Editing Man on the Clapham omnibus

{{Short description|Hypothetical reasonable person in law}}
{{use dmy dates|date=June 2020}}
[[File:Clapham Omnibus - geograph.org.uk - 3049778.jpg|300px|thumb|A historical Brixton to Clapham horse-drawn bus on display at [[London Bus Museum]].]]
[[File:E136 a (15337559191).jpg|300px|thumb|A modern route 88 bus heading to Clapham Common]]
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 [[tort|civil action]] for negligence. The character is a reasonably educated, intelligent but nondescript person, against whom the defendant's conduct can be measured.

The term was introduced into English law during the [[Victorian era]], and is still an important concept in British law<!--British not English because in 2014 the UK supreme court used it in ruling on a Scottish case-->. It is also used in other [[Commonwealth of Nations|Commonwealth]] common law jurisdictions, sometimes with suitable modifications to the phrase as an aid to local comprehension. The route of the original "[[Clapham]] [[Horsebus|omnibus]]" is unknown but [[London Buses route 88]], which terminates at [[Omnibus Theatre]], was briefly branded as "the Clapham Omnibus" in the 1990s and is sometimes associated with the term.<ref name="hBvzH">{{cite book | title=Time out London guide | publisher=Penguin Books | year=1995 | pages=103 | quote=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.}}</ref><ref name="OklRN">{{cite journal | url=https://books.google.com/books?id=JtpUAAAAMAAJ | title=Paul Rainford on bus branding | author=Rainford, Paul | journal=Design | year=1993 | issue=533 | pages=43 | quote=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}}</ref><ref name="4mgvS">{{cite book | url=http://www.civitas.org.uk/pdf/cs37.pdf | title=A Cost Too Far? | publisher=Civitas | author=Milne, Ian | year=2004 | pages=24 | isbn=9781903386378 | quote=bus seats on the number 88 London bus — the Clapham omnibus — are made in Australia}}</ref>

==History==
The phrase was reportedly first put to legal use in a judgment by Sir [[Richard Henn Collins]] [[Master of the Rolls|MR]] in the English Court of Appeal libel case ''McQuire v. [[Western Morning News]]'' (1903).<ref name="SLLLT">''McQuire v Western Morning News'' [1903] 2 {{abbr|K.B.|King's Bench}} 100 at 109 per Collins MR.</ref> He attributed the phrase to [[Charles Bowen, Baron Bowen|Lord Bowen]]<ref name="DWuOU">{{Citation |editor-last=Room |editor-first=Richard |year=1996 |title=Brewer's Dictionary of Phrase and Fable |edition=15th |publisher=Cassell |page=[https://archive.org/details/brewersdictionar00room_0/page/761 761] |isbn=0062701339 |url-access=registration |url=https://archive.org/details/brewersdictionar00room_0/page/761}}</ref> and used it in a negative sense:
{{quote|One thing, however, is perfectly clear, and that is that the jury have no right to substitute their own opinion of the literary merits of the work for that of the critic, or to try the "fairness" of the criticism by any such standard. "Fair," therefore, in this collocation certainly does not mean that which the ordinary reasonable man, "the man on the Clapham omnibus," as [[Charles Bowen, Baron Bowen|Lord Bowen]] phrased it, the juryman common or special, would think a correct appreciation of the work; and it is of the highest importance to the community that the critic should be saved from any such possibility.
}}

It may be derived from the phrase "Public opinion ... is the opinion of the bald-headed man at the back of the omnibus",<ref name="60c9Z">{{Citation |last=Bagehot |first=Walter |author-link=Walter Bagehot |year=1873 |orig-year=1867 |title=The English Constitution |publisher=Little, Brown, and co |pages=325–326 |url=https://archive.org/details/englishconstitu00bagegoog}}</ref> a description by the 19th-century journalist [[Walter Bagehot]] of a normal London man. [[Clapham]], in [[South London]], was at the time a nondescript [[commuting|commuter]] suburb seen to represent "ordinary" London, and in the 19th century would have been served by [[horsebus|horse-drawn omnibuses]].

[[Frederick Greer, 1st Baron Fairfield|Lord Justice Greer]] used the phrase in ''Hall v. [[Brooklands]] Auto-Racing Club'' (1933)<ref name="EWDMJ">''Hall v Brooklands Auto-Racing Club'' [1933] 1 {{abbr|K.B.|King's Bench}} 205.</ref> to define the [[Standard of care in English law|standard of care]] a defendant must live up to in order 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]]'' (2014),<ref name="BksIt">{{cite BAILII |litigants=Healthcare at Home Limited v. The Common Services Agency |year=2014 |court=UKSC |num=49 |pinpoint=[1]-[4]}}</ref> where [[Robert Reed, Lord Reed|Lord Reed]] said:
{{quote|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.}}

==Other related common law jurisdictions==

The expression has also been incorporated in Canadian patent jurisprudence, notably ''Beloit v. Valmet Oy''<ref name="1OdQx">''Beloit v. Valmet Oy'' (1986), C.P.R. (3d) 289</ref> in its discussion of the test for obviousness.<ref name="QsEUq">{{Citation |first1=Donald M. |last1=Cameron |first2=Ogilvy |last2=Renault |date=30 December 2006|title=case comment: Beloit Canada Ltd. v. Valmet Oy citation(s): (1986) 8 C.P.R. (3d) 289 |publisher=JurisDictioncom |url=http://www.jurisdiction.com/beloit.htm}}</ref>

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),<ref name="40QyY">{{Citation |last=Asprey |first=Michèle M. |year=2010 |orig-year=2003 |title=Plain Language for Lawyers |publisher=Federation Press |page=119 |isbn=978-1-86287-775-7}}</ref> "the man on the [[Melbourne tram route 96|Bourke Street tram]]" ([[Melbourne]]),<ref name="3umqM">{{cite AustLII|AATA|18|1991|litigants=Re Sortirios Pandos and Commonwealth of Australia}}.</ref> and "the ordinary person on the Belconnen omnibus" (Canberra).<ref>{{Cite web |date=15 April 2024 |title=Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369, [597] |url=https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2024/369.html |access-date=16 April 2024 |website=Austlii}}</ref>

In Hong Kong, the equivalent expression is "the man on the [[Hong Kong Tramways|Shau Kei Wan tram]]".<ref name="2MPEV">{{Citation |author=SFAT |year=2009 |url=http://www.sfat.gov.hk/english/determination/AN-7_and_8_and_9-2007-Determination.pdf |title=Ng Chiu Mui v Securities and Futures Commission Application No 7 of 2007 (15 May 2009) |publisher=Securities and Futures Appeals Tribunal |page=30|archive-url=https://web.archive.org/web/20110722075521/http://www.sfat.gov.hk/english/determination/AN-7_and_8_and_9-2007-Determination.pdf|archive-date=2011-07-22|url-status=dead}}</ref>

==See also==
* [[A moron in a hurry]]
* [[Bellwether]]
* [[Person having ordinary skill in the art]]
* [[Placeholder name]]
* [[Prudent man rule]]
* [[Objective historian]]
* [[Pub test]]

==References==
{{reflist|1=30em}}

[[Category:British English idioms]]
[[Category:English phrases]]
[[Category:Legal fictions]]
[[Category:Socioeconomic stereotypes]]