THE CONCEPT OF A

‘REASONABLE MAN’-

THE CREATION OF LAW

FATARAM I.D. No.:1808 GARIMA BHARGAVA I.D. NO.:1809 I YEAR ,B.A.LL.B(Hons.) Date of Submission : August 10,2008.

NATIONAL LAW SCHOOL OF INDIA

UNIVERSITY

Table of contents

NAME OF THE CONTENT PAGE NO.

INTRODUCTION

RESEARCH METHODOLOGY

TABLE OF CASES

CHAPTER 1. EVOLUTION OF THE CONCEPT “REASONABLE MAN”

CHAPTER 2.FACTORS OF THE REASONABLE MAN

1. DEFINITION OF REASONABLE MAN.

2. MORAL QUALITIES AND KNOWLEDGE.

3. DEGREE OF REASONABLENESS.

4. OBJECTIVITY OF REASONABLE MAN

TABLE OF THE CASES

1. NAME OF THE CASES 2.CITATIONS

Arland v. Taylor, [1955] 3 D.L.R. 358.

Baxter v. Woolcombers . [1963] W.L.Y. 2320.

Beckett v. Newalls

Insulation Co. Ltd.,

[1953] 1 W.L.R. 8, 17.

Brown v. Kendall, 60 Mass., 292, 1850 WL 4572 (Mass.), 6

Cush. 292.

Blyth v. Birmingham

Waterworks Company,

156 Eng. Rep. 1047 (Ex. 1856).

Bolam v. Friern Hospital, [1957] 1 WLR 582.

Breuing v. American Family

Insurance Co.,

173 NW 2d 619 (1970).

Bolton v. Stone, [1951] A.C. 850.

Christie v. Davey,. [1893] 1 Ch. 316

Coggs v. Bernard, (2 Ld. Raym. 909).

Condon v. Basi, [ [1985] 1 WLR 866.

Cook v. Cook, ( 1986) 68 ALR 353.

Cottley v. St. John

Ambulance Brigade,

(1990,unreported).

Daniels v. Evans, 224 A. 2d 63 (N.H. 1966).

Ghannan v. Glasgow

Corporation

, 1950 S.C. 23.

Glasgow Corporation v.

Muir,

(1943) A.C. 448.

Goldman v. Hargrave, [1967] 1 A.C. 645.

Hall v. Brooklands Club, [1933] 1 K.B. 205 at 224.

Hollywood Sliver Fox Farm

Ltd. v. Emmett,.

[1936] 2 K.B. 468

Kite v. Nolan, [1982] RTR 253.

Lady Gwendolen, [1965] P. 294.

Latham v. R. Johnson, [1913] 1 KB 398.

Marshall v. Osmond, [1983] Q.B. 1034.

Mc Hale v. Watson, (1966) 115 CLR 199.

Mullins v. Richards, [1998] 1 W.L.R. 1304.

Nettleship v. Weston , [1992] 2 FLR 559.

Prince and Another v.

Gregory and Another,

(1959 (1) WLR 177).

Ricketts v. Erith Borough

Council and Another,

(1943 (2) All ER 629).

Robert v. Ring, 173 N.W. 437 (Minn. 1919).

Sayers v. Harlow UDC, (1958) 1 WLR 623.

Terre Haute First National

Bank v. Stewart,

455 NE 2d 262.

Tuberville v. Stamp,

Tucker v. Henniker,

91 Eng. Rep. 1072.

(1860) 41 NH 317.

Vaughan v. Menlove, 132 eng. Rep.490 (C.P.

1837).

Wells v. Cooper, [1958] 2 QB 265.

Wilsher v. Essex Area

Health Authority,

1983] QB 1034.

Woolridge v. Summer 1963] 2 Q.B. 43.

INDIAN CASES CITATIONJacob Mathew v. State of Punjab 1. AIR 2005 SC 3180.

and Anr.,M.S. Grewal and Anr. v.

Deep Chand Sood and Ors.,

State of Punjab v. Shiv Ram and Ors.,

1. AIR 2005 SC 3280.

Thake v. Morris, 1. 1 All ER 497 (CA).

