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Can a woman argue that that the ‘reasonable man’ rule should not apply?
Moneylife readers will agree that the author is a big fan of women’s rights and equality. But then there are times… A smile may be faintly visible.
One such occasion is when a comment is passed on female drivers. And those pretty things who also pilot a boat. And when there is an accident on the waterway. And the question of ‘reasonability’ crops up.
Some weeks ago, we had promised readers to take up what is called the ‘reasonable man’ issue. It referred to an incomprehensible demand for money, written in high-falutin’ legalese, made from a man. Could the same reasoning be valid in the case of a woman?
A woman was piloting a motor-launch on the River Thames at a good time for river traffic. While our lady, Mrs Fardell, was launching up and down the River, a Mr Potts was punting in the vicinity. A punt being a somewhat smaller boat, there was a distinct imbalance. Not the David and Goliath kind, but enough to cause a mishap. Launch meets punt, Potts meets water. So when Mrs Fardell sneezes, Mr Potts catches a cold. And like all good, law-abiding citizens, Mr Potts decides to take a pot-shot at Mrs Fardell. To the court of law they go.
You be the judge.
Is Mrs Fardell guilty? The jury held for Mr Potts and awarded him UK pounds 250. The case revolved on what we have often discussed in these columns: duty of care and reasonable behaviour. Mrs Fardell was found guilty of negligence. And negligence being somewhat difficult to pin-point, the decision fell back on the role of a ‘reasonable man’ and what he would have done? It was assumed that the boats-woman had not taken reasonable care and thereby given the plaintiff a dunking. Common law, in modern times.
Mrs Fardell appealed! “I am not a man,” she objected. So how can the standard, applicable to ‘a reasonable man’, be applied to a female?
What the court in appeal said is too beautiful to be missed. It said, “The Common Law of England has been laboriously built about a mythical figure—the figure of ‘The Reasonable Man’… He is an ideal, a standard, the embodiment of all the qualities which we demand of a good citizen… asking … the simple question, ‘Was this or was it not the conduct of a reasonable man’?” In short, the reasonable man is one who does EVERYTHING right. Looks where he is going; makes sure every cheque is crossed; ‘order’ cancelled; counterfoil correctly filled; ‘a/c payee only’ written; never mounts or dismounts a moving vehicle; checks the antecedents of every beggar; and those of the dog he is about to pet. In short, an impossibility.
And the myth is kept alive by the institution of the jurymen and jurywomen, all presumably ‘reasonable’ persons, said the judges. There was more to come. They said that nowhere in the annals of prior jurisprudence was there ever any mention of a reasonable woman. To tide over this lacuna, the trial court should have made such observation to the jury. That it did not, was a serious lapse, and that, “… legally at least there is no reasonable woman.”
“I find that at Common Law a reasonable woman does not exist.”
Bad news for feminism, but excellent for Mrs Fardell. She was allowed to go unscathed, except for the costs. Semantics prevailed over rationality. But take heart. It is cases like these that have now found an echo in modern statutes, which say that a ‘he’ is interchangeable with a ‘she’ and the commonly used word ‘man’ also means a ‘woman’. A stroke of the pen to usher in equality, at least in law! And thereby mandate that women are reasonable too.
Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected]