The Reasonable Person, The Pursuit of Justice, and Negligence Law
| Published date | 01 July 2005 |
| Author | Richard Mullender |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00556.x |
| Date | 01 July 2005 |
REVIEWARTICLE
The Reasonable Person,The Pursuit of Justice, and
Negligence Law
Richard Mullender
n
Mayo Moran,Rethinking the ReasonablePerson: An Egalitarian Reconstruction
of the Objective Standard, Oxford: Oxford University Press, 2003, xx þ343pp, hb
d50.00.
INTRODUCTION
In common law jurisdictions, the reasonableperson is a commonly encountered
¢gure. The reasonable person and the associated idea of reasonableness feature in a
number of ¢elds, notably negligence law, criminal law, administrative law, and
the law relating to sexual harassment in the workplace.
1
In these areas of the law,
judges invoke the reasonable person as a standardby referenceto which theyassess
the conduct of defendants, claimants, and the decisions of public o⁄cials. But
who is the reasonable person? In negligence law, judges and commentators have
emphasised the reasonable person’s ordinariness.Thus, they have spoken of the
‘man’ (or, nowadays,‘person’) on the Clapham omnibus or the Bondi tram.
2
This
emphasis on ordinariness brings with it a concern with community standards as
relevant to the question ‘What is reasonable?’ Hence the reasonable person has
been described as ‘the ordinary citizen’ who seeks to act on those considerations
that regulate ‘community behaviour’.
3
Here,we are presented with a picture of an
addressee of the law who is co-operative (perhaps even other-regarding) and, as
such, ready to play his or her unremarkable, but practically useful, part in com-
munity life.
4
Moreover, descriptions of this sort bespeak negligence law’s com-
n
Universityof Newcastle upon Tyne. Thanks are due to the Review’s refereefor helpful criticisms of
an earlier draft. Thanks are also due to John Alder, Peter Cane, Ian Dawson, Bruce Grant,William
Lucy, Gerald Postema, Robert Post, Ann Sinclair, and IanWard.
1 For discussion of the reasonable person in negligence law, see, inter alia,ns 2^4 a nd 25^29, below
(and associated text).See al so StatevWilliams484 P 2d 1167 (Wash App 1971) (reasonableness-based
test of liability for manslaughter), Associated Provincial Picture Houses LtdvWednesbury Corporation
[1948] 1 KB 223 (reasonableness-based test for the legality of decisions made by public o⁄cials
and bodies),and MeritorSavingsBank vVin son, 477 US 57 (1986) (reasonableness-based test for deter-
mining when sexual harassment becomes actionable under Federal anti-discrimination law).
2Hall vBrooklandsClub [1933] 1 KB 205, 224, per Greer LJ, and J. G. Fleming, TheLaw of Torts (Agin-
court: LBC Information Services,1999,9
th
edn) 118.
3 S. Deakin, A. Johnston,and B. S. Markesinis, Markesinis And Deakin’sTort Law (Oxford: Clarendon
Press, 2003) 170; F. V. Harper, F. James, Jr, and O. S. Gray,The Law ofTorts, Vol III (Boston: Little,
Brown & Co,1986, 2nd edn) 389.
4 This view of the addressee of negligence law is set out in Lord Atkin of Aberdovey, ‘Law as an
Educat ional Su bject’ [1932] JSPTL 27, 30.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(4) MLR 681^695
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