___________________________________________________________________________

REASEARCH METHODOLOGY

Aims and Objectives

The aim of this paper is to study the concept of reasonable man as its evolution and the

further development by the interpretation of Judges through different circumstances of the

cases. And objective of this is to describe the various factors which complete the concept of

the reasonable man. It explains the various cases which determine the duty of care according

to the circumstances. It also critically analyses variables of the function of reasonable man.

Scope and Limitations

The scope of this research paper is

Research Questions

The researchers have endeavored to deal with the following question in

the course of the paper:

Who is a reasonable man?

How did the concept of reasonable man originate and develop

further?

How this concept is being utilized in India to decide cases?

What are the various variables which affect the character of the

reasonable man?

What is the difference between a reasonable and a reasonable

woman?

Chapterization: [(Written by rechearcher-1st Fataram (ID No.-1808)]

Chapter 1: “Evolution of the concept of the reasonable man”.

This chapter describes the historical evolution of reasonable man in England and

further development in different countries. It also explain the standard care

Chapter 2: Factors of the concept “reasonable man”

This part deals with the different factor reasonable man like the degree of care mean

the degree of care varies from case to case. It also depends on the foreseeability of

the reasonable man.

It discusses the objective use of reasonable man with regard to society means a

person should have to recognize and do required precaution for the acts which

society recognize wrong can injure any person. It can determined by the studying the

circumstances of the previous cases.

Chapter 3:

Sources of Data:

The researchers have extensively relied on primary sources of data such as case laws and

secondary sources such as articles, books, journals, etc.

Mode of Writing

The mode of writing is descriptive and analytical of the different cases and the book, article

etc.

Mode of Citation

A uniform mode of citation has been followed throughout the papers. These citations are

based the book “NLS Uniform mode of citation”.

Chapter1. Evolution of the concept of “Reasonable Man”

This paper proceeds as follows how the concept of reasonable man evolved in England. The

concept of reasonable man developed on the basis of circumstances of the cases. Slowly its

evolution took place and the concept spreaded to the different part of the word. Black’s Law

Dictionary defines the reasonable man as “a hypothetical person used as a legal standard,

especially to determine whether someone acted with negligence”. It further adds “the

reasonable man acts sensibly, does things

without serious delay and takes proper but not excessive precautions”.1

This definition describes fairly accurately the contemporary understanding of the “reasonable

man” which means reasonable man of ordinary prudence in tort law. Now days it became the

central figure for jury to passing the negligence issue for adjudication. Now they easily

quantify the law of abstraction like care, reasonableness, or foreseeability for the man of the

ordinary prudence in tort law. But the standard of foresight of the reasonable man in the tort

law eliminates the personal equation whose conduct is in question. And this is the practice

subjective factors which follows by the society and are not ignored wholly by the jury.

Nevertheless, though there are umpteen references to the “reasonable man” in academic

1, Black’s Law Dictionary, 1273, Edi. B. A. Garner Minnesota, West Group,(7th edn., 1999).

discussions, and though judges regularly use this standard to measure human behavior, a

comprehensive explanation of which this “reasonable man” truly is, is hard to come by.

This lack is not due to some academic apathy to the concept, but simply because the concept

of the “reasonable man” has emerged out of men’s collective notions of common sense and

“reasonableness”. It was in use well before it was first articulated by Justice Tindal in

Vaughan v. Menlove2 though no one recognized it as such. Since then, as society has evolved

and changed over time, so has the “reasonable man”. Since tort law is primarily “case law”,

the evolution of the “reasonable” man has also occurred through judgments in various

landmark cases.

A brief chronology of this evolution is as follows:-

Vaughan v. Menlove (1837)

It is the emerging case which laid down the concept of reasonable man in law of tort.

Facts of the case: In this case Vaughan, the plaintiff rented his two cottages to two

tenants. He was the owner of these two cottages in the Salope. The defendant, Menlove, was

the occupant of the adjacent farm. In this case defendant built a hay rick land and it was near

to plaintiff’s land, boundary of plaintiff is just near to the boarder of the plaintiff’s land. The

plaintiff also built a chimney for prevents the hay from spontaneously but he does not

succeed igniting, but anyways it does not control perfectly and ignited. The defendant was

warned many times because which hay grass he built was poisonous and dangerous. Every

times he defended himself to say "he would chance it." Consequently, one day that that

chimney the ignited and it spreaded to the plaintiff's land because of the hay. Ultimately

plaintiff’s cottage were burning downs. Plaintiff had placed a few buildings and a rick near

the boundary that separated the two boundaries.

