THE LAW OF NEGLIGENCE

Have you ever wondered how, with the infinite complexity of life, the law can provide for every situation by a rule laid down in advance? Take the driving of a motor car. How can you have a law that will govern every turn of the steering wheel? The answer found in the law books is that cars must be driven, and almost everything else must be done, with reasonable care and without negligence. This at least seems to state a rule. But is it a real rule, or just an appearance of one? Unless one can give a content to the notion of reasonableness, and to its opposite, negligence, the problem will be raised afresh: how can the law provide for every eventuality?

In practice the negligence rule means that the judge or jury decides whether the defendant is to be blamed or not, and this involves fixing upon something that he could and should have done (or omitted to do) in order to avoid the mischief.

During the nineteenth century the judges attempted to clarify the law by inventing the notion of the reasonable man. Instead of asking, as before, whether the defendant was guilty of imprudence, the judges required the jury to consider whether the defendant had behaved like a reasonable man, or a reasonably careful man, or a reasonably prudent man.

Having invented the reasonable man, the judges had to make an effort to describe him. According to some, he was the ordinary reasonable man. This was not the same as saying that he was the ordinary man, but came rather near it. Indeed, Lord Bowen, with his gift for a phrase, equated the reasonable man with 'the man on the Clapham omnibus', and this had led to the widespread supposition that the standard of care required by the common law is that of the average man. The supposition is certainly untrue.

'The ordinary reasonable man' of the judges' imagining is a meticulously careful person, so careful that very few gentlemen come up to his standard. Every form of average is a measure of central tendency, but the standard required by law is not a central human tendency of any kind.

Take one obvious point. A defendant in an action for negligence would not be allowed to put the passengers of a Clapham omnibus into the witness-box to say that they would have done the same as he did. The evidence would not be listened to. One reason for this is that if ordinary standards were conclusive, the courts could not use their influence to improve these standards.

Again, ordinary people, even though normally they are circumspect in their behaviour, lapse into carelessness now and then. As Elbert Hubbard expressed it, with humorous exaggeration, 'Every man is a damn fool for at least five minutes every day. Wisdom consists in not exceeding the limit'. But the idealized stereotype of the law, so far from being given five minutes' indulgence a day, is never allowed an off-moment. The defendant may be a good driver with twenty-five years' clean record, yet he will be held liable in damages for negligence if he injures someone during a momentary lapse.

That the judges set the standard by the nearly perfect man, rather than the average man, is lavishly illustrated in the law reports. The master of a small motor vessel, when off Greenhithe in the Thames, fainted at the wheel, as a result of eating bad tinned salmon, and a collision followed. Up to the moment of fainting the master had felt quite well, and he was obviously not negligent in fainting. A pure accident, you might say. But the judge held that the master was negligent because he had failed to foresee that he might lose consciousness, and had omitted to provide against this by having some other person on deck who might be able to get to the bridge in time to prevent an accident if fainting occurred. As a landlubber I am in no position to comment upon this decision, but obviously, it could not be applied to land vehicles without absurdity. No one would suggest that the Clapham or any other omnibus should carry a reserve driver, ready to seize the wheel in case the other driver faints.

Where, then, is our elusive standard to be found? If the reasonable man is not to be discovered on the Clapham omnibus, can he be identified with the judge or juryman who has to decide the issue? Technically, at least, the answer is again in the negative. A judge must not tell the members of the jury to determine what they would have done, because that is not the question. The individual jurors might not have acted as prudently as they now think, on reflection, they ought to have acted in the situation. jurors are expected to follow Hume's precept that, in considering the moral character of an act, we should adopt the role of impartial spectator, seeking reactions as to what we would approve or disapprove, not as to what we ourselves would have felt or done.

Perhaps this is the key to the puzzle. The reasonable man is a phantom reflecting a certain ideal on the part of the tribunal, whether judge or jury as the case may be. He is a personification of the court's social judgment.

If this is the right conclusion, I think one is driven to admit that the device of trying to decide cases in terms of the reasonable man is not such a good idea after all. Why not address oneself directly to the problem of negligence? Values are important, but there is no point in personifying values, or attributing them to a fictitious person. In speaking of what a reasonable man does or does not do, we appear to be stating a fact, whereas in truth the question is how people ought to behave. It is merely misleading to use an expression that seems to indicate the behaviour of real people, when we are evaluating behaviour by reference to an ideal standard.

(Glanville Williams from an article in The Listener, February 2nd, 1961)