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'. Devoid, in short, of any human weakness, with not one single saving vice, sans prejudice, procrastination, ill-nature, avarice, and absence of mind, as careful for his own safety as he is for that of others, this excellent but odious character stands like a monument in our Courts of Justice, vainly appealing to his fellow-citizens to order their lives after his own example.
The Philosophy Behind The Concept of Reasonable Man
The concept of reasonability or who is to be considered a reasonable man has always been under sever fire from various people belonging to the legal profession as well as the non legal profession. It has been believed by people that this concept of reasonability is based on the whims and fancies of invidual and hence this can not be used as a universal standard. This argument aims at the very root of the formulation of the reasonable man concept as its basic reason for being brought into existence is to create a universal bench mark or yard stick. Still this argument has been successfully countered by many authors in various ways. The most popular explanation of the rationality for the formation of the concept of reasonable man has been explained below.
To offer an account of how reasonableness is embodied in many men, an account of the social structure of reasonableness will be sufficient way of backing the concept of reasonable man. Most people make some discrimination between more and less reasonable men, and the most reasonable men make the most coherent and most fine discriminations. More fully, great many people are sometimes able to say that one argument is reasonable and another is not, or that one argument is more reasonable than another, or that one person is being reasonable and another unreasonable, or one is being more reasonable than another. Secondly, the judgments of different people on the same arguments, or on the same persons arguing, tend to coincide, though far from completely coinciding. With closely balanced arguments and arguers support is apt to divide more or less equally, but there are many extreme cases, which we could regard as paradigm cases, where almost every one is agreed. This is enough to show that judgements of reasonableness are not matters of personal whim, varying from man to man arbitrarily.coinciding. With closely balanced arguments and arguers support is apt to divide more or less equally, but there are many extreme cases, which we could regard as paradigm cases, where almost every one is agreed. This is enough to show that judgements of reasonableness are not matters of personal whim, varying from man to man arbitrarily.
We can still strengthen our argument by emphassising one more important fact. with persons, being reasonable turns out in fact to be a dispositional rather than an episodic quality. Although we can all think of counter-examples, where a man whose judgement we all respect gets hold of the wrong end of the stick and cannot be brought to see sense, or where some highly hysterical woman for once shows herself surprisingly sane, on the whole our experience is that people who have been reasonable in the past will turn out to be reasonable in the future also, so much so that we are prepared to suspend our own immediate unfavourable assessments of their reasonableness on a particular issue in the anticipation that further consideration or fuller understanding will counter first impressions. That is, although we start with the individual's immediate assessment of reasonableness, this assessment is capable of correction, thanks to the transfer of the quality from particular arguments to particular arguers. In the same way as we allow our immediate assessments of the reasonableness of people to be confronted with and sometimes corrected by our earlier and more considered assessments, so we allow our own assessments to be modified by those of others whom we respect.
CHAPTER 2
Reasonable man and Tort of Negligence
In this case as it is with so many aspects of English law it is not possible to track down authorities precisely stating the law. The starting point can be considered to be the dictum of Alderson B, in the case Blythe v Birmingham water woks. In this his lordship says “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 do something which a prudent and reasonable man would not do.”
The legal standard is not that of the defendant himself but that of ‘a man of ordinary prudence’, ‘a man using ordinary care and skill’, ‘a hypothetical reasonable man.’ In this context lord MACMILLAN words “the standard of foresight of reasonable man…eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.”
The definition of the reasonable man is not complete unless the words “in the circumstances” are embodied. In simple terms these words may prevent the test from being wholly objective. We shall now discuss this concept of reasonable man and reasonable care in various circumstances.
1.Children
Children are a category apart. In many cases of negligence children have been held not guilty where adults would have been held guilty. The test of contributory negligence is: what degree of care for his own safety can a child of the particular age reasonably be expected to take?
In McHale v Watson a 12 year boy threw a spike at a post. The spike ricocheted off the post and hit the plaintiff in the eye. The high court of Australia held that the standard of care to be demanded of the boy must be judged by the foresight and prudence of an ordinary boy of twelve. One judgment at first instance has been traced in England holding that it is the standard of a reasonable child of defendants age which should be adopted to govern the liability of the child.