The hay created the much heat (because of fermentation of hay) which causes the flame and

burst down the dependant’s building as well as two cottage of the plaintiff. Hence the

plaintiff reached to the Court and filed a case against the defendant for recover the damages

occurred in the ignition. The plaintiff filed a suit of alleging gross negligence toward

defendant.

Judgment of the trial court: At trial court the judge instructed the jury to consider for

the negligence of the defendant whether the accident of ignition of fire has happened because 2Vaugan v. Menlove, 132 Eng. Rep. 490 (C.P. 1837).

gross negligence on the part of the defendant. Court stated that the defendant was duty bound

to proceed with such reasonable caution as a prudent man would have exercised under such

circumstances. The jury found the defendant negligent and gave the verdict in favor of the

plaintiff and subsequently the defendant appeals to higher court for challenging the trial

court’s verdict.

Appeal to the appellate court: Defendant’s appeal was whether he in acted "bona fide

to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not

possessing the highest order of intelligence. The defendant’s primary ground for this was the

instructions of the trial judge gave to the jury which required them to take into account the

fact that the defendant was “bound to proceed with such reasonable caution as a prudent man

would have exercised under such circumstances”. According to the defendant, “the jury

should have been directed to consider, not, whether the defendant had been guilty of gross

negligence with reference to the standard of ordinary prudence, a standard too uncertain to

afford any criterion; but, whether he had acted bona fide to the best of his judgment; if he

had, he ought not to be responsible for the misfortune of not possessing the highest order of

intelligence…”.3

Verdict of the appellate court: The new trail goes in favor of the plaintiff. In this

landmark judgment, Chief Justice Tindal, Park J and Vaughan J laid down the rule and

rejected the defendant’s argue and verified the trail court verdict apply according to the  "man

of ordinary prudence. The jury viewed the matter according to reasonable man point of view

of standard as protected by the long-settled principle which implies that a person must use its

property or right likes this so as not to harm the other person before during and after the

acting the any of the acts. Finally, the court held that the argument of defendant could not be

consider and the defendant was liable because of negligence in violation of the standard view

of a reasonable person was a proper question for the jury” that care taken by a prudent man

has always been the rule laid down and as to the supposed difficulty of applying.

Analysis of the case: Instead therefore, of saying that the liability for negligence should

be co-extensive with the judgment of each individual, which would be as variable as the

length of the foot of each individual, we ought rather to adhere to the rule which requires in

all cases a regard to caution such as a man of ordinary prudence should observe.”4

3 Vaughan v. Menlove, 132 Eng. Rep. 490 (C.P. 1837).4 Tindal, C.J., Vaughan v. Menlove, 132 Eng. Rep. 490 (C.P. 1837).

This case was significant for imposing the duty of care on the basis of prudent view of a

ordinary person and hence the defense counsel had argued that there was no duty imposed on

the defendant to be responsible for the exercise of any given degree of care, in contrast to the

duty of care imposed on common carriers and baileys, or under an implied contract. And it

was also important because when it was decided. This case is also important because it was

decided during a transitional period in the history of the common law rule

on negligence and liability. Until the mid- to late 19th century means earlier to this case there

was no very settled standard of tort law in both United State of America and England as well.

Later both the countries started to move forward to make a standard tort law particularly on

standard care of duty to avoid negligence in light of the reasonable man

His statements were further reinforced by his brother judges Justice Park and Justice

Vaughan.

Justice Keen also stated that “Although the facts of this case are very new in specie and these

facts fall within a principle of prudent view of thinking of reasonable man which was long

established that a man must so use his own property as not to injure that of others. It was

proper to leave it to the jury whether with reference to the caution which would have been

observed by a man of ordinary prudence, the defendant had not been guilty of gross

negligence.”5

To this, Justice Vaughan added,

“Everyone takes upon himself the duty of so dealing with his own property as not to injure

the property of others…… The conduct of the prudent man has always been the criterion for

the jury in such cases but it is by no means confined to them…”6

The bench gave validity to their statements by citing various important cases- primarily,

Coggs v. Bernard7 and Tuberville v. Stamp8. Thus, what had an implicit truth been till then

was made into an established standard for the assessment of the parties’ behavior in tort

cases.

