From Clapham to Salina: Locating the Reasonable Man

Abstract

“The man on the Clapham omnibus” is an often cited but poorly understood name for the standard of reasonable care in tort. It originated in a 1903 decision in which this formula was used not to articulate a legal standard but to describe an average person whose views have no legal significance. This figure finds a cousin in another personification, as “the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.” Both formulations have complex histories that help to underscore their inaptness as descriptors for the standard they are used to represent. These two examples also help to show, more generally, why a personified standard (“the reasonable person”) tends to introduce problems that do not arise with a more abstract one (“reasonableness,” “reasonable care”). Many critics have shown that the “reasonableness” standard is susceptible to problems of bias and framing. Personifying the standard invites the inappropriate use of individuated figures with particular features (e.g., a bus rider from a London suburb) that only worsen these problems. This article traces the history of these two standards, tries to explain how they moved from descriptive to normative use, and then turns to problems with personified standards more generally, showing how some superficially appealing reasons for using a personified standard prove to be unpersuasive.

Keywords:

• Reasonable man
• reasonable person
• average person
• Clapham omnibus
• McQuire v. Western Morning News Co
• Hall v. Brooklands Auto Racing Club
• normative and descriptive standards
• negligence
• law and literature
• legal history
• O. Henry

ACKNOWLEDGEMENTS

For comments on previous drafts, thanks to Robert Spoo, Eden Sarid, Haim Abraham, and Ed Morgan.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the authors.

Notes

1 James J. Paxson, The Poetics of Personification (Cambridge: Cambridge University Press, 1994), 165.

2 To date there has been little work on the cognitive effects of personification as a means of expressing legal doctrines; for a welcome exception, see Maksymilian Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (London: Hart, 2020), 330–86. When legal scholars have devoted any attention to personification, they have usually been concerned with its effects in legal advocacy—that is to say, with the persuasive power, in legal argumentation, of making harms seem more perceptible by showing how a particular individual experiences them. (Quintilian anticipates this approach when he speaks of “impersonation” by way of “fictitious speeches supposed to be uttered, such as an advocate puts into the mouth of his client” to make a judge “hear the voice and feelings of [an] unhappy victim”; Quintilian, Institutio Oratoria, trans. H.E. Butler (London: Heinemann, 1921), 2:339.) There has, however, been a considerable amount of research on the cognitive effects of personification, particularly in advertising, tending to show that people pay more attention to products endowed with human traits, and that they experience more positive emotions towards such products. See, e.g., Jennifer L. Aaker, “Dimensions of Brand Personality,” Journal of Marketing Research 34 (1997): 347–56; Kyounghee Chu, Do-Hee Lee, and Ji Yoon Kim, “The Effect of Verbal Brand Personification on Consumer Evaluation in Advertising: Internal and External Personification,” Journal of Business Research 99 (2019): 472–80; Marjorie Delbaere, Edward F. McQuarrie, and Barbara J. Phillips. “Personification in Advertising: Using a Visual Metaphor to Trigger Anthropomorphism,” Journal of Advertising 40 (2011): 121–30. It does not necessarily follow that judges and jurors react more positively to personified standards, but this result does suggest that they think about and react to such standards in a qualitatively different way.

3 Thus, for instance, Mayo Moran observes that this personification may lead to an unhelpful focus on “where the reasonable man lives, his mode of transportation, what kinds of clothes he wears, and what activities he engages in.” Mayo Moran, Rethinking the Reasonable Person (Oxford: Oxford University Press, 2003), 16.

4 McQuire v. Western Morning News Company Limited, [1903] 2 K.B. 100; Hall v. Brooklands Auto Racing Club, [1932] All E.R. 208. Both formulations have appeared primarily in British rather than American jurisprudence—but American legal scholarship taken note of both. Westlaw’s JLR database, for instance, includes over 100 references to the first of these and more than 30 references to the second. The Clapham figure has also been updated, and modified for other jurisdictions. Thus a British court refers to the “traveller on the London Underground” (Macfarlane v. Tayside Health Board, [1994] 4 All E.R. 961, 977); a Canadian court invokes “the person on the Yonge Street subway” (R. v. Johnstone, (1992) 116 N.S.R. (2d) 332, para. 25 (Nova Scotia Cty. Ct.)); a court in Hong Kong mentions “the man on the Shau Kei Wan tram” (HKSAR v. Choy Sin Hung, [2016] HKEC 1914 (Court of First Instance), and an Australian court invokes “the person on the Bondi bus” (Presbyterian Church (NSW) Property Trust v. Scots Church Development Ltd., [2007] NSWSC 676, para. 181 (Supreme Ct. N.S.W.)). This last figuration (and its cognate, “the person on the Bondi tram”) have enjoyed a good measure of success, appearing nearly 40 times in Australian judgments.