2.Other categories of persons
It is unclear to what extent if at all the standard of the reasonable man will be adjusted to allow for the incapacities and infirmities of individual adults. It may be that the other category of legal incapacity, mentally disordered persons is so akin to children that the same rule should apply to them. It would be unwise however to assume in the absence of decided cases that subjective factories are to be taken into account in the case of classes of persons other than children and mentally disordered persons. In Daly v Liverpool corporation it was held that in deciding whether a 67 year old woman was guilty of contributory negligence in crossing a road one had to consider a woman of her age, not a hypothetical reasonable man.
In Roberts v Ramsbottom the defendant suffered a slight stroke just before getting into his car. He was completely unaware that he had a stroke although he felt a bit dizzy. A few minutes after starting his journey he was involved in a collision injuring the plaintiff. It was held that even though his carelessness resulted from impaired consciousness of which the defendant was unaware he was liable for negligence. His standard of care when driving on a public road was to be assessed objectively disregarding any mental capacity, just as any physical infirmity or inexperience would be disregarded if the defendant elected to drive.
3.Intelligence
The defendant’s actions must conform to certain criteria expected of a person of normal intelligence in a given situation. It is no defence that someone acted “to the best of his own judgment’, if his best is below that of a reasonable man. This was decided in the case Vaughan v Menlove. A man whose reactions are slower than average is not therby excused. However a person whose intelligence is superior or whose reactions are quicker than that of a reasonable person is not liable for additional damages.
4.Skill
It has been seen that a persons conduct must conform to the standard of intelligence of a normal person. When a person has held himself out as being capable of attaining standards of skill either in relation to the public generally he is required to show the skill generally possessed by persons doing that work. A doctor failing to diagnose a disease cannot excuse himself by showing that he acted to the best of his skill if a reasonable doctor would have diagnosed it. In Bolam v Friern Hospital Management Committed it was held that a doctor who conforms to practices accepted as proper by some reasonable member of his profession is not liable merely because would take a different view.
Similar instances can be found in other professions too. In the case of Wells v Cooper, a householder fitted a new door handle so insecurely that the plaintiff, when pulling it lost his balance and was injured. The court held that the householder was required to show the standard of care, not of a professional but that of a reasonable competent carpenter doing such a trifling domestic job. If the householder employed a professional carpenter no doubt the latter would be under a contractual duty to him to use the skill of a professional. Where the man had not held himself out as having special skill, he is not liable when he shows average skill in the circumstances although he has a special skill.
6. Reasonable man in sport
When negligence is alleged in course of playing sport, the fact that the object of competitive sport is to win and that spectators attend sporting occasions to see competitors exhibit their skill at the game will be relevant. So in Wooldridge v Sumner it was held that where a show jumper was concentrating his attention and exerting his skill to complete his round of the show jumping circuit this must be taken into account in determining whether a momentary misjudgment constituted negligence. By contrast in Condon v Basi a footballer sued in negligence when he suffered a broken leg as a result of a tackle by the defendant found by the referee to be serious foul play. The defendant was held liable and upholding the judgment, at first instance the Court of Appeal held that a clear breach of the rules of the game would be a relevant but not conclusive consideration in deciding whether there had been actionable negligence. The overall test was did the defendant behave like a reasonable man in regard for the safety of others to be expected of a competent player of his class?
7.Knowledge
people are deemed to know those things which adults from their experience are expected to know. For example some things burn , some explode easily, that there is law of gravity. This minimum amount of knowledge of matters of everyday experience they are deemed to posess. In Caminer v Northern and London Investment Trust the knowledge required of a landowner with regard to elm trees on his estate , their proneness to disease, lack of wind resistance and like was of a standard between that of an urban observer and a arboriculturist. In the Wagon Mound case the privy council said that the shipowner was liable for a fire caused by discharging oil in Sydney harbourt because the chief engineer should have know that the discharge created a real risk of the oil on the water catching fire. Also if someone elects to take on a particular task, albeit he is not an expert or professional in the field, he will be expected to have the necessary degree of knowledge to complete the task competenly.
