Normal. by Abbe Brown

The place of normal

This project is focusing on “difference” and the meaning of this has been considered on this blog. Consideration of “difference” begs a question in its turn: different from what? If people with a range of abilities, or more than one performance of a dance, can be deemed “different” this is grounded on there being a norm. How does law approach “normality”? Is it a convenient shorthand, a recognition that we are not identical but that regulation and laws must be prepared which should be applicable to us all? Or based on deeply entrenched invisible prejudice: does the law protect and consider some people, most people, but not all people?

This post is the first of a series which will explore this issue on the blog. In this series, we will look beyond the areas of law which are key to this project (copyright, human rights, equality). This post considers the English law of tort, which applies to civil disputes when there is no contract: when, say, there is a pot hole in the pavement and someone falls in. For there to be liability, a person (here, person who left the hole) must owe a duty of care to the person who is injured (person who fell in), there must be a breach of that duty (leaving hole without appropriate warnings) and there must be relevant damage.

Courts have battled with the question of the duty of care for almost 100 years; briefly, there is a duty of care if it is reasonably foreseeable, in the circumstances, that a person would fall down the hole, that there is a relationship or proximity between the person who fell in and the person who left the hole, and that it is fair, just and reasonable for a duty of care to be imposed. So, no use of “normal”. But what about “reasonable”?

For present purposes, tort is quite open. Courts have found that it is reasonably foreseeable that someone who was blind might fall in (when a hole was left), and found there is a duty of care in respect of them. Also, courts have found that when a worker was blind in own eye, the employer should have regard to the needs of this particular employer and take reasonable steps in respect of them.

If there is a duty, is it breached? Broadly, this means that they were not careful. People have differing standards of carefulness – some are clumsy, some are not, some like risk, some do not. To address this, once again the concept of “reasonableness” arises. Did person who left the hole not do/do something which the “reasonable person” would have done/not done? For example, did they have or not have a barrier and a light, and a marker which would work for a person with a visual impairment?

To assist in such questions, courts have developed a human tester: “the man on the Clapham omnibus”. How would they have acted? Did the person in the case in question act in the same way? This person is reasonably educated, prudent and intelligent. They are not perfect. It is an objective test. The test is applied on the basis of a group or class; however, if a person is particularly intelligent, or is not intelligent, regard is not had to this. Yet some regard will be had to the individual circumstances. Of interest here, if the person who owed the duty was a child, or had a physical disability, then regard would be had to this in assessing what is reasonable. There is uncertainty as to how this really works in respect of disability. If say, someone who has a visual impairment is driving, there is a consensus in tort that the court will not consider the appropriate behaviour of a driver with this impairment; rather, they will consider that it was careless for this person to be driving in the first place.

To the final step: if there is careless activity, for what must the person pay. This is also a complex area, but from perspective of our present priorities, the courts take a wide approach to what damages can be recovered. If a person had a disability in one leg, and because of the accident they lost the other leg, then they could recover compensation for the life style changes required; or if their bones were particularly vulnerable and so more extreme injury was caused then in other possible victims, again the person must pay for that greater loss suffered. The legal shorthand here is the “egg shell skull” rule.

So in summary, tort does seem to be more open to difference than copyright. One issue is whether in considering who might reasonably foreseeably be affected by conduct, courts look sufficiently widely (they include blind people walking down the street, but what of other disabilities?). Does “reasonable” have its limits – and do these limits reflect the attitudes of many for whom when disabilities are invisible and not part of their daily radar?

As indicated, further contributions will be made on normal and related terms from dance and discussion of the key tenets of other legal fields, for example consumer protection. People with disabilities do not exist in an outer rim around the norm. Is there a need for a new, wider, inclusive approach to reasonableness; eperhaps, even, a new normal?

Comments and contributions from readers are most welcome.

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