"Public opinion, nowadays, is the opinion of the
bald-headed man at the back of the omnibus. It is NOT the opinion of the
aristocratical classes as such; or of the most educated or refined classes as
such; it is simply the opinion of the ordinary mass of educated, but still
commonplace mankind."
When Walter Bagehot included this line in his famous
treatise The English Constitution published in 1867, little did he know that it
shall lead to the creation of a of a legal phrase denoting the standard of
reasonable care, which shall last more than a hundred years.
It was in 1903 that the “man on the Clapham omnibus”
made his debut in judicial decisions when his mention appeared at page 109 in
the judgement, McQuire v Western Morning News Company Limited. ‘The man on the
omnibus’ became ‘the man on the Clapham Omnibus’ with a typical working
class London neighbourhood selected as his destination lest anyone mistake him
to be from the upper class elite.
However, his moment of glory definitely came in the 1933
case of Hall v. Brooklands Auto Racing
when Greer L.J. of the Court of Appeal held "…the man in the Clapham
omnibus taking a ticket to see a cricket match at Lord's would know quite well
that he was not going to be encased in a steel frame which would protect him
from the one in a million chance of a cricket ball dropping on his head. …In my opinion, in
the same way such a man taking a ticket to see motor races would know quite
well that no barrier would be provided which would be sufficient to protect him
in the possible but highly improbable event of a car charging the barrier and
getting through to the spectators. The risk of such an event would be so remote
that he would quite understand that no provision would be made to prevent it
happening, and that he would take the risk of any such accident.” Poor,
Mr. Hall who had obtained damages of 998 shillings from the lower court had the
judgement in his favour set aside due to the implied terms in the contract for
purchase of the ticket which ‘the man on the Clapham omnibus’ would have known.
More than 110 years after its first use, the ‘Man on the Clapham Omnibus’ is
still often invoked by the judges across common law jurisdictions.
However, what is uncommon is judges accepting the test
for what it really is – judges dictating what ought to be. When the reasonable
man test or any tests of like nature are applied, the court judges the
situation not by considering what the persons involved in the case thought or
not by taking evidence as to what the average view in the country is but by
actually subjectively making a decision on the basis of what the judges think
the reasonable man’s perspective is or ought to be. Thus the persons on the
Clapham omnibus are actually none other than the judges themselves!
Recently, the United Kingdom Supreme Court speaking through Reed
L.J. in Healthcare at
Home Ltd. v. Common Services Agency
has elaborated eloquently about the various new legal fictions similar to the
man on the Clapham Omnibus that the courts have come up with in recent times. I
am reproducing the first four paragraphs from that wonderful judgement here -
1. The Clapham omnibus has many passengers. The most venerable is
the reasonable man, who was born during the reign of Victoria but remains in
vigorous health. Amongst the other passengers are the right-thinking member of
society, familiar from the law of defamation, the officious bystander, the
reasonable parent, the reasonable landlord, and the fair-minded and informed
observer, all of whom have had season tickets for many years.
2. The horse-drawn bus between Knightsbridge and Clapham, which Lord
Bowen is thought to have had in mind, was real enough. But its most famous
passenger, and the others I have mentioned, are legal fictions. They belong to
an intellectual tradition of defining a legal standard by reference to a
hypothetical person, which stretches back to the creation by Roman jurists of
the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis
Contractors Ltd v Fareham Urban District Counci
“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.”
3. It follows from the nature of the reasonable man, as a means of
describing a standard applied by the court, that it would misconceived for a
party to seek to lead evidence from actual passengers on the Clapham omnibus as
to how they would have acted in a given situation or what they would have
foreseen, in order to establish how the reasonable man would have acted or what
he would have foreseen. Even if the party offered to prove that his witnesses
were reasonable men, the evidence would be beside the point. The behaviour of
the reasonable man is not established by the evidence of witnesses, but by the
application of a legal standard by the court. The court may require to be
informed by evidence of circumstances which bear on its application of the
standard of the reasonable man in any particular case; but it is then for the
court to determine the outcome, in those circumstances, of applying that
impersonal standard.
4.In recent times, some additional passengers from the European
Union have boarded the Clapham omnibus. This appeal is concerned with one of
them: the reasonably well-informed and normally diligent tenderer