When the question what knowledge of facts and circumstances surrounding him must the defendant have, he will not be excused for failing to observe what a reasonable man would have observed. In the Mersey Docks Trustees v Gibbs, a dock authority who did not know but ought to have known that he dock was unsafe was negligent.
Further, even if a reasonable man is not expected to know, he may be rewuired to get and follow expert advice. Haseldine v Daw & Son ltd, it was said that a landlord of flats must therefore consult a specialist engineer about the safety o his lift.
8. Reasonable man in the “Hurly Burly” of life
the tort of negligence only refers to a reasonable man but not a perfect man. The reasonable man test largely rests on common sense and the exigencies of everyday life must be recognized. A good example of the allowance made by the law for the hurly burly of life can be seen in cases relating to parental and quasi parental duties. In Carmarthenshire county council v lewis the defendant council were held liable when a small boy wandered out of his nursery school and onto a nearby road causing an accident in which the plaintiffs husband died. The council were negligent because premises where small children are should be designed to ensure that children cannot wander off endangering themselves or others. But lord reid said that the teacher who had not noticed the boy leave her classroom while she attended to a child with a cut knee was not negligent. Those in charge of small children cannot have eyes in the back of their heads.
This raises the question if the majority judgement fair to the child or does it go rather furthrer than simply acknowledging the realities of life and its conflicting demands? Was the court in effect saying reasonable mothers make mistake and should not be penalized for them.
In Porter v barking and Dagenham London Borough Council a 14 year old boy injured when he and a friend were allowed to practice shot put unsupervised failed in his action for negligence against the school authorities. The standard of care in relation to children should not be framed so as to stifle initiative.
9. Anticipation of a Reasonable man
in all the varied cases relating to the standard of care there is a recurrent emphasis on what could reasonably be anticipated or foreseen as constituting the standard of the reasonable man. This serves to emphasis both that one must not look at the circumstances in the light of what has happened and that it is immaterial that since the accident the defendant has taken precautions against a further such accident. It is elementary law that someone cannot be expected to take precautions against dangers which he cannot reasonably be expected to anticipate.
10. Foreseeable acts of third parties
ever where the courts are prepared to find a duty in respect of the act of third parties, It will often be difficult to decide when ether has been an intervening act of a third party, whether the defendants act has caused the damage suffered by the plaintiff. It is important to note that he issue of causation becomes material only afeter the failure of the defendant to take due care has been proved. Whether the defendant has ashown that standard of care will frequently depend on what acts or omissions of another he could reasonably have anticipated. Yet in LPTB v Upson the house of lords reversed a lower court ruling saying that drivers are entitled to drive on the assumption that other users of the road whether drivers or pedestrians will behave with reasonable care.
One cannot excuse oneself by relying on another to do an act unless that reliance were reasonable. Manchester Corporation v Markland illustrates this. The appellants were the statutory authority for the supply of water. One of the appellants service pipes in a road in Eccles burst. Three days later, the resulting pool of water froze and a motor car skidded on the ice knocking down and killing a man, in an action of negligence by the dependants of the deceased against the appellants it was held to be no defence that the appellants chose to rely on Eccles Corporation to notify them of bursts. They themselves as reasonable men should have taken proper precautions.
11. General Practice of the Community
a defendant will usually support his claim to have shown due care by showing that he conformed to the common practice of those engaged in the activity in question. In Cavanagh v Ulster Weaving Co Ltd, the plaintiff slipped coming down a roof ladder. Despite unchallenged evidence that the set up was in perfect accord with the established practice, the house of lords restored the jury’s verdict that the defendant was negligent.