5 To avoid casting invidious aspersions, I refrain from citing examples. They are easily found by searching for McQuire and Hall in conjunction with “negligence,” and are plentiful enough that it would be unfair to single out a particular example.

6 Peter Cryle and Elizabeth Stephens, Normality: A Critical Genealogy (Chicago, IL: University of Chicago Press, 2017), 7.

7 M.A. Quetelet, A Treatise on Man and the Development of His Faculties, trans. Robert Knox (Edinburgh: Chambers, 1842), 8.

8 Ian Hacking, The Taming of Chance (Cambridge: Cambridge University Press, 1990), 146.

9 Sarah E. Igo, The Averaged American: Surveys, Citizens, and the Making of a Mass Public (Cambridge, MA: Harvard University Press, 2007), 3. See also Anna G. Creadick, Perfectly Average: The Pursuit of Normality in Postwar America (Amherst: University of Massachusetts Press, 2010); Audrey Jaffe, The Affective Life of the Average Man: The Victorian Novel and the Stock-Market Graph (Columbus: Ohio State University Press, 2010).

10 Note 4. For a helpful discussion of the case and its history, see David Roberts, “ ‘As Rude as You Like—Honest’: Theatre Criticism and the Law,” New Theatre Quarterly 19, no. 75 (2003): 265–77. There has not been much work on the history of the reasonable person more generally; however, Andrew Bricker offers some helpful observations in Libel and Lampoon: Satire in the Courts, 1670–1792 (Oxford: Oxford University Press, 2022), 29–35.

11 Hall (note 4), at 224.

12 Id. at 225.

13 The research on these issues is vast. Some notable recent discussions include: Aliza Hochman Bloom, “Objective Enough: Race is Relevant to the Reasonable Person in Criminal Procedure,” forthcoming in the Stanford Journal of Civil Rights and Civil Liberties; Christopher Brett Jaeger, “The Empirical Reasonable Person,” Alabama Law Review 72 (2020): 887–957; Angela Onwuachi-Willig, “What about #UsToo?: The Invisibility of Race in the #MeToo Movement,” Yale Law Journal Forum 128 (2018): 105–20; Kevin P. Tobia, “How People Judge What Is Reasonable,” Alabama Law Review 70 (2018): 293–360; Darren Chetty, “Racism as ‘Reasonableness’: Philosophy for Children and the Gated Community of Inquiry,” Ethics and Education 13 (2018), 39–54; Matt King, “Against Personifying the Reasonable Person,” Criminal Law and Philosophy 11 (2017): 725–32; John Gardner, “The Many Faces of the Reasonable Person,” Law Quarterly Review 131 (2015): 563–84; Christopher Jackson, “Reasonable Persons, Reasonable Circumstances,” San Diego Law Review 50 (2013): 651–706; Donald Braman, “Cultural Cognition and the Reasonable Person,” Lewis & Clark Law Review 14 (2010): 1455–80; Peter Westen, “Individualizing the Reasonable Person in Criminal Law,” Criminal Law and Philosophy 2 (2008): 137–62; Sander L. Gilman, “The Fat Person on the Edgware Road Omnibus: Fat, Fashion, and Public Shaming in the British Long Eighteenth Century,” Literature and Medicine 35 (2017): 431–47. Some of the classic treatments of the standard’s gender bias include Joanne Conaghan, “Gendered Harms and the Law of Tort: Remedying (Sexual) Harassment,” Oxford Journal of Legal Studies 16 (1996): 407–31; and Wendy Parker, “The Reasonable Person: A Gendered Concept,” Victoria U. Wellington Law Review 23 (1993): 105–12.

14 Alan D. Miller and Ronen Perry, “The Reasonable Person,” N.Y.U. Law Review 87 (2012): 323–92. See also Haim Abraham, “Queering the Reasonable Person,” in Kirsty Horsey, ed., Diverse Voices in Tort Law (forthcoming 2023).

