The Reasonable Man: Subjective and Objective Standard?”


Negligence constitutes a crucial part of tort law. Tort comes from the old French word torquere, which means twisted or crooked. Tort law concerns a tortuous liability which occurs by breach of the duty of care provided by the law.[1] As for bringing a claim under each tort, certain elements need to be satisfied in negligence. Firstly, there must be damage. Secondly, there must be a duty of care imposed upon the defendant to prevent the defendant from being careless. Thirdly, once it is discovered that there is a duty of care, it needs to be known whether the defendant had breached that duty or not. Fourthly, the breach has to cause the damage. Fifthly, it must be seen whether the damage or harm is reasonably foreseeable or not. Amongst all of the elements breach is one of the principle elements because without this no one can be liable to one’s careless behavior.[2] This article shall be related to the breach of duty of care and the test involved in assessing such breach. In most of the cases the courts apply objective approach, although in some situations the courts also apply subjective approach. Therefore, such approaches of the courts need to be evaluated in order to ascertain the reasoning behind their adoption to breach cases.

The meaning of an objective approach in tort of negligence:

The test of the duty of care is generally defined in the case of Donoghue v Stevenson[3] where you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. However, this is an old test.[4] The modern test is laid down by Caparo Industries v Dickman[5]. Once the duty of care is established, it must also be considered as to whether the defendant’s acts were in accordance with his or her duty of care. For defining this, a standard of care has been set by many common law cases. The test for standard of care is an objective one. If the defendant acts below the standard, breach will arise. On the other hand, the matter of breach of duty is connected with the carelessness of the defendant.[6] The classic definition of standard of care is set out in the case of Blyth v Birmingham Waterworks[7]negligence is the omission to act upon those conditions which is directed by a reasonable person and also generally set the conduct of human affairs (per Pearson J inHazell v British Transport Commission[8]). In case of Hall v Brooklands Racing Club[9] per Greer LJ affirmed that the level of  reasonable man or woman ‘on the Clapham omnibus’ is like the general citizen and also a man who is a hypothetical person. It can also be seen in the fictitious case of Fardell v Potts[10] where the humorist A.P. Herbert defined a reasonable person as an ideal and standard person who is a image of all the nice qualities which everyone wants in the good person.[11] Moreover, in Etheridge v East Sussex County Council[12], the court have to establish whether the reasonable person do the same thing in the place of defendant or not.[13] However, Lord Macmillan in Glasgow Co. v Muir[14], stated that there is no accurate standard, but the level of care varies on the risk. In this case it is also found that the idiosyncrasies of a particular person that is age, experience, gender, sex are immaterial. If these are to be considered then it will be subjective test.[15]

Furthermore, the objective test has been applied in the situation of an immature driver and trainees. In this approach there is no discount for trainees and learner driver. In the case of Nettleship v Weston[16], during driving the defendant failed to straighten the car and hit the car. Lord Denning MR declared that the learner-driver has the responsibility towards the persons on or near the road. In the civil law if a driver drives on the road and injures a pedestrian or damages property, he will be liable. He cannot argue that he was a learner-driver under the control of instructor.[17]In Wilsher v Essex Area Health Authority[18], the court asserted the same standard that is objective test in the matter of caring patient which the court would have affirmed to an experienced doctor. The standard of care of the objective approach is “the act not the actor” that is what is being done not who is doing it. Therefore, there is no discount for trainees and the inexperienced (Roberts v Ramsbottom)[19].[20]

In addition, it can also be seen in Bolam v Friern Hospital Management Committee[21]where McNair J held that every professional’s actions had to be compared with the competent respected professional opinion as according to him negligence arises when the defendant fails to do some act which a reasonable person would do in the circumstances which it is known as Bolam test. Nevertheless, this test is regarded as a ‘gloss’ by the House of Lords in Bolitho City and Hackney Health Authority[22].Lord Browne-Wilkinson said that in rare cases although the practice is correctly required by a competent reasonable body of opinion, this expert opinion may ignore if there is no logical basis. This Bolam test was put in the case of Sidaway v Governors of the Bethlem Royal Hospital[23]However, it was criticized in the case of Chester v Afshar[24], Lord Steyn declared that nowadays medical paternalism is no more a rule in law and the patient has the right to know every small but well established risk of serious harm in surgery (Montgomery v Lanarkshire Health Broad)[25].[26]