In Brown v Rolls Royce the defendants failed to provide the plaintiff with barrier cream commonly supplied to employers to workmen doing work like this. They had relied on proper medical advice in not providing the cream. They further maintained that the plaintiff had not proved that th cream would have prevented him from contracting dermatitis. Held that the plaintiff had not discharged his burden of proving that negligence by the defendants caused dermatitis.
THE CASE OF THE REASONABLE PROFESSIONAL IN NEGLIGENCE
The basic test of whether the defendant conformed to the standard of the reasonable man, the reasonable professional in his case must be elaborated a little.
The defendant must exhibit the degree of skill which a member of the public would expect from a person in his or her position. Care must be taken in assessing that standard to relate what is expected of the professional to the expertise he claims to hold and not to demand unrealistic standard of skill and knowledge. In Whitehouse v Jordan, the virtual immunity offered to doctors for errors of clinical judgment was firmly condemned by the House of Lords.
Reasonable man in other torts
It is interesting to note that in the tort of nuisance, the concept of reasonable man or reasonability is overshadowed by the aspect of unreasonability. This is exemplified in issues like ‘egg shell skull theory’ where it is said that the person is unreasonable. While deciding this unreasonableness the comparison of the hypothetical reasonable man does not take place. It is for this reason that the concept of reasonable man has maximum weightage only in the issue of negligence. It is also believed that this concept was initially formulated only for the tort of negligence. So the usage in any other tort (though it cannot be called as an exception) is definitely not very prevalent.
CHAPTER 3
REASONABLE MAN IN THE INDIAN CONTEXT.
The concept of reasonableness has been vastly used in tort cases that have come before Indian judiciary. However the concept of reasonable man as it is has not been used extensively in the supreme court of India. The reason why this reasonable man who is very popular with the English judiciary has not found much place in the Indian judiciary might just have been a matter of perception of judges. It could be said that judges were satisfied by using the reasonability test and not mentioning the hypothetical reasonable man. Nevertheless Indian judiciary too has used reasonable man in a few cases.
G.B.MAHAJAN v JALGAON MUNCIPAL COUNCIL
Though this does not happen to be case of tort, the issue of reasonable man in the case of tort law had been elaborately explained while the judiciary made an attempt to distinguish between the concept of reasonable man in torts and the concept of reasonable man in administrative law.
In the arguments there was some general misapprehension of the scope of the "rea-sonableness"-test in administrative law. By whose standards of reasonableness that a matter is to be decided? Was a question that arose. However different context in which the operation of "reasonableness" as test of validity must be kept distinguished. For instance as the arguments in the present case invoke, the administrative law test of 'reasonableness' is different from the test of the 'reasonable man' familiar to the law of torts, whom English Law figuratively identifies as the "man on the clapham omnibus". In the latter case the slandards of the 'reasonable-man', to the extent such a 'reasonable man' is Court's creation, is in a manner of saying, a mere transferred epithet.
The judge M.Venkatachlia put an end to this controversy in his judgment quoting Professor Wade saying that "This is not therefore the standard of 'the man on the Claphani omnibus'. It is the standard indicated by a true construction of the Act which distinguishes between what the statutory authority may or may not be authorised to do so”.
Municipality of Bhiwandi and Nizampur Vs. Kailash Sizing Works
This was a case relating to negligence on part of the authorities where in spite of having a suspicion that something is wrong the authorities do not act and this leads to damage. The Chief justice Ray who was on the case quoted in the judgment that an authority was not acting honestly when the authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of possible harm to others and acting in spite thereof, is acting with reckless disregard of consequences. The legal presumption as the judge quotes in his judgment is drawn through the well know hypothetical reasonable man.
Lala Bishambar Nath and Ors. Vs. The Agra Nagar Mahapalika, Agra
The appellants were the partners of the firm Shiam Lal Radhey Lal. The Military Dairy Farm at Agra was in possession of a certain quantity of wheat flour. It was declared unfit for human consumption. It was purchased for the firm. According to the appellants, it was fit for being used as lehi, manure and ratab for consumption by animals. Broadly stated, their case was that the respondents initially stopped them from selling the flour and subsequently imposed restriction on its sale, "which effectively prevented the sale". Loss was caused to them on account of delay in sale due to their intervention.
