At some point he may have been introduced to you by your law firm: the reasonable man –the one from the Clapham omnibus. The reasonable man stands for an objectively measurable standard against which legal concepts have to be understood and tested. He appears to be someone like you and me, driven by common sense and obvious logic. The reasonable man has been around since more than 150 years and is popping up in legal documents, policies and case law ever since.
Though, can we still trust him? Is he capable to adapt to our zeitgeist and to new paradigms such as gender equality, neuroscience and AI?
Most prominently, the reasonable man shaped 19th century English contract law. He imposed on parties to stand by their conduct, regardless of what they actually had in their minds. In Smith v Hughes (1871) the reasonable man made sure that Mr Hughes had to buy 40-50 quarters of green oats for his racing horses that would actually only eat old oats: after all, Mr Hughes had approved a sample of the former! To the contrary, in Centrovincial Estates v Merchant Investors (1983) the reasonable man supported the objective interpretation of contractual offers by ‘reference to the interpretation which a reasonable man in the shoes of the offeree would place on the offer’. Good for the offeree, as he had erreanously been offered – and with help of the reasonable man he also rightfully accepted – a lease for the price of £65,000, the real price of which was supposed to be £126,000.
Hang on: could the reasonable man not have spotted that it must have been an error on behalf of the offeror? Does he not have any pity, any forbearance?
Let’s have a look at the reasonable man’s presence in other areas of law. In Criminal Law, for instance, the reasonable man assisted the jury when assessing defendant’s level of self-control. Described in Camplin (1978) as ‘a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused’, the reasonable man’s characteristics were nonetheless affected by the gravity of any provocation. In other words: The reasonable man in the law of provocation needs to be given the characteristics of the accused to a.) make a realistic assessment of what would be a reasonable reaction to the provocation and b.) take account of some characteristics of the accused which provide a good explanation of why he or she could not live up to the standard of the reasonable person….
This does no longer sound reasonable to you? The Law Commission responded to the resulting problem, namely gradually turning provocation into a defence, in 17 paragraphs of its Final Report ‘Defences to Murder’ from 2003. The Commission did not blame the reasonable man’s deficiencies, but identified a lack of systematic thought in our law of homicide and complex questions of sentencing and emotional and cognitive components in peoples’ behaviour.
As you might have recognised, in 20th century the reasonable man gradually evolved into the reasonable person. In Tort Law, the reasonable person is endowed with foreseeability. Reasonable foreseeability is an objective test, even though it must be applied to the particular defendant who causes harm. Therefore, in Islington LBC v UCL Hosp NHS Trust (2005), not a cardiac surgeon’s secretary was sued for negligence when informing a patient that – due to cancellation of her operation – she should not re-commence her medication. The resulting stroke the patient suffered when following the advice was attributed to the NHS Trust’s negligence, whose notional foresight was based on a significant degree of medical knowledge and who ought to have instructed its’ staff accordingly.
In the law of private nuisance, where an actions or omissions of one person unduly interfere with use and enjoyment of another persons’ land, claimant’s and defendant’s competing interests in the use of their land have to be balanced. Not subjecting anyone to mere objective reasonableness, the courts invoke balancing factors such as public benefits of the defendant’s activities, the duration, intensity and frequency of the defendant’s activities, the character of the neighbourhood and others. While their aim is to proof an unreasonable user, the unreasonable person might even be identified as a third party who, for instance, previously failed to insulate walls as in Hiros Electrical UK Ltd v Peak Ingredients Ltd.
Remember that the reasonable man originally came from the Clapham omnibus. It goes without saying that this man tends to avoid the corporate world. Here, reasonableness has evaporated into a self-evident standard: in Employment Law, employers make reasonable adjustments to support their disabled staff, they must not dismiss their employees outside the band of reasonable responses and must have reasonable grounds for believing that the employee was guilty of that misconduct, if they want to avoid a claim for unfair dismissal. Importantly, in the case of an employment dispute it is irrelevant whether or not the tribunal would have dismissed the employee if it had been in the employer’s shoes: the tribunal must not “substitute its view” for that of the employer, so in Foley v Post Office, Midland Bank plc v Madden (2000)
Though, the reasonable person still appears in policy papers: According to the Information and Guidance of the Regulator of Community Interest Companies, a qualifying company satisfies the community interest test if a reasonable person might consider that its activities (or proposed activities) are carried on for the benefit of the community. Likewise, a company will be disqualified from satisfying the community interest test if it engages in activities that a reasonable person might consider to benefit its members or employees without contributing towards any wider community benefit.
Any questions?
Returning back to our starting point, ‘the interpretation of a contract is still ascertaining the meaning that a contractual document would convey to a reasonable person’, as stated in Investors Compensation Scheme Ltd v West Bromwich Building Society (1997). Though, modern case law identifies the reasonable person as the person ‘having all the background knowledge what would have been available to the parties in the situation in which they were at the time of the contract, ‘ so in Chartbrook Ltd v Persimmon Homes Ltd (2009) Such reasonable person is capable to approach a contract from a multi- dimensional perspective, so in Arnold v Britten (2015), a case based on a particular sub-clause entailed in 25 leases. Reasonableness in contract interpretation involves 1.) looking at the natural and ordinary meaning of a clause; 2.) looking at any other relevant provisions of the lease; 3.) looking at the overall clause and the lease; 4.) looking at the facts and the circumstances known or assumed by the parties when executing their document; 5.) applying commercial common sense and 6.) disregarding subjective evidence of any party’s intention.
To conclude: having vanished from the simple objective certainty of his old days, the reasonable man appears to have evolved into something new, multi-faceted, complex and somewhat intangible, just in accordance with the passage and requirements of our time.
Just one more question: Does the reasonable person actually follow the rule of law?