15 McQuire (note 4).

16 Little is known about McQuire. Born around 1872, he died in 1944 at Hill View, Wildhern, Andover, Hampshire, as reported in The Stage (London), April 6, 1944, 3. He is described as an “actor,” residing at “16 Bromley Place, Nottingham,” in an 1896 Parliamentary report. Second Report from the Select Committee of the House of Lords on the Lord’s Day Act, Appx. G, 29. The same address is given for Minnie McQuire, “burlesque actress.” Id. An 1899 performance of “The Major” featured both of them, and also Lizzie McQuire. Lyceum Theatre Crewe, a History (unpag.) June 3, 1899. One of the articles reporting on his trial mentions that Ada Wallis (or Wallace), who also performed in “The Major,” was Thomas McQuire’s wife. McQuire wrote several other plays that also furnished part of the troupe’s repertoire. For more on these works, see Roberts (note 9), at 276 n.31.

17 “Theatrical Libel Case: Action against a Plymouth Newspaper,” Exeter and Plymouth Gazette, Nov. 4, 1902, 9. The earliest performance I have been able to trace was at the Theatre Royal, Eastbourne, in 1897. See “Amusements in Eastbourne,” The Era (London), Sept. 11, 1897, 14.

18 Fortunately for theatrical groups at law schools everywhere, the script has survived, and may be found at the British Library, in the Lord Chamberlain’s Plays (LCP) collection, MSS 53533 E, registered September 1893. Thanks to Miriam Handley, Zoe Stansell, and Matthew Kidd for help in locating the script.

19 “ ‘The Major’ at the Theatre Royal,” Bury and Norwich Post, Tues., March 1, 1898, 8. Seemingly anticipating the more famous review that would appear in due course, the play featured a “Sniveller’s League” whose members’ “mission in life is to oppose every amusement and enjoyment in life.” Id.

20 “Theatre Royal,” Hartlepool Mail, May 24, 1898, 3.

21 “The London Theatres,” The Era (London), Feb. 12, 1898, 11.

22 “Provincial Theatricals,” The Era (London), March 18, 1899, 21.

23 This list is drawn from a series of notices and ads for the play in the British Library Newspapers database, available from Gale Primary Sources (https://www.gale.com/primary-sources/british-library-newspapers).

24 “Palace Theater, Gloucester,” Gloucester Journal, April 12, 1913, 10.

25 The dramatis personae for that play, as given in The Stage Year Book for 1915, almost perfectly matches that given in the 1898 review, and ascribes to the play to “T.C. Mac.” The Stage Year Book 1915 (London: “The Stage” Offices, 1915), 109.

26 Theodore Strauss, “Gertrude Lawrence,” in Laurence Senelick, ed. ‘Theatre Arts’ on Acting (Abingdon: Routledge, 2008), 134. Strauss deprecates the play as a “rather tattered hand-me-down cop[y]” of a London musical. Id.

27 See note 18.

28 “The Theatre,” Bath Chronicle and Weekly Gazette, Aug. 11, 1898, 6.

29 Id.

30 “The Playwright and the Critic: Remarkable Libel Case,” Derby Daily Telegraph, Nov. 3, 1902, 3.

31 McQuire (note 4), at 101. Bune rose from his post at the Western Morning News to work for the London Times, where he was employed when the trial pending. Obituary, “Mr. R.E. Bune,” The Times (London), Apr. 14, 1956, 11.

32 One of the journalists reporting on the trial was not convinced: perhaps, the columnist opined, McQuire “overlooked the fact that the people of Plymouth might have had enough of the piece.” “Critics Are Alarmed: Manager Obtains Damages against English Paper Because of Unfavourable Notices,” Newspaperdom, Nov. 27, 1902, 1.

33 Something of a specialist in libel, Collins had also presided over Oscar Wilde’s 1895 libel case against the Marquess of Queensbury, which ended in a withdrawn charge and led to the criminal prosecution against Wilde for “gross indecency.”