5 Keen, J., Vaughan v. Menlove, 132 Eng. Rep. 490 (C.P. 1837).6 Vaughan J., Vaughan v. Menlove, 132 Eng. Rep. 490 (C.P. 1837).7 (2 Ld. Raym. 909).8 91 Eng. Rep. 1072.

Factors of the concept “reasonable man”

3. Definition of the Reasonable Man:

In the case “Blyth v. Birmingham Waterworks Company” the proper definition of the

reasonable man came into light by Justice B. Anderson. This case also described the duty of

standard care which linked the duty of care for negligence and the reasonableness of the man.

According to Justice B. Anderson the reasonable man is one which:

“Negligence is the omission to do something or which a reasonable man by his point of view

guided upon those considerations which ordinarily regulate the conduct of human affairs,

would do, or doing something which a prudent or a reasonable man would not do”

Blyth v. Birmingham Waterworks Company (1856)

It was also important case which stated the reasonableness in tort of negligence and provided

the standard of duty of care and the furthered the definition of the “reasonable man” came 19

years later. This was Blyth v. Birmingham Waterworks Company9 in which Justice B.

9 156 Eng. Rep. 1047 (Ex. 1856).

Alderson’s famous definition of negligence created a permanent nexus between the concept

of the “reasonable man” and the tort of negligence.

Facts of the case: The defendant, Birmingham Waterworks, was the primary supplier of

water to the town of Birmingham, established by statute 7 Geo. 4, c. cix. According to

Section 84, the defendant was obliged to fix a proper fire-plug, which had work satisfactory

for 25 years. Whenever a pipe was laid down in any street and the keys of the same were to

be in the possession of the care-taker of the engine house in or near the said street. Section 87

of the act provided that the pipes were to be compulsorily at least 18 inches below the

surface. Also, according to Section 89, the defendant’s exercise of the powers granted by the

Statute was conditional on the maintenance of the fire-plugs. The mains had to be kept

charged with water at all times whatever the situation they had. They did not earn any profit

from this fire-plug. And the 24th of February, 1856, due to the unprecedented severity of the

frost, same was damaged due to an exceptionally severe frost in 1885. The fire-plug near the

plaintiff’s house was blocked by ice encrusted around the stopper and so did not rise and

because of it water escaped and the plaintiff’s premises were flooded. As a result, water

leaked out and spreaded the surrounding brickwork and flooded the plaintiff’s house.10

Issues raised in the case:

1. First issue raised was that there was a gross negligent toward the defendant for the

proper care of fitting the fire-plug because plug was not fit tight with tube.

2. According to country court that it happened because of improper care of defendant

that he might have to clean the plug before the accident happened. And therefore he

was negligent he was bound according to company’s rule and same was violated.

3. Main issue of the case was based on the man of prudent view.

Consequently, the plaintiff filed for damages in the country Court of Birmingham.

Judgment of the case: The judge instructed the jury to decide the company’s duty of

care, whether the company had used reasonable care to prevent this accident. The jury

decided their verdict in favor of the plaintiff and said that defendant could remove the

abstraction from the plug and the accident can be avoided. The defendant is negligent to

perform the duty of care which lay by the company itself so that he was liable. The

defendant reached to Court of Exchequer for appealing against the verdict of country court.

10 For 25 years before this, the pipes and plugs had functioned perfectly well.

The decision of the prior court was reversed and the absolved from any liability. Court said

that the defendant was not bound to remove the accumulation at that time he might not

foresee the accident.

Definition of negligence according to Justice B. Alderson – “Negligence is the omission to

do something which a reasonable man by his point of view guided upon those considerations

which ordinarily regulate the conduct of human affairs, would do, or doing something which

a prudent and reasonable man would not do”. He stated that the defendants had provided

against such frosts which could not foreseeable for a man of reasonableness and he has been

acting prudently. Such a state of circumstances constitutes a contingency against which no

reasonable man can provide. The result was an accident, for which the defendants cannot be

held liable.11

Analysis of the case:

The case decided by the appellant court was reasonable and justifiable according to given

circumstances for the defendant. The circumstances state that a frost was an accident which

was unavoidable. The condition was like this, where a reasonable man could not foresee a

frost like accident which would have made him to avoid the tragedy.

Conclusion:

Court held that-  

1.  On the basis of the condition provided by the case, the defendant is not liable because

the defendant’s conduct was reasonable under the circumstances.

