The Tortious Standard: Reasonable, for a Man

Written by Shreya Shetty

The reasonable woman, who takes the Clapham omnibus home, draws a bath and wonders why the law spent a century asking what her husband should have done instead.

Originating in the 1800s, tort law aimed to compensate those who were seriously harmed by civil wrongs. Thus, the tortious standard was born: to determine whether an action was negligent or not, Vaughan v Menlove [1837] declared we must ask what the reasonable man would do. In the US, he is described as the man who “pushes the lawnmower in his shirtsleeves”. In France, he is called “le bon pére de famille”, or the good family man. This middle-class man is archetypal of what all people must, at the very minimum, live up to.

When deconstructing the standard of negligence, it is hard to disentangle law from ethics. Despite the reluctance of English courts to conflate ‘what is lawful’ with ‘what is morally good’, this standard of care reveals the moral compass of a reasonable man: what risks he should run, whether his actions will offset harm, and what split-second decision to take in a life-or-death situation. These are intrinsically ethical questions.

The theory of emotivism dictates that one’s morals are simply a matter of emotions; they are positive or negative reactions shaped by our upbringing. It may be a useful lens to see why the reasonable man standard is structurally exclusive. What is reasonable is not an answer universal and familiar to everyone, but rather, as emotivism suggests, it is a product of stereotypes and biases each individual uniquely holds from the way they were socialised. On this reading, the reasonable standard is not objective but internalised. It is the voice telling us to do what is socially acceptable and to ignore other emotions or animal instincts. In short, it is what Freud’s Superego is to the Id. It is what Plato’s Logistikon is to the Spirit and the Appetite.

The consequence of this emotivist reading is that judging negligence against a male standard produces inconsistent and deeply gendered consequences. The very concept of reasonableness is masculinised, with emotion and irrationality carrying distinctly feminine connotations. Therefore, the standard of reasonableness women must meet is often higher than that of their male counterparts. As Mayo Moran highlights, women are expected to mature and act sensibly from a much younger age, and so, when they act ‘unreasonably’, this is implicitly seen as more aberrant compared to the same actions of men. If she feels empathy towards a stranger in an accident, she is denied a nervous shock remedy because the reasonable man would not have foreseen her psychological damage (Bourhill v Young [1943]). If she reports that she is being targeted by a murderer, the law finds that the reasonable man in the police force would fail to see the credibility of her fears (Hill v Chief Constable of West Yorkshire [1988]). In this sense, the negligence standard is a fiction of neutrality, because a standard that ignores half of humanity cannot claim objectivity at all.

But what may be done with this concept, which is so familiar to the English courts, which has infiltrated into other areas of law? The court’s eventual response of changing the standard to ‘the reasonable person’ only turns an explicitly gendered standard into an implicitly gendered standard as Elizabeth Handsley highlights. We all know, ultimately, the reasonable person drives his Ford Focus back to his semi-detached house in Basingstoke, to walk his cavapoo and read the Sunday Times.

Perhaps, it is to embrace the usefulness of the standard that we already have, by recognising the inherent biases in the test. Across the Atlantic, judges in Ellison v Brady [1991] acknowledged the test’s flaws openly, adopting a reasonable woman standard for this sexual harassment case. This marks, albeit small, a step forward for recognising that what we believe is rational cannot be severed from our emotions, our upbringing, and our circumstances. The law has spent a century asking what the reasonable man might have done. If emotivism has taught us anything, it is that no moral standard can be severed from the class of judges who have shaped it. Maybe it is time for them to ask something more interesting.