Arguments on applying objective approach in court:

The courts mostly prefer the objective test for ensuring equity in law. In Bolamv Friern Hospital Management Committee[27], McNair J used the objective test for protecting the patient autonomy and stated that the defendant is not guilty if his treatment is seemed proper by a responsible medical person who had experience of that particular treatment.[28] The objective test is also preferable for policy reasons as it can be seen in Roberts v Ramsbottom that the defendant suffered a heart attack and a diabetic attack. Even if he realized that he drives the car and clash. The court judged the defendant according to the standard of the reasonable competent professionals because if they did not do that then floodgates will be open and anyone can give an excuse about their illness.[29] Moreover, in the case of Re Herald of Free Enterprise, the defendant set sail with the blow doors open and they argued that it was their common practice. The court uses the objective test in that case as by this there will be clarity in law which is absent in subjective test as the decision will be varied by different cases.[30]

Basically, the idea of the ‘reasonable man’ is a target standard utilized as an instrument by the courts in giving judgment on the issue of the standard of care in negligence cases. After committing negligence no one can get defense by saying that he has lack of skill or experience. The law evaluates that for measuring a breach of a duty has occurred or not the objective approach comes as reference. [31]

Furthermore, in Mansfield v Weetabix Ltd[32], Leggatt LJ is concerned with the objective approach and stated that the defendant’s act is compared with a reasonable competent driver who does not know that he suffered hypoglycemic state.

Situations where the subjective approach has been followed and the justifications for it:

However sometimes, a subjective standard of care has been applied in to sectors where these are creating a modified standardized person with like disabilities and measuring the claimant’s act against this modified standard.[33] The kids are dealt with uniquely in contrast to different sorts of defendant as stated by Kitto J in the opinion of the High Court of Australia in (McHale v Watson)[34]. His Honour upheld the exceptional treatment of children on the ground that children is not an idiosyncratic yet is a period of human improvement through which everybody passes. The defendant child was held not to have maintained the level of care to the standard of a grown-up, yet of a 12-year-old child with comparable experience and insight. Therefore, it should be taken into account as defendant’s subjective qualities (Mullin v Richards)[35]. In the matter of children the standard of care is low as children cannot think like an adult reasonable person. Therefore, the courts need to compare them with those reasonable persons who are of their age.[36] In case of professionals,Lord Denning in Roe v Ministry of Health[37] opined is that the anesthetist was not aware that there could be undetectable cracks, yet it was not carelessness for him not to know it around then. In this case, the court applied subjective test as the defendant is in an exceptional situation.[38]

To recognize the areas of negligence where the Parliament or the courts have digressed from the objective standard of reasonable person which benefits the defendants is not so simple, as it is varied from case to case. For example, where a driver jumps a red light or breaks the speed limit, it may be considered as negligence applying objective test. The same may happen in the case of social utility in the defendant’s conduct as seen in Ward v London County Council[39]where the danger of harming somebody by running a red light was disproportionately high contrasted with any potential advantage. The social utility of the defendant’s actions was to be taken into account when determining the standard of care.[40] However, the court held that the social utility of the defendant’s actions does not give them carte blanche to take any risk or to injure people.[41]

Furthermore, in respect of the disability of the claimant, House of Lords, by a majority, in Paris v Stepney Borough Council[42]stated that though risk of injury did not occur by disability, it can be foreseen that by disability the risk of the injury can be more serious. In the case of Haley v London Electricity Board[43], the House of Lords affirmed that where there is a blind person it is obvious for the defendant to take precautions which he did not need to do in the matter of sighted people.[44]