2.  The contractor is not required to take precautions in Chicago, but is required to do so

in San Francisco.  It is a reasonable thing to do there.

3.  In order to decide whether failing to plan for lightning is negligence, I would want to

know how likely it is that lightning would strike each of these places, what measures

can be taken to prevent harm from lightning, and how expensive those measures are

in relation to the possible benefit that can be obtained from preventing such harm.12

11 Alderson B., Blyth v. Birmingham Waterworks Company, 156 Eng. Rep. 1047 (Ex. 1856).12 http://lawschool.mikeshecket.com/torts/blythvbirminghamwaterworksco.html

 

2. Moral qualities and knowledge:

It determines the proper balance between self interest and altruism. Reasonable man

presumed to be free from over apprehension and overconfidence. Reasonable man should be

known what risks are involved in a particular activity. The perception of the risk could know

by past experience with a specific situation which was approximately similar or depends on

the large extent of the knowledge which judges the similar kinds of the harmful conception.

Like in the context of the Doctor, he usually knows the every situation of the disease. At the

time of operation, first he decide as a reasonable man how to a particular operation. He also

knows the nature of harm or injury which can be suffered by the patient if any kind of

negligence takes place.13

Glasgow v. Muir, 1943.

Facts of the case: This action arises out of an unfortunate accident to six young children

on 15th June 1940 in the old mansion house in the King's Park, Glasgow, which belongs to

the appellants. A group of children were having a day out with adults of their Sunday school

and at the distance of 200 yards from the mansion house, at the top of a hill; there is a shelter,

for the convenience of picnic parties and the general public. And at the back of that hill there

was a boiler house, at which picnic parties were provided boiling water in order to make their

tea. The student and adults went there for the having a picnic the whole team comprises 650

students and about 250 adults from three different places, but the rain had ruined it. The

leader of the trip asked the manager of a tearoom, run by Glasgow Corporation, for the

permission to the children to have their picnic on their premises. She allowed the student to

picnic and the group entered into it. In the tearoom there was a tuck shop (A small food sell

retailer), the window to which was located midway along a corridor. The group of the

children had started to line up along the corridor to buy sweets at the tuck shop. At this time a

large tea urn was being carried along the corridor by two adults, to the main room of the

tearoom. Somehow, and it is still unknown how, the tea urn overturned and scalded a young

girl (Muir).14

13 Johan G. Fleming, The Law of Torts, 107, 8th Edn. ( The Law Book Company Limited), 1992.14 Glasgow Company Ltd. V. Muir, (1943) A.C. 448.

The parents of the girl sued Glasgow Corporation, claiming that they owed the child a duty of

care and that they had breached this.

Issues rose in the case:

1. Was there the negligence towards the Glasgow Company in lifting and handling the

urn? Because the urn was at least 2 feet in height and when filled with hot tea was

became very heavy load, and difficult to carry not only because of its weight but

owing to the risk of some of the hot liquid coming in contact with the hand of a

person carrying it and so causing him to drop his side of the urn.

Judgment:

Lord McMillan stated that, I am unable to agree with Lord Carmont (1942 S. C. at p. 140)

that the appellants could be made liable "even if it were proved that the actual damage to the

invitees happened through the tea-urn being spilt in a way that could not reasonably have

been anticipated

The court held that the manageress in charge of the Glasgow Company owed a duty of care,

generally, to everyone in the tearoom. However, she did not owe a duty of care to the Sunday

school, to take additional precautions to prevent their being injured as a result of her allowing

them to enter. So long as the tearoom was run in the same manner as it was day to day, and to

the same safety standards, she was not required to take extra steps to prevent the incident

which occurred. It was not reasonably foreseeable that allowing the children to come into the

premises would result in one of them being scalded. As such, the incident was put down as an

accident which could not have been prevented.

Analysis of the case:

Court held that the defendant was not liable because the accident was inevitable. Although

there was the negligence by the defendant side and the duty of care required at least of an

invitor (The kind of invitation was licensee because the student and adult entered the

premises for their benefit in the form of picnic).