However the court had a different opinion on the intention of sale and while stating its case it brought the concept of reasonable man claiming that the seller should intend to sell an article of food for human consumption. His intention is an objective fact. There should be present some facts or circumstances which would incline a reasonable man to believe that the sale of an article of food or drink or an animal was intended for human consumption.
M.S. Grewal and anr vs. Deep Chand Sood and ors.
In this case the judge had to deal with the concept of negligence. It was while trying to define the concept of negligence that Judge A.P.Mishra used the concept of reasonable man. He tried to define negligence saying that negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness of inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do.
State of J. and K. Vs. Zarina Begum and Ors.
In this case of negligence justice Tejinder Singh defined negligence by using the concept of reasonable man. He said that Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to plaintiff. Thus, negligence is the breach of a duty caused by the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Anr.
This happened to be a case in which the defendants pleaded contributory negligence. Hence it out that the judge Sri Doriswamiraju had to use the concept of reasonable man in order to decide whether the act was reasonably foeseeable and so if there was any contributory negligence or not. While dealing with this he wrote in his judgement that “To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not.”
It has to be noted that unlike the English cases, though the concept of reasonable man has made an appearance to explain or decide on a particular aspect or definition it has not played a major role in deciding who is guilty or deciding any other substantial point of law. Hence this again reinforces our earlier opinion that the concept of reasonable man has had very little importance in our case history.
Conclusion
The reasonable man, the creation of case law as we have seen has made his presence felt in the west as well as our own country. It is very commendable that the judges were able to come up with such a creative solution to create a rough yardstick which proved to be an immensely useful tool to solve various cases, especially those related to the tort of negligenc.
At this point there can be no satisfied explanation as to why this concept has not been very popular with the Indian judiciary. However it might only be a matter of mentioning the reasonable mans name in the judgments as we could clearly see that the Indian judiciary too used the test of reasonability quite often. Thus we could say that instead of not being used, the concept of reasonable man was just not mentioned in India.
The English judiciary however has usd their creation very widely and had even made it the central issue while deciding certain judgments. This could be interpreted as the judges trying to put their reasoning in more acceptable words while writing judgments. Nevertheless there has been great weightage attached to what the reasonable man would have said, seen or done.
The discussion about treasonable man could be ended by quoting Lord Radcliffe, "By this time, it might seem that the parties themselves have become so far disembodied spirits that their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is, and must be, the Court itself...."
BIBLIOGRAPHY
Books:
1. G.P.Singh, Ratanlal & Dhirajlal’a The Law of Torts (24th edn., Nagpur:Wadhwa and
Company, 2002).
2. M.Brazier, Street on Torts (9th edn., London: Butterworths, 1993).
3. R.F.Heuston et al, Salmond and Heuston on the Law of Torts (20th edn., Delhi:
Universal Law Publishing Ltd, 2002).
4. W.Rogers, Winefield and Jolowicz on Tort (16th edn.,London: Sweet & Maxwell,
2002).
Websites:
1. www.fact-index.com/r/re/reasonable_person.html
2. http://www.google.com
3. http://www.manupatra.com
4. http://www.nls.ac.in/westlaw/index.htm
5. http://ww.mfg-law.com
www.fact-index.com/r/re/reasonable_person.html
M.Brazier, Street on Torts (9th edn., London: Butterworths, 1993) at 225.
(1856) 11 Exch 781 at 784 as cited in id.
(1956) 111 CLR 384 as cited in supra note 2, at 226.
(1837) 3 Bing NC 468 at 474 as cited in supra note 2, at 228.
Blythe v Birminghamas cited in supra note 2, at 230.
[1991] AC 549, HL. as cited in supra note 2, at 232
[1936] AC 360, HL as cited in supra note 2, at 234.
[1981] 1 WLR 246 at 258, HL, as cited in supra note 2, at 239.
G.B.Mahagan v Jalgaon Muncipal Council, MANU/DE/1012/2001.