In addition in the case of Condor v Basi[45] and Watson v Gray[46], in sports when the defendant is a participant, he has to take reasonable care to play in accordance to the rule given in the play. Even in horseplay there will be no breach for causing any injury to the claimant (Blake v Galloway)[47]. In Latimer v AEC Ltd[48], Lord Porter states that their duty is to determine what action a reasonable person would have taken in the circumstances given the circumstances that no one else slipped or even acknowledged that there was a reasonable risk of doing so. Even the safety engineer did not state that any more steps than were taken should have been performed except closing the whole work which is not possible. Therefore, it is an exceptional case and so court used subjective approach (Smith v Littlewoods Ltd)[49].[50]

Personal opinion on the court’s approach towards objective and subjective standard:

As it can be seen from the above discussion that the court in most of the cases applied objective approach where the act of the defendant is compared with whether a reasonable person would do the same act in the place of the defendant. However, there are certain areas of negligence law in relation to standard of care where Parliament or the courts have deviated from the ordinary objective standard of the reasonable person in a way which favors defendants as discussed above. This is not altogether clear, since it is sometimes hard to tell whether the standard of care has been fluctuated, or whether an apparently more merciful approach is in fact simply the way that the normal standard of care is playing out in a specific context. All things considered, the standard of reasonable care is of need of an exceptionally flexible one since it must be connected in a wide range of conditions.[51] Since the use of the normal standard of care considers the remarkable conditions of the case.[52]

It is strict law that the standard of care in negligence is for the most part objective. There is, be that as it may, nothing inescapable about this objective approach. In Roman law, for instance, dependence was set on a standard of culpa levis in concreto, which means the inability to utilize the care the specific respondent usually utilized in his own particular issues.[53] It has seen that in English law the standard of care has been partly subjectivised when occupiers of land have been sued by trespassers, or in regard of nuisances they have not themselves made. This subjectivisation has showed itself in two principle ways: (1) evaluating the obligation to avoid potential risk in the light of the occupier’s actual – instead of constructive – knowledge of the risk and (2) surveying the steps the occupier ought to have taken to manage the risk in the light of his own conditions, and specifically the resources on which he can draw.[54]

Especial situations may exist to modify this standard. However, In Imbree v McNeilly[55], the High Court overruled Cook v Cook.[56]Such subjective standard has been followed in various situations involving as has been discussed above in professional doctor, trainees, children, general or usual practice Wilsonv Governors[57], state of art defense, knowledge of the claimant, disable defendant. Lastly, if the claimant is intoxicated voluntarily, then the defendant may not be liable as he had no duty on the claimant this might not be the case where, the defendant had the duty if he is responsible for the claimant’s state Griffiths v Brown[58].So, these situations are defer from whether the standard of care needs to be higher or lower.

Accordingly, from the above discussion, it can be said that the objective test is perfect according the general rule but in certain situations objective test is not proper to be applied due to some reasons mention above. In such cases where the court applied subjective approach, it is agreeable and it can be considered as a valid approach.













[1] Winfield in Rogers, W.V.H., Winfield and Jolowicz on tort, (17th edition, Sweet and Maxwell, 2006), p-5

[2] James Goudkamp and Melody Ihuoma, A tour of the tort of negligence, 2016, Professional

Negligence, 137, 141

[3] [1932] AC 562

[4] E. Catherine and Q. Frances, Tort Law, (11th edition, Pearson, 2017), p-19

[5] [1990] 2 AC 605; [1990] 1 All ER 568; [1990] 2 WLR 358

[6] Barbara Harvey John Marston, Cases and Commentary on Tort, (6th edition, Oxford University Press, 2009), p-152

[7] (1856) 11 Exch 781

[8] [1958] 1 WLR 169,171

[9] [1933] 1 KB 205, 224

[10] A. P. Herbert, October 4, 2006

[11] Mark Lunney and Ken Oliphant, Tort Law Text and Materials, (5th edition, Oxford University Press, 2013), p-182

[12] [1999] Ed CR 550

[13] Simon Deakin, Angus Johnston, and Basil Markesinis, Markesinis and Deakin’s Tort Law, (7th edition, Oxford

University Press, 2013), p-199,200

[14] [1943] AC 448,456

[15]AvihayDorfman, Negligence and Accommodation, 2006, Legal Theory, 77, 80

[16] [1971] 2 QB 691

[17] M. Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard, (Oxford:

