Fardell v Potts: Difference between revisions

''The Master of the Rolls'': In this case the appellant was a Mrs. Fardell, a woman, who, while navigating a motor-launch on the River Thames collided with the respondent, who was navigating a punt, as a result of which the respondent was immersed and caught cold. The respondent brought an action for [[damages]], in which it was alleged that the collision and subsequent immersion were caused by the [[Negligence|negligent]] navigation of the appellant. In the Court below the learned judge decided that there was evidence on which the jury might find that the defendant had not taken reasonable care, and, being of that opinion, very properly left to the Jury the question whether in fact she had failed to use reasonable care or not. The jury found for the plaintiff and awarded him two hundred and fifty pounds damages. This verdict we are asked to set aside on the ground of misdirection by the learned judge, the contention being that the case should never have been allowed to go to the Jury; and this contention is supported by a somewhat novel proposition, which has been ably, though tediously, argued by Sir Ethelred Rutt.

It must be conceded at once that there is merit in this contention, however unpalatable it may at first appear. The appellant relies largely on ''Baxter’s Case'', 1639 (2 Bole, at page 100), in which it was held that for the purposes of estover the wife of a tenant by the mesne was at law in the same position as an ox or other cattle demenant (to which a modern parallel may be found in the statutory regulations of many railway companies, whereby, for the purposes of freight, a typewriter is counted as a musical instrument). It is probably no mere chance that in our legal text-books the problems relating to married women are usually considered immediately after the pages devoted to idiots and lunatics. Indeed, there is respectable authority for saying that at Common Law this was the status of a woman. Recent legislation has whittled away a great part of this venerable conception, but so far as concerns the law of negligence, which is our present consideration, I am persuaded that it remains intact. It is no bad thing that the law of the land should here and there conform with the known facts of every day experience. The view that there exists a class of beings, illogical, impulsive, careless, irresponsible, extravagant, prejudiced, and vain, free for the most part from those worthy and repellent excellences which distinguish the Reasonable Man, and devoted to the irrational arts of pleasure and attraction, is one which should be as welcome and as well accepted in our Courts as it is in our drawing-rooms-and even in Parliament. The odd stipulation is often heard there that some new Committee or Council shall consist of so many persons ‘one of which must be a woman’: the assumption being that upon scientific principles of selection no woman would be added to a body having serious deliberative functions. That assumption, which is at once accepted and resented by those who maintain the complete equality of the sexes, is not founded, as they suppose, in some prejudice of Man but in the considered judgments of Nature. I find that at Common Law a [[reasonable woman]] does not exist. The contention of the respondent fails and the appeal must be allowed. Costs to be costs in the action, above and below, but not costs in the case.