34 McQuire (note 4), at 112.

35 Id. at 109.

36 Id. at 111.

37 Id.

38 Id. at 109.

39 Id. at 113.

40 See, e.g., Adrian Room, ed., Brewer’s Dictionary of Phrase and Fable, 15th ed. (New York: HarperCollins, 1995), 761.

41 Sir Henry Stewart Cunningham, Lord Bowen: A Biographical Sketch (London: Murray, 1897), 182. It is not clear why the Tichborne case should be associated with the origins of the term. In his unsuccessful efforts to pass himself off as the deceased Roger Tichborne, Roger Orton gained nationwide support among the working classes, and perhaps an equation between the Clapham bus rider and a vague notion of “the masses” accounts for the habit.

42 Hannay v. Smurthwaite, (1894) 69 Law Times Reports 677, 679. Not content with this formulation, those who rejoiced in the witticism felt compelled to expand it, and so, for instance one fan quotes him as saying that the writ was not meant to be “like an omnibus on a certain route, into which any number of persons may get as passengers for the journey.” “Joinder of Parties in an Action,” 101 Law Times 248 (1896).

43 Cunningham (note 41), 185.

44 As Alan Watson has observed, “When no authority can be found, false authority may be adduced.” Alan Watson, The Evolution of Western Private Law, expanded ed. (Baltimore: Johns Hopkins University Press, 2001), 263.

45 Thomas Hood, “The Confessions of a Phoenix,” New Monthly Magazine 67 (1843): 432–33.

46 Review of Henry Russell, The Letters of Civis on Indian Affairs, Calcutta Review 13 (1850): 416.

47 James Ewing Ritchie, Here and There in London (London: Tweedie, 1859), 213.

48 “Prophecy at Home and Abroad,” Eclectic Review 119 (1864), 59.

49 Edmund Yates, Land at Last, chapter 12, Temple Bar 14 (1865), 503.

50 See also the example from 1857 in the supplement to the Oxford English Dictionary: “So thoroughly has the tedious traffic of the streets become ground into the true Londoner's nature, that your dog-collar’d occupant of the knife-board of a Clapham omnibus, will stick on London-bridge for half-an-hour with scarcely a murmur.” Journal for the Society of Arts, May 1, 1857, 348. Admiration for this figure seems to have declined by the time of McQuire; the phrase appears less frequently, and with more skepticism, as in a 1905 article in the Spectator: “The day is over, we hope, of ‘Mr. Mothercountry,’ the Colonial Office clerk who, having directed the affairs of the Colonies, went home on the Clapham omnibus.” “An Imperial Handbook,” Spectator 94 (1905), 220.

51 Gill v. Williamson, 20 Law Times Reports, new series 712 (1869). The plaintiff sued members of the Clapham and Brixton Omnibus Company for conspiring to run his omnibuses off the road, and was awarded £150 in damages. Various directories of the time show the routes these buses traveled; see, e.g., Arthur Bailey Thompson, The Visitor’s Universal New Pocket Guide to London (London: Ward, Lock, 1861), 175.

52 Dylan Mulvin makes a related point when observing that “the average man,” used as a proxy, is meant to sound nondescript and generic. “The study of proxies exposes how their users may try to portray a fiction as only a fiction, to hide its origins, or to obscure its definite connection with the materiality of the world out there.” However, “[t]he reasonable person incarnates as a nineteenth-century man commuting from a London suburb. Proxies are inescapably material.” Dylan Mulvin, Proxies: The Cultural Work of Standing in (Cambridge, Mass.: MIT Press, 2021), 27.

53 “London and Brighton Railway,” Railway Times 5 (1841), 759.

54 Richard Holt, “The Amateur Body and the Middle-Class Man: Work, Health and Style in Victorian Britain,” Sport in History 26 (2006), 357. In some ways, the figure recalls Mr. Pooter in George and Weedon Grossmiths’ Diary of a Nobody (1892) with the difference that Pooter’s constant pose of injured dignity always makes him look ridiculous, whereas the man from Clapham is the very image of respectability.

55 Robert Fishman, Bourgeois Utopias: The Rise and Fall of Suburbia (New York: Basic Books, 1989), 53. See more generally his discussion on pp.51–62.

56 David Rudlin and Nicholas Falk, Building the 21st Century Home: The Sustainable Urban Neighbourhood (Oxford: Architectural Press, 1999), 15.

57 These associations would suggest that Collins misapplied the idiom, giving it a wider and more generic sense than in these earlier uses. Perhaps (since Collins apparently did not much like the play) he meant to hint at the differences between his own tastes and those of a steady clerical worker of the Clapham variety.

