Talk:Man on the Clapham omnibus/Archive 1

Archive 1

Merge

This article ought not to have a life outside the concept of the "reasonable man" which is the legal terms Bowen LJ was trying to explain by reference to "the man on the clapham omnibus". It should be mergeed there. ElectricRay 23:45, 19 March 2006 (UTC)

I disagree. Although the concept of "reasonable man" is closely aligned, it has a life of its own as a term. Both articles need to be expanded -- indeed "reasonable man" needs to be created. Ringbark 08:12, 20 March 2006 (UTC)

There is a Reasonable man article already. I don't understand what "life of its own" "the man on the Clapham omnibus" has, outside being a description of a reasonable man. Do elaborate. (I don't think the reference to Friedrich Kekulé's dream contained herein is (of itself) especially interesting or noteworthy, though a reference to it in the article about Friedrich Kekulé wouldn't be out of place.) ElectricRay 09:35, 20 March 2006 (UTC)

Well, Ray, I have reconsidered and researched, and some of the places I looked proved to be dead ends, while the rest led me in circles. Accordingly (and, I must admit, reluctantly) I am no longer persuaded that the reasonable man and the MOTCO differ in any material way. Ringbark 12:34, 6 May 2006 (UTC)

I agree that it should be merged, having no particular life of its own outside the concept of a reasonable man. It may perhaps merit a mention in that article. 86.139.159.146 22:24, 30 March 2006 (UTC)

I do not believe the articles should be merged. While they have the same meaning in a court, this particular term has it's own historical usage and would, I believe, constitute a seperate article on the basis of it's historical significance. When merging the articles it would be difficult not to throw potentially useful information away to the extent that making this term a seperate section in the Reasonable Man article would actually warrant creating a seperate page. --Taskforce 15:51, 2 April 2006 (UTC)

The historical usage of this term has been almost entirely in the context of what is or is not a reasonable man. Even in non-legal contexts, the expression is still an appeal to some sort of reasonableness or averageness. This is nothing more than a manifestation of the original legal use. I am prepared to stand corrected if someone provides a concrete example of a reference to a "man on the clapham omnibus" which has nothing to do with reasonableness or averageness, and which is notable. The best anyone has come up with is Kekulé's dream, and that doesn't really cut it for me. ElectricRay 13:04, 3 April 2006 (UTC)

I added Kekulé in a fit of whimsy ages ago: he was, in fact, a man on a Clapham omnibus, although he was far from average, but he is probably not required in an encyclopedia article on the topic. Apologies for being so light-hearted.

More interesting, perhaps, would be to find out whether there are any citations of the "man on the Clapham omnibus" before 1903. Regarding Lord Bowen, it is worth recording that the case cited, McQuire v Western Morning News Co [1903] 2 KB 100, was a libel case, where the question was whether a bad theatre review was "fair comment" or not. Bowen was not a judge in this case - he had died in 1894 - but Sir Richard Henn Collins MR said "Fair ... certainly does not mean that which the ordinary reasonable man, "the man on the Clapham omnibus," as Lord Bowen phrased it, the juryman common or special, would think a correct appreciation of the work; and it is of the highest importance to the community that the critic should be saved from any such possibility." It seems that Collins is reporting an earlier comment from Bowen, but without citation, although a judgment of Bowen in Merivale v Carson (1887) 20 QBD 275 is also mentioned in Collins' judgment, but the report of that case does not refer to Clapham or omnibuses.

In a legal context, the "man on the Clapham omnibus" clearly does denote the mythical "reasonable man" (see McNair J in Bolam v. Friern Hospital Management Committee, although saying that the test does not not apply precisely where the person has a special skill), but in other contexts it connotes more, to my mind, an average - but not necessarily reasonable, in a legal sense - man, an Everyman, like Mondeo Man or Joe Q. Public - see [1]. -- ALoan (Talk) 13:46, 3 April 2006 (UTC)

I am currently leaning towards keeping this a separate article due to the nature of this extra-ordinary phrase. Surely the contexts is the reasonable man, but for the explanation of the reasonable man, a short referral is sufficient. The story behind it, should be in this article here. I will do some research in the legal libraries to find the first and subsequent mentionings of the phrase in legal cases. Txwikinger 08:30, 25 April 2006 (UTC)

