 2 Q.B.) Did the plaintiff take such precautions to inform himself of the circumstances as any reasonable man would expect of an ordinary person having the ordinary knowledge of an ordinary person of the habits of wild bulls when goaded with garden-forks and the persistent agitation of red flags? (Williams v. Dogbody (184l) 2 A.C.)

I need not multiply examples. It is impossible to travel anywhere or to travel for long in that confusing forest of learned judgments which constitutes the Common Law of England without encountering the Reasonable Man. He is at every turn, an ever-present help in time of trouble, and his apparitions mark the road to equity and right. There has never been a problem, however difficult, which His Majesty’s judges have not in the end been able to resolve by asking themselves the simple question, ‘Was this or was it not the conduct of a reasonable man?’ and leaving that question to be answered by the jury.

This noble creature stands in singular contrast to his kinsman the Economic Man, whose every action is prompted by the single spur of selfish advantage and directed to the single end of monetary gain. The Reasonable Man is always thinking of others; prudence is his guide, and ‘Safety First’, if I may borrow a contemporary catchword, is his rule of life. All solid virtues are his, save only that peculiar quality by which the affection of other men is won. For it will not be pretended that socially he is much less objectionable than the Economic Man.

Though any given example of his behaviour must command our admiration, when taken in the mass his acts create a very different set of impressions.

He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or bound; who neither star-gazes nor is lost in meditation when approaching trap-doors or the margin of a dock; who records in every case upon the counterfoils of cheques such ample details as are desirable, scrupulously substitutes the word ‘Order’ for the word ‘Bearer’, crosses the instrument ‘a/c Payee only’, and registers the package in which it is despatched; who never mounts a moving omnibus, and does not alight from any car while the train is in motion; who investigates exhaustively the bona fides of every mendicant before distributing alms, and will inform himself of the history and habits of a dog before administering a caress; who believes no gossip, nor repeats it, without firm basis for believing it to be true; who never drives his ball till those in front of him have definitely vacated the putting-green which is his own objective; who never from one year’s end to another makes an excessive demand upon his wife, his neighbours, his servants, his ox, or his ass; who in the way of business looks only for that narrow margin of profit which twelve men such as himself would reckon to be ‘fair’, contemplates his fellow-merchants, their agents, and their goods, with that degree of suspicion and distrust which the law deems admirable; who never swears, gambles, or loses his temper; who uses nothing except in moderation, and even while he flogs his child is meditating only on the golden mean.

I have called him a myth; and, in so far as there are few, if any, of his mind and temperament to be found in the ranks of living men, the title is well chosen. But it is a myth which rests upon solid and even, it may be, upon permanent foundations. The Reasonable Man is fed and kept alive by the most valued and enduring of our juridical institutions-the common jury.

Hateful as he must necessarily be to any ordinary citizen who privately considers him, it is a curious paradox that where two or three are gathered together in one place they will with one accord pretend an admiration for him; and, when they are gathered together in the formidable surroundings of a British jury, they are easily persuaded that they themselves are, each and generally, reasonable men.

Without stopping to consider how strange a chance it must have been that has picked fortuitously from a whole people no fewer than twelve examples of a species so rare, they immediately invest themselves with the attributes of the Reasonable Man, and are therefore at one with the Courts in their anxiety to support the tradition that such a being in fact exists Thus it is that while the Economic Man has under the stress of modern conditions almost wholly disappeared from view his Reasonable cousin has gained in power with every case in which he has figured.

To return, however, as every judge must ultimately return, to the case which is before us-it has been urged for the appellant, and my own researches incline me to agree, that in all that mass of authorities which bears upon this branch of the law there is no single mention of a reasonable woman.

It was ably insisted before us that such an omission, extending over a century and more of judicial pronouncements, must be something more than a coincidence; that among the innumerable tributes to the reasonable man there might be expected at least some passing reference to a reasonable person of the opposite sex; that no such reference is found, for the simple reason that no such being is contemplated by the law; that legally at least there is no reasonable woman, and that therefore in this case the learned judge should have directed the jury that, while there was evidence on which they might find that the defendant had not come up to the standard required of a reasonable man, her conduct was only what was to be expected of a woman, as such.

It must be conceded at once that there is merit in this contention, however unpalatable it may at first appear. The appellant relies largely on Baxter’s Case, 1639 (2 Bole, at page 100), in which it was held that for the purposes of estover the wife of a tenant by the mesne was at law in the same position as an ox or other cattle demenant (to which a modern parallel may be found in the statutory regulations of many railway companies, whereby, for the purposes of freight, a typewriter is counted as a musical instrument).

It is probably no mere chance that in our legal text-books the problems relating to married women are usually considered immediately after the pages devoted to idiots and lunatics. Indeed, there is respectable authority for saying that at Common Law this was the status of a woman. Recent legislation has whittled away a great part of this venerable conception, but so far as concerns the law of negligence, which is our present consideration, I am persuaded that it remains intact.

It is no bad thing that the law of the land should here and there conform with the known facts of every day experience. The view that there exists a class of beings, illogical, impulsive, careless, irresponsible, extravagant, prejudiced, and vain, free for the most part from those worthy and repellent excellences which distinguish the Reasonable Man, and devoted to the irrational arts of pleasure and attraction, is one which should be as welcome and as well accepted in our Courts as it is in our drawing-rooms-and even in Parliament.

The odd stipulation is often heard there that some new Committee or Council shall consist of so many persons ‘one of which must be a woman’: the assumption being that upon scientific principles of selection no woman would be added to a body having serious deliberative functions. That assumption, which is at once accepted and resented by those who maintain the complete equality of the sexes, is not founded, as they suppose, in some prejudice of Man but in the considered judgments of Nature.

I find that at Common Law a reasonable woman does not exist. The contention of the respondent fails and the appeal must be allowed. Costs to be costs in the action, above and below, but not costs in the case.

Bungay, L. F., and Blow, L. F., concurred.

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