58 “Lex,” “ ‘Average Weekly Earnings’ Under the Workmen’s Compensation Act!” Scots Law Times 11 (Oct. 24, 1903), 88. The reference is to Ayres v. Buckeridge [1902] 1 K.B. 57.

59 George Spencer Bower, A Code of the Law of Actionable Defamation (London: Sweet & Maxwell, 1908), 323.

60 Id.

61 Id.

62 For Bower’s references to McQuire, see id. at 123, 169, 390.

63 Id. at 323.

64 A.P. Herbert, “Misleading Cases: The Reasonable Man,” Punch 167, July 9, 1924, 38.

65 Carleton Kemp Allen, “Learned and Unlearned Reason,” Juridical Review 36 (September 1924): 254.

66 Carleton Kemp Allen, “The Phlegmatic Englishman in the Common Law,” Cornhill Magazine 57 (September 1924), 308. He returned to the Clapham traveler seven years later in an essay on legal duties, contemplating various hypotheticals that would require “a higher righteousness than is known or practiced in Clapham.” Allen, “Legal Duties,” Yale Law Journal 40 (1931), 369. On the biographical tendency see also Mayo Moran, “The Reasonable Person: A Conceptual Biography in Comparative Perspective,” Lewis & Clark Law Review 14 (2010): 1233–83.

67 Hall (note 4).

68 See, e.g., Stansbie v. Troman, [1948] 2 K.B. 48, 49 [UK]; Lee v. Concord Municipal Council, (1993) 79 LGERA 226 (Land and Environment Ct. of NSW); In re Parthasarathy, (1959) 1 Madras Law Journal 46, para. 13 (High Ct. Madras); Ghosh v. Chatterjee, 1971 Accident Claims Journal 267 ((High Ct. Calcutta), para. 59. (These cases all attribute the phrase to Hall.)

69 See, e.g., W.C. Ekow Daniels, “When a Judge Is Not a Judge: Present Trends,” 2 Rev. Ghana L. 192, 201 (1970).

70 O. Henry, “The Atavism of John Tom Little Bear,” Everybody’s Magazine 9 (1903): 57–64; O. Henry, Rolling Stones (Garden City: Doubleday, 1912).

71 Perhaps Greer had indeed forgotten the source; just as likely, he considered O. Henry a little too middlebrow to be citable by name in a judicial decision. Collins did not hesitate to dignify the Clapham passenger with a respectable legal pedigree, but Greer may have felt that a popular American short story writer lacked sufficient gravitas to deserve the same treatment. Even in the present day, when judges refer to literary sources, they tend to acknowledge by name only those that would reflect credit on the taste of a person who would be familiar with such work.

72 T.H. Tylor, “Notes,” Law Quarterly Review 52 (1936): 8.

73 On this point see also Kevin P. Tobia, “How People Judge What Is Reasonable” (note 13).

74 Lorraine Daston, “The Moral Economy of Science,” Osiris 10 (1995): 22.

75 Wagner v. Washington Cty., 493 F.3d 833, 836 (7th Cir. 2007).

76 Because the descriptors are so various, and are so readily findable by anyone seeking examples, there is little point in citing any particular cases.

77 At around the same time that he was offering up character sketches of the reasonable man (see notes 63 and 64), Carleton Kemp Allen also made a version of this point, debunking the judicial use of the “reasonable man” as anything more than an expression of the judge’s own views:

Nobody is deceived by the fiction that the judge is stating, not what he himself thinks, but what he thinks an average reasonable man might think. How can his opinion, by whatever formula it is described, be anything but subjective? How can he measure the reasonableness of the average man except by the standard of his own reasonableness?

Allen, “The Judge as a Man of the World,” Law Quarterly Review 46 (1930): 151.

Additional information

Notes on contributors

Simon Stern

Simon Stern is Professor of Law and English at the University of Toronto. His recent and forthcoming publications include book chapters and articles on obscenity, copyright, legal fictions, law and narrative, and the development of the modern legal decision. He is co-editor of the Oxford Handbook of Law and Humanities (2020), the Routledge Research Companion to Law and Humanities in Nineteenth-Century America (2017); and the Elgar Encyclopedia of Law and Literature (forthcoming). He is co-editor, with Robert Spoo, of the Law and Literature series published by Oxford University Press.