Firstly, if you propose a merger, please initiate the discussion on the page that is linked by the tag - ie Talk:Reasonable man in the case of the tag, not here. Secondly disagree strongly with merger proposal. The man on the Clapham omnibus may well be a reasonable man but there are further connotations associated with that term including the amount of knowledge he has, ie he is reasonably educated but not a specialist.--A Y Arktos\^talk 10:53, 11 May 2006 (UTC)

As a side note, the part about Quebec civil law equating 'le bon père de famille' with the reasonable man is erroneous. The bon pere comes from the Roman law tradition of bonus pater familias. Most civil law tradition jurisdictions have this in their jurisdictions. For example, Maltese legislation has constant references to the bonus pater familias. It too describes standard of care like 'the reasonable man' test developed in the common law system. The distinction I want to draw out is that while the concepts are similar and for practical purposes identical, they are not derived from the same source. I imagine that with Canada having both common law and civil tradition, the overlap is inevitable.Acer1683 (talk) 16:47, 3 October 2008 (UTC)

The section below from APH's work that quotes "as any reasonable man would expect of an ordinary person having the ordinary knowledge of an ordinary person", to me at least quite clearly distinguishes between the ordinary man and the reasonable man. I don't know if his precedents are fictitious or real, I had always assumed the former, but regardless I think it shows a difference. SimonTrew (talk) 02:05, 21 March 2009 (UTC)

Merge Bonus Pater Familias with this page

Bonus pater familias has the same meaning in the Roman law system. I think its very short page should redirect here and a paragraph added to explain the different roots. Futal (talk) 10:56, 26 March 2014 (UTC)

I don't just like this article it has room for a lot of expansion. Where did it come from? What is its notable usage etc. If I were a student of Roman Law I would not want to wade through an article on common law to find out -- just as if I were a student of English common law would I want to wade through an article on an aspect of Roman law to find details about this term. -- PBS (talk) 08:31, 17 April 2015 (UTC)

Still in use as a phrase

Just thought I would note that it isn't just me that still uses the term. Found a reference in Hansard of the ACT Parliament of a relatively recent date using the phrase.(page 78 of a 109 page pdf) --A Y Arktos\^talk 09:56, 14 June 2006 (UTC)

It's in relatively common use in British English political speak. — OwenBlacker 13:17, 11 July 2006 (UTC)

And by a Planning Inspector in 2009 (APP/Z0116/X/08/2093419, 22 May 2009, para. 5). -- Trevj (talk) 10:26, 22 November 2013 (UTC)

Lightheartedness

I think more lightheartedness is called for, here, and in the world generally. In that spirit, here is the great case of Fardell v Potts, which really ought to be the first and last word on the Reasonable Man, by the great British humourist, Alan Herbert. My Torts professor read this whole case out, word for word, in a lecture once, many years ago, and I have never forgotten it.

I commend AP Herbert's Uncommon Law, from which this comes, to anyone interested in English humour of the highest order. It's very difficult to get hold of these days - if you see a copy, grab it. ElectricRay 16:00, 3 April 2006 (UTC)

THE REASONABLE MAN

"[...]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.

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.

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 andenduring 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. [...]"

"Surely in this age of 'political correctness' one should cite 'The man or woman on the Clapham omnibus'. I had long believed this to be attributed to the late Lord Devlin - but perhaps he simply used it on a number of occasions. These days however little regard is accorded to what the 'reasonable man' might think. Instead the views of 'experts' and those with vested interests, hidden agendas,and political - or religious - motives are pre-eminent plus of course those of hoards of self styled, pompous and arrogant 'opinion formers' There appears to be little room left on the Clapham omnibus for the 'reasonable man' - or woman!(Esquiresrs 20:11, 2 December 2006 (UTC))"

BTW I have a first edition of APH's Uncommon Law so if you need any references I can provide them. Picked it up for a song on a second-hand stall one day. SimonTrew (talk) 01:55, 21 March 2009 (UTC)

Date

Might be useful to include a date of first usage along with the court case in question. I myself have no idea, else I'd add the date. --24.19.113.220 (talk) 02:00, 10 October 2008 (UTC)