Man on the Clapham omnibus

The man on the Clapham omnibus is a hypothetical ordinary and reasonable person, used by the courts in English law where it is necessary to decide whether a party has acted as a reasonable person would – for example, in a civil action for negligence. The character is a reasonably educated, intelligent but nondescript person, against whom the defendant's conduct can be measured.

An historical Brixton to Clapham horse-drawn bus on display at London Bus Museum.

The term was introduced into English law during the Victorian era, and is still an important concept in British law. It is also used in other Commonwealth common law jurisdictions, sometimes with suitable modifications to the phrase as an aid to local comprehension. The route of the original "Clapham omnibus" is unknown but London Buses route 88 was briefly branded as "the Clapham Omnibus" in the 1890s and is sometimes associated with the term.[1][2][3]

History

The phrase was first put to legal use in a reported judgment by Sir Richard Henn Collins MR in the 1903 English Court of Appeal libel case, McQuire v. Western Morning News.[4] He attributed it to Lord Bowen, said to have coined it as junior counsel defending the Tichborne Claimant case in 1871. Brewer's also lists this as a possible first use.[5]

It may be derived from the phrase "Public opinion ... is the opinion of the bald-headed man at the back of the omnibus",[6] a description by the 19th-century journalist Walter Bagehot of a normal London man. Clapham, in South London, was at the time a nondescript commuter suburb seen to represent "ordinary" London, and in the 19th century would have been served by horse-drawn omnibuses. Omnibus is the term from which “bus” derives, and was still in common use by the judiciary at the beginning of the 20th century.

The concept was used by Lord Justice Greer, in the case of Hall v. Brooklands Auto-Racing Club,[7] to define the standard of care a defendant must live up to to avoid being found negligent.

The use of the phrase was reviewed by the UK Supreme Court in Healthcare at Home Limited v. The Common Services Agency,[8] where Lord Reed said:

1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.

2. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias...

3. 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 on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, 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.

4. In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer.

The expression has also been incorporated in Canadian patent jurisprudence, notably Beloit v. Valmet Oy[9] in its discussion of the test for obviousness.[10]

In Australia, the "Clapham omnibus" expression has inspired the New South Wales and Victorian equivalents, "the man on the Bondi tram" (a now disused tram route in Sydney),[11] and "the man on the Bourke Street tram" (Melbourne).[12] In Western Australia, the equivalent is "the man on the Prospector to Kalgoorlie".

In Hong Kong, the equivalent expression is "the man on the Shaukiwan Tram".[13]

See also

References
  1. Time out London guide. Penguin Books. 1995. p. 103. The 88 bus, recently and rather self-consciously styled "The Clapham Omnibus", starts its pleasantly circuitous route from here, to points north of the River.
  2. Rainford, Paul (1993). "Paul Rainford on bus branding". Design (533): 43. The Clapham Omnibus is the shape of things to come. Run by London General (an LT company) on route 88 between Clapham Common and Oxford Circus, this single- decker, Wigan- built Volvo B10B model sports its own jaunty graphics, designed by the Best Impressions consultancy
  3. Milne, Ian (2004). A Cost Too Far? (PDF). Civitas. p. 24. ISBN 9781903386378. bus seats on the number 88 London bus — the Clapham omnibus — are made in Australia
  4. McQuire v Western Morning News [1903] 2 K.B. 100 at 109 per Collins MR.
  5. Room, Richard, ed. (1996), Brewer's Dictionary of Phrase and Fable (15th ed.), Cassell, p. 761, ISBN 0062701339
  6. Bagehot, Walter (1873) [1867], The English Constitution, Little, Brown, and co, pp. 325–326
  7. Hall v Brooklands Auto-Racing Club [1933] 1 K.B. 205.
  8. Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49 at [1]-[4]
  9. Beloit v. Valmet Oy (1986), C.P.R. (3d) 289
  10. Cameron, Donald M.; Renault, Ogilvy (30 December 2006), case comment: Beloit Canada Ltd. v. Valmet Oy citation(s): (1986) 8 C.P.R. (3d) 289, JurisDictioncom
  11. Asprey, Michèle M. (2010) [2003], Plain Language for Lawyers, Federation Press, p. 119, ISBN 978-1-86287-775-7
  12. Re Sortirios Pandos and Commonwealth of Australia [1991] AATA 18.
  13. SFAT (2009), Ng Chiu Mui v Securities and Futures Commission Application No 7 of 2007 (15 May 2009) (PDF), Securities and Futures Appeals Tribunal, p. 30

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