OUP, 2003), pp. 301-2, 195

[18] [1987] QB 730

[19] [1980] 1 WLR 823

[20] Simon Deakin, Angus Johnston, and Basil Markesinis, Markesinis and Deakin’s Tort Law, (7th edition, Oxford

University Press, 2013), p-204,205

[21] Queen’s Bench Division [1957] 1 WLR 582

[22] [1998] AC 232

[23] [1985] AC 871

[24] [2005] 1 AC 134

[25] [2015] UKSC 11; Pearce v United Bristol Healthcare NHS Trust, [1999] PIQR P 53

[26] Jose` Miola, ‘The Standard of Care in Medical Negligence-Still Reasonably Troublesome?’ in Janice Richardson

and Erika Rackley,(eds) Feminist Perspectives on Tort Law, Routledge, 2012, p-163

[27] [1957] 1 WLR 582

[28] Rob Heywood Jose’ Miola, The changing face of pre-operative medical disclosure: Placing the patient at the heart

of the matter, 2017, Law Quarterly Review, 296, 304

[29] Simon Deakin, Angus Johnston, and Basil Markesinis, Markesinis and Deakin’s Tort Law, (7th edition, Oxford

University Press, 2013), p-205, Broome v Perkins;[1987] RTR 321

[30] Re Herald of Free Enterprise (18 December 1987)

[31]Donal Nolan, Deconstructing the duty of care, 2013, Law Quarterly Review, 559-563

[32] [1998] 1 WLR 1263

[33]AvihayDorfman, Negligence and Accommodation, 2006, Legal Theory, 77, 80

[34] [1996] 115 CLR 199 (HCA) at 213-14

[35] [1998] 1 WLR 1304

[36] Mark Lunney and Ken Oliphant, Tort Law Text and Materials’, (5th edition, Oxford University Press, 2013), p-190,

Yachukv Oliver BlaisCo.Ltd, [1949] A.C. 386

[37] [1954] 2 QB 66

[38] Simon Deakin, Angus Johnston, and Basil Markesinis, Markesinis and Deakin’s Tort Law, (7th edition, Oxford

University Press, 2013), p-206

[39] [1938] 2 All ER 341

[40] W. Edwin Peel; James Goudkamp, Winfield and Jolowicz on Tort, (19th edition, Sweet and Maxwell, 2014), p:6-


[41]Donal Nolan, Varying the standard of care in negligence, 2013, Cambridge Law Journal, 651, 665

[42] [1951] AC 367

[43] [1965] AC 778

[44]Kirsty Horsey and Erika Rackley, Kidner’s casebook on torts, (13th edition, Oxford University Press, 2015), p-177,178

[45] [1985] 2 All ER 453

[46] Times 26 November 1998 (Hooper J)

[47] [2004] 3 All ER 315 CA

[48] [1953] AC 634

[49] [1987] AC 241

[50]Simon Deakin, Angus Johnston, and Basil Markesinis, Markesinis and Deakin’s Tort Law, (7th edition, Oxford

University Press, 2013), p-212

[51]R. Kidner, “The Variable Standard of Care” (1991) 11 L.S. 1, 16.

[52]Daborn v Bath Tramways Motor Co.Ltd[1946] 2 All E.R. 333; Watt v Hertfordshire C.C. [1954] 1 W.L.R. 835.

[53] W.W. Buckland, Textbook of Roman Law, (2nd ed. Cambridge 1932), p. 556.

[54] This technique has been employed in Australian state legislation to limit the liability of highway authorities

for nonfeasance: see, e.g., Civil Liability Act 2002 (New South Wales), s. 45(1), which requires that the

Authority had “actual knowledge of the particular risk the materialization of which resulted in the harm”.

[55] [2008] 236 CLR 510

[56] Mark Lunney and Ken Oliphant, Tort Law Text and Materials, (5th edition, Oxford University Press, 2013), p-


[57][1997] EWCA Civ J1105-1, [1998] 1 FLR 663

[58] Griffiths v Brown; sub nom. Griffiths v Lindsay [1999] P.I.Q.R. P131; The Times, October 23, 1998 QBD