3. Degree of negligence for reasonableness:

Degree of reasonableness varies in different circumstances. It depends on the foresee ability

of a reasonable man of prudent views. If the reasonable person would not foresee a harmful

consequence of the conduct of defendant, then a defendant will not be negligent in failing to

take precaution. The duty depends on the reasonable foreseeability of the injury and at time

of act if the a person can foresee the injury to the plaintiff , at that time he owes a duty to

prevent his action to avoid the harm to the plaintiff. So the foreseeability of a reasonable

man does not mean for remote possibility. Like in the case of the act of God where an

ordinary person cannot predicate and pause the act of God for example defendant’s house fall

due to Earthquake which caused lot of injuries to his neighbor, in this case the plaintiff

cannot sue his neighbor on the ground of the breach of the duty of care by the side of

defendants. It is not possible for the reasonable man to foresee the act of God. Hence nobody

is liable for the damages. Further it can be proved by the following case. In the following

case degree of reasonable man is described.

Brown v. Kendall (1850)

Brown v. Kendall15is most important case decided on tort liability in 1850. It was USA case

which laid down the principle that the degree of reasonable man varies from different

circumstances.

The facts of the case were as follows- The plaintiff and defendant’s dog were

fighting. The defendant picked up a four feet long stick and started beating dog and started to

beating for purpose of separating so that they can stop to fight. The plaintiff came behind to

the plaintiff and standing only a little distance away and he was looking on the fighting. The

defendant accidentally hit the plaintiff which injured the plaintiff’s eye very badly During

their fight, the dogs came close to where the plaintiff was standing an

d so the defendant also stepped back, all the while striking the dogs. Since his back was to the

plaintiff, the defendant did not see him. Consequently, when he raised his stick over his

shoulder, he hit the plaintiff in the eye, causing severe injury.

Issues raised in the case:

1. Whether the defendant was guilty of trespass for assault and battery?

In the court of common pleas where the main issues raised was this as follows.

15 Brown v. Kendall, 60 Mass., 292, 1850 WL 4572 (Mass.), 6 Cush. 292

2. Whether it was necessary for the defendant to intervene for separation, or that interference

was in a proper manner and whether both parties were exercising the required care. The

jury’s decision was in favor of the plaintiff and so the defendant filed an appeal in the

Supreme Court of Massachusetts where again the same issues were discussed.16

Decision of the Supreme Court: Chief Justice Shaw cited various cases and gave a

decision for the defendant while stating that-

“In using this term, ordinary cares like a prudent man, it may be proper to state, that which

constitutes ordinary care will vary with the circumstances of cases…. To make an accident,

or casualty, or as the law sometimes states it, inevitable accident, it must be such an accident

as the defendant could not have avoided by the use of the kind and degree of care necessary

to the exigency, and in the circumstances in which he was placed.”17

Analysis of the case: In order to separate the dogs the defendant was using due care in

performing his duty for ending the dog fight. The plaintiff should have used reasonable

caution when the defendant was trying to separate the dogs because he could have foreseen

the nature of defendant’s act. The court found that it was proper and lawful to separate the

dogs. However he had hitted the plaintiff on the eye it was an accident and unavoidable at

that time.

Conclusion: The plaintiff did not provide any compensation due to his failure to provide

the court with the needed burden of proof, so he was not entitled to recover the damages.

4. THE OBJECTIVE OF REASONABLE MAN

The most of the human action would be inhabited and inevitable, therefore a reasonable man

would have to avoid and him/ herself to those conduct society recognize and demand the

reasonable precaution because the court will decide if the defendant fell below the standard of

the reasonable man. The standard of care expected from this hypothetical character is

objective; not taking into account the characteristics or weaknesses of the defendant in the

instant case. For example, the standard of care to be expected from a leaner-driver is the same

16Id.17 Shaw, C.J., Brown v. Kendall, 60 Mass., 292, 1850 WL 4572 (Mass.), 6 Cush. 292.

