Reasonable person

In law, a reasonable person, reasonable man, or the man on the Clapham omnibus,^[1] is a hypothetical person whose character and care conduct, under any common set of facts, is decided through reasoning of good practice or policy.^[2]^[3] It is a legal fiction^[4] crafted by the courts and communicated through case law and jury instructions.^[5] In some practices, for circumstances arising from an uncommon set of facts,^[3] this person represents a composite of a relevant community's judgement as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public.^[6]

The reasonable person is used as a tool to standardize, teach law students, or explain the law to a jury.^[5] The reasonable person belongs to a family of hypothetical figures in law including: the "right-thinking member of society", the "officious bystander", the "reasonable parent", the "reasonable landlord", the "fair-minded and informed observer", the "person having ordinary skill in the art" in patent law, and stretching back to Roman jurists, the figure of the bonus pater familias,^[1] all used to define legal standards.

While there is a loose consensus on its meaning in black letter law, there is no accepted technical definition, and the "reasonable person" is an emergent concept of common law. The reasonable person is not an average person or a typical person, leading to difficulties in applying the concept in some criminal cases, especially in regard to the partial defence of provocation.^[7] As with legal fiction in general, it is somewhat susceptible to ad hoc manipulation or transformation. Strictly according to the fiction, it is misconceived for a party to seek evidence from actual people to establish how someone would have acted or what he would have foreseen.^[1]^[4] However, changes in the standard may be "learned" by high courts over time if there is a compelling consensus of public opinion.^[2]^[3]

The standard also holds that each person owes a duty to behave as a reasonable person would under the same or similar circumstances.^[8]^[9] While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.^[10]^[11] The standard does not exist independently of other circumstances within a case that could affect an individual's judgement. In cases resulting in judgment notwithstanding verdict, a vetted jury's composite judgment can be deemed beyond that of the reasonable person, and thus overruled.

The "reasonable person" construct can be found applied in many areas of the law. The standard performs a crucial role in determining negligence in both criminal law—that is, criminal negligence—and tort law. The standard is also used in contract law,^[12] to determine contractual intent, or (when there is a duty of care) whether there has been a breach of the standard of care. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant circumstances of the case including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties.^[13]

^ ^a ^b ^c "Healthcare at Home Limited v. The Common Services Agency, [2014] UKSC 49" (PDF). Supreme Court of the United Kingdom. 30 July 2014. Archived from the original (PDF) on 9 April 2019. Retrieved 7 January 2016. It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would be misconceived for a party to seek to lead evidence from actual passengers [i.e. "the right-thinking member of society," "the officious bystander," "the reasonable parent," "the reasonable landlord," "the fair-minded and informed observer,"...] 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.
^ ^a ^b Cite error: The named reference 275 U.S. 66 was invoked but never defined (see the help page).
^ ^a ^b ^c Cite error: The named reference Holmes was invoked but never defined (see the help page).
^ ^a ^b Bedder v Director of Public Prosecutions, 1 WLR 1119 (1954) ("[where reasonable man is deemed a wholly impersonal fiction to which no special characteristic of the accused should be attributed]").
^ ^a ^b Regina v Smith, 4 AER 289 (2000) ("[sub-citing Camplin and Bedder:] the concept of the "reasonable man" has never been more than a way of explaining the law to a jury; an anthropomorphic image to convey to them, with a suitable degree of vividness, the legal principle that even under provocation, people must conform to an objective standard of behaviour that society is entitled to expect").
^ R v Camplin, A.C. 705 (1978) ("[a reasonable man] "means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today").
^ "The Concept of the Reasonable Man in the Partial Defence of Provocation". 2015. Archived from the original on 18 May 2015. Retrieved 11 May 2015.
^ Brown v. Kendall, 60 Mass. 292 (1850).
^ Franklin, at 54
^ Triestram v. Way, 281 N.W. 420 (Mich. 1938).
^ Franklin, at 55
^ For the use in transnational contract law: Trans-Lex.org
^ JLonghitano. "Bruno Zeller". www.cisg.law.pace.edu. Archived from the original on 20 July 2018. Retrieved 6 April 2018.

[Clapham_omnibus-1] "Healthcare at Home Limited v. The Common Services Agency, [2014] UKSC 49" (PDF). Supreme Court of the United Kingdom. 30 July 2014. Archived from the original (PDF) on 9 April 2019. Retrieved 7 January 2016. It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would be misconceived for a party to seek to lead evidence from actual passengers [i.e. "the right-thinking member of society," "the officious bystander," "the reasonable parent," "the reasonable landlord," "the fair-minded and informed observer,"...] 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.

[275_U.S._66-2] Cite error: The named reference 275 U.S. 66 was invoked but never defined (see the help page).

[Holmes-3] Cite error: The named reference Holmes was invoked but never defined (see the help page).

[BvD-4] Bedder v Director of Public Prosecutions, 1 WLR 1119 (1954) ("[where reasonable man is deemed a wholly impersonal fiction to which no special characteristic of the accused should be attributed]").

[anthropomorphic-5] Regina v Smith, 4 AER 289 (2000) ("[sub-citing Camplin and Bedder:] the concept of the "reasonable man" has never been more than a way of explaining the law to a jury; an anthropomorphic image to convey to them, with a suitable degree of vividness, the legal principle that even under provocation, people must conform to an objective standard of behaviour that society is entitled to expect").

[6] R v Camplin, A.C. 705 (1978) ("[a reasonable man] "means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today").

[7] "The Concept of the Reasonable Man in the Partial Defence of Provocation". 2015. Archived from the original on 18 May 2015. Retrieved 11 May 2015.

[8] Brown v. Kendall, 60 Mass. 292 (1850).

[9] Franklin, at 54

[10] Triestram v. Way, 281 N.W. 420 (Mich. 1938).

[11] Franklin, at 55

[12] For the use in transnational contract law: Trans-Lex.org

[13] JLonghitano. "Bruno Zeller". www.cisg.law.pace.edu. Archived from the original on 20 July 2018. Retrieved 6 April 2018.

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