as that required by a qualified driver. It can be determined by measuring the magnitude of

risk involves in particular human action. Reasonable man would have to pause any of his

conduct which he deems as it involves a recognized risk of injury to other person i.e. for a

cricket player to play in the vicinity of the populated area, he can very well recognize the

chance of the occasional six which can injure any person of that area. Similarly in the rainy

season the driver of the bus have to drive slowly because he as a reasonable man know the

risk of harm at the time driving on the grease road. 18

The standard of care or duty of care varies in different kinds of person the tort law of

trespass. Where the standard of care varies from man to man which depends upon the

category of the trespasser. The trespass to land is the name given to the form of trespass

which is constituted by the unjustifiable interference with the possession of the land further a

trespasser is a person who enters or uses the property or premises of other person without his

consent.19

Degree of the duty of care required more in the case of invitee ( Invitee is a person who is

invited, impliedly or expressly for the benefit of invitor or the person who enter the premises

of the other for ultimate benefit to that person) because he enter to the premises for invitor’s

benefit. Invitor has the duty of care avoid in injury to him. Invitor has the duty to warn the

invitee for both obvious and latent danger to his premises. And the other who is known as

licensee (A person who enters to the property of other in order to benefit for himself). Invitor

has lesser amount of duty of care for this kind of trespass. He has to warn only for latent

danger in his premises. But in the case of children a greatest degree of standard of care

required because of their lesser mind development. A person has duty not only warn to the

danger but also he has duty not to approach the children to the danger premises.

Wells v. Cooper   (1958).

Facts of the case: The plaintiff was a fishmonger who sold and delivers the fish to the

home on order, one day, when delivering some fish at the house of the defendant. Defendant

invited him to come inside and take a cup of tea. After the tea, when he was leaving he pulled

the back door to come out, the handle came off in his hand and he lost his balance to handle

18 19 Percy Harry Winfield, Law of Tort, 383,

himself fell down about four feet from an unrolled platform and caused a serious injury. It

was found that the handle has fixed by the defendant, when he was an amateur carpenter and

had no longer experience work. The handle was come off because the anchorage afforded by

the three-quarter inch screws fixing it was not strong enough to withstand the force of the pull

which the plaintiff found it necessary to exert The door was naturally stiff, and was rendered

more so by a strong wind.20

Issues rose in the case: The plaintiff argued that the screws used by the defendant were

too small, and that one inch screws should have been used which was not in the order to

handle that much force of pulling.

(1) First issue, he was in breach of his duty of care as invitor to the plaintiff as invitee so he

would have to proper duty of care.

(2) Irrespective of that relationship the defendant, in carrying out the work of fixing the

handle himself, assumed a duty towards the plaintiff as a lawful visitor to the house to take

reasonable care to protect him against any danger created by the insecurity of the handle.

Judgment:

The relationship subsisting between the defendant and the plaintiff at the time of the accident

took place was admittedly that of invitor and invitee. In these circumstances the defendant

liable on two grounds

1. It was to be said that the defendant was in breach of his duty of care as invitor to the

plaintiff as invitee. Because the insecure and unsafe handle was an unusual danger of

which the defendant knew himself or ought to have known and against which he should

consequently have taken reasonable care to guard the plaintiff.

2. The carrying out the work of fixing the handle himself the defendant, irrespective of the

invitor-invitee relationship, assumed a duty towards the plaintiff as a lawful visitor to the

house to take reasonable care to protect him against any danger created by the insecurity

of the handle.

Judgment of the appellant court:

20 Well v. Cooper, [1958] 2 QB 265.

“The Court of Appeal held that the degree of care and skill required of a householder

undertaking his own repairs was to be measured not by reference to his own degree of

personal competence, but by reference to the degree of care and skill which a reasonably

skilled carpenter might be expected to apply to the work in question. However, Mr Wells

lost the case because the trial judge found that in this case Mr. Cooper did satisfy the

standard of a reasonably skilled carpenter”. 21

Analysis of the case: The judgment of the court was fair and justified because rule of law

says that greater degree of care required when plaintiff acting in the condition of invitee both

obvious and latent danger should be explained to the invitee.

In this case the plaintiff was an invitee (Invitee is a person who trespass the land of invitor for

the benefit to the invitor. Invitation can be implied or expressive) because here he entered to

the house of the defendant for the invitation of having the tea. Hence the duty of care

breached by the defendant however he knew the condition of the door.

Conclusion: Defendant held liable for the breach of the duty of care. Because as facts of

the case mentioned that plaintiff was invited by the defendant for the tea so here the relation

changed to invitor-invitee and the greater degree duty of care is required.

21 Well v. Cooper, [1958] 2 QB 265.

BIBLIOGRAPHY

Johan G. Fleming, The Law of Torts, 107, 8th Edn. ( The Law Book Company Limited), 1992

Percy Harry Winfield, Law